Whiting v. SSA

Filing 23

MEMORANDUM OPINION AND ORDER: Pla's 14 Motion for Summary Judgment and 16 Motion to Remand are OVERRULED. Dft's 15 Motion for Summary Judgment is SUSTAINED. A judgment in favor of the Dft will be entered contemporaneously herewith. Signed by Judge Henry R. Wilhoit, Jr on September 28, 2015. (AWD) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
at LEXINGTON
Civil Action No. 14-359-HRW
STEVEN D. WHITING,

v.

PLAINTIFF,

MEMORANDUM OPINION AND ORDER

CAROLYN COLVIN,
COMMISSIONER OF SOCIAL SECURITY,

DEFENDANT.

Plaintiff has brought this action pursuant to 42 U.S.C. §405(g) to challenge a final
decision of the Defendant denying Plaintiffs application for disability insurance benefits. The
Court having reviewed the record in this case and the dispositive motions filed by the parties, and
being othetwise sufficiently advised, for the reasons set forth herein, finds that the decision of the
Administrative Law Judge is supported by substantial evidence and should be affirmed.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed his current application for disability insurance benefits on April 5, 2011,
alleging disability beginning on Febtuary 9, 2011, due to tremors, problems with concentration
and lower back pain (Tr. 33). This application was denied initially and on reconsideration.
Thereafter, upon request by Plaintiff, an administrative hearing was conducted by Administrative
Law Judge Greg Holsclaw (hereinafter "ALJ"), wherein Plaintiff, accompanied by counsel,
testified. At the hearing, Betty Hale, a vocational expert (hereinafter "VE"), also testified.
At the hearing, pursuant to 20 C.P.R.§ 416.920, the ALJ performed the following fivestep sequential analysis in order to determine whether the Plaintiff was disabled:
Step 1: If the claimant is performing substantial gainful work, he is not disabled.

Step 2: If the claimant is not performing substantial gainful work, his impairment(s) must
be severe before he can be found to be disabled based upon the requirements in 20 C.P.R.
§ 416.920(b).
;(·
Step 3: If the claimant is not performing substantial gainful work and has a severe
impaitment (or impaitments) that has lasted or is expected to last for a continuous period
of at least twelve months, and his impairments (or impairments) meets or medically
equals a listed impairment contained in Appendix 1, Subpart P, Regulation No.4, the
claimant is disabled without further inquiry.
Step 4: If the claimant's impairment (or impairments) does not prevent him from doing
his past relevant work, he is not disabled.
Step 5: Even ifthe claimant's impairment or impairments prevent him from performing
his past relevant work, if other work exists in significant numbers in the national
economy that accommodates his residual functional capacity and vocational factors, he is
not disabled.

At Step I of the sequential analysis, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since the alleged onset date of disability (Tr. 29).
The ALJ then detetmined, at Step 2, that Plaintiff suffers from tremors of non-specific
etiology, history oflow back injmy with pain and depression, which he found to be "severe"
within the meaning ofthe Regulations (Tr. 29).
At Step 3, the ALJ found that Plaintiffs impairments did not meet or medically equal any
of the listed impaitments (Tr. 30-32). .
The ALJ futiher found that Plaintiff could not return to his past relevant work, which is
classified as medium to heavy, unskilled to skilled work (Tr. 37) but determined that he has the
residual functional capacity ("RFC") to perform a range of light work, with certain restrictions as
set forth in the hearing decision (Tr. 32).
The ALJ finally concluded that these jobs exist in significant numbers in the national and

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regional economies, as identified by the VE (Tr. 37).
Accordingly, the ALJ found Plaintiff not to be disabled at Step 5 of the sequential
evaluation process.
The Appeals Council denied Plaintiffs request for review and adopted the AU's decision
as the final decision ofthe Commissioner. Plaintiff thereafter filed this civil action seeking a
reversal of the Commissioner's decision. Both parties have filed Motions for Summary
Judgment [Docket Nos. 14 and 15]. Plaintiff has also filed a Motion for Remand [Docket No.
16].

II. ANALYSIS

A.

Standard of Review

The essential issue on appeal to this Couti is whether the ALJ's decision is supported by
substantial evidence. "Substantial evidence" is defined as "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion;" it is based on the record as a
whole and must take into account whatever in the record fairly detracts from its weight. Garner

v. Heckler, 745 F.2d 383, 387 (6'h Cir. 1984). If the Commissioner's decision is suppotied by
substantial evidence, the reviewing Court must affirm. Kirk v. Secretary ofHealth and Human

Services, 667 F.2d 524, 535 (6 1h Cir. 1981), cert. denied, 461 U.S. 957 (1983). "The court may
not try the case de novo nor resolve conflicts in evidence, nor decide questions of credibility."

