Doyle v. SSA

Filing 15

MEMORANDUM OPINION & ORDER: IT IS ORDERED that the final decision of the Acting Commissioner is AFFIRMED. Plaintiff's 12 MOTION for Summary Judgment is DENIED and Commissioner's 14 MOTION for Summary Judgment is GRANTED. A separate Judgment shall be entered this date. Signed by Judge Joseph M. Hood on 8/30/2018.(GLD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
LINVILLE SCOTT DOYLE,

)
)
Plaintiff,
)
)
V.
)
)
Nancy A. Berryhill, Acting
)
Commissioner of Social Security, )
)
Defendant.
)

Civil No. 5:16-CV-286

MEMORANDUM OPINION AND ORDER

****
Linville Scott Doyle brought this action pursuant to 42 U.S.C.
§ 405(g) to obtain judicial review of an administrative decision
of the Commissioner of Social Security denying his claim for
disability insurance benefits (DIB).

The Court, having reviewed

the record, will AFFIRM the Commissioner’s decision as it is
supported by substantial evidence.
I.
Judicial review of the Commissioner’s decision is limited to
determining whether it is supported by substantial evidence and
was made pursuant to proper legal standards.

Cutlip v. Sec’y of

Health

(6th

&

Human

Servs.,

25

F.3d

284,

286

Cir.

1994).

“Substantial evidence” is defined as “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.”

Id.

Courts are not to conduct a de novo review,
1

resolve

conflicts

determinations.

Id.

in

the

evidence,

or

make

credibility

Rather, we are to affirm the Commissioner’s

decision, provided it is supported by substantial evidence, even
if we might have decided the case differently.

See Her v. Comm’r

of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). The substantial
evidence standard “allows considerable latitude to administrative
decision makers” and “presupposes that there is a zone of choice
within which the [decision makers] can go either way, without
interference by the courts.” Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (citation and internal quotations omitted). “The
substantial evidence standard is met if a reasonable mind might
accept the relevant evidence as adequate to support a conclusion.”
Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005)
(citation and internal quotations omitted).
The ALJ, in determining disability, conducts a five-step
analysis.

See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474

(6th Cir. 2003).

Step One considers whether the claimant is still

performing substantial gainful activity; Step Two, whether any of
the claimant’s impairments are “severe”; Step Three, whether the
impairments meet or equal a listing in the Listing of Impairments;
Step Four, whether the claimant can still perform his past relevant
work; and Step Five, whether significant numbers of other jobs
exist in the national economy which the claimant can perform.

2

As

to the last step, the burden of proof shifts from the claimant to
the Commissioner.

Id.; see also Preslar v. Sec’y of Health & Human

Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
II.
Plaintiff

filed

an

application

for

disability

insurance

benefits (DIB) in September 2013, alleging that he became disabled
in August 2013 (Tr. 175-78). After administrative denials (Tr. 81113, 115-21) and a de novo hearing (Tr. 35-67), an ALJ denied his
claim in May 2015 (Tr. 12-34). The agency’s Appeals Council
subsequently declined Plaintiff’s request for review (Tr. 1-6),
making the ALJ’s decision the final agency decision for purposes
of judicial review. See 20 C.F.R. § 404.981, 422.210(a) (2016).2
This appeal followed.
In early August 2013, Plaintiff saw Greg Grau, M.D., for an
orthopedic evaluation for the “possibility” of pursuing disability
(Tr 315). Plaintiff complained of multiple joint pain and numbness
and tingling in his upper extremities, though the bulk of his
symptoms

were

related

to

his

cervical

spine.

