Hardin v. SSA

Filing 10

MEMORANDUM OPINION & ORDER: 1. Plaintiff Hardin's Motion for Leave to File a Reply Memorandum 9 is GRANTED. The Court has considered the tendered reply memorandum in reaching its decision, and the Clerk is DIRECTED to file the reply [9-2] in t he record; 2. Plaintiff's Motion for Summary Judgment 7 is DENIED; 3. Commissioner's Motion for Summary Judgment 8 is GRANTED; and 4. Judgment in favor of the Commissioner shall enter promptly. Signed by Judge Gregory F. Van Tatenhove on 3/1/2017. (STC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
WALTER A. HARDIN,

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Plaintiff,
V.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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Civil No. 5:16-cv-00045-GFVT

MEMORANDUM OPINION
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ORDER

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Walter Hardin seeks judicial review of an administrative decision of the Commissioner of
Social Security, which denied Hardin’s claims for supplemental security income benefits and
disability insurance benefits. Mr. Hardin brings this action pursuant to 42 U.S.C. § 405(g),
alleging various errors on the part of the ALJ considering the matter. The Court, having
reviewed the record and for the reasons set forth herein, will DENY Mr. Hardin’s motion for
summary judgment but will GRANT judgment in favor of the Commissioner.
I
A
Plaintiff Walter A. Hardin filed an application for Title II disability insurance benefits
and Title XVI supplemental social security in May 2013, alleging disability beginning January 1,
2011. [Transcript (hereinafter, “Tr.”) 65.] Hardin’s motion for summary judgment explains that
Hardin suffers from degenerative disc disease and various pulmonary problems, including
recurring hemoptysis, a history of pulmonary embolism, and ongoing complications from his
lobectomy like post-thoracotomy syndrome. [R. 8.] Hardin’s claims for Title II and Title XVI

benefits were denied initially and upon reconsideration. [Tr. 65.] Subsequently, a hearing was
conducted upon Hardin’s request. [Id.] Following the hearing, ALJ Bonnie Kittinger issued a
final decision denying both of Hardin’s claims for benefits. [Tr. 65-77.]
To evaluate a claim of disability for both Title II disability insurance benefit claims and
Title XVI supplemental security income claims, an ALJ conducts a five-step analysis. Compare
20 C.F.R. § 404.1520 (disability insurance benefit claims) with 20 C.F.R. § 416.920
(supplemental security income claims).1 First, if a claimant is performing a substantial gainful
activity, he is not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any
impairment or combination of impairments which significantly limit his physical or mental
ability to do basic work activities, he does not have a severe impairment and is not “disabled” as
defined by the regulations. 20 C.F.R. § 404.1520(c). Third, if a claimant’s impairments meet or
equal one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is
“disabled.” 20 C.F.R. § 404.1520(d). Before moving on to the fourth step, the ALJ must use all
of the relevant evidence in the record to determine the claimant’s residual functional capacity
(“RFC”), which assesses an individual’s ability to perform certain physical and mental work
activities on a sustained basis despite any impairment experienced by the individual. See 20
C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545.
Fourth, the ALJ must determine whether the clamant has the RFC to perform the
requirements of his past relevant work, and if a claimant’s impairments do not prevent him from
doing past relevant work, he is not “disabled.” 20 C.F.R. § 404.1520(e). Fifth, if a claimant’s

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For purposes of a disability insurance benefits claim, a claimant must show that his impairments were
disabling prior to the date on which his insured status expired. 20 C.F.R. § 404.131. Beyond this
requirement, the regulations an ALJ must follow when analyzing Title II and Title XVI claims are
essentially identical. Hereinafter, the Court provides primarily the citations to Part 404 of the relevant
regulations, which pertain to disability insurance benefits. Parallel regulations for supplemental security
income determinations may be found in Subpart I of Part 416.

