Abner v. SSA
MEMORANDUM OPINION & ORDER: The Plaintiff's motion for s/j 9 is OVERRULED and the dft's motion for s/j 10 is SUSTAINED. A Judgment in favor of the dft will be entered. Signed by Judge Henry R. Wilhoit, Jr on 09/19/2016.(LC)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
Civil Action No. 15-200-HRW
CALVIN EUGENE ABNER,
MEMORANDUM OPINION AND ORDER
CAROLYN COL VIN,
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. 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 his current application for disability insurance benefits on Janumy 23,
2012, alleging disability beginning on May 6, 2009, due to "back/shoulder injury, leg pain, scar
tissue in back, anxiety, depression, unable to write, illiterate "(Tr. 175). This 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, Lisa A Cominey, 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 impairment(s) must
be severe before he can be found to be disabled based upon the requirements in 20 C.F.R.
§ 4 I 6.920(b).
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, Subpmi 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. 39-46). Plaintiff
was 47 years old at the time of the hearing decision. He has a 9•h grade education and worked as
an irrigation technician I foreman at the golf course at Weston Country Club from June 1988
until May 2009(Tr. 176).
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. 41 ).
The ALJ then determined, at Step 2, that Plaintiff suffers from back injmy, illiteracy and
pain in his right shoulder as well as right knee, which he found to be "severe" within the meaning
of the Regulations (Tr. 41-42).
At Step 3, the ALJ found that Plaintiffs impairments did not meet or medically equal any
of the listed impairments (Tr. 42). In doing so, the ALJ specifically considered Listings 1.02,
1.04 and 14.09 (Tr. 42).
The ALJ futther found that Plaintiff could not return to his relevant work (Tr. 44) but
determined that he has the residual functional capacity ("RFC") to perform light level work with
certain postural, manipulative and environmental limitations (Tr. 42).
The ALJ finally concluded that these jobs exist in significant numbers in the national and
regional economies, as identified by the VE (Tr. 45).
Accordingly, the ALJ found Plaintiff not to be disabled at Step 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 Summary
Judgment [Docket Nos. 9 and 1O] 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 suppotted by
substantial evidence. "Substantial evidence" is defined as "such relevant evidence as a
reasonable mind might accept as adequate to suppott 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. Gamer
v. Heckler, 745 F.2d 383, 387 (6 1h Cir. 1984). If the Commissioner's decision is suppotted by
substantial evidence, the reviewing Court must affirm. Kirk v. Secretary ofHealth and Human
Services, 667 F.2d 524, 535 (61h Cir. 1981), cert. denied, 461 U.S. 957 (1983). "The comt may
not try the case de novo nor resolve conflicts in evidence, nor decide questions of credibility."
Bradley v. Secretmy of Health and Human Services, 862 F.2d 1224, 1228 (6'h 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 suppotts the conclusion reached by the ALJ." Key v. Callahan, I 09 F.3d 270, 273 (6th
PlaintifPs Contentions on Appeal
Plaintiff contends that the ALJ' s finding of no disability is erroneous because: (I) the
ALJ did not conclude that Plaintiffs depression is a "severe" impairment and (2) the ALJ did not
adequately consider the opinion of Plaintiffs treating physician, Sandra Dinasio, M.D ..
Analysis of Contentions on Appeal
Plaintiffs first claim of error is that the ALJ did not conclude that Plaintiffs depression
is a "severe" impairment.
It is the burden of the claimant to prove the severity of his impairments. Higgs v. Bowen,
880 F.2d 860, 863 (6'h Cir. 1988), citing, Murphy v. Secretmy ofHealth and Human Services,
801F.2d182, 185 (6'h Cir. 1986). The Court is mindful of the fact that the Step 2 severity
regulation, codified at 20 C.F.R. §§ 404.1520© and 404.1521, has been construed as a de
minimus hurdle and that, in the majority of cases, "a claim for disability may not be dismissed
without consideration of the claimant's vocational situation". See Higgs v. Bowen, 880 F.2d 860,
862 (6'h Cir. 1988). However, the severity requirement is still recognized as a device with which
to screen "totally groundless" claims on the basis of the medical evidence alone. Id at 863. The
pertinent inquiry is whether an impairment is disabling, not merely whether an impairment
In his discussion at Step 2 of the sequential analysis, the ALJ specifically discussed
Plaintiff's depression and found that it had no more than a minimal limiting effect on his ability
to perform work-related activity. The ALJ also referred to the psychological evaluation of
consultative examining psychologist, Jennifer Fishkoff, Psy. D., who opined that Plaintiff
demonstrated an adequate ability to understand, retain, and follow instructions as well as the
ability to sustain attention to perform simple and repetitive tasks. Dr. Fishkoff also opined that
Plaintiff appeared to be capable of tolerating the stress and pressures associated with day-to-day
work activities (Tr. 329). Based on the lack of evidence supp011ing a more limiting effect of his
depression, the ALJ concluded that this particular impairment was not deemed "severe," as
defined by the relevant Regulations. The Com1 finds no error in this regard.
