Jacobi v. SSA
MEMORANDUM OPINION & ORDER: 1. Defendant Nancy A. Berryhill's Motion for Summary Judgment 12 is GRANTED; 2. Plaintiff Jennifer Gayle Jacobi's Motion for Summary Judgment 10 is DENIED; 3. The administrative decision will by AFFIRMED by separate Judgment entered this date. Signed by Judge Danny C. Reeves on 4/10/2017.(KM)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
JENNIFER GAYLE JACOBI,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Civil Action No. 5: 16-339-DCR
*** *** *** ***
This matter is pending for consideration of cross-motions for summary judgment filed
by Plaintiff Jennifer Gayle Jacobi and Defendant Nancy A. Berryhill, Acting Commissioner
of the Social Security Administration (“the Commissioner.”) [Record Nos. 10, 12] Jacobi
argues that the Administrative Law Judge (“ALJ”) assigned to her case erred in concluding
that she was not disabled within the meaning of the Social Security Act (“Act”). Specifically,
she asserts that the ALJ failed to properly consider the opinion evidence and to fully consider
all impairments in determining her residual functional capacity (“RFC”). Jacobi requests an
award of benefits or, alternatively, that this matter be remanded for further administrative
proceedings. The Commissioner contends the ALJ properly evaluated the evidence of record
and that the ALJ’s decision should be affirmed. She further contends that the ALJ’s decision
is supported by substantial evidence.
For the reasons that follow, the Commissioner’s motion will be granted and the
administrative decision will be affirmed. The relief sought by Jacobi will be denied.
On March 25, 2013, Jacobi filed a Title II application for a period of disability and
disability insurance benefits, (“DIB”), alleging an onset of disability of April 22, 2011.1
[Administrative Transcript; hereafter, “Tr.” 210] After being denied initially and on
reconsideration, Jacobi requested an administrative hearing. [Tr. 108, 117, 125] On February
20, 2015, Jacobi appeared before ALJ Don Paris in Lexington, Kentucky. [Tr. 7–45] ALJ
Paris denied benefits in a written decision on March 17, 2015, which the Appeals Council
affirmed. [Tr. 62–72, 1] The claimant has exhausted her administrative remedies and this
matter is ripe for review under 42 U.S.C. § 405(g).
Jacobi was fifty-three years old at the time of the ALJ’s decision. She was married and
had two adult daughters, one of whom lived at home. [Tr. 12]
Jacobi has a high school
education and took one year of vocational training in graphic art. [Tr. 13] She worked most
recently in 2008 as a receptionist for the Kentucky Cabinet for Health and Family Services.
[Tr. 353] She also worked for nine years as a teacher’s aide in a public elementary school, and
for six years as a self-employed day care operator. [Tr. 14–16, 353]
Jacobi reported being five feet, five inches tall and weighing two hundred and ten
pounds. [Tr. 12] She stated that she developed right shoulder pain during her teenage years
and underwent surgery in 1992. This surgery relieved the pain for a brief time. [Tr. 16–17]
Jacobi advised the ALJ that she now has pain in both shoulders. Id. She also reported suffering
Jacobi initially alleged an onset date of April 1, 2011 but, during the administrative hearing,
she was permitted to amend the date to April 22, 2011. [Tr. 10, 210]. In the written decision,
the ALJ erroneously recorded the amended onset date as February 11, 2011. [Tr. 62]
from pain in her hands, hips, and feet, which began in the mid–1990s. [Tr. 18] Physical
therapy and chiropractic treatment were reported to have worsened the pain. [Tr. 19] Jacobi
stated that she awoke frequently every night due to pain, as well as her need for a new CPAP
machine. [Tr. 21] She also reported having suffered from migraine headaches her entire adult
life. [Tr. 34] These headaches, which occurred once or twice per week and include visual
disturbances and nausea, required her to sleep from two to ten hours. [Tr. 36–37] Jacobi stated
that she lost two jobs because of missed time due to migraines. [Tr. 34]
Jacobi testified that she could “mostly” bathe independently, but that she did not do so
as frequently as she had in the past. [Tr. 23] She did some light cooking, but her husband
often picked up fast-food on his way home from work. Id. Jacobi reported that household
chores often went unfinished, but that she could load the dishwasher or do a single load of
laundry, sometimes with assistance. [Tr. 23–24] She used to read and paint for pleasure, but
she was no longer able to hold a book or a paintbrush. [Tr. 24, 33] Her only hobbies were
watching television and using Facebook. [Tr. 24, 294]
Jacobi reported being able to sit and stand for about fifteen minutes before changing
positions. [Tr. 29–31] She believed she could walk for about twenty minutes without stopping
and that she could bend and stoop “once or twice.” [Tr. 31] She had no mental health problems
before she stopped working, but after she became unemployed and increasingly ill, Jacobi
claims she became more depressed. [Tr. 27] She received counseling in Danville, Kentucky,
which helped, but she did not feel good enough to get ready to go. [Tr. 25]
The record contains treatment notes from Jacobi’s primary care provider, Dr. Rick
Angel. Dr. Angel noted in March 2008 that Jacobi complained of increased frequency of
migraines and that she had tried multiple preventive medications, but without success. [Tr.