Bradley v. Secretary ofHealth and Human Services, 862 F.2d 1224, 1228 (6 1h Cir. 1988).
Finally, this Court must defer to the Commissioner's decision "even ifthere is substantial
evidence in the record that would have supported an opposite conclusion, so long as substantial
evidence supports the conclusion reached by the ALJ." Key v. Callahan, 109 F.3d 270,273 (6th

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Cir.1997).

B.

PlaintifPs Contentions on Appeal

Plaintiff contends that the ALJ's finding of no disability is erroneous because: (1) the
ALJ improperly discounted the opinion of his treating physician, Dr. Charles Griffith III and (2)
the ALJ improperly relied upon the report of the examining psychologist, Amy Gonshank, Ph.D.
Plaintiff also seeks remand pursuant to Sentence six of 42 U.S.C. §405(g).

C.

Analysis of Contentions on Appeal

Plaintiffs first claim of error is that the ALJ improperly discounted the opinion of his
treating physician, Dr. Charles Griffith III.
In order to be given controlling weight, the opinions of a treating source on issues

involving the nature and severity of a claimant's impairments must be well suppOiied by
medically acceptable clinical and laboratory diagnostic techniques, and be consistent with other
substantial evidence in the case record. 20 C.F.R. § 416.927(d)(2). The CoUii is mindful of the
fact that the Commissioner is not bound by a treating physician's opinion. Such opinions receive
great weight only if they are supported by sufficient medical data. Harris v. Heckler, 756 F.2d
431,435 (6'h Cir. 1985).
In August 2012, Dr. G1iffith wrote that he was unable to diagnose a specific condition, but
that Plaintiff had a "continual tremor" throughout his body (Tr. 585). He wrote that Plaintiff was
"disabled," having difficulty walking or performing many tasks. Yet, during the time he was being
treated by Dr. Griffith, Plaintiff"repeatedly" refused medications during the relevant time (Tr. 36;
see also Tr. 348, 464, 605 (underlying treatment notes)). Plaintiff even became belligerent and
threatening to a physician who suggested medication, asse1iing that he was "intolerant" of "all"

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medication whatsoever (Tr. 464-65). Although he described having a reaction to two medications in
the past (Celexa and Lisinopril) (Tr. 369), there did not appear to be any evidence substantiating
Plaintiffs claim that he was intolerant of ail medication. These facts undermine Dr. Gtiffith' s
findings.
In addition, the ALJ cited to other evidence in the record, which called into question the
extent of Plaintiffs tremors (Tr. 36). Plaintiff admitted to using his hands for coordinated movement,
such as e-mailing or loading a dishwasher (e.g., Tr. 239 ). Plaintiff also said that he could control his
tremors by ddnking one to two beers a day (Tr. 369). Finally, a physician observed that Plaintiffs
tremors diminished in intensity when he was distracted (Tr. 370). This evidence could reasonably be
seen as calling Dr. Griffith's opinions into question.
As for Dr. Griffith's opinion that Plaintiff is "disabled" (Tr. 585), the AU was correct in
disregarding it. It is within the province of the AU to make the legal determination of disability.
The ALJ is not bound by a treating physician's conclusory statement, pmiicularly where the ALJ
determines, as she did in this case, where these is medical proof that Plaintiff retains the RFC to

See King v. Heckler, 742 F.2d 968, 973 (6'h

work in some capacity other than her past work.
Cir. 1984).