Moreover, Plaintiff's contention is largely academic; the ALJ found that Plaintiff had
some severe impairments and continued on with the sequential evaluation. See Anthony v. Astrue,
266 F. App'x 451, 457 (6th Cir. 2008) (unpublished) (citing lvfaziarz v. Sec '.Y ofHealth &
Human Servs., 837 F.3d 240, 244 (6th Cir. 1987)); see also Pompa v. Comm'r ofSoc. Sec., 73 F.
App'x 801, 803 (6th Cir. 2003) (unpublished) ("Because the ALJ found that Pompa had a severe
impairment at step two of the analysis, the question of whether the ALJ characterized any other
alleged impairment as severe or not severe is of little consequence."). The finding of non-severity
is irrelevant in this instance because the ALJ went on to determine Plaintiff's residual functional
capacity between steps three and four, and, at that point, was required to consider both his severe
and non-severe impairments. See 20 C.F.R. § 404.1545(a)(2).
Plaintiffs second claim of error is that the ALJ did not adequately consider the opinion of
Plaintiffs treating physician, Sandra Dinasio, M.D.
Dr. Dinasio (TR. 331-334) specifically diagnosed the Plaintiff with degenerative disc
disease in the lumbar spine, right shoulder impingement and hypertension. In an October 2012
evaluation, she opined that Plaintiff should be limited to lifting ten pounds or less,
standing/walking to approximately one block at time and to sitting for no longer than ten minute
increments in an eight hour day. (TR. 332). Additionally, she felt the Plaintiff could only
occasionally climb, balance, stoop, crouch, kneel or craw. He had limitations in reaching,
handling and pushing/pulling objects. Further she felt he should avoid moving machines and
temperature extremes. (TR. 333).
In assessing the medical evidence supplied in support of a claim, there are certain
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
rnle; 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.
In his decision, the ALJ stated that he gave "some weight" to Dr. Dinasio's work-related
limitations, the ALJ reasonably found that Dr. Dinasio's opinions as to Plaintiffs ability to work,
stand/walk, sit, and lift (prepared at Plaintiffs request), were inconsistent with the treatment
record (including her own treatment records related to Plaintiff) (Tr. 44). However, as the ALJ
noted, subsequent treatment records from Dr. Dinasio reveal no additional impairment and the
recommended course of treatment did not include surge1y or other aggressive measures. Id
Further, because Dr. Dinasio's opinions were primarily expressed by circling limitations
or checking boxes on a standardized form without any objective explanation of the basis for her
opinions, the form is not pmiicularly helpful in evaluating Plaintiffs limitations (Tr. 331-334).3
Cf Price v. Comm 'r ofSoc. Sec., 342 F. App'x 172, 176 (6th Cir. 2009) (unpublished) ("Because
Dr. Ashbaugh failed to identify objective medical findings to suppo1i his opinion [on a
questionnaire] regarding Price's impairments, the ALJ did not err in discounting his opinion.").
Finally, the ALJ discussed countervailing objective or opinion evidence (including other
opinions from Dr. Dinasio), and the objective findings of consultative examining physician Dr.
Haziq that Plaintiff demonstrated ranges of motion within normal limits, and the opinion of
consultative examining psychologist Dr. Fishkoff; as well as the opinions of state agency medical
consultants Drs. Irlandez that Plaintiff retained the capacity to perform medium exertion work,
and Drs. Brake and Ross, that Plaintiff was not subject to a severe mental impairment (Tr. 4144). As "[s]tate agency medical and psychological consultants ... are highly qualified physicians
and psychologists who are also experts in Social Security disability evaluation." 20 C.F.R. §
404.1527(e)(2)(1), the decision to give more weight to a state agency doctor over treating and
examining doctors is, indeed, permissible. Blakley v. Comm 'r ofSoc. Sec., 581F.3d399, 409
(6th Cir. 2009).
The Court finds that the ALJ's consideration of Dr. Dinasio's opinion to be supported by
To the extent that Plaintiff suggests that this evidence is open to another interpretation
that favors her claim, the Court declines to reweigh the evidence in this fashion. If the
Commissioner's decision denying benefits is supported by substantial evidence, as it is here, the
Court must affirm that decision. Longworth v. Commissioner ofSocial Security, 402 F.3d 591,
595 (6 1h Cir. 2005). Even if substantial evidence exists to support Plaintiffs claim, the Court
should still affirm the Commissioner's decision because it is supported by substantial evidence.
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001); see also Smith v. Chafer, 99 F.3d 780, 782
(6th Cir. 1996) (even ifthe Court would have decided the matter differently than the ALJ, if
substantial evidence supports the ALJ's decision, it must be affirmed.)
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
Henry R. W/lholtwl!..
United States District Judge
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