Swartz v. SSA

Filing 20

MEMORANDUM OPINION & ORDER: (1) GRANTING the Commissioner's 16 Motion for Summary Judgment; (2) DENYING pla's 15 Motion for Summary Judgment. Signed by Judge Joseph M. Hood on 8/5/15.(KJR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
AMY JOLENE SWARTZ,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
***

***

Civil Action No.
5:14-CV-284-JMH
MEMORANDUM ORDER AND OPINION

***

This matter is before the Court upon cross-motions for Summary
Judgment [DE 15, 16] on Plaintiff’s appeal of the Commissioner’s
denial of her application for supplemental security income and
disability insurance benefits.1

For the reasons discussed below,

the Commissioner’s motion will be granted and Plaintiff’s motion
will be denied.
I. Overview of the Process and the Instant Matter
The

Administrative

Law

Judge

(ALJ),

in

determining

disability, must conduct 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

1

These are not traditional Rule 56 summary judgment motions.
Rather, it is a procedural device by which the parties bring the
administrative record before the Court.

physical or mental ability to do basic work activities
is not disabled.
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 & Human 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

reaches the fifth step without a finding that the claimant is not
disabled, the burden transfers to the Secretary.”
The

ALJ

determined

that

Plaintiff

had

Id.
not

engaged

in

substantial gainful activity since March 2001, the alleged onset
date of her disability.

Considering step two, the ALJ found that

Plaintiff had the severe impairments of fibromyalgia, asthma,
anxiety, and depression.

The ALJ concluded, however, that none of

Plaintiff’s impairments met or medically exceeded the severity of

2

an impairment listed in 20 C.F.R. Part 404 Subpart P, Appendix 1.
Considering

the

medical

evidence,

the

ALJ

determined

that

Plaintiff had the residual functional capacity (RFC) to perform
less than the full range of light work.

Specifically, the ALJ

determined that Plaintiff can lift/carry no more than 20 pounds
occasionally and 10 pounds frequently; can stand/walk no more than
six hours out of an eight-hour day and for no more than one hour
at a time; can sit for no longer than six hours out of an eighthour day and for no more than one hour at a time; can push/pull up
to

exertional

limitations;

can

do

no

more

than

occasional

balancing, stooping, kneeling, crouching, crawling, or climbing
ramps or stairs, but no climbing of ladders, ropes or scaffolds;
no work around dangerous, moving machinery or unprotected heights;
no work around dusts, fumes, gases, odors, or other pulmonary
irritants; no work around concentrated heat or cold; no more than
simple, routine work; no more than occasional interaction with coworkers or supervisors; no more than occasional interaction with
the general public; no more than occasional decision making or use
of judgment; and no more than occasional, if any, change in the
workplace setting.
The ALJ presented this hypothetical to a vocational expert
(VE) and, based on the VE’s opinion, determined that although
Plaintiff was unable to perform any past relevant work, there are

3

jobs that exist in significant numbers in the national economy
that she can perform and, therefore, she is not disabled.
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 & Human 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 & Human 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
At the time of the ALJ’s decision, Plaintiff was thirty-six
years old and lived with her husband and two sons.

She had her

GED and her previous employment included work in accounting and
telemarketing.

Plaintiff reported an inability to work due to

depression and anxiety, fibromyalgia and chronic fatigue.
4

She

reported

that

her

most

debilitating

impairment,

however,

was

“intestinal problems,” which caused her to spend excessive time in
the bathroom several days per week.
ALJ,

she

reported

that

this

During her hearing with the

problem

was

helped

somewhat

by

medication. She also reported that she experienced anxiety attacks
every other day, which were worsened by “everyday life.”
Plaintiff’s primary care physician was Jeffrey McGinnis, MD.
Treatment notes in the record range from 2001 to 2011.

Dr.

McGinnis and his physician’s assistant treated Plaintiff a number
of

times

over

the

years,

prescribing

referrals on a few occasions.
a

gastroenterology

complaints

and

consult

also

medications

and

making

Specifically, Dr. McGinnis ordered
related

referred

to

Plaintiff

Plaintiff’s
to

Pathways

intestinal
Inc.

for

outpatient counseling.
Andrew Koerber, M.D. performed a consultative examination of
Plaintiff on behalf of the Administration in September 2011.

Dr.

Koerber found that Plaintiff’s strength and range of motion were
normal and that she had the ability to perform exertional workrelated

activities

such

as

sitting,

lifting, and carrying objects.

standing,

moving

about,

David Atcher, M.D. performed a

psychiatric consultative examination also in September 2011.