Plaintiff

also

complained he was having difficulty performing his job secondary
to his pain (Tr. 315). Dr. Grau recommended updated imaging studies
to evaluate for progressive disc bulge to herniation.
On August 29, 2013, Dr. Grau noted that Plaintiff’s recent
neck MRI showed no worsening from his prior study. Plaintiff said

3

that his psychologist and primary care doctor had recommended he
pursue disability (Tr. 319). Dr. Grau recommended Plaintiff see a
pain management specialist and discussed the possibility of a
functional capacity evaluation. He stated Plaintiff would follow
up on an as needed basis (Tr. 321).
On January 30, 2014, Plaintiff’s primary care doctor, Herbert
W. Long, M.D., completed a form in which he stated that Plaintiff
had chronic obstructive pulmonary disease (COPD), gastroesophageal
reflux disease (GERD), tingling in his hands and feet, neck and
low back pain, and arthritic pain. He noted that Plaintiff’s neck
x-rays showed cervical disc bulges and degenerative disc disease
(Tr. 431). Dr. Long opined Plaintiff could lift and carry no more
than 10 pounds, stand and walk no more than 10 minutes at a time
or more than 30 minutes in an eight-hour workday, sit no more than
10 minutes at a time or more than 15 minutes in an eight-hour
workday (Tr. 432-33). Dr. Long further opined Plaintiff could never
stoop, crouch, or crawl; could occasionally climb, balance, and
kneel; had limits in reaching, handling, feeling, pushing, and
pulling and working around heights, moving machinery, temperature
extremes, humidity, and vibration (Tr. 433). Dr. Long also assessed
mental limitations and stated Plaintiff had poor or no ability to
deal with the public, use judgment, deal with work stresses,
function independently, and maintain attention and concentration
(Tr. 434).
4

A polysomnography performed in May 2014, showed moderate
obstructive sleep apnea (Tr. 578-84). In September 2014, Plaintiff
told Shobhna Joshi, M.D., that he was sleeping well with a CPAP
machine, but he still had difficulty sleeping because of pain.
Plaintiff reported he continued smoking two packs of cigarettes a
day (Tr. 569). On examination, Plaintiff had no motor or sensory
deficits, normal reflexes, no muscle weakness or tenderness, and
no joint swelling or decreased range of motion. He had normal
breath sounds and his lungs were clear with no wheezes. Dr. Joshi
advised Plaintiff to increase his sleep hours and recommended he
lose weight (Tr. 570).
On January 15, 2015, Dr. Joshi prescribed an inhaler for
Plaintiff (Tr. 567). The following month, cardiologist Ananth
Kumar, M.D., evaluated Plaintiff for complaints of chest pain with
activity (Tr. 534-35). In March 2015, an exercise stress test
showed severe perfusion defect involving the inferior wall of the
left ventricle (Tr. 586-87). Dr. Kumar assessed coronary artery
disease and prescribed medications (Tr. 589).
During
psychologists

the

administrative

Laura

Cutler,

proceedings,

Ph.D.,

reviewed

state
the

agency

record

and

concluded that Plaintiff could understand, remember, and carry out
simple and detailed instructions; sustain attention for two-hour
segments for detailed tasks; tolerate coworkers and supervisions
with occasional contact with the public; and adapt to routine
5

changes as needed (Tr. 107). State agency physician Humidad T.
Anzures, M.D., assessed limitations consistent with medium work
with limited overhead reaching and avoidance of vibration (Tr.
103-04).
At the April 2015 hearing, Plaintiff testified that he could
not lift more than five or 10 pounds because of arthritis in his
upper extremities (Tr. 46). He complained of shortness of breath
with physical labor (Tr. 56).

Plaintiff estimated that he could

sit for 15 minutes at a time, stand for 10 to 15 minutes at a time,
and

walk

about

25

feet

(Tr.

56).

He

also

described

having

difficulties with lifting and using his hands (Tr. 57). Plaintiff
testified he had difficulties with concentration and being around
other people (Tr. 58). He reported that during a typical day, he
hung around the house, used the computer, watched television, and
listened to the radio (Tr. 59).
After

carefully

considering

the

entire

record,

the

ALJ

concluded in his May 2015 decision that Plaintiff had severe
degenerative disc disease of the cervical spine, osteoarthritis,
and anxiety disorder, but that his COPD and heart disease were not
severe.