497] The claimant continued to complain of headaches with visual disturbances in February
2009. [Tr. 493] Dr. Angel remarked that a review of systems was otherwise negative and
ordered an MRI of Jacobi’s brain, which was normal. [Tr. 493, 502] Jacobi returned to Dr.
Angel the following month, complaining of a “big flare up” of fibromyalgia. [Tr. 491] Dr.
Angel prescribed Lortab and vitamin B12. The claimant was doing somewhat better by May
2009, but by June, she called Dr. Angel to report that her fibromyalgia was worse. [Tr. 489]
Jacobi returned to Dr. Angel in September 2010 and was prescribed a new fibromyalgia
medication. [Tr. 485] It appears that her next visit with Dr. Angel was a little over a year
later. At that time, Jacobi reported that she was “having a lot of trouble” with fibromyalgia
and that she had not been able to work. [Tr. 480] It appears that, at some point during the
previous year, Jacobi had discontinued the fibromyalgia medication prescribed in September
2010. Id. Dr. Angel prescribed a new medication for the condition and advised Jacobi to
follow-up in four weeks. Id.
In October 2012, the claimant returned to Dr. Angel, asking for a referral to a
neurologist and a rheumatologist. [Tr. 478–79] Angel diagnosed Jacobi with polyarthralgia
and recorded that she had nodules in her hands. [Tr. 478] Diagnostic imaging detected soft
tissue density on the radial aspect of the right second DIP joint. [Tr. 498] A subsequent
laboratory test was negative for rheumatoid arthritis factor. [Tr. 508] Jacobi had a final visit
with Dr. Angel in May 2014, before he joined a different practice group. Dr. Angel prescribed
pain medicine and commented that Jacobi was doing “reasonably well.” [Tr. 659]
Dr. Kelly Cole is the claimant’s treating rheumatologist. Dr. Cole saw Jacobi for the
first time in August 2013. [Tr. 540] With respect to arthralgia, Dr. Cole remarked that Jacobi
had no synovitis or abnormal lab results, but did have severe pain and stiffness. [Tr. 541] She
also noted decreased range of motion of the right shoulder, and heaviness and paresthesia
throughout the extremities. [Tr. 541] Cole referred Jacobi to other specialists, including a
neurologist, and recommended a follow-up appointment in four months. Id.
When the claimant returned to Dr. Cole in August 2014, Cole commented again
regarding Jacobi’s joint pain and stiffness. [Tr. 630] Specifically, Cole reported that Jacobi
had left knee pain, that she experienced catching, and could not straighten it completely. Id.
However, the symptoms improved with a Medrol dose pack and Jacobi refused an injection.
Accordingly, an orthopedic evaluation was deferred at that time. Id. An x-ray Dr. Angel had
ordered a few months earlier revealed mild multicompartment osteoarthrosis of the left knee.
[Tr. 650, 662]
It appears that Jacobi did not see Dr. Cole again until March 2015. [Tr. 702] At that
time, Cole assessed Jacobi’s medications from a rheumatologic standpoint and also agreed to
take over her pain management because Dr. Angel had moved. [Tr. 703] In relation to
arthralgia, Cole commented “[patient] would miss at least 2 days monthly of work related to
her [symptoms]; before she stopped working, was missing 2 days/week.” Id.
