Arnold v. SSA
Filing
14
MEMORANDUM OPINION & ORDER: (1) 12 Motion for Summary Judgment is DENIED. (2) 13 Motion for Summary Judgment is GRANTED. Signed by Judge Joseph M. Hood on 4/14/2014.(SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
BARRY ARNOLD,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Civil Case No.
5:14-CV-97-JMH
MEMORANDUM OPINION
AND ORDER
***
This
Summary
matter
Judgment
Commissioner’s
is
before
[DE
12,
denial
the
13]
of
Court
on
her
upon
cross-motions
Plaintiff’s
application
appeal
for
of
for
the
disability
insurance benefits. [Tr. 8-21].1 The Court, having reviewed the
record
and
being
otherwise
sufficiently
advised,
will
deny
Plaintiff’s motion and grant Defendant’s motion.
I. Overview of the Process and the Instant Matter
The
Administrative
Law
Judge
("ALJ"),
in
determining
disability, conducts a five-step analysis:
1.
An individual who is working and engaging in
substantial
gainful
activity
is
not
disabled,
regardless of the claimant’s medical condition.
2.
An individual who is working but does not have a
"severe" impairment which significantly limits his
physical or mental ability to do basic work activities
is not disabled.
1
These are not traditional Rule 56 motions for summary judgment. Rather,
it is a procedural device by which the parties bring the administrative
record before the Court.
3.
If an individual is not working and has a severe
impairment which "meets the duration requirement and
is listed in appendix 1 or is equal to a listed
impairment(s)", then he is disabled regardless of
other factors.
4.
If a decision cannot be reached based on current
work activity and medical facts alone, and the
claimant has a severe impairment, then the Secretary
reviews the claimant’s residual functional capacity
and the physical and mental demands of the claimant’s
previous work. If the claimant is able to continue to
do this previous work, then he is not disabled.
5.
If the claimant cannot do any work he did in the
past because of a severe impairment, then the
Secretary considers his residual functional capacity,
age, education, and past work experience to see if he
can do other work. If he cannot, the claimant is
disabled.
Preslar v. Sec’y of Health & Hum. Servs., 14 F.3d 1107, 1110
(6th
Cir.
1994)
(citing
20
C.F.R.
§
404.1520
(1982)).
“The
burden of proof is on the claimant throughout the first four
steps of this process to prove that he is disabled.” Id. “If the
analysis
claimant
reaches
is
the
not
fifth
disabled,
step
without
the
burden
a
finding
that
the
transfers
to
the
Secretary.” Id.
In the instant matter, the ALJ determined that Plaintiff
did
not
engage
in
substantial
gainful
activity
during
the
relevant time period under step one. [Tr. 14]. Under step two,
the ALJ found that Plaintiff’s intermittent explosive disorder,
mild visual disturbances due to photosensitivity, status-post
2
myocardial
infarctions,
and
history
of
substance
abuse
were
“severe” as defined by the agency’s regulations. [Tr. 14]; 20
CFR § 416.920(c).
During step three of the analysis, the ALJ considered all
of Plaintiff’s impairments and decided that none of them met the
criteria listed in 20 C.F.R. pt. 404, subpt. P, app. 1. [Tr. 1416]. After further review of the record, the ALJ concluded at
step
four
that
Plaintiff
had
a
residual
functional
capacity
(“RFC”) to perform a full range of work at all exertional levels
but with the following nonexertional limitations:
He has a good ability to follow work rules. He has a
fair ability to relate to co-workers, deal with the
public, use judgment, interact with supervisors, and
deal with work stresses. He has a good ability to
function independently. He has a fair to good ability
to maintain attention and concentration, and make
performance adjustments, understand, remember, and
carry out complex job instructions. He has a good
ability to understand, remember, and carry out
detailed but not complex job instructions and simple
instructions. He has [sic] good ability to maintain
his personal appearance. He has a fair ability to
behave in an emotionally stable manner, to relate
predictably in social situations, and demonstrate
reliability. He would work best in a non-public
setting, and would not work well with large numbers of
people such as customer service jobs. His job would be
performed best in a casual, non-confrontational work
setting. The claimant’s mild visual disturbance due to
photosensitivity will still allow the claimant to work
in indoor settings with controlled light, but he
should avoid prolonged exposure to bright sunlight.