The

ALJ

found

that

Plaintiff

retained

the

residual

functional capacity (RFC) to perform medium work with restrictions
on

manipulative

activities,

exposure

to

vibration,

social

interaction, and cognitive demands (Tr. 20-21). Based on the
vocational expert’s testimony, the ALJ concluded that Plaintiff
6

could not perform his past relevant work, but could perform other
medium, light, and sedentary jobs existing in the national economy
in significant numbers, including lamination assembler, sorter,
and dowel inspector (Tr. 28). Thus, he found Plaintiff not disabled
(Tr. 29).
III.
(1)

ALJ’s Severe Impairments Determination

Plaintiff alleges that the ALJ’s decision is flawed because
the ALJ found that his COPD and heart disease were not severe
impairments at step two of the five-step sequential evaluation
(see Pl. Br. 6-8). The ALJ analyzed Plaintiff’s medical records as
related to COPD and found that a pulmonary function study from
2010 showed evidence of minimal obstructive airways disease and a
chest x-ray in 2014 revealed only mild changes (Tr. 18).

He

further found that physical examinations consistently showed lungs
clear

to

auscultation;

bilateral

equal

breath

sounds;

resonance; and no rales, rhonchi, or wheezes (Id.).

normal

From these

records the ALJ reasonably concluded that Plaintiff’s COPD is
nonsevere because “there is no evidence that it significantly
limits his ability to perform basic work activities.” (Id.).

The

ALJ further analyzed the Plaintiff’s medical records as related to
heart disease and found that Dr. Kumar noted Plaintiff’s coronary
artery disease is controlled with a beta-blocker, and there is no

7

evidence in the record that it significantly limits his ability to
perform basic work activities. (Tr. 19).
An impairment is severe if it significantly limits the
claimant’s physical or mental ability to do basic work activities
and lasts for at least 12 continuous months. See 20 C.F.R. §§
404.1520(a)(4)(ii) (duration requirement), 404.1521(a) (standard
for non-severe impairments). Controlling Sixth Circuit case law
makes clear that failing to find an impairment severe does not
merit remand so long as the ALJ identifies other severe impairments
and continues with the sequential evaluation process. See Maziarz
v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir.
1987) (failure to find an impairment was severe not reversible
error because there as a finding of other severe impairments);
Anthony v. Astrue, 266 F. App’x 541, 457 (6th Cir. 2008) (“The ALJ
specifically found that Anthony[] [had severe impairments.] The
fact that some of Anthony’s impairments were not deemed to be
severe at step two is therefore legally irrelevant.”).
Here, the ALJ did not stop at step two. Instead, he determined
that Plaintiff had a number of severe impairments (Tr. 17). He
then proceeded through the remaining steps of the sequential
evaluation process (Tr. 17-28). And in formulating Plaintiff’s
residual

functional

capacity,

the

ALJ

considered

not

just

Plaintiff’s severe impairments, but “all [Plaintiff’s] symptoms”
(Tr. 25). See 20 C.F.R. § 404.1545(a)(2) (“We will consider all of
8

your medically determinable impairments of which we are aware,
including your medically determinable impairments that are not
“severe.”). As such, any alleged error at step two was harmless
and does not merit remand.

See Maziarz, 837 F.2d at 244.

Plaintiff fails to show that his COPD and heart disease caused
any functional limitations that the ALJ did not account for (see
Pl. Br. at 6-8). Plaintiff simply recounts his medical diagnosis,
which the ALJ considered, and then recounted his own testimony
regarding his symptoms.

(see Pl. Br. at 7-8). See 20 C.F.R. §

404.1512(a) (Plaintiff must present objective medical evidence.).
The relevant inquiry is what functional limitations Plaintiff
experiences,

not

what

symptoms

Plaintiff

experiences.

See

20

C.F.R. § 404.1545(a) (RFC is the most a claimant can do despite
his impairments).
(2)

Medical Opinions

In all cases, the treating physician’s opinion is entitled to
great deference even if not controlling. Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234 (6th Cir. 2007). Failure to comply with the
agency’s rules warrants remand unless it is harmless error. Wilson
v. Comm’r of Soc. Sec., 878 F.3d 541 (6th Cir. 2004).

