Buis v. SSA

Filing 11

MEMORANDUM OPINION & ORDER: 1. The Commissioner's motion for S/J 10 , is GRANTED; and 2. Plaintiff's motion for S/J 9 , is DENIED.Signed by Judge Joseph M. Hood on 10/16/2015.(LC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JUNIOR PAUL BUIS,

)
)
)
)
)
)
)
)
)
)
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Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Civil Action No.
5:15-CV-34-JMH
MEMORANDUM OPINION
AND ORDER

***

This matter is before the Court upon cross-motions for Summary
Judgment [DE 9, 10] on Plaintiff’s appeal of the Commissioner’s
denial of his application for 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, 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 summary judgment motions.
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 & 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

substantial gainful activity since April 3, 2011.

engaged

in

Considering

step two, the ALJ found that Plaintiff possessed the severe
impairments of status post hemorrhoidectomy and status post repair
of anal fissure with residual pain; and hypertension.

During step

three of the analysis, the ALJ concluded that none of Plaintiff’s

2

impairments or combinations of impairments met the severity listed
in 20 C.F.R. pt. 404, subpt. P, app. 1.
At step four, the ALJ determined that Plaintiff had a residual
functional capacity (RFC) to perform medium work as defined in 20
C.F.R. § 404.1567(c) except that Plaintiff could lift 50 pounds
occasionally and 25 pounds frequently; could stand and walk six
hours out of an eight hour workday; could sit six hours in an eight
hour workday; and that Plaintiff had no limitations on pushing and
pulling other than the weight restrictions.

Accordingly, he

concluded, Plaintiff was not disabled as defined in the Social
Security Act.
Plaintiff argues that the Commissioner’s decision is not
supported by substantial evidence for various reasons.

First,

Plaintiff contends that the ALJ failed to consider all of his
severe impairments.

He states that he has the severe impairment

of lumbar pain with central canal stenosis and bilateral foraminal
narrowing.

He also argues that the ALJ erred by failing to

consider the effects of his lumbar pain in assessing his RFC.
Further, Plaintiff contends that the ALJ erred by failing to comply
with

legal

standards

with

respect

physician’s opinion.

3

to

Plaintiff’s

treating

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
Plaintiff applied for disability insurance benefits on July
27, 2011, alleging that his disability began on April 3, 2011.
Following the denial of his claim, an Administrative Law Judge
(“ALJ”) held a hearing on September 4, 2013.
Plaintiff’s claim on October 25, 2013.
Appeals Council on January 14, 2015.
4

The ALJ denied

Denial was affirmed by the

At the time of the ALJ’s decision, Plaintiff was fifty-nine
years of age.

He worked from 1987 to 1998 doing farm labor.

From

1999 to 2010, he worked in two different factories—making wire for
tires in one and operating a machine to make shoes in the other.
He returned to farm labor from June 2010 to April 2011.
Plaintiff reports that he is unable to work due to low back
pain, as well as pain in his arms and hands.

He reports that these

problems began when he fell out of a barn loft in 1986.
reports

having

incontinence.

major

problems

with

his

bowels,

He also
including

He has been treated by his primary care physician,

Dr. Bates, since 1983.

Additionally, he has seen Drs. Lacy and

Dvorak for his bowel issues.

He underwent both a sphincterotomy

and a hemorrhoidectomy in 2011.

Jennifer Wilke-Deaton, MA, LPA

performed a psychological evaluation for the purposes of Buis’s
disability

application.

Ms.

Wilke-Deaton

assessed

a

Global

Assessment of Functioning (GAF) of 40 and felt that Plaintiff would
benefit from counseling.
IV.

Analysis
A.

The ALJ did not err in failing to find that Plaintiff’s
lumbar pain, stenosis, and foraminal narrowing were
severe impairments.

Step two in the disability evaluation process requires an ALJ
to consider the medical severity of the claimant’s impairments.
20 C.F.R. § 404.1520(a)(4)(ii).

An impairment is severe if it
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“significantly limits an individual’s physical or mental ability
to perform basic work activities.”

20 C.F.R. § 404.1521(b).

The

Sixth Circuit has interpreted the step two severity requirement to
be a “de minimis hurdle” and the severity of an impairment is
“liberally construed in favor of the claimant” at this stage of
the analysis.

Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988).

If the ALJ finds that at least one of the claimant’s alleged
impairments is severe, the claim survives step two.
1520.1520(a)(4).

20 C.F.R. §

Because the ALJ must consider both severe and

non-severe impairments in the remaining steps of the analysis, any
impairment erroneously labeled as non-severe is harmless error.
Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th
Cir. 1987).

Having found that Plaintiff suffered from the severe

impairments described previously, the ALJ considered the nonsevere impairment of low back pain, as well.

The ALJ discussed

the MRI results with respect to Plaintiff’s lumbar spine, as well
as Plaintiff’s diminished range of motion.
Plaintiff

has

a

diminished

ability

throughout a full eight hour workday.

to

The RFC indicates that
stand,

walk,

and

sit

Accordingly, the ALJ did

not err in finding that the lumbar pain, stenosis, and foraminal
narrowing were not severe impairments within the meaning of the
applicable regulations.

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B.

The ALJ gave good reasons for declining to give
controlling weight to the opinion of Plaintiff’s
treating physician, Dr. Bates.

ALJs

are

controlling

required

weight

if

to

give

it

is

a

treating

source’s

“well-supported

by

opinion

medically

acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the] case
record.”

20 C.F.R. § 404.1527(d)(2).

If the ALJ does not give

the treating physician’s opinion controlling weight, the ALJ must
provide good reasons for the weight given.

Id.

The reasons must

be “supported by the evidence in the case record, and must be
sufficiently specific to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating source’s medical
opinion and the reasons for that weight.”

Cole v. Astrue, 661

F.3d 931, 937 (6th Cir. 2011) (citation omitted).
The ALJ considered Dr. Bates’s opinion and gave it little
weight, explaining that it was inconsistent with the objective
medical evidence of record, as well as Plaintiff’s own testimony.
For instance, Dr. Bates opined that Plaintiff was extremely limited
in

his

ability

to

walk

and

stand,

assistive device for ambulation.

though

Plaintiff

used

no

Further, Plaintiff testified

that he walked to his neighbor’s house to socialize every day.
While Dr. Bates opined that Plaintiff would only be able to lift
ten pounds occasionally, the record is devoid of objective evidence

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to support that finding, such as manual muscle testing to support
this finding.

The ALJ points out that during a consultative

examination, Dr. Waltrip did not find any loss of strength and
thought that Plaintiff would be able to lift moderately heavy
objects without limitation.

Further, the ALJ found that the

positional and postural limitations assessed by Dr. Bates were not
supported by the medical evidence.

While Plaintiff’s MRI studies

showed that he had some degeneration in his lumbar spine, there
was no evidence of nerve root compression.

There is no evidence

that more aggressive treatment such as injections or surgery had
ever been discussed or that he had been referred to a specialist.
With respect to Plaintiff’s claims of incontinence, Dr. Bates’s
treatment notes indicate that, while at one time Plaintiff did
experience a small amount of incontinence, he was no longer
experiencing that problem and, in fact, had been complaining of
constipation.

Based

on

the

ALJ’s

thorough

and

reasoned

consideration of Dr. Bates’s opinion, he did not err in assigning
it little weight.
V.

CONCLUSION
Accordingly, IT IS ORDERED:
(1)

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

10], is GRANTED; and

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(2)

that Plaintiff’s motion for summary judgment, [DE 9], is

DENIED.
This the 16th day of October, 2015.

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