Alcorn v. SSA
MEMORANDUM OPINION & ORDER: Pla's 9 MOTION for Summary Judgment is OVERRULED and Dft's 10 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 19, 2016. (AWD) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
Civil Action No. 15-127-HRW
MEMORANDUM OPINION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,
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 and
supplemental security income benefits. The Court having reviewed the record in this case and
the dispositive motions filed by the parties, and being otherwise 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 her current application for disability insurance benefits and supplemental
security income benefits, alleging disability beginning on May 31, 2009, due to due to numerous
impairments, including carpal tunnel syndrome, depression, migraines, memory problems, back pain,
shoulder pain, knee pain, neck pain, diabetes, restless leg syndrome, chronic obstrnctive pulmonary
disease (COPD), sleep apnea, high blood pressure, high cholesterol, and acid t'eflux (Tr. 252).
application was denied initially and on reconsideration. Thereafter, upon request by Plaintiff, an
administrative hearing was conducted by Administrative Law Judge Ronald Kayser (hereinafter
"ALJ"), wherein Plaintiff, accompanied by counsel, testified. At the hearing, Jackie B. Rogers,
Ph.D., a vocational expett (hereinafter "VE"), also testified.
At the hearing, pursuant to 20 C.F.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 impainnent(s) must
be severe before he can be found to be disabled based upon the requirements in 20 C.F.R.
Step 3: If the claimant is not performing substantial gainful work and has a severe
impairment (or impairments) 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 if the 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
The ALJ issued a decision finding that Plaintiff was not disabled (Tr. 28-38). Plaintiff
was 49 years old at the time of the hearing decision. She completed high school and obtained a
cosmetologists certificate. Her past relevant work experience consists of work as a cashier, bus
monitor and certified nurse's assistant (Tr. 87-89).
At Step 1 of the sequential analysis, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since the alleged onset date of disability (Tr. 30).
The ALJ then determined, at Step 2, that Plaintiff suffers from COPD, diabetes, sleep
apnea, carpal tunnel syndrome, morbid obesity, degenerative disc disease in her lumbar spine,
osteoarthritis, and fibromyalgia, which he found to be "severe" within the meaning of the
Regulations (Tr. 30).
At Step 3, the ALJ found that Plaintiffs impairments did not meet or medically equal any
of the listed impairments (Tr. 32).
The ALJ further found that Plaintiff could perform her past relevant work as a cashier
(Tr. 36) and went on to find that she has the residual functional capacity ("RFC") to perform
light work within certain parameters (Tr. 32).
Specifically, the ALJ found that Plaintiff could lift
and carry 20 pounds occasionally and I 0 pounds frequently; stand and walk six hours total in an
eight-hour workday; sit for six hours in an eight-hour workday; frequently (rather than constantly)
perform gross manipulation; occasionally climb ramps and stairs, balance, stoop, crouch, kneel, and
crawl; and should avoid temperature extremes, vibration, humidity, hazardous machinery, heights,
and concentrated exposure to pulmonary irritants (Tr. 32).
The ALJ finally concluded that these jobs exist in significant numbers in the national and
regional economies, as identified by the VE (Tr. 37).
Accordingly, the ALJ found Plaintiff not to be disabled at Steps 4 and S of the sequential
The Appeals Council denied Plaintiffs request for review and adopted the ALJ's decision
as the final decision of the Commissioner. Plaintiff thereafter filed this civil action seeking a
reversal of the Commissioner's decision. Both parties have filed Motions for Summary
Judgment and this matter is ripe for decision.
Standard of Review
The essential issue on appeal to this Court 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 1h Cir. 1984). If the Commissioner's decision is supported by
substantial evidence, the reviewing Court must affirm. Kirk v. SecretmJ' ofHealth and Human
Services, 667 F.2d 524, 535 (6 1h Cir. 1981), cert. denied, 461 U.S. 957 (1983). "The court may
not tiy the case de nova 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
Plaintiff's Contentions on Appeal
Plaintiff contends that the ALJ's finding of no disability is erroneous because: (I) the
ALJ did not adequately consider her fibromyalgia under SSR 12-2p, (2) ALJ did not give proper
weight to the opinion of a treating source, (3) the ALJ failed to consider Plaintiffs subjective
complaints and (4) the RFC is not supported by substantial evidence.
