Downs v. SSA
Filing
16
OPINION AND ORDER 1. Plaintiff's motion for S/J 11 is DENIED; 2. The Commissioner's motion for S/J 13 is GRANTED; 3. The decision of the Commissioner is AFFIRMED and 4. A judgment consistent with this Opinion & Order will be entered contemporaneously. Signed by Judge Karen K. Caldwell on 3/31/2016.(LC)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
CONNIE DOWNS,
CIVIL ACTION NO. 5:15-cv-24-KKC
Plaintiff,
V.
OPINION AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
*** *** ***
This matter is before the Court for consideration of cross-motions for summary
judgment. [DE 11; 13]. The Claimant, Connie Downs, brought this action pursuant to 42
U.S.C. § 405(g) to obtain judicial relief from an administrative decision of the Commissioner
of Social Security denying her claim for Social Security Disability Insurance Benefits
(“DIB”). The Court, having reviewed the record, will affirm the Commissioner’s decision, as
it is supported by substantial evidence and was decided by the proper legal standards.
I. OVERVIEW OF THE PROCESS
In determining whether a claimant has a compensable disability under the Social
Security Act, the regulations provide a five-step sequential process which the
administrative law judge (“ALJ”) must follow. 20 C.F.R. § 404.1520(a)(4); see also Rabbers
v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 652 (6th Cir. 2009) (describing the
administrative process). The five steps, in summary, are as follows:
1) If the claimant is doing substantial gainful activity, the claimant is not
disabled.
2) If the claimant does not have a severe medically determinable physical or
mental impairment—i.e., an impairment that significantly limits his or her
physical or mental ability to do basic work activities—the claimant is not
disabled.
3) If the claimant has a severe impairment(s) that meets or equals one of the
listings in Appendix 1 to Subpart P of the regulations and meets the duration
requirement, the claimant is disabled.
4) If the claimant’s impairment does not prevent him or her from doing his or
her past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the
claimant is disabled.
Rabbers, 582 F.3d at 652 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)–(v), 404.1520(b)–(g)).
The claimant bears the burden of proof through the first four steps of the analysis; but if
the ALJ reaches the fifth step without finding the claimant disabled, then the burden shifts
to the Commissioner. Longworth v. Comm’r Soc. Sec. Admin., 402 F.3d 591, 595 (6th Cir.
2005). The Commissioner satisfies the burden of proof at the fifth step by finding that the
claimant is qualified for—and capable of performing—jobs that are available in the national
economy and may rely upon the testimony of a vocational expert (“VE”) regarding the range
of potential jobs. Jordan v. Comm’r of Soc. Sec., 548 F.3d 417, 423, 425 (6th Cir. 2008).
II. PROCEDURAL BACKGROUND AND THE ADMINISTRATIVE DECISION
Connie Downs (“Claimant”) filed her claim for DIB on June 17, 2011, alleging an onset
date of June 13, 2010. [TR 210]. The agency denied her application initially and upon
reconsideration. [TR 121-124, 127-129]. Claimant requested review by an ALJ, and a
hearing was held on August 7, 2013. [TR 46–94]. The ALJ subsequently issued an
unfavorable decision on September 16, 2013. [TR 30–40].
At the time the ALJ’s decision was rendered, Claimant was 47 years old. [TR 39].
Claimant left school after completing ninth grade and has past relevant work as a retail
2
stocker and office cleaner. [TR 52, 85-86]. She alleges disability due to fibromyalgia and
arthritis. [DE 12 at 2.] Claimant’s insured status expired on December 31, 2015. [TR 35].
First, the ALJ determined that Claimant has not engaged in substantial gainful activity
since her alleged onset date of June 13, 2010. [TR 35]. Second, the ALJ found that Claimant
suffers from the following severe impairments: neck pain, back pain, fibromyalgia, and
morbid obesity. [TR 35]. Third, the ALJ determined that Claimant does not have an
impairment or combination of impairments that meets or medically equals the severity of
one of the listed impairments. [TR 37].
