New v. SSA
Filing
18
MEMORANDUM OPINION & ORDER: 1) 16 Objections to 15 Report and Recommendation are OVERRULED. 2) 15 Report and Recommendation is ADOPTED. 3) 11 Motion for Summary Judgment is DENIED. 4) 12 Motion for Summary Judgment is GRANTED. 5) Judgment in favor of SSA will be entered. Signed by Judge Gregory F. VanTatenhove on 9/29/2015. (SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
JANIA NEW,
Plaintiff,
V.
CAROLYN COLVIN, Acting
Commissioner of Social Security,
Defendant.
)
)
)
Civil No. 14-202-GFVT
)
)
MEMORANDUM OPINION
)
&
)
ORDER
)
)
)
)
*** *** *** ***
Jania New brought this action pursuant to 42 U.S.C. §405(g) to challenge a final decision
of the Defendant, the Commissioner of Social Security (“Commissioner”), which denied her
application for supplemental security income. [R. 1]. For the reasons set forth below, the Court
will deny New’s Motion for Summary Judgment [R. 11] and grant the Commissioner’s [R. 12].
I
Consistent with the Court’s practice and pursuant to 28 U.S.C. § 626(b)(1), this matter
was referred to United States Magistrate Judge Edward B. Atkins for the issuance of a Report
and Recommendation (“R&R”) containing his proposed findings and recommendations
regarding the parties’ cross-motions for summary judgment. [R. 14.] Magistrate Judge Atkins
filed his R&R [R. 15] on August 25, 2015. As is her right, New timely objected to this
recommended disposition [R. 16], and the Commissioner responded [R. 17]. This Court must
now make a de novo determination of those specific portions of the R&R to which objections are
made. 28 U.S.C. § 636(b)(1).
II
As an initial matter, objections to an R&R must be specific. Mira v. Marshall, 806 F.2d
636, 637 (6th Cir. 1986). A specific objection “explain[s] and cite[s] specific portions of the
report which [counsel] deem[s] problematic.” Robert v. Tesson, 507 F.3d. 981, 994 (6th Cir.
2007) (quoting Smith v. Chater, 121 F.3d 709, 1997 WL 415309 at *2 (6th Cir.1997)). A
general objection that does not identify a specific concern with the R&R is not permitted because
it renders the Magistrates recommendations useless, duplicates the Magistrate’s efforts, and
wastes judicial economy. Howard v. Secretary of Health and Human Services, 932 F.2d 505,
509 (6th Cir.1991).
New’s objection herein is singular and specific. She contends that the ALJ erred by
failing to properly consider whether medical evidence confirmed the severity of her pain.
Specifically, New argues the ALJ misapplied the test laid out in Duncan v. Secretary of Health &
Human Services, 801 F.2d 847 (6th Cir. 1986), by failing to consider Dr. Rick Pellant’s
assessment that New’s spinal stenosis could be the source of her pain. The Court has reviewed
the ALJ’s decision and finds no error.
A
In Duncan, the Sixth Circuit set out a two-part test for evaluating subjective complaints
of pain:
First, we examine whether there is objective medical evidence of an underlying medical
condition. If there is, we then examine: (1) whether objective medical evidence confirms
the severity of the alleged pain arising from the condition; or (2) whether the objectively
established medical condition is of such a severity that it can reasonably be expected to
produce the alleged disabling pain.
801 F.2d at 853. If the claimant establishes one of those requirements, the SSA regulations
direct the ALJ to consider various factors in evaluating the claimant's subjective statements about
2
the intensity and persistence of pain or other symptoms. See 20 C.F.R. §§ 404.1529(a), (c)(2)(3), 416.929(c); Felisky v. Bowen, 35 F.3d 1027, 1039–40 (6th Cir.1994) (listing factors to
consider include the claimant's daily activities; location, duration, frequency, and intensity of
pain; precipitating and aggravating factors; type, dosage, effectiveness, and side effects of any
medication taken to alleviate the pain; treatment other than medication the claimant has received
for pain; and any other measures the claimant uses to relieve the pain). “[A]n ALJ is not required
to accept a claimant's subjective complaints and may properly consider the credibility of a
claimant when making a determination of disability.” Jones, 336 F.3d 469, 475–76 (6th
Cir.2003) (citing Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.1997)). Importantly,
it is within the province of the ALJ, rather than the reviewing court, to evaluate the claimant's
credibility. Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 247 (6th Cir.2007); see also Walters,
127 F.3d at 531.
B
First, the ALJ concluded that “there [was] objective medical evidence of an underlying
medical condition.” 801 F.2d at 853. Specifically, the ALJ recognized that New suffered from
“lower back pain,” which he referred to at other parts in his decision more specifically as
“degenerative disc disease of the lumbar spine.” [R. 21; R. 27.] While the Court is not
necessarily convinced that this is New’s complaint, the Government seems to believe that New
objects to the terminology that the ALJ used in describing her underlying medical condition. See
R. 17 at 1. To the extent that this is New’s objection (that the ALJ did not refer to her condition
as “spinal stenosis”) she asks the Court to consider form over substance. While the ALJ did not
use the words “spinal stenosis” in describing her condition, he both considered the spinal
stenosis diagnoses in his decision and, as noted by the Government, proceeded to evaluate her
3
complaints of pain and functional limitations related to her low back pain. [R. 12 at 4.] As such,
what words were used in referring to her underlying medical condition are really irrelevant.
