Nipper v SSA
MEMORANDUM OPINION & ORDER: It is HEREBY ORDERED that the Plaintiff's 10 Motion for Summary Judgment be OVERRULED and the Defendant's 12 Motion for Summary Judgment be SUSTAINED. A judgment in favor of the Defendant will be entered contemporaneously herewith. Signed by Judge Henry R. Wilhoit, Jr on 9/21/2017.(KM)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
Civil Action 1\'o. 16-334-HRW
JOEY DEAN NIPPER,
MEMORANDUM" OPINION AND ORDER
NANCY A. BERRYHILL,
ACTING 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 tiled 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 in January 2015,
alleging disability beginning in February 2012, due to bipolar disorder, depression, kidney
problems, insomnia, paranoia, shoulder problems, suicidal thoughts, anxiety, post-traumatic
stress disorder, carpal tunnel syndrome and liver problems. This application was denied initially
and on reconsideration and then denied by an administrative law judge. The Appeals Council
subsequently vacated this decision and remanded the case for further proceedings (Tr. 236-38).
Thereafter, upon request by Plaintiff, an administrative hearing was conducted by Administrative
Law Judge Roger Reynolds (hereinafter "ALJ"), wherein Plaintiff, accompanied by counsel,
testified. At the hearing, Tina Stambaugh, 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.
Step 3: If the claimant is not perfonning 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 further inquiry.
Step 4: Ifthe 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. Plaintiff was 44 years
old at the time of he alleges he became disabled. he has a high school education. His past
relevant work experience consists of work as a correctional officer.
At Step 1 of the sequential analysis, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since the daye after the most recent admimstratively final unfavorable
decision on a prior application (Tr. 43).
The ALJ then determined, at Step 2, that Plaintiff suffers from chronic bilateral shoulder
pain of uncertain etiology, chronic kidney disease, osteoarthritis, depressive disorder and anxiety
with paranoid tendencies, which he found to be "severe" within the meaning of the Regulations
At Step 3, the ALJ found that Plaintiffs impairments did not meet or medically equal any
ofthe listed impairments (Tr. 43-44) ..
The ALJ further found that Plaintiff could not return to his past relevant work (Tr. 48) but
determined that he has the residual functional capacity ("RFC") to perform a range of medium
work, with certain limitations as set forth in the hearing decision (Tr. 44-46).
The ALJ finally concluded that these jobs exist in significant numbers in the national and
regional economies, as identified by the VE (Tr. 48).
Accordingly, the ALJ found Plaintiff not to be disabled at Step 5 ofthe 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 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 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 (6th Cir. 1984). Ifthe Commissioner's decision is supported by
substantial evidence, the reviewing Court must affirm. Kirk v. Secretary of Health and Human
Services, 667 F.2d 524, 535 (6 1h Cir. 1981 ), cert. denied, 461 U.S. 957 (1983). "The court may
not try the case de novo nor resolve conflicts in evidence, nor decide questions of credibility."
Bradley v. Secretary of Health and Human Services, 862 F.2d 1224, 1228 (6 1h 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 supports the conclusion reached by the ALJ." Key v. Callahan, 109 F.3d 270, 273 (6th
Plaintiff's Contentions on Appeal
Plaintiff contends that the ALJ's finding of no disability is erroneous because: (1) the
ALJ failed to present a hypothetical question to the VE that accurately described Plaintiff; (2) the
ALJ erred in giving weight to the opinion of Donna Sanders, M.D.; (3) it is not clear what time
period the ALJ was adjudicating and (4) the ALJ failed to consider Plaintiffs absences from
Analysis of Contentions on Appeal
Plaintiffs first claim of error is that the ALJ failed to present a hypothetical question to
the VE that accurately described Plaintiff. Specifically, he contends that the ALJ erred by failing
to incorporate state agency consultative examiner Tonya Gonzalez M.D.'s opinion that he was
able to "sustain attention for extended periods of two hour segments for simple tasks" into the
hypothetical question to the vocational expert (Tr. 214 ). Yet, the ALJ was not required to include
this limitation into the hypothetical question to the vocational expert because this limitation the
ALJ did not incorporate this limitation into his RFC finding.