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impairments (considering his RFC, age, education, and past work) prevent him from doing other
work that exists in the national economy, then he is “disabled.” 20 C.F.R. § 404.1520(f).
Through step four of the analysis, “the claimant bears the burden of proving the existence
and severity of limitations caused by her impairments and the fact that she is precluded from
performing her past relevant work.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir.
2003). At step five, the burden shifts to the Commissioner to identify a significant number of
jobs that accommodate the claimant’s profile, but the claimant retains the ultimate burden of
proving his lack of residual functional capacity. Id.; Jordon v. Comm’r of Soc. Sec., 548 F.3d
417, 423 (6th Cir. 2008).
At the outset of the case, the ALJ determined Mr. Hardin meets the insured requirements
of the Social Security Act through December 31, 2017. [Tr. 67.] Then at step one, the ALJ
found Hardin had engaged in substantial gainful activity from July 10, 2012 through March 9,
2013, but that, since that time, there had been a continuous twelve month period during which
Hardin did not engage in substantial gainful activity. [Tr. 67-68.] At step two, the ALJ found
Hardin suffers from severe impairments of degenerative disc disease and recurring hemoptysis,
status-post pulmonary embolism. [Tr. 68.] At step three, the ALJ determined Hardin’s
combination of impairments did not meet or medially equal one of the listed impairments in 20
C.F.R. Part 404 or Part 416. [Tr. 69.] Before moving on to step four, the ALJ considered the
entire record and determined Hardin possessed the RFC to perform light work as defined in 20
C.F.R. §§ 414.1567(b) and 416.967(b), with certain limitations described as follows:
[T]he claimant is able to lift/carry 20 pounds occasionally and ten pounds
frequently, and he is able to stand/walk up to six hours and sit at least six hours in
an eight-hour workday; however, he should be allowed to alternate sitting and
standing at 45-60 minute intervals. He is able to climb ramps and stairs
frequently; stoop, kneel, crouch and crawl occasionally, but should not climb
ladders, ropes or scaffolds.
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[Tr. 70.]
After explaining how she determined Hardin’s RFC [see Tr. 70-75], the ALJ found at
step four that, based on this RFC, Hardin is capable of performing various jobs that exist in
significant numbers in the national economy. [Tr. 76.] Accordingly, the ALJ concluded Hardin
was not disabled under 20 C.F.R. §§ 404.1520(g) or 416.920(g). [Tr. 77.] The Appeals Council
denied Hardin’s request for review [Tr. 1], and Hardin now seeks review in this Court.
II
A
The Court’s review is generally limited to whether there is substantial evidence in the
record to support the ALJ’s decision. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611,
614 (6th Cir. 2003); Shelman v. Heckler, 821 F.2d 316, 319-20 (6th Cir. 1987). “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 v.
Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citing Richardson v. Perales,
402 U.S. 389, 401 (1971)). The substantial evidence standard “presupposes that there is a zone
of choice within which [administrative] decision makers can go either way, without interference
by the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (quoting Baker v. Heckler,
730 F.2d 1147, 1150 (8th Cir. 1984)).
To determine whether substantial evidence exists, courts must examine the record as a
whole. Cutlip, 25 F.3d at 286 (citing Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535
(6th Cir. 1981), cert. denied, 461 U.S. 957 (1983)). However, a reviewing court may not
conduct a de novo review, resolve conflicts in the evidence, or make credibility determinations.
Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012); see also Bradley v. Sec’y of
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Health & Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988). Rather, if the Commissioner’s
decision is supported by substantial evidence, it must be affirmed even if the reviewing court
would decide the matter differently, and even if substantial evidence also supports the opposite
conclusion. See Ulman, 693 F.3d at 714; Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007);
Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
B
Mr. Hardin first alleges the ALJ inappropriately weighed the evidence related to his
pulmonary issues. Hardin maintains the ALJ’s findings “gloss over” his severe pulmonary
problems and that the ALJ ignored evidence related to his lobectomy and subsequent postthoracotomy syndrome. [See R. 7-1 at 6, 9.] But the record suggests the ALJ’s decision should
not be overturned on this basis.
Whether or not the ALJ properly identified Hardin’s severe impairments at Step Two of
her analysis ultimately proves immaterial in this case. Sixth Circuit case law makes clear that
where an ALJ finds at least one severe impairment and then considers both the severe and nonsevere impairments during the remaining steps of the analysis, the fact that some of a claimant’s
impairments were not deemed severe is “legally irrelevant.” Anthony v. Astrue, 266 F. App’x
451, 457 (6th Cir. 2008); see also Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240,
244 (6th Cir. 1987); Fisk v. Astrue, 253 F. App’x 580, 583-84 (6th Cir. 2007).
The ALJ did not list Hardin’s post-thoracotomy syndrome as a severe impairment at Step
Two, but she did find Hardin suffered from two other severe impairments: “degenerative disk
disease and recurring hemoptysis, status-post pulmonary embolism.” [Tr. 68-69.] The ALJ then
considered those two severe impairments as well as Hardin’s non-severe impairments later on in
her analysis. For example, the ALJ references Hardin’s lung surgery and subsequent chest and