Next, the ALJ considered “(1) whether objective medical evidence confirms the severity
of the alleged pain arising from the condition; or (2) whether the objectively established medical
condition is of such a severity that it can reasonably be expected to produce the alleged disabling
pain.” 801 F.2d at 853. According to New, “the ALJ erred because he did not consider the first
criteria—whether medical evidence confirmed the severity of the pain.” [R. 11-1 at 3.] New is
wrong to think that the ALJ had to consider both parts because, “these two parts are alternatives;
[New] only has to meet one of the two elements.” Felisky, 35 F.3d at 1039; see also Sharp v.
Sec'y of Health & Human Servs., 9 F.3d 109 (6th Cir. 1993) (prongs are alternative); Gentry v.
Sec'y of Health & Human Servs., 916 F.2d 712 (6th Cir. 1990) (same). As acknowledged by
New, the ALJ concluded that she satisfied the second prong, finding that her “medically
determinable impairments could be expected to cause the alleged symptoms.” [R. 11-1 at 3; Tr.
27 (emphasis added).]
As is consistent with the regulations, the ALJ then went on to evaluate whether New’s
subjective statements about the intensity and persistence of her pain and symptoms were, in fact,
consistent with her impairment. See 20 C.F.R. §§ 404.1529(a), (c)(2)-(3), 416.929(c). The ALJ
concluded New’s subjective complaints were not fully credible to the extent that they were
inconsistent with his residual functional capacity. [Tr. 27.] In a very thorough decision, the ALJ
explained his rationale. According to the ALJ, the medical evidence failed to “fully support the
claimant’s allegations of limitations due to back pain.” [Tr. 27.] He addressed an April 2011
MRI that showed, amongst other things, “mild spinal and mild bilateral neuroforaminal
stenosis.” [Tr. 27 (citing Ex. 12F).] He considered a June 2011 consultative examination with
4
Dr. Nold, and also discussed New’s relatively successful management of her pain with
medication. [Tr. 28.] The ALJ further considered a September 2012 examination, where Dr.
Pellant “assessed that the claimant had chronic pain syndrome, low back pain, lumbar facet
arthropathy, and lumbar spinal stenosis.” [Tr. 28.] While the ALJ did not refer to the MRI
supporting Dr. Pellant’s assessment at this particular point in his decision, he had discussed that
MRI specifically earlier in his decision, explaining that “[w]hile the MRI showed some evidence
of spinal stenosis, [the] medical record revealed other evidence showing that the claimanat
functioned above the level of the listing.” [Tr. 23.] The ALJ then provided the following
specific reasons why Dr. Pellant’s findings were “indicative of less limitations than the claimant
alleged”:
For example, Dr. Pellant found no asymmetry or atrophy in the spine. Dr. Pellant noted
that the claimant’s range of motion with flexion, extension, lateral flexion, and rotation
appeared within functional limits. Seated straight leg raise testing was negative. The
claimant was able to rise form a seated to standing position without difficulty and could
perform a regular tandem reciprocating gait. Overall, Dr. Pellant opined that the
claimant’s neuromusuloskeletal examination was intact with no progressive neurological
deficit.
[Tr. 28-29 (citing Ex. 32F.)] Accordingly, the ALJ concluded that New’s complaints about the
intensity and persistence of her low back pain (including spinal stenosis) were not fully credible,
and that New could perform a range of light work. [Tr. 29.]
III
Contrary to New’s objection, the ALJ did not err in his application of Duncan, but even if
he had erred, any error would be harmless as he went on to consider whether New’s subjective
statements about the intensity and persistence of her pain and symptoms were, in fact, consistent
with the evidence supporting her impairment. As earlier noted, evaluating the claimant's
credibility is within the province of the ALJ, rather than the reviewing court. Rogers v. Comm'r
5
of Soc. Sec., 486 F.3d 234, 247 (6th Cir.2007); see also Walters.
Thus, after reviewing the record, the Court finds that the ALJ’s decision finding
New not disabled is supported by substantial evidence. Even if the evidence could also support
another conclusion, the ALJ’s decision must stand because the evidence reasonably supports his
conclusion. See Her, 203 F.3d at 389-90; Casey v. Sec'y of Health & Human Servs., 987 F.2d
1230, 1233 (6th Cir. 1993).
Accordingly, and the Court being sufficiently advised, it is hereby ORDERED as
follows:
1.
The Plaintiff’s Objections to the Magistrate’s Report and Recommendation
[R. 16] are OVERRULED;
2.
The Magistrate Judge’s Report and Recommendation [R. 15] is ADOPTED as
and for the opinion of this Court;
3.
The Plaintiff’s Motion for Summary Judgment [R. 11] is DENIED;
4.
The Commissioner’s Motion for Summary Judgment [R. 12] is GRANTED; and
5.
JUDGMENT in favor of the Commissioner will be entered contemporaneously
herewith.
This 29th day of September, 2015.
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?