[Tr. 16].
The ALJ found that Plaintiff was able to perform his past
relevant work as a material handler and machine operator. [Tr.
3
22]. Thus, the ALJ determined that Plaintiff is not disabled
under the Social Security Act. [Tr. 23].
II. Standard of Review
In
reviewing
the
ALJ’s
decision
to
deny
disability
benefits, the Court may “not try the case de novo, nor resolve
conflicts in the evidence, nor decide questions of credibility.”
Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th
Cir. 1994) (citations omitted). Instead, judicial review of the
ALJ’s decision is limited to an inquiry into whether the ALJ’s
findings were supported by substantial evidence, 42 U.S.C. §
405(g); Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001)
(citations omitted), and whether the ALJ employed the proper
legal standards in reaching his conclusion. See Landsaw v. Sec’y
of Health & Hum. Servs., 803 F.2d 211, 213 (6th Cir. 1986).
"Substantial evidence is more than a scintilla of evidence but
less than a preponderance; it is such relevant evidence as a
reasonable
mind
might
accept
as
adequate
to
support
a
conclusion." Cutlip, 25 F.3d at 286 (citations omitted).
III. Background
Plaintiff filed a Title II application for disability and
disability insurance benefits as well as a Title XVI application
for
supplemental
security
income,
alleging
beginning on December 15, 2007. [Tr. 138].
total
Plaintiff
disability
was
48
years of age at the alleged disability date, [Tr. 111; 138], and
4
is
a
high
course
in
school
graduate
Carpentry.
and
[Tr.
has
38].
completed
a
Plaintiff
trade
has
school
past
work
experience in the Navy as a machinist mate, and in construction,
as a laborer, machine operator, post office maintenance worker,
and worker who removes hazardous waste. [Tr. 39; 353]. Plaintiff
claims
he
has
schizophrenia,
become
disabled
anxiety
and
disorder,
unable
and
to
mental
work
and
due
to
emotional
problems. [Tr. 352].
Plaintiff’s
claims
were
denied
initially
and
upon
reconsideration. Plaintiff requested a hearing, which took place
on August 24, 2010. [Tr. 138]. ALJ Cam Oetter denied Plaintiff’s
claim on September 23, 2010. [Tr. 135]. Plaintiff sought review
with the Appeals Council, which remanded the case on October 25,
2011. [Tr. 153]. ALJ Ronald Kayser heard the case on remand,
conducting
a
hearing
on
September
4,
2012.
The
ALJ
heard
testimony from Plaintiff, medical expert Dr. Doug McKeown, and
the vocational expert (“VE”), William Kiger. The VE testified
that a person with an RFC equivalent to the ALJ’s finding for
Plaintiff
could
perform
Plaintiff’s
past
work
as
a
material
handler and machine operator. [Tr. 102].
After considering all the evidence in the administrative
record, including the testimony of the plaintiff and the VE, the
ALJ issued an unfavorable decision denying disability insurance
benefits on September 21, 2012. [Tr. 9]. The Appeals Council
5
denied Plaintiff’s request for review on January 28, 2014. [Tr.
1].
Plaintiff
this
case
has
is
exhausted
ripe
for
her
review
administrative
under
42
remedies,
U.S.C.
and
§§405(g)
&
1383(c)(3).
IV. Analysis
Plaintiff argues that the ALJ erred (1) by relying on the
testimony of Dr. Doug McKeown and (2) in its handling of the
medical
opinion
evidence
regarding
Plaintiff’s
psychological
impairments.
1. The ALJ
McKeown.
properly
relied
upon
the
testimony
of
Dr.
The ALJ called psychologist Dr. Douglas McKeown to testify
as
a
witness
at
Plaintiff’s
hearing.
[Tr.
79-99].