Next, the ALJ reviewed the record to determine Claimant’s residual functional capacity
(“RFC”). RFC assesses a claimant’s maximum remaining capacity to perform work-related
activities despite the physical and mental limitations caused by the claimant’s disability. 20
C.F.R. §§ 404.1545(a)(1); 416.945(a)(1). In finding Claimant’s RFC, the ALJ considered all
symptoms in light of the objective medical evidence and other relevant evidence, including
the following: (i) daily activities; (ii) location, duration, frequency, and intensity of
symptoms; (iii) precipitating and aggravating factors; (iv) type, dosage, effectiveness, and
side effects of any medication; (v) additional treatment; (vi) additional measures used to
relieve symptoms; and (vii) other factors concerning functional limitations and restrictions
due to symptoms. 20 C.F.R. § 404.1529. After reviewing all of the evidence, the ALJ
determined that Claimant has the following RFC:
[C]laimant has the residual functional capacity for a limited
range of light work. She can lift and carry 20 pounds
occasionally and ten pounds frequently, stand and walk six
hours out of eight and sit six hours out of eight. She has limits
on pushing and pulling with the bilateral lower extremities.
She cannot climb ropes, ladders or scaffolds but is occasionally
able to climb ramps and stairs. She can occasionally balance,
kneel, crouch and crawl and can frequently stoop but has limits
3
on exposure to extreme cold, full body vibration, concentrated
humidity, and wetness.
[TR 38].After establishing Claimant’s RFC, the ALJ continued to the fourth step. The ALJ
asked the VE whether a hypothetical individual with Claimant’s vocational factors and
RFC could work as a retail stocker or office cleaner. [TR 87]. The VE testified that this
hypothetical individual would be able to perform past relevant work as an office cleaner in
the manner described by Claimant during the hearing. [TR 87] (“She would be able to do it
as performed.”). Therefore, the ALJ found Claimant not disabled. [TR 39-40.]
The ALJ also asked the VE if the hypothetical individual could make an adjustment to
other work and the VE stated that this hypothetical individual could other unskilled entry
level jobs, including cashier and housekeeper. [TR 87-88]. The ALJ also noted this in his
decision. [TR 39.]
On October 23, 2012, Claimant participated in a Functional Capacity Evaluation. [TR
315.] Claimant submitted the results of the FCE to the Appeals Commission along with her
request for review. The Appeals Commissions informed Claimant that it reviewed the FCE
results, but stated: “The Administrative Law Judge decided your case through September
16, 2013. This new information is about a later time. Therefore, it does not affect the
decision about whether you were disabled beginning on or before September 16, 2013.” [TR
2.] The ALJ’s decision that Claimant is not disabled became the final decision of the
Commissioner when the Appeals Commission denied Claimant’s request for review on
December 4, 2014. [TR 1-5]. Claimant has exhausted her administrative remedies and filed
a timely action in this Court. This case is now ripe for review under 42 U.S.C. § 405(g).
4
III. GENERAL STANDARD OF REVIEW
The decision of the Commissioner must be affirmed unless the ALJ applied the incorrect
legal standards or the ALJ’s findings are not supported by substantial evidence. Lindsley v.
Comm. of Soc. Sec., 560 F.3d 601, 604 (6th Cir. 2009). “Substantial evidence is ‘such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Id. (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In reviewing the decision of
the Commissioner, courts should not conduct a de novo review, resolve conflicts in the
evidence, or make credibility determinations. See Lindsley, 560 F.3d at 604–05. Courts
must look at the record as a whole, and “[t]he court ‘may not focus and base [its] decision
entirely on a single piece of evidence, and disregard other pertinent evidence.’” Sias v. Sec.
of H.H.S., 861 F.2d 475, 479 n.1 (6th Cir. 1988) (alteration in original) (quoting Hephner v.
Mathews, 574 F.2d 359, 362 (6th Cir. 1978)). Rather, courts must affirm the
Commissioner’s decision so long as it is supported by substantial evidence, even if the court
may have decided the case differently. See Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389–90
(6th Cir. 1999).
IV. ANALYSIS
On appeal, Claimant presents two issues for review. First, she argues that the ALJ
failed to provide good reasons for discounting the opinions of her treating sources. Second,
she argues that the October 23, 2013, Functional Capacity Evaluation is new and material
evidence that necessitates remand to the ALJ for further consideration.
1. The ALJ did not err in discounting the opinions of Dr. Jackson and Dr. Murphy.
Claimant argues that Dr. Jackson and Dr. Murphy are treating sources, and that the
ALJ erred by failing to provide good reasons for discounting their opinions. [DE 12 at 8-11.]