In evaluating Plaintiffs mental impairments and incorporating them into the RFC, the
ALJ did not solely rely upon or fully adopt Dr. Gonzalez's opinion. Rather, the ALJ clearly
reviewed and relied upon the record as a whole in formulating the RFC, including (1) Plaintiff
had worked in the past despite his longstanding mental health conditions; (2) the objective
medical evidence, which regularly contained normal mental status examination findings; (3)
Plaintiff was treated conservatively for his conditions and did not seek any specialized mental
health treatment or counseling; (4) Plaintiff regularly reported that his medications were working
well; and (5) the opinions ofthe state agency reviewing psychologists (Tr. 47-48).
The undersigned finds that he hypothetical questions posed complied with this circuit's
long-standing rule that the hypothetical question is proper where it accurately describes a
claimant's functional limitations. Varley v. Secretary of Health and Human Services, 820 F.2d
777, 779. (6 1h Cir. 1987). This rule is necessarily tempered by the requirement that the ALJ
incorporate only those limitations which he or she finds to be credible. Casey v. Secretary of
Health and Human Services, 987 F.2d 1230, 1235 (6 1h Cir. 1993).
Plaintiffs second claim of error is that the ALJ erred in giving weight to the opinion of
Donna Sanders, M.D.
At step two of the sequential evaluation process, the ALJ determined that Plaintiffs
chronic kidney disease was a severe impairment that imposed more than a slight or minimal
limitation in his ability to perform work-related activities (Tr. 43). See 20 C.F.R. §§
404.1520(a)(5)(ii), 404.1521. The ALJ proceeded to find that Plaintiffs chronic kidney disease
did not meet or equal a listed impairment at step three and that Plaintiff remained capable of
performing a restricted range of medium work when determining his RFC (Tr. 43-48). While
Plaintiff contends that the ALJ did not impose any functional limitations to accommodate his
chronic kidney disease (see Pl.'s Br. at 9), his argument is premised on a fundamental
misunderstanding of the ALJ's decision. Here, the ALJ's limitation of Plaintiff to a restricted
range of medium work took into account the effects of his chronic kidney disease, as the ALJ
reasonably concluded that Plaintiffs "history of kidney disease does not limit him more than set
forth in the residual functional capacity" (Tr. 46). The AU's determination was supported by the
opinion of Dr. Sanders, who opined that Plaintiffs kidney disease would not prevent him from
returning to work in October 2011 .
Dr. Sander's opined that Plaintiffs kidney disease was not disabling was rendered outside
of the period of adjudication. Yet, even disregarding her assessment, there is no credible
evidence in the record that Plaintiffs kidney disease was disabling since the prior ALJ's
decision. He received no specialized treatment for kidney during the relevant time and does not
offer any medical opinion that suggests functional limitations as a result of a kidney-related
condition. As there is no evidence that Plaintiffs kidney disease worsened since the prior
decision, the ALJ did not err by relying upon Dr. Sanders' opinion. The lack of evidence in this
regard is substantial evidence in support of the ALJ's decision.
Plaintiff also argues that it is not clear what time period the ALJ was adjudicating.
The relevant period of time under adjudication for disability benefits was from August I, 2014,
the day after the date of a prior ALJ decision finding that Plaintiff was not disabled, through June
1, 2016, the date of the current ALJ's decision. The ALJ clearly states this in his decision. In the
"Jurisdiction and Procedural History" section of the decision, the ALJ clearly explains that the
principle of res judicata applied to the period of time from February 1, 2012 through July 31,
20 14, but that new and material evidence revealed new severe impairments that warranted
additional functional limitations for the period beginning August 1, 2014 through the date of the
decision-the relevant period of time that the ALJ was responsible for adjudicating as to whether
Plaintiff was disabled (Tr. 40). In affirming that the relevant period of time under adjudication
began on August 1, 2014, the ALJ noted that, "any reference to evidence prior to August l, 2014,
is only to develop a longitudinal history" (Tr. 40).