Plaintiffs second claim of error is that the AU improperly relied upon the report of the
examining psychologist, Amy Gonshank, Ph.D.
After Plaintiff applied for disability, he was sent to a psychological exmnination with Dr.
Gonshank.1 Plaintiff told Dr. Gonshank that he began to suffer fi·om confusion and memory problems
after his workplace injmy (Tr. 333). Dr. Gonshank then administered several tests but the data
showed "poor effort" on Plaintiffs part (Tr. 336). Although Dr. Gonshank did not conclude that
Plaintiff was intentionally feigning his symptoms, she explained that his actual mental functioning
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was "no worse and most likely better than the data suggests" (Tr. 336). Dr. Gonshank gave the
diagnosis of depression "with caution"and gave a Global Assessment of Functioning (GAF) score
of 51, indicating moderate symptoms or limitations (Tr. 336,338).
With regard to Doctor Gonshank's report, Plaintiff argues, first that Dr. Gonshank
conceded her findings were invalid, so the ALJ could not rely on them, but also, that Dr. Gonshank' s
GAF score of 51 would render him disabled.
Although Plaintiffs poor effmt created some unce1tainty in Doctor Gonshank' s report, she
did not observe any mental limitations that undennined the ALJ' s findings. Indeed, her observation
of"poor effmt" is is particularly compelling when at least two of Plaintiffs treating physicians
questioned his behavior (Tr. 332 (Plaintiffs claims were "implausible"), 370 (Plaintiff
"embellishes")).
With regard to the GAF score, the Court is mindful that the AU is not bound by these
scores. See Keeler v. Comm 'r of Soc. Sec., No. 12·1655, 2013 WL 133557, at *I (6th Cir. Jan. 11,
2013) ("Fmther, the ALJ was not required to consider Keeler's GAF scores, and, in any case, the
scores [50 and 52] were not sufficient to undetmine the ALJ's analysis") (citations omitted);
DeBoard v. Comm 'r of Soc. Sec., 211 F. App'x 411, 416 (6th Cir. 2006) ("Any failure to reference

Global Assessment Functioning scores or to compare different scores attributed to the same subject,
without more, does not require reversal.").
Finally, Plaintiff argues that remand is wananted.
Sentence six of 42 U.S.C. §405(g) provides:
The court ... may at any time order additional evidence be taken
before the Connnissioner of Social Security, but only upon a
showing that there is new evidence which is material and that there
is good cause for the failure to incorporate such evidence into the
record in a prior proceeding.

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42 U.S. C. §405(g). However, the limited circumstances under which remands are
permitted arise when the party seeking remand shows that: (1) there is new, non-cumulative
evidence: (2) the evidence is "material"- i.e., both relevant and probative, so that there is a
reasonable possibility that it would change the administrative result; and, (3) there is good cause
for failure to submit the evidence at the administrative level. Willis v. Secretmy ofHealth and

Human Services, 727 F.2d 551,554 (6'h. Cir. 1984). While it is not, generally, difficult for a
party seeking remand to show that evidence is new, it is, generally, onerous to demonstrate that
the new evidence is material.
Plaintiff urges remand upon two grounds- alleged discrepancies in the transcript of the
Administrative heating and for evidence that he had an allergic reaction to a common beta-blocker
medication, Popranolol.
First, Plaintiff states that his recording of the Administrative hearing is more accurate than
that of the comt reporter. The question and answer to which Plaintiff refers, at pages 11 0 to 111 of
the current administrative record, was the vocational expert's answer to an additional limitation of
being off task 20% of the workday (Tr. 110-11). The ALJ did not, ultimately, include this limitation
in the residual functional capacity (Tr. 32). However, The record already contains the ALJ's
hypothetical, matching the later residual functional capacity fmding, and the vocational expert's
answer to that question, identifying various occupations (Tr. 109-11 0). Therefore, the allegedly
superior transctipt is not "material" as contemplated by Sentence Six.
Plaintiff also argues that he sent medical records to the Appeals Council after the ALJ' s
decision, which should be pmt of the record before the Comt. Plaintiff asse1ts that these records
showed he had a reaction to a beta-blocker medication, Popranolol. Although it is unclear from his

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brief, Plaintiff seems to imply that his allergic reaction to one medication after the ALJ' s decision
that he was "intolerant" to "all" medications as he insisted to his treating doctors (Tr. 464). Yet,
Plaintiff neglects to explain how this evidence, if considered by the ALJ, would change the ALJ' s
decision. "Good cause" under Sentence Six is more than a desire to relitigate the same issues.

III. CONCLUSION
The Court finds that the ALJ's decision is supported by substantial evidence on the
record. Accordingly, it is HEREBY ORDERED that the Plaintiff's Motions for Summary
Judgment and Remand [Docket Nos. 14 and 16] be OVERRULED and the Defendant's Motion
for Summaty Judgment [Docket No. 15] be SUSTAINED. A judgment in favor of the
Defendant will be entered contemporaneously herewith.
Thisd

8~ay of3"'flkmkc , 2015.
Signed By:

Henry R. Wl/hnlt. Jr.

United States Dletrlct Judge

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