5
First, Dr. Murphy, Claimant’s chiropractor, is not a treating source, so his opinion is not
entitled to deference. A chiropractor is not an “acceptable medical source” and, therefore,
cannot be a “treating source.” 20 C.F.R. §§ 404.1502, 404.1513(a); SSR 06-3p, 2006 WL
2329939, at *2 (“Medical sources who are not ‘acceptable medical sources,’ such as ...
chiropractors.”); Schmiedebusch v. Comm'r of Soc. Sec. Admin., 536 F. App'x 637, 648 (6th
Cir. 2013) (“Chiropractors are not a listed medical source who can provide evidence to
establish an impairment, see 20 C.F.R. § 404.1513, and ALJs are not required to give
weight to a chiropractor's opinion.”). Thus, contrary to Claimant’s assertions, the ALJ did
not err by not afford controlling weight to Dr. Murphy’s opinion. Walters v. Comm'r of Soc.
Sec., 127 F.3d 525, 531 (6th Cir. 1997). Even though his opinion was not entitled to
deference, the ALJ still noted that Dr. Murphy’s reports were “contrary to medical records
which routinely characterize [Claimant’s] neck as supple and otherwise normal on physical
examinations,” which is a good reason for discounting his opinion. [TR 35.]
Second, Dr. Jackson is a treating source. However, the ALJ provided good reasons for
discounting his opinion.
Dr. Jackson opined that Ms. Downs can sit for one-half, stand for one-third, and walk
for one-quarter of an eight hour day with positional changes every five to ten minutes. [TR
447.] He further stated that Claimant can occasionally lift 20 pounds, lift and carry 5
pounds frequently, and bend occasionally, but can never squat, crawl, climb, or reach above
shoulder level. [TR 448.] He stated she can drive a vehicle for 30 to 40 minutes maximum.
[TR 449.]
An ALJ is required to “evaluate every medical opinion” in the record. See 20 C.F.R. §
404.1527(d). Not all medical opinions, however, are treated equally. The opinions of
treating physicians, “medical professionals most able to provide a detailed, longitudinal
6
picture,” are generally afforded the greatest deference. Blakley v. Comm’r of Soc. Sec., 581
F.3d 399, 406 (6th Cir. 2009) (quoting 20 C.F.R. § 404.1527(d)(2)). But “[i]t is an error to
give an opinion controlling weight simply because it is the opinion of a treating source if it
is not well-supported by medically acceptable clinical and laboratory diagnostic techniques
or if it is inconsistent with the other substantial evidence in the case record.” Blakley, 581
F.3d at 406 (quoting SSR 96-2p, 1996 WL 374188 (July 2, 1996)). The ALJ can reject the
opinion of a treating physician “if good reasons are identified for not accepting it.” Bogle v.
Sullivan, 998 F.2d 342, 348 (6th Cir. 1993); see also Combs v. Comm’r of Soc. Sec., 459 F.3d
640, 652 (6th Cir. 2006) (en banc) (holding that an ALJ may reject the opinion of a treating
physician if the treating physician’s opinion is divorced from supporting objective evidence).
In this case, the ALJ gave Dr. Jackson’s opinion “little to no weight.” [TR 36.]
Substantial evidence supports the ALJ’s decision to discount Dr. Jackson’s opinion. The
ALJ explained that Dr. Jackson’s opinion – like Dr. Murphy’s opinion – was largely based
on Claimant’s own subjective statements and the limitations he stated were inconsistent
with the routine, conservative nature of the actual treatment Claimant received. [TR 3839.] These are both valid reasons for discounting a physician’s opinion. Warner v. Comm'r of
Soc. Sec., 375 F.3d 387, 391 (6th Cir. 2004) (concluding that substantial evidence supported
the ALJ’s rejection of a treating physician’s medical opinion where it appeared “to be based
not upon his own medical conclusion, but upon [the claimant’s] own assessment of his …
limitations.”); Helm v. Comm'r of Soc. Sec. Admin., 405 F. App'x 997, 1001 (6th Cir. 2011)
(“conservative treatment history” and “modest treatment regimen” were good reasons for
discounting physician’s opinion.).