Plaintiff
argues Dr. McKeown is not neutral, reliable, or credible, and
contends, therefore, that it was improper for the ALJ to rely on
his testimony. In support, Plaintiff cites to several cases in
which ALJ Kayser called Dr. McKeown as a witness, Dr. McKeown
then provided an opinion that was inconsistent with the treating
and examining physician, and each time Dr. McKeown testified
that the claimant’s mental impairment was mild to moderate. See
Chambers ex rel. M.V.T. v. Astrue,
No. 1:10-CV-593, 2012 WL
510901, at *2 (S.D. Ohio Feb. 15, 2012); Nesbitt v. Astrue, No.
CIV.A
308CV629-J,
2010
WL
989155,
at
*3
(W.D.
Ky.
Mar.
15,
2010); Young v. Astrue, No. CIV.A. 08-350-JMH, 2009 WL 1424426
6
(E.D. Ky. May 21, 2009); Noble v. Colvin, No. 5:12-CV-329-JMH,
2013 WL 3771496, at *4 (E.D. Ky. July 17, 2013).
“Although due process requires an impartial decision-maker
in judicial and quasi-judicial proceedings, the court must start
from
the
unbiased,
presumption
and
that
that
honesty
administrative
and
integrity
adjudicators
exist
among
are
them.”
Wells v. Apfel, 234 F.3d 1271 (6th Cir. 2000) (unpublished case)
(citing Schwiker v. McClure, 456 U.S. 188, 195-96 (1982)). It is
the Plaintiff’s burden to provide “convincing evidence that a
risk of actual bias or prejudgment is present.” Bailey v. Comm'r
of Soc. Sec., 413 F. App'x 853, 856 (6th Cir. 2011) (quoting
Navistar Int'l Transp. Corp. v. U.S.E.P.A., 941 F.2d 1339, 1360
(6th Cir. 1991)).
In all but one of the cases cited by Plaintiff, the court
found that Dr. McKeown’s opinion was supported by substantial
evidence and the ALJ’s reliance on his testimony was not error.
Chambers, 2012 WL 510901 at *4; Young, 2009 WL 1424426 at *5;
Noble, 2013 WL 3771496 at *4.2 The court in Nesbitt identified
several
problems
with
Dr.
McKeown’s
testimony,
but
those
problems related to Dr. McKeown’s opinion on the particularities
of the plaintiff’s claim and the medical record in that case.
2
In Nesbitt, the court remanded the case due, in part, to the ALJ’s reliance
on Dr. McKeown’s opinion. The court found that Dr. McKeown had not reviewed
the entire record, did not provide an explanation for his opinions, opined on
the medication dosage prescribed to the claimant although he misread the dose
and is not a medical doctor, and incorrectly articulated that the basis for
GAF scores was self-reporting. See Nesbitt, 2010 WL 989155 at *4.
7
Nesbitt, 2010 WL 989155 at *4. The court did not comment upon or
attack Dr. McKeown’s credibility otherwise. Id. The Court also
notes that Dr. McKeown holds a Ph.D. in clinical psychology and
has many years of experience as a psychologist. [Tr. 291-92].
Accordingly, although there is a pattern in ALJ Keysar’s use of
Dr.
McKeown
as
a
medical
expert,
this
pattern
appears
to
generally support Dr. McKeown’s credibility rather than diminish
it and is, therefore, not enough to convince the Court that the
ALJ’s
reliance
on
Dr.
McKeown’s
opinions
is
cloaked
in
prejudgment or bias.
Furthermore, it is “for the ALJ, and not the reviewing
court,
to
evaluate
determinations
must
the
credibility
find
support
of
in
witnesses,”
the
record.”
but
“such
Rogers
v.
Comm'r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007) (citing
SSR 96-7P (S.S.A. July 2, 1996)).
The ALJ gives great weight to the opinion of Dr. McKeown,
finding “his opinions are most consistent with the evidence as a
whole.” [Tr. 21]. In particular, the ALJ noted Dr. McKeown’s
conclusion that Plaintiff is “stable” and that Plaintiff has the
“ability to work simple and some detailed job duties in a nonpublic
work
setting.”
[Tr.
21].
The
Court
agrees
that
Dr.
McKeown’s opinions are supported by the record.