In the "Issues" section of his decision, the ALJ correctly stated that, "[a]fter careful consideration
of all the evidence, the undersigned concludes the claimant has not been under a disability within
the meaning of the Social Security Act from August 1, 2014 through the date of this decision"
(Tr. 41 (emphasis added)). When discussing Plaintiffs work history, the ALJ noted that "[t]he
claimant has not engaged in substantial gainful activity since August 1, 2014, the date after the
most recent administratively final unfavorable decision on a prior application" (Tr. 43).
In addition, the ALJ's discussion of the relevant medical evidence makes clear that the
ALJ was properly considering the evidence to the extent that it relates to the appropriate period
of time following the prior ALJ's decision (Tr. 43-48). For example, in his discussion of the
medical evidence, the ALJ specifically noted that "[m]uch of the objective medical evidence
relates to the period prior to the previous Administrative Law Judge decision" (Tr. 46). Indeed,
throughout his discussion of the medical evidence, the ALJ repeatedly refers to the relevant
medical evidence to the extent that it relates to the period of time "since the previous
Administrative Law Judge decision" (Tr. 43-49).
Based upon these references to the correct period of adjudication, Plaintiffs argument is
Plaintiff argues that the decision is "unclear" unclear because the ALJ stated that Plaintiff
would be 44 years old on his alleged disability onset date when, in fact, he would be 47 years old
on the date of August 1, 2014-the first date of the period under adjudication based on the prior
ALJ decision. Yet, the ALJ' s statement was factually accurate, as Plaintiff was, in fact, 44 years
old on his alleged disability onset date of February 1, 2012. Yet this is a distinction without a
difference as Plaintiff would have been characterized as a "younger person" using either date for
the purposes of the Medical-Vocational Guidelines (which the ALJ did not apply in this case).
See 20 C.F.R. § 404.1563© (defining "younger person" as someone under the age of 50).
Finally, Plaintiff contends that the ALJ failed to consider Plaintiffs absences from work.
Contrary to Plaintiffs argument, the ALJ is not required to explicitly address every statement
made by Plaintiff in his administrative testimony. See Allison v. Comm 'r of Soc. Sec., 108 F.3d
1376, 1997 WL 103369, at *3 (6th Cir. 1997) (unpublished) ("[N]either precedent nor common
sense requires written discussion of every single piece of evidence."). Here, although Plaintiff
alleged that he had frequent absences while working as a correctional officer (Tr. 67), Plaintiff
nonetheless admitted that he was able to work for 20 years until he was eligible to retire with full
retirement benefits (Tr. 87). The record does not contain any evidence to corroborate Plaintiffs
unsupported testimony about the alleged frequency of his work absences, nor does it contain any
evidence that suggests that Plaintiff was forced to stop working as a result of his impairments.
Thus, in making his disability determination, the ALJ reasonably considered that Plaintiff
remained capable of performing substantial gainful activity while having the longstanding
impairments that he now claims are disabling, which suggests that his impairments are not as
functionally limiting as alleged (Tr. 44, 46, 48)
The Court finds that the ALJ's decision is supported by substantial evidence on the
record. The objective medical evidence of record, which consistently indicated that Plaintiff did
not have any significant deficits upon physical examination (Tr. 841-42, 997-98, 1089, I 096-97,
1137-38, 1151-52, 1153-54); Plaintiffs self-reports that his medications were working well in
managing his pain symptoms (Tr. 93-94, 996, 1126); Plaintiffs conservative treatment protocol,
which did not include more rigorous treatment, such as surgery, physical therapy, or injection
therapy (Tr. 46); as well as Plaintiffs activities of daily living, which included mowing the yard
and going hunting with a rifle (Tr. 94-95, 370).
Accordingly, it is HEREBY ORDERED that the Plaintiffs Motion for Summary
Judgn1ent be OVERRULED and the Defendant's Motion for Summary Judgment be
SUSTAINED. A judgment in favor of the Defendant will be entered contemporaneously
This ;(/!¢"day of
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