In addition, the ALJ explained that there was no support in the overall record for Dr.
Jackson’s “extremely limiting assessment.” [TR 36.] The Sixth Circuit has instructed that
7
“[w]here the opinion of a treating physician is not supported by objective evidence or is
inconsistent with the other medical evidence in the record, [it] generally will uphold an
ALJ's decision to discount that opinion.” Price v. Comm'r Soc. Sec. Admin., 342 F. App'x
172, 175-76 (6th Cir. 2009).The ALJ further noted that Dr. Jackson’s assessment was
inconsistent with his own treatment notes. [TR 36.] (“There is no support for the extremely
limiting assessment completed at Ms. Down’s request and the disabling limitations are
questionable when compared to the overall record, much less Dr. Jackson’s own treatment
notes.”). The ALJ observed that a June 2010 lumbar spine film ordered by Dr. Jackson was
unremarkable, that Dr. Jackson noted that straight leg raising bothers the claimant but did
not report positive straight leg raising, and that an August 2011 medical report completed
by Dr. Jackson emphasized Claimant’s longstanding weight battle but did not include any
abnormal physical findings. [TR 36.] An ALJ may find that a doctor is less credible where
the doctor’s own assessments are inconsistent. Combs v. Comm’r of Soc. Sec., 459 F.3d 640,
652 (6th Cir. 2006) (en banc).
The ALJ articulated valid grounds for discounting Dr. Jackson’s opinion, so his decision
was supported by substantial evidence. “Even if this Court might have reached a contrary
conclusion of fact, the Commissioner’s decision must be affirmed so long as it is supported
by substantial evidence.” Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854-55 (6th Cir. 2010).
2. Claimant has not shown good cause for failing to acquire and present the FCE prior to the
ALJ’s decision.
After the ALJ’s September 16, 2013, decision, Claimant participated in a Functional
Capacity Evaluation (FCE) on October 23, 2013. [TR 315.] The Appeals Council considered
the results of the FCE, but determined that it did not affect the ALJ’s decision. [TR 2.]
8
Claimant now argues that the FCE is new and material evidence that warrants remand for
additional consideration. [DE 12 at 11-14.]
A district court may remand a case for further administrative proceedings in light of
new evidence “if a claimant shows that the evidence is new and material, and that there
was good cause for not presenting it in the prior proceeding.” Cline v. Comm'r of Soc. Sec.,
96 F.3d 146, 148 (6th Cir. 1996). “A claimant shows ‘good cause’ by demonstrating a
reasonable justification for the failure to acquire and present the evidence for inclusion in
the hearing before the ALJ.” Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001).
In this case, Claimant has failed to demonstrate good cause for not acquiring and
presenting the FCE in the prior proceedings before the ALJ. Regarding good cause,
Claimant asserts the following:
As for the issue of good cause, this report was not provided to
the ALJ prior to his decision only because it was performed 37
days later. Because Ms. Downs did not have access to this
report prior to the ALJ’s decision, but did timely submit the
assessment as soon as it was received, the issue of “good cause”
is moot.
[DE 12 at 14.]
Claimant does not offer any justification for failing to undergo the FCE prior to the
ALJ’s decision. The fact that the FCE was performed thirty seven days after the ALJ’s
decision is the reason it was not presented to the ALJ, but does not explain why Claimant
could not obtain the FCE at an earlier time. The issue of good cause is not moot simply
because Claimant promptly submitted the results once she obtained them. If good cause
were not a requirement, every claimant who received an unfavorable ALJ opinion could
obtain additional medical examinations and seek remand based on new evidence. Here,
Claimant has not established good cause for failing to acquire this evidence in time to
9
present it to the ALJ. Therefore, remand for further consideration of the FCE is not
appropriate.
V. CONCLUSION
For the reasons set forth above, the Court hereby ORDERS as follows:
1. Plaintiff’s motion for summary judgment [DE 11] is DENIED;
2. The Commissioner’s motion for summary judgment [DE 13] is GRANTED;
3. The decision of the Commissioner is AFFIRMED pursuant to sentence four of 42
U.S.C. § 405(g) as it was supported by substantial evidence and was decided by proper legal
standards; and
4. A judgment consistent with this Opinion & Order will be entered contemporaneously.
Dated March 31, 2016.
10
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?