Analysis of Contentions on Appeal
Plaintiffs first claim of error is that the ALJ did not adequately consider her fibromyalgia
under SSR 12-2p. Specifically, she contends that the ALJ did not acknowledge or follow SSR
12-2p in evaluating her fibromyalgia.
Social Security Ruling 12-2p provides guidance on how to establish that a claimant has a
medically determinable impairment (MDI) offibromyalgia (FM). SSR 12-2p, 2012 WL
Although the ALJ did not specifically refer to SSR 12-2p, at step two of the five-step
evaluation process, the ALJ made a specific finding that Plaintiff had a severe impairment of
fibromyalgia. The ALJ also mentioned Plaintiffs fibromyalgia throughout the decision (Tr. 30, 33,
34), and limited Plaintiff to a reduced range of light work to accommodate the limiting effects of her
fibromyalgia and other impairments (Tr. 32). Notably, Plaintiff does not argue that any specific
additional limitations resulted from her fibromyalgia (see Pl.'s Br. at 2-7). Rather, her argument
amounts to a claim that her fibromyalgia in and of itself was disabling. But a diagnosis of
fibromyalgia alone is not disabling. See Stankoski v. Astrue, No. 12-4227, 2013 WL 4045974, at *4
(6th Cir. Aug. 12, 2013) (unpublished) ("But a diagnosis offibromyalgia does not equate to a finding
of disability or an entitlement to benefits." (citation omitted)); Vance v. Comm 'r ofSoc. Sec., 260 F.
App'x 801, 805 (6th Cir. 2008) (unpublished) ("[A] diagnosis offibromyalgia does not automatically
entitle Vance to disability benefits .... ").Rather, the relevant question is what functional limitations
stem from an impairment. 20 C.F.R. § 404.1545. Here, the ALJ acknowledged Plaintiffs
fibromyalgia diagnosis and adequately accounted for it when he assessed a restrictive residual
functional capacity assessment. SSR-12p requires nothing more.
Plaintiffs second claim of error is that ALJ did not give proper weight to the opinion of
a treating source.
She had her primary health concerns treated at the Paragon Family
Practice. (Tt. 359432, 528-533 and 553-564). Her treating physician there, Dr. Kagon,
opined that Plaintiff was very restricted in her abilities to do work activity. He noted that she
would be limited to lifting less than IO pounds, standing less than 2 hours in an 8-hour workday
and would have to alternate sitting I standing eve1y 30 minutes. (Tr. 549-552). These
limitations would preclude performance of her past work as a cashier or the other jobs
identified by the VE. In other words, Plaintiff asserts that had the ALJ given controlling
weight to the opinion of Dr. Kagon, he would not have concluded that she was capable of
performing light level work.
In assessing the medical evidence supplied in support of a claim, there are ce1tain
governing standards to which an ALJ must adhere. Key among these is that greater deference is
generally given to the opinions of treating physicians than to those of non-treating physicians,
commonly known as the treating physician rule. See SSR 96-2p, 1996 WL 374188 (July 2,
1996); Wilson v. Comm'r ofSoc. Sec., 378 F.3d 541, 544 (6th Cir.2004). If the opinion of the
treating physician as to the nature and severity of a claimant's conditions is "well-suppo1ted by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
other substantial evidence in [the] case record," then it will be accorded controlling weight.
Wilson, 378 F.3d at 544. When the treating physician's opinion is not controlling, the ALJ, in
determining how much weight is appropriate, must consider a host of factors, including the
length, frequency, nature, and extent of the treatment relationship; the suppo1tability and
consistency of the physician's conclusions; the specialization of the physician; and any other
relevant factors. Id.
There is an additional procedural requirement associated with the treating physician
rule; he ALJ must provide "good reasons" for discounting treating physicians' opinions,
reasons that are "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." SSR
96-2p, at *5.
The ALJ found that Dr. Kagon's opinion was inconsistent with the clinical findings of
record, the treatment notes from Paragon family practice documenting "relatively minor
findings," and the cervical and lumbar imaging studies showing only mild findings (Tr. 35-36,
see Tr. 444 (lumbar spine x-ray showing mild degeneration); 454 (nerve conduction study
showing mild cervical spine root irritation); 462 ( largely normal examination findings aside
from some tenderness and tender points)). Additionally, the ALJ noted that this opinion was
completed on the same day that Plaintiff presented to Paragon Family Practice to "discuss
disability" (Tr. 560) and appeared to be based largely on her subjective complaints, which, as
discussed infi·a, the ALJ reasonably rejected (Tr. 36).