First, the records from Bluegrass South Comprehensive Care
and Boyle County Comprehensive Care, where Plaintiff received
8
primary treatment from Dr. Stuart Larson, support Dr. McKeown’s
conclusion.
These
records
stressors
and
occasional
Plaintiff
was
typically
indicate
that
in
incidents
of
anger
functioning
at
a
spite
or
of
life
aggression,
moderate
level
and
stable on medication, often described as doing well and with a
pleasant affect. [Tr. 688; 740; 742; 744; 746; 764; 766; 821;
823; 889; 891; 893; 895-905].
Second, Plaintiff’s own testimony supports Dr. McKeown’s
conclusion. At the hearing, Plaintiff testified that he does
mowing and maintenance around the church and attends church each
Sunday.
[Tr.
52-53].
He
keeps
in
contact
with
his
family,
especially his brother and mother and testified that he often
visits them or calls them on the phone for hours at a time. [Tr.
65].
He
stated
that
he
is
able
to
feed,
dress,
and
bathe
himself, do his own laundry and grocery shopping. [Tr. 54].
Plaintiff also stated that the medication he has been on since
the 2006 attack has subdued his anger, although it causes him to
feel sleepy. [Tr. 63-65]. These abilities and limitations are
also similar to the Function Report he completed in May 2011.
[Tr. 457-65].
Third,
Dr.
McKeown’s
opinion
is
consistent
with
the
conclusion reached by the state agency physicians who opined
that Plaintiff could sustain attention to complete repetitive
object-focused
tasks
for
two
hour
9
segments,
work
alone
or
tolerate a small group of co-workers in a non-public setting,
and adapt to routine changes. [Tr. 691; 697; 716].
Plaintiff attacks Dr. McKeown’s conclusion by noting the
fact
that
Plaintiff
was
admitted
for
treatment
at
mental
hospitals on five occasions on court order. [Plaintiff’s Brief,
DE 12 at 4].3 The fact that Plaintiff was court ordered to seek
treatment on five occasions over approximately four years does
not, in and of itself, indicate that Plaintiff is incapable of
work with the limitations described by the ALJ in the RFC. Also,
the circumstances surrounding at least one of the court orders
was that Plaintiff had been off medication for six weeks, [Tr.
718], and in another instance in 2010, Plaintiff was admitted to
Eastern State because he self-reported, calling the police to
take him to the hospital because we was not feeling well. [Tr.
785]. Furthermore, the discharge reports from these institutions
indicate that after treatment and an adjustment to medication in
several
instances,
Plaintiff
was
discharged
exhibiting
good
concentration, judgment, and affect. [Tr. 550; 623; 646; 661;
788; 807]. This supports Dr. McKeown’s conclusion that these
3
Plaintiff fails to cite to the record in support of his argument, although
the Court’s review of the record indicates Plaintiff was court ordered to
seek treatment after expressing anger in his doctor’s office in 2006, [Tr.
621], and was admitted by court order on a few other instances as well. [Tr.
549 (reasons for court order unexplained)]; [Tr. 645, (“having feelings about
hurting others”)]; Tr. 656 (making verbal threats to harm others”)]; [Tr.
718, being off medication after having been in jail].
10
visits, essentially, helped to “stabilize” the Plaintiff. [Tr.
84].
Additionally, at one point in his testimony, Dr. McKeown
supports his conclusion that Plaintiff is “stable” by suggesting
that
Plaintiff’s
anger
is
amenable
to
counseling.
Plaintiff
argues that Dr. McKeown states no basis for this statement and
no
other
physician
supports
this
theory.
On
the
contrary,
counseling or therapy is recommended, or at least counseling
appointments are mentioned, on multiple occasions throughout the
medical record. [See e.g., Tr. 625; 647; 661; 752-60]. The fact
that Dr. McKeown mentions counseling, therefore, does not in and
of itself reduce his credibility.
Finally,
Plaintiff’s
Plaintiff
church
also
activity
notes
to
Dr.
McKeown’s
support
his
reliance
opinion
on
that
Plaintiff can sustain steady employment. Yet, it is perfectly
acceptable
to
consider
a
evaluating
the
claimant’s
claimant’s
assertion
social
of
pain
activities
or
ailment.
when
See
Keeton v. Comm'r of Soc. Sec., 583 F. App'x 515, 532 (6th Cir.