He

assigned a Global Assessment Functioning score of 70, finding that
she could reliably carry through with simple tasks, as opposed to
complex tasks and directions.

Further, Dr. Atcher opined that
5

Plaintiff would not respond well to the typical pressures of a
work environment.
IV.

ANALYSIS
A.

The ALJ provided sufficient reasons for discounting Dr.
McGinnis’s opinion.

The “treating source rule” requires an ALJ to give the opinion
of a treating physician controlling weight if the opinion is “wellsupported
diagnostic

by

medically

techniques”

acceptable
and

“not

clinical

and

inconsistent

substantial evidence in [the] case record.”

laboratory
with

other

Wilson v. Comm’r of

Social Sec., 378 F.3d 541, 544 (6th Cir. 2004).

If the treating

source’s opinion is not given controlling weight, the ALJ must
provide good reasons for weight given.

Id.

The factors to be

considered include the length of the treatment relationship and
the

frequency

of

examination,

the

nature

and

extent

of

the

treatment relationship, the supportability of the opinion and the
consistency of the opinion with the overall record, and whether
the treating source specializes in the matters at issue.

Id.

While the ALJ could have provided a more detailed analysis of
his reasons for rejecting Dr. McGinnis’s opinion, he provides
sufficient reasons for according the opinion little weight.

For

instance, the ALJ notes that Dr. McGinnis’s opinions rest primarily
on

Plaintiff’s

testing.

subjective

complaints

than

objective

Although fibromyalgia is one of Plaintiff’s primary

6

rather

diagnoses and reasons for seeking disability benefits, there is no
medical documentation indicating that Dr. McGinnis, or any other
practitioner, performed palpation testing for tender points.
objective

testing

that

esophagogastroduodenoscopy
unremarkable.
inconsistent
limitations

Plaintiff

and

a

did

The

undergo—an

colonoscopy—were

largely

The ALJ also noted that Dr. McGinnis’s opinion was
with

he

his

own

assessed

treatment

had

little

notes,
basis,

as
or

many
were

of
not

the
even

mentioned at all, in the progress notes from his treatments.
Perhaps most compelling is that Plaintiff filled out her own
medical

source

statement

and

Dr.

McGinnis

simply

signed

it.

Plaintiff conceded at her hearing that Dr. McGinnis instructed her
to fill out the form herself and that he would mark out anything
with which he did not agree. The Court has reviewed Dr. McGinnis’s
medical source statement and fails to find any item that has been
marked out. Regardless, the Court finds that the ALJ gave adequate
reasons for declining to give Dr. McGinnis’s opinion controlling
weight.
B.

The RFC presented to the Vocational Expert was supported
by substantial evidence.

Plaintiff objects to the hypothetical presented to the VE
because, Plaintiff argues, it is inconsistent with Dr. Atcher’s
opinion of Plaintiff’s mental ability, upon which the ALJ purported
to rely.

Specifically, Dr. Atcher opined that Plaintiff “would

7

not respond well to the usual pressures of the work environment
due to severe anxiety when around other people.”

The hypothetical

included occasional contact with the general public, co-workers,
and supervisors.
limitation

on

Plaintiff also objects to the lack of any

Plaintiff’s

ability

to

sustain

work

activity

involving reaching in all directions including overhead, fingering
and/or

feeling.

Plaintiff

argues

that

this

omission

is

inconsistent with Dr. McGinnis’s opinion. As the Court has already
discussed,

however,

the

ALJ

gave

appropriate

reasons

for

discounting Dr. McGinnis’s opinion.
The Court finds that the RFC is consistent with Dr. Atcher’s
opinion and the other evidence of record.

Although Dr. Atcher

opined that Plaintiff would have difficulty with work pressures,
he did not indicate the specific degree of interaction he believed
she could tolerate.

Dr. Atcher assessed her Global Assessment of

Functioning to be 70, indicating that she was functioning pretty
well with some mild symptoms.

The ALJ noted that Plaintiff took

part in a variety of social activities including regular church
attendance,

talking

with

friends,

and

visiting

with

family.

Further, Plaintiff had a driver’s license and drove as needed,
going to the store and also participating in hobbies. Accordingly,
the ALJ’s finding that Plaintiff was only partially credible was
well founded and the RFC is supported by substantial evidence.

8

V.

CONCLUSION
Accordingly, IT IS ORDERED:
(1)

that the Commissioner’s motion for summary judgment, [DE

16], is GRANTED; and
(2)

that Plaintiff’s motion for summary judgment, [DE 15],

is DENIED.
This the 5th day of August, 2015.

9