Plaintiff

argues the ALJ failed to follow these rules in evaluating the
medical opinion evidence in this case.
In assessing Plaintiff’s RFC, the ALJ considered the evidence
as a whole, including medical source opinions (Tr. 22-27). He
9

ultimately gave only little weight to Dr. Long’s January 2014
opinion

that

Plaintiff’s

pain

resulted

in

extreme

functional

limitations (Tr. 26, see Tr. 431- 34). The only inquiry for the
Court is whether the ALJ’s decision is supported by substantial
evidence. Smith v. Chater, 99 F.3d 780, 782 (6th Cir. 1996) (even
if the Court would have decided the matter differently than the
ALJ, if substantial evidence supports the ALJ’s decision, it must
be affirmed).
Treating physician opinions may be entitled to controlling
weight, but only if they are well supported by medically-acceptable
clinical and laboratory diagnostic techniques and not inconsistent
with other substantial evidence. See 20 C.F.R. § 404.1527(c)(2).
If not entitled to controlling weight, there is a rebuttable
presumption that treating physicians are entitled to deference.
See Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir.
2007). However, treating physician opinions are not entitled to
deference when they are conclusory or not supported by objective
medical evidence. See White v. Comm’r of Soc. Sec., 572 F.3d 272,
286 (6th Cir. 2009); Buxton v. Halter, 246 F.3d 762, 773 (6th Cir.
2001). Rather, “[i]f the opinion of a treating source is not
accorded controlling weight, an ALJ must apply certain factors—
namely, the length of the treatment relationship and the frequency
of

examination,

the

nature

and

extent

of

the

treatment

relationship, supportability of the opinion, consistency of the
10

opinion with the record as a whole, and the specialization of the
treating source—in determining what weight to give the opinion.”
Wilson, 378 F.3d at 544.
Plaintiff argues that the ALJ “indicated” Dr. Long’s report
was based “solely” on Plaintiff’s complaints and cervical x-ray,
but that it was actually based on “numerous physical examinations”
of Plaintiff (Pl.’s Br. 9).

Contrary to Plaintiff’s argument, the

ALJ was correct that Dr. Long’s opinion was based on Plaintiff’s
own complaints of pain.

The ALJ noted the MRI upon which Dr. Long

based his opinion was unremarkable, which was inconsistent with
Dr. Long’s opinion of Plaintiff’s limitations.

(Tr. 30).

Where

the form asks for the medical findings supportive of his opinion,
Dr. Long discussed Plaintiff’s reports of pain. For instance, he
stated Plaintiff could not lift and carry more than 10 pounds
because it was “very painful to pick up heavy items.” Dr. Long
related Plaintiff’s complaints that standing for long times can
cause pain in his hip and back, to justify his opinion that
Plaintiff could stand and walk only 30 minutes in an eight-hour
workday and for only 10 minutes at a time (Tr. 432). These are not
objective findings. Accordingly, the ALJ reasonably rejected Dr.
Long’s opinion. See 20 C.F.R. § 404.1527(c)(3) (“The more a medical
source

presents

particularly

relevant

medical

signs

evidence
and

to

support

laboratory

an

findings,

opinion,
the

more

weight we will give that opinion.”); Dyer v. Soc. Sec. Admin, 568
11

F.App’x 422, 425 (6th Cir. 2014) (the opinion of a treating source
may be discounted “where that opinion was inconsistent with other
evidence of record or the assessment relied on subjective symptoms
without the support of objective findings.”).
IV.
The Court having found no legal error on the part of the ALJ
and that his decision is supported by substantial evidence, the
Acting Commissioner’s final decision is AFFIRMED.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for summary judgment
(DE 12) be, and the same hereby is, DENIED and the Commissioner’s
motion for summary judgment (DE 14) be, and the same hereby is,
GRANTED.
A separate judgment in conformity herewith shall this date be
entered.
This the 30th day of August, 2018.

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