2014) (citing Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 532
(6th Cir. 1997)). Here, Dr. McKeown acknowledged Plaintiff could
sustain employment in a small, non-public setting, much like
Plaintiff’s
activities
at
church.
McKeown to rely on this information.
11
It
was
reasonable
for
Dr.
Contrary
to
the
Plaintiff’s
assertion,
the
ALJ
did
not
adopt Dr. McKeown’s testimony “word for word” but relied upon it
because it was consistent with the medical record as a whole.
Indeed,
on
onions
the
are
Court’s
supported
review
by
of
the
the
record,
record.
Dr.
Thus,
McKeown’s
the
ALJ’s
determination of his credibility, and use of his testimony at
the hearing on the matter, is free of error.
2. The ALJ properly weighed the medical opinion evidence.
The ALJ assigned great weight to the non-examining medical
expert
Dr.
McKeown
and
assigned
significant
weight
to
the
opinions of the non-examining state agency medical consultants.
The
ALJ
Larson’s
assigned
opinion
little
and
weight
to
consultative
treating
examiner
Dr.
physician
Dr.
Fishkoff,
and
assigned “some weight” to the opinion of consultative examiner
Dr. Cabezas.
Plaintiff
opinion
argues
evidence.
that
First
the
the
ALJ
Court
improperly
will
weighed
address
the
this
weight
assigned to Dr. Larson, the treating physician. “An ALJ must
give the opinion of a treating source controlling weight if he
finds
the
clinical
opinion
and
‘well-supported
laboratory
diagnostic
by
medically
techniques’
acceptable
and
‘not
inconsistent with the other substantial evidence in [the] case
record.’” Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th
Cir. 2004) (quoting 20 C.F.R. § 404.1527(c)(2)). The ALJ may
12
assign less weight to a treating source, but in so doing must
provide
specific
reasons.
Id.
Here,
the
ALJ
assigned
little
weight to Dr. Larson’s opinion that Plaintiff was disabled from
a psychiatric standpoint because it was not supported by the
records
from
Plaintiff
Dr.
denied
Larson’s
treatment,
significant
which
problems,
and
indicated
appeared
that
to
be
handling medication well and in a stable condition. [Tr. 20].
The ALJ’s reasons are clearly and specifically provided, and
they are supported by substantial evidence. [Tr. 688; 740; 742;
744; 746; 764; 766; 821; 823; 889; 891; 893; 895-905]. The Court
finds no error.
Similarly, the Court finds no error in the ALJ’s weighing
of
the
opinions
of
consultative
examiners
Drs.
Fishkoff
and
Cabezas. Dr. Cabezas opined Plaintiff’s ability to tolerate work
stresses would be “rather limited”, [Tr. 643], and Dr. Fishkoff
found Plaintiff had several serious impairments. [Tr. 880-81].
The ALJ determined that these conclusions were not consistent
with the medical record. [Tr. 21]. Notably, these opinions are
inconsistent with the conclusions of the state agency physicians
who opined that Plaintiff, although with limitation, was not
disabled.
[Tr.
691;
697;
716].
“State
agency
medical
and
psychological consultants . . . are highly qualified physicians
and
psychologists
who
are
also
experts
in
Social
Security
disability evaluation.” 20 C.F.R. § 404.1527(e)(2)(i). The ALJ’s
13
decision to assign less weight to the consultative examiner’s
opinions
is
physicians,
supported
as
well
by
as
the
the
opinions
of
rest
the
of
the
state
medical
agency
record.
Accordingly, the Court finds no error in the weighing of the
medical opinion evidence.
V. Conclusion
Accordingly, for the foregoing reasons, IT IS ORDERED:
(1)
that Plaintiff’s Motion for Summary Judgment [DE 12]
be, and the same hereby is, DENIED; and
(2)
that Defendant’s Motion for Summary Judgment [DE 13]
be, and the same hereby is, GRANTED.
This the 14th day of April, 2015.
14
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