The claimant initiated psychotherapy with Gina Alexander, L.C.S.W., in March 2014.
[Tr. 697] Alexander described Jacobi’s attention, concentration, insight, and judgment as
good. [Tr. 698] Further, Alexander believed Jacobi’s memory, perception, flow of thought,
and speech, were either normal or intact. Id. However, she described Jacobi’s mood as
depressed and her affect as constricted. Id. Alexander diagnosed Jacobi with major depressive
disorder, recurrent, mild, and assigned her a Global Assessment of Functioning (“GAF”) score
of 75, indicating very mild limitations in functioning. See, e.g., Covucci v. Apfel, 31 F. App’x
909, 913 (6th Cir. 2002).
Jacobi returned for a counseling session the following week. [Tr. 699] Alexander
described Jacobi’s mood at that time as euthymic and reported that there was some slight
improvement. The claimant was advised to return for another counseling session in two weeks.
[Tr. 700] It does not appear that the claimant ever returned for another session, and she was
formally discharged in February 2015. [Tr. 701]
In May 2013, Jennifer Sutherland, M.S., performed a consultative psychological
examination of the claimant. [Tr. 528–32] Sutherland observed that Jacobi’s energy level was
adequate and that her mood and affect were appropriate. [Tr. 529] She was aware of current
news events and was able to perform simple mathematical calculations. Id. Additionally,
Jacobi was able to describe how everyday items were similar and able to interpret the meaning
of a common proverb. Id. The claimant advised Sutherland that she had trouble concentrating
and had been depressed on and off since she became sick. [Tr. 530–31]
Sutherland diagnosed Jacobi with major depressive disorder and pain disorder related
to both psychological and medical conditions. [Tr. 531] She assigned Jacobi a GAF score of
60, which indicates moderate difficulty in social, occupational, or school functioning. See,
e.g., Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 503 (6th Cir. 2006). Sutherland
indicated that Jacobi had a good ability to understand, retain and follow instructions, and to
relate to others. [Tr. 532] She also believed that Jacobi’s capacity to sustain attention to
perform simple, repetitive tasks was good. Id. Sutherland opined, however, that Jacobi’s
ability to tolerate the stress and pressures associated with day–to–day working activities was
Dr. Robert Nold performed a consultative physical examination in June 2013. [Tr.
533–37] The claimant complained of migraines, fibromyalgia, high blood pressure, right
shoulder issues, anxiety, and depression.
She reported that, despite trying multiple
medications, nothing had helped her migraine headaches but Cymbalta had helped her
fibromyalgia “somewhat.” Id.
Dr. Nold noted that Jacobi’s cervical range of motion was normal, but she reported that
she could not move her neck normally when she had a migraine headache. [Tr. 534] Her
extremities appeared normal, with no evidence of atrophy. However, Nold reported that the
Jacobi had “trigger pressure points in her posterior shoulders and along her paraspinous areas
numbering 18 trigger points that were positive consistent with her diagnosis of fibromyalgia.”
[Tr. 535] The claimant was able to flex and extend her knees and elbows without difficulty.
Her ambulation was normal and Jacobi had full forward and lateral flexion of the lumbar spine.
Id. She had normal grip strength, and was able to perform fine manipulation with her fingers.
[Tr. 535] Her lower extremity strength was five-out-of-five, and she was able to perform a
heel-toe and tandem walk, although she did demonstrate some unsteadiness during those
activities. Id. An x–ray of Jacobi’s right shoulder was normal. Id.
Dr. Nold opined that Jacobi’s main problem seemed to be her migraine headaches,
which she reported occurred up to three times per week. [Tr. 536] He noted that her shoulder
appeared to be normal and that she did not have any “major problem” with her low back.
Additionally, Dr. Nold commented that Jacobi’s neck range of motion was normal when she
was not experiencing a migraine headache. Id. Ultimately, he concluded that, aside from these
issues, Jacobi “appears to be functionally intact.” [Tr. 537]
Dr. Paul Saranga reviewed Jacobi’s file on September 20, 2013. [Tr. 101–05] Dr.
Saranga discