Turner v. SSA
MEMORANDUM OPINION & ORDER: 1) Plaintiff's Motion for Summary Judgment 10 is DENIED; and 2) Defendant's Motion for Summary Judgment 11 is GRANTED. Signed by Judge Joseph M. Hood on 5/18/2017.(STC)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
JAMES DAVID TURNER,
) Action No. 5:16-CV-0076-JMH
) MEMORANDUM OPINION AND ORDER
NANCY J. BERRYHILL,
Acting Commissioner of
This matter is before the Court on the parties’ cross-Motions
for Summary Judgment (DE 10, 11) on Plaintiff’s appeal of the
Commissioner’s denial of his application for disability insurance
The matter having been fully briefed by the parties is
now ripe for this Court’s review.
Administrative Law Judge (“ALJ”) uses a five step analysis:
1. An individual who is working and engaging
in substantial gainful activity is not
disabled, regardless of the claimant’s
2. An individual who is working but does not
significantly limits his physical or mental
ability to do basic work activities is not
These are not traditional Rule 56 motions for summary judgment. 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
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
Preslar v. Sec’y of Health & Hum. Servs., 14 F.3d 1107, 1110 (6th
Cir. 1994) (citing 20 C.F.R. § 404.1520(1982)).
The ALJ in this
case completed this five-step analysis, as described below.
On May 30, 2013, Plaintiff protectively filed a Title II
application for a period of disability and disability insurance
He also protectively filed a Title
XVI application for supplemental security income (“SSI”) on that
date. [TR 47]. In both applications, Plaintiff alleged disability
beginning May 1, 2013.
initially and on reconsideration.
Plaintiff’s claims were denied
On February 19, 2015,
Administrative Law Judge (“ALJ”) Bonnie Kittinger issued a written
decision, denying Plaintiff’s claim for benefits after holding
hearing on January 7, 2015.
At Step One of the disability determination process, ALJ
Kittinger found that Plaintiff had not engaged in substantial
gainful activity since the alleged onset date.
impairments: residuals from pulmonary embolism and left lower
extremity deep vein thrombosis, status post left leg trauma,
anxiety and affective disorder.
At Step Three, ALJ Kittinger explained that Plaintiff “does
not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1.”
found that Plaintiff “has not had obstruction of a deep vein at
[the] level of severity” described in Listing 4.11 of Appendix 1,
nor does the “severity of the claimant’s mental impairments,
considered singly and in combination,” meet “the criteria of
listing 12.04 or 12.06.” [TR 50-1].
The ALJ also considered
whether Plaintiff had “repeated episodes of decompensation” as
described in listing 12.04C.
She concluded the “evidence fails to
establish the presence of ‘paragraph C’ criteria.” [TR 51].
Before proceeding to Step Four, ALJ Kittinger found that
Plaintiff had the residual functional capacity (“RFC”) to perform
light work, as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b),
including lifting or carrying twenty pounds
occasionally and ten pounds frequently,
standing or walking up to six hours and
sitting at least six hours in an eight-hour
day, except the claimant can no more than
occasionally climb ramps, stairs, ladders,
ropes and scaffolds; no more than frequently
balance, stoop, kneel, crouch and crawl; and
pulmonary irritants. He is able to understand
simple-tostraightforward, detailed tasks and to sustain
attention on straightforward tasks that
require minimal judgment for two-hour segments
throughout an eight-hour day for a full
He is able to interact with
coworkers and supervisors in an object-focused
setting and to adapt to expected, routine task
performing past relevant work as a bartender or bar supervisor at
Nevertheless, ALJ Kittinger proceeded to the final step of
determined that there were a significant number of other jobs in
the national economy that Plaintiff could perform.
Kittinger based this conclusion on testimony from a vocational
expert (“VE”), in response to a hypothetical question assuming an
individual of Plaintiff’s age, education, work experience, and
The VE testified that such an individual could find
work as “assembly” (37,000 Kentucky/1,800,000 nationally), order
caller (1,000 Kentucky/50,000 nationally), or gatekeeper (11,000
Based on the testimony of
the VE, ALJ Kittinger alternatively found that Plaintiff was
capable of making a successful adjustment to other work.
Thus, she concluded that Plaintiff was not under a “disability,”
as defined by the Social Security Act, from May 1, 2013, the
ALJ Kittinger’s decision became the final decision of the
Commissioner when the Appeals Council denied review on January 12,
Plaintiff filed the instant action on March 6,
Consistent with the Court’s Standing Scheduling
judgment, which are now ripe for review.
[DE 10, 11].
supported by substantial evidence for two reasons, both of which
relate to the RFC assessment.
First, Plaintiff argues that ALJ
Kittinger failed to afford controlling weight to the opinion of
Dr. Getulio Tovar, who diagnosed Plaintiff with bipolar disorder.
Second, he contends that ALJ Kittinger erred in affording great
weight to the opinion of a non-examining physician, Dr. H. Thompson
When reviewing a decision made by the ALJ, the Court may not
“‘try the case de novo, resolve conflicts in evidence, or decide
questions of credibility.’” Ulman v. Comm’r of Soc. Sec., 693 F.3d
709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506,
509 (6th Cir. 2007)).
“The ALJ’s findings are conclusive as long
as they are supported by substantial evidence.” 42 U.S.C. § 405(g);
Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (citations
Substantial evidence “‘means such relevant evidence as
a reasonable mind might accept.’” Foster, 279 F.3d at 353 (quoting
Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th
As discussed below, the ALJ’s findings in this case
that the opinion of the treating doctor was not entitled to
controlling weight, and the ALJ’s residual functional capacity
The ALJ is responsible for “evaluating the medical evidence
and the claimant’s testimony to form an ‘assessment of [his]
residual functional capacity’” at Step Four of the disability
Webb v. Comm’r of Soc. Sec., 368 F.3d 629,
633 (6th Cir. 2004) (quoting 20 C.F.R. § 416.920(a)(4)(iv)).
RFC is an assessment of how the claimant’s “impairments, and any
related symptoms, such as pain, . . . cause physical and mental
limitations that affect what [he or she] can do in a work setting.”
20 C.F.R. § 416.945(a)(1).
The RFC assessment is “based on all of
the relevant medical and other evidence” in the case record,
including “statements about what [the claimant] can still do that
have been provided by medical sources,” as well as descriptions of
the claimant’s limitations that have been provided by the claimant
and his or her family members.
20 C.F.R. § 416.945(a)(3).
treating sources, non-treating sources, and non-examining sources.
20 C.F.R. § 416.927(a)(2).
A treating source is a “physician,
psychologist, or other acceptable medical source who … has, or has
had, an ongoing treatment relationship” with the claimant.
treating source’s opinion is entitled to controlling weight if the
“opinion on the issue(s) of the nature and severity of [the
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with other substantial evidence in [his or her]
20 C.F.R. § 416.927(c)(2).
If the opinion is not
entitled to controlling weight, the ALJ must decide how much weight
to give it by considering the length, frequency, nature and extent
of the treatment relationship; evidence in support of the opinion;
consistency of the opinion with evidence in the record; physician's
specialization; and other factors brought to the ALJ's attention.
20 C.F.R. § 416.927(c)(2)-(6).
A non-treating source is an acceptable medical source who has
examined the claimant but does not have an ongoing treatment
relationship with him or her, while a non-examining source has not
evidence in the case.
“[O]pinions from sources other than
treating sources can never be entitled to ‘controlling weight.’”
Soc. Sec. Rul. 96–2p, 1996 WL 374188, at *2 (July 2, 1996).
Instead, the ALJ must weigh the opinion using the same factors
While an ALJ will likely prioritize a
treating source's non-controlling opinion over a non-treating
source's opinion (and a non-treating source's opinion over a nonexamining source's opinion), deviation from this general approach
is not a per se error of law.
20 C.F.R. § 416.927(c)(2)-(6).
In this case the ALJ did not make a specific finding that Dr.
Tovar was a treating source; however, the ALJ discussed standards
for evaluating medical source opinions in her decision [TR 52],
discussed Dr. Tovar’s records throughout the decision [TR 52-6],
and stated there was “no subsequent record of mental health
treatment in evidence.”
The ALJ discusses Dr. Tovar’s
notes and prescriptions in a series of paragraphs that begin with,
“Records of mental health treatment and psychological evaluation
[Id.] In reading all of this together, the Court can
infer that the ALJ recognized Dr. Tovar as a treating source, even
though she did not specifically state that fact.
Plaintiff argues ALJ Kittinger erred in not conducting the
analysis in 20 C.F.R. § 404.1527(c)(2)-(6) in determining the
weight to give a treating physician’s opinion if the ALJ is not
giving it controlling weight.2
Plaintiff argues ALJ Kittinger
further erred in relying on the GAF score assigned by Dr. Tovar,
which the ALJ found to be inconsistent with Dr. Tovar’s opinion.
Plaintiff notes in his brief that GAF scores are not entitled to
any particular weight, see Johnson v. Comm’r of Soc. Sec., 535 F.
App’x 498, 508 (6th Cir. 2013), but, importantly, that line of
cases does not require the ALJ to ignore the GAF score entirely.
404.1527(c)(2)(i) and (ii) when analyzing Dr. Tovar’s opinion.
“Generally, the longer a treating source has treated you and the
more times you have been seen by a treating source, the more weight
404.1527(c)(2)(ii); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
544 (6th Cir. 2004) (“If the opinion of a treating source is not
accorded controlling weight, an ALJ must apply certain factors—
Plaintiff does not raise any issues related to the ALJ’s findings regarding
Plaintiff’s physical limitations, although the treatment and analysis of
Plaintiff’s physical condition is discussed in the factual background portion
of the brief.
namely, the length of the treatment relationship and the frequency
relationship, supportability of the opinion, consistency of the
opinion with the record as a whole, and the specialization of the
treating source—in determining what weight to give the opinion.”).
The ALJ noted Dr. Tovar only treated Plaintiff twice, and both of
these times occurred within 12 months of the accident.
pointed out that Dr. Tovar’s opinion was not consistent with his
orientation, memory, attention span and concentration; the only
abnormal finding an anxious mood.” [TR 55]. Thus, the ALJ properly
gave Dr. Tovar’s opinion only “marginal weight.”
The ALJ gave little weight to the opinion of the State agency
psychologist who reviewed the evidence in August 2013.
The ALJ found that Dr. Prout’s opinion, however, was consistent
with the record as a whole, including the opinions of Dr. Cristi
Hundley, a treating source, and Dr. Tovar (whose reports Dr. Prout
The ALJ therefore gave Dr. Prout’s opinion “great
Ultimately, the aforementioned substantial evidence supports
the ALJ’s RFC finding as well as the weight she assigned to the
various treating and non-treating sources.
The Court will affirm
the Commissioner’s final decision which depends upon that finding.
Accordingly, for all of the reasons set forth above, IT IS
that Plaintiff’s Motion for Summary Judgment (DE 10) is
that Defendant’s Motion for Summary Judgment (DE 11) is
This the 18th day of May, 2017.
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