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flank pain [Tr. 70]; discusses Hardin’s right lobectomy [Tr. 72]; explains that Hardin suffers
from residual pain from his lung surgery [Tr. 73]; and makes clear that certain limitations are
warranted specifically because of Hardin’s thoracic issues. [Id.] The ALJ, then, obviously
considered Hardin’s pulmonary condition in the remaining steps of the disability determination.
Accordingly, any omission of Hardin’s pulmonary state as a severe impairment is harmless. See
Anthony, 266 F. App’x at 457; Leach v. Comm’r of Soc. Sec., No. 3:13-cv-2037, 2015 WL
1221925, at *7-8 (N.D. Ohio March 17, 2015) (conducting a similar analysis).
C
Hardin also argues the ALJ erred when weighing the medical evidence, because the ALJ
assigned only partial weight to the opinion of Hardin’s treating cardiothoracic surgeon but gave
great weight to a non-treating agency examiner. The Court considers the ALJ’s treatment of
each of those physicians’ opinions in turn.
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First, the ALJ did not err when she decided to assign partial weight to the opinion of Dr.
Jeremiah Martin, Hardin’s treating cardiothoracic surgeon. The Social Security Administration
has set forth certain guidelines that an ALJ must follow when determining how much weight to
assign a treating medical source. The regulations provide:
If we find that a treating source's opinion on the issue(s) of the nature and severity
of your impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in your case record, we will give it controlling weight. When we do not
give the treating source's opinion controlling weight, we apply the factors listed in
paragraphs (d)(2)(i) and (d)(2)(ii) of this section, as well as the factors in
paragraphs (d)(3) through (d)(6) of this section in determining the weight to give
the opinion. We will always give good reasons in our notice of determination or
decision for the weight we give your treating source's opinion.

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20 C.F.R. § 404.1527(c)(2). Other factors which must be considered when the treating source
opinion is not given controlling weight include the length of the treatment relationship, the
frequency of examination, the nature and extent of the treatment relationship, the supportability
of the opinion, the consistency of the opinion with other evidence in the record, and whether the
treating source is a specialist. 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii), (c)(3)-(c)(5); 416.927(c)(2)(i)(ii), (c)(3)-(c)(5).
The regulations also contain a clear procedural requirement that an ALJ must give “good
reasons” for discounting a treating physician's opinion, specific enough “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.” 20 C.F.R. §§ 1527(c)(2), 416.927(c)(2); Social Security Ruling
(“SSR”) 96-2, 1996 WL 374188, at *5 (July 2, 1996). The purpose of the reason-giving
requirement is to allow “claimants [to] understand the disposition of their cases, particularly
where a claimant knows that his physician has deemed him disabled and therefore might be
bewildered when told by an administrative bureaucracy that she is not, unless some reason for
the agency's decision is supplied.” Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (citation
and internal quotation marks omitted). In addition, the requirement “ensures that the ALJ applies
the treating physician rule and permits meaningful appellate review of the ALJ's application of
the rule.” Id. Failure to follow the procedural requirement denotes a lack of substantial
evidence, even where the ALJ's conclusion may otherwise be justified on the record. Id. at 546.
The ALJ’s written opinion explains she assigned only partial weight to Dr. Martin’s
opinion because she found it internally inconsistent. [Tr. 75.] Dr. Martin’s medical source
statement indicates Hardin can reliably work for less than eight hours per day, but it also states
that Hardin could sit for three hours, stand for three hours, and walk for three hours total per day.

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[Tr. 868.] The ALJ took Martin’s opinion to mean Hardin was actually capable of working nine
hours per day total, if Hardin simply sat, stood, and walked for three hours each. [Tr. 75.] As
Hardin points out in his motion for summary judgment, though, it is possible that Dr. Martin did
not mean to suggest such a thing. Instead, Dr. Martin could have intended to indicate Hardin
could either sit or stand or walk for a total of only three working hours per day. In the end, the
medical source statement remains ambiguous.
In any event, the discrepancy is immaterial, because the ALJ set forth another adequate
reason for assigning Dr. Martin’s opinion only partial weight. As stated in her decision, she
found that Martin did not support his opinion “with reference to specific clinical and diagnostic
evidence that would justify the restrictions identified.” [Id.] While Dr. Martin does list postthoracotomy pain syndrome as a reason behind his diagnosis, Martin provides no additional
medical evidence to back up his recommendations that Hardin refrain from almost all work. [See
Tr. 868-69.] The opinions of treating physicians are only given substantial deference “when
supported by objective medical evidence.” See Warner v. Comm’r of Soc. Sec., 375 F.3d 387,
390 (6th Cir. 2004). The fact that Dr. Martin’s opinion was not supported with clinical or other
diagnostic evidence, then, is a good reason for assigning the opinion only partial weight under
the relevant regulations. See 20 C.F.R. § 404.1527(c)(3) (explaining the importance of
supportability and noting that “[t]he better an explanation a source provides for an opinion, the
more weight we will give that opinion”). Furthermore, the Court notes that the ALJ
appropriately gave at least some consideration to Dr. Martin’s opinion despite its shortcomings.
See Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *4 (July 2, 1996); Fisk, 253 F. App’x at 585.