The ALJ also considered the three other medical source opinions of record. As such,
while Plaintiff challenges the ALJ's rejection of the Paragon Family Practice treating
physician's opinion, the ALJ's decision makes clear that he considered all of the treatment and
other evidence of record, reasonably rejected the treating physician's extreme opinion, and
instead found that Plaintiff could perform a reduced range of light work. This survives scrutiny
upon review. See Norris v. Comm 'r ofSoc. Sec., 461 F. App'x 433, 440 (6th Cir. 2012)
(unpublished) ("So long as the ALJ's decision adequately explains and justifies its
determination as a whole, it satisfies the necessary requirements to survive Oudicial] review.").
Plaintiff also contends that the ALJ failed to consider Plaintiffs subjective complaints.
Upon review of an ALJ's decision, this Court is to accord the ALJ's determinations of
credibility great weight and deference as the ALJ has the opp011unity of observing a witness'
demeanor while testifying. Walters v. Commissioner ofSocial Security, 127 F.3d 525, 528 (6'h
Cir. 1997). Again, this Court's evaluation is limited to assessing whether the ALJ's
conclusions are supported by substantial evidence on the whole record.
In this case, the ALJ found Plaintiffs testimony and other statements regarding the
intensity, persistence and limiting effects of her symptoms"not entirely credible." (Tr. 35).
Specifically, the ALJ noted that Plaintiffs impairments were treated conservatively, including
carpal tunnel release surgery, epidural injections, and physical therapy (Tr. 33 & n. 2, 4, 5, 6, 7; Tr.
34). See 20 C.F.R. § 404.1529(c)(3)(iv)-(v) (stating an ALJ must consider the type of treatment);
Granda v. Sec)1ofHealth & Human Servs., 856 F.2d 36, 39 (6th Cir. 1988) (Commissioner
properly compared a claimant's "subjective allegations of pain" with "his underlying condition").
The ALJ also noted that Plaintiffs activities of daily living showed that she was less limited than
she alleged, including that she drove, prepared simple meals, performed some housework, visited
with family members and relatives, cared for pets, spent time with her grandchildren, went to
church, went out to eat, and attended to most of her personal needs (Tr. 263-264, 292-299 and
Given the lack of suppotting evidence, the Court finds the ALJ' s assessment of
Plaintiffs subjective complaints of pain to be appropriate.
Finally, as for the RFC, The responsibility for determining a claimant's residual
functional capacity is reserved to the Commissioner. See 20 C.F.R. §§ 404.1527( d)(2),
404.1545.3 The ALJ considers numerous factors in constructing a claimant's residual
functional capacity, including the medical evidence, the non-medical evidence, and the
claimant's credibility. See Coldiron v. Comm 'r ofSoc. Sec., 391 F. App'x 435, 443 (6th Cir.
2010) (unpublished). In making this determination, the ALJ is required to resolve conflicts in
the evidence and incorporate only those limitations that he finds credible in the residual
functional capacity assessment. See Casey v. Sec '.Y ofHealth & Human Servs., 987 F.2d 1230,
1234-1235 (6th Cir. 1993). Where there are conflicts regarding the evidence, the ALJ's
findings of credibility are entitled to great deference. See Anthony v. Astrue, 266 F. App'x 451,
460 (6th Cir. 2008) (unpublished) (citing King v. Heckler, 742 F.2d 968, 974-75 (6th Cir.
In assessing Plaintiffs residual functional capacity, the ALJ considered all of the
evidence, including Plaintiffs claims of disabling limitations and, in addition, provided a
thorough analysis of the medical evidence. After considering all of that evidence, however, the
ALJ reasonably found that the record as a whole did not support Plaintiffs claims that her
impairments were disabling (Tr. 34-35).
The Court finds that the ALJ' s decision is supported by substantial evidence on the
record. Accordingly, it is HEREBY ORDERED that the Plaintiffs Motion for Summary
Judgment be OVERRULED and the Defendant's Motion for Summary Judgment be
SUSTAINED. A Judgment in favor of the Defendant will be entered contemporaneously
/?/~ay of September, 2016.
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