Cook v. SSA
MEMORANDUM OPINION & ORDER: OVERRULING pla's 9 MOTION for Summary Judgment; SUSTAINING dft's 10 MOTION for Summary Judgment; a judgment in favor of dft will be entered. Signed by Judge Henry R. Wilhoit, Jr on 9/14/16.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
Civil Action No. 15-173-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 Comt having reviewed the record in this case and
the dispositive motions filed by the parties, and being otherwise sufficiently advised, for the
reasons set fotth 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 on February 13, 2012, alleging disability beginning on June 27, 2011,
due to numerous impairments, including pain, fibromyalgia, depression, migraines, arthritis,
fatigue, bipolar disorder, carpal tunnel syndrome, hand and foot numbness, forgetfulness, muscle
spasms, hand swelling, sleepiness, and acid reflux (Tr. 346).
This application was denied initially and on reconsideration. Thereafter, upon request by
Plaintiff, an administrative hearing was conducted by Administrative Law Judge Don C. Paris
(hereinafter "ALJ"), wherein Plaintiff, accompanied by counsel, testified. At the hearing, Linda
Taber, a vocational expert (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 impaitment(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 fmther 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 impaitments 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. 81-92). Plaintiff
was 39 years old at the time of the hearing decision. She has a high school education (Tr. 347)
and her past relevant work includes machine operator, server, customer service representative,
secretmy, payroll assistant and nurse's assistant (Tr. 313).
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. 83).
The ALJ then determined, at Step 2, that Plaintiff suffers from fibromyalgia, cluonic
dorsolumbar strain, incidental psuedoarthritis at C7 disc level, depression and anxiety, which he
found to be "severe" within the meaning of the Regulations (Tr. 83-84).
At Step 3, the ALJ found that Plaintiffs impairments did not meet or medically equal any
of the listed impairments (Tr. 84).
The ALJ fmiher found that Plaintiff could, in fact, perform her past work as a machine
operator and server (Tr. 90) and went on to but determined that she has the residual functional
capacity ("RFC") to perform medium work that involved lifting and carry 50 pounds
occasionally and 25 pounds frequently; sitting and standing/walking six hours each in an eighthour workday; frequently stooping, kneeling, crouching, crawling, and climbing ramps and stairs;
occasionally climbing ladders, ropes, and scaffolds; and should avoid concentrated exposure to
extreme cold and vibration (Tr. 86). Additionally, the ALJ found that Plaintiff could understand,
retain, and carry out simple work instructions and perform routine work tasks, but added that she
may show limited tolerance for frequent contact with the public and may function best at tasks
with limited social demands (Tr. 86).
The ALJ finally concluded that these jobs exist in significant numbers in the national and
regional economies, as identified by the VE (Tr. 90-91).
Accordingly, the ALJ found Plaintiff not to be disabled at Steps 4 and 5 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 Summmy
Judgment [Docket Nos. 9 and 1O] and this matter is ripe for decision.
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 supp01ied by
substantial evidence, the reviewing Court must affirm. Kirk v. Secretaiy ofHealth and Human
Services, 667 F.2d 524, 535 (6'h Cir. 1981), cert. denied, 461U.S.957 (1983). "The court may
not try the case de nova nor resolve conflicts in evidence, nor decide questions of credibility."
Bradley v. Secretary o,fHealth and Human Services, 862 F.2d 1224, 1228 (6 1h Cir. 1988).
Finally, this Comi 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." Keyv. Callahan, 109 F.3d 270, 273 (6th
Plaintiff contends that the ALJ's finding of no disability is erroneous because he failed to
properly evaluate the opinions of her treating physicians, Kevin Rowe, M.D. and Howard
In assessing the medical evidence supplied in support of a claim, there are cetiain
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-supported 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 supportability 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.
Dr. Rowe completed a medical source statement of Plaintiffs ability to perform physical
work-related activities (Tr. 505-08). He noted that Plaintiff had muscle spasms in all major
muscle groups and opined that she could lift and carry less than I 0 pounds; stand and walk two
hours in an eight-hour workday; sit less than six hours in an eight-hour workday; occasionally
climb; never perform any other postural activities; occasionally reach, handle, finger, feel; had a
limited ability to speak and reach; and should avoid noise, vibration, and hazards (Tr. 505-08).
The ALJ clearly considered Dr. Rowe's opinion that Plaintiff could lift and carry less
than I 0 pounds and stand and walk two hours in an eight-hour workday. The ALJ found that this
opinion was inconsistent with the objective medical findings in the record, including no joint
swelling, no signs of inflammation, no evidence of motor, senso1y, or reflex deficits, and no
evidence of significant spine pathology. The ALJ also considered the opinion of state agency
physician, Amanda Lange, M.D. who suggested that Plaintiff could lift and cany 50 pounds
occasionally and 25 pounds frequently; sit and stand/walk six hours each in an eight-hour
workday; occasionally climb ladders, ropes, and scaffolds; frequently preform all other postural
activities; and should avoid concentrated exposure to extreme cold, vibration, and hazards (Tr.
176-78). The ALJ found that Dr. Lange's opinion was "most consistent with the overall record".
The Court finds that the ALJ stated reasons for discounting the opinion of Dr. Rowe and,
therefore, followed the analysis set forth in SSR 96-2p.
With regard to Plaintiff's mental impairments, Dr. Fishkoff opined that Plaintiff had
moderate to marked limitations in all areas of mental work-related functioning (Tr. 445-47).
Yet, as with Dr. Rowe's opinion, however, the ALJ found that Dr. Fishkoff's opinion was
inconsistent with any objective findings of record (which instead showed no psychosis, good
judgment and insight, and a neutral mood and affect) (Tr. 89-90, see Tr. 477, 481, 495-504, 51764). Indeed, the same month that Dr. Fishkoff found "moderate to marked" limitations, state
agency psychologist Byron Pack, Psy.D., reviewed Plaintiff's medical records and opined that
she had some moderate mental limitations but could understand, retain, and cany out simple
instructions; consistently perform routine task with minimal (normal) supervision; cooperate
effectively with the public and co-workers; and adequately adapt to changes and demands of
simple tasks (Tr. 139-40, 144-46). Another state agency psychologist, Lea Perritt, Ph.D., later
reviewed Plaintiff's medical records and agreed with Dr. Pack (Tr. 174-75, 178-80).
Again, the record contains substantial evidence which support the ALJ's assessment of
Dr. Fishkoff's opinions and, moreover, the ALJ specifically enumerated his reasons for
discounting the opinions. As such, the Coutt finds no error in this regard.
The Coutt finds that the ALJ' s decision is suppo1ted by substantial evidence on the
Accordingly, it is HEREBY ORDERED that the Plaintiff's 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
This / f : a y of September, 2016.
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