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2
Also, the ALJ did not commit reversible error when she assigned great weight to
consultative examiner Dr. Jack Reed. Pursuant to Social Security Ruling 96-6p, opinions from
agency consultants may be assigned greater weight than the opinions of treating sources in
certain situations. See Soc. Sec. Rul. 96-6p, 1996 WL 374180, at *3 (July 2, 1996); Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009). Further, an ALJ may rely on a
consultative opinion even where the consultative examiner did not have access to the entire case
record. See Mock v. Colvin, No. 15-CV-02-GFVT, 2016 WL 4626580, at *5 (E.D. Ky. Sept. 2,
2016) (collecting cases). In that situation, the regulations require only “some indication that the
ALJ at least considered” the medical evidence which was unavailable to the consultative
examiner “before giving greater weight to an opinion that is not based on a review of a complete
case record.” Blakley, 581 F.3d at 409 (citations and quotation marks omitted).
Here, the ALJ explained that she gave great, but not controlling, weight to the opinion of
Dr. Reed, noting that he “reviewed all available medical evidence.” [Tr. 74.] Dr. Reed issued
his opinion on October 11, 2013, and thus could not have reviewed records related to Hardin’s
June 2014 lobectomy and subsequent post-thoracotomy syndrome. [See R. 7-1 at 4; Tr. 798-99.]
Nevertheless, it is clear that the ALJ knew about the surgery and Mr. Hardin’s related pain
complaints, and that she took that information into account when determining Hardin’s RFC.
[See Tr. 70-73]; Blakley, 581 F.3d at 409. Because of this, the Court does not find the ALJ’s
decision to assign great weight to Dr. Reed’s opinion to be grounds for reversal or remand.
D
Finally, Mr. Hardin takes issue with the ALJ’s decision to afford little weight to an
October 2012 functional capacity evaluation prepared by care providers at Kentucky Hand and

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Physical Therapy. [See Tr. 818-44.] While the ALJ believed that evaluation was “obtained in
connection with the claimant’s Workers Compensation claim,” Hardin points out that his treating
orthopedic surgeon Dr. Hunt actually ordered the evaluation and contends the ALJ was wrong to
assume it was related to Hardin’s workers’ compensation claim. [Compare Tr. 75 with Tr. 819.]
Ultimately, Hardin maintains the ALJ should have given at least some weight to the evaluation.
[R. 7-1 at 13.]
Again, Hardin’s argument provides no real basis for reversal or remand. Even if the ALJ
incorrectly associated the evaluation with Hardin’s workers’ compensation action, the ALJ
adequately explained her rationale for giving little weight to the evaluation. Her decision notes
the evaluation is inconsistent with the opinion of Hardin’s treating surgeon and that the
evaluation appears to serve a “relatively narrow purpose”—although in some ways the
evaluation speaks to Hardin’s general medical condition, the evaluation indeed focuses on
Hardin’s ability to return to his specific job as a saw operator at Rogers Foam, Inc. [See Tr. 75;
Tr. 818-44.]
In the end, the Court cannot find the ALJ erred in how she evaluated Mr. Hardin’s
claims. The ALJ considered the opinions of Dr. Martin and Dr. Reed as discussed above, but she
also considered the opinions of consulting psychological examiner Dr. Sillers, Hardin’s treating
orthopedic surgeon Dr. Hunt, and consultative examiner Dr. Johnson. [Tr. 74-75.] While she
chose not to assign significant weight to the October 2012 functional capacity examination, she
acknowledged its existence and explained the reasoning behind her decision. Further, the ALJ
discussed at some length Mr. Hardin’s pain complaints; she sympathized with the difficulty of
objectively measuring pain and noted she “carefully considered” Hardin’s complaints, ultimately

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focusing on “the medical facts and clinical findings that would bear on [the pain] question.” [Tr.
73.]
Importantly, the Court must uphold the ALJ’s decision even if the Court would weigh the
evidence differently, and even if substantial evidence also supports Mr. Hardin’s arguments. See
Ulman, 693 F.3d at 714; McMahon, 499 F.3d at 509. While substantial evidence may, therefore,
support some of Mr. Hardin’s positions, Hardin has not demonstrated that the ALJ’s decision
was not also supported by substantial evidence or that the ALJ failed to follow applicable
procedural rules. For the reasons discussed above, the Court denies the motion for summary
judgment filed by Mr. Hardin but grants summary judgment in favor of the Commissioner.
III
Being otherwise sufficiently advised, the Court hereby ORDERS as follows:
1. Plaintiff Walter A. Hardin’s Motion for Leave to File a Reply Memorandum [R. 9] is
GRANTED. The Court has considered the tendered reply memorandum in reaching its
decision, and the Clerk of the Court is DIRECTED to file the reply [R. 9-2] in the record;
2. The Plaintiff’s Motion for Summary Judgment [R. 7] is DENIED;
3. The Commissioner’s Motion for Summary Judgment [R. 8] is GRANTED; and
4. Judgment in favor of the Commissioner shall enter promptly.
This the 1st day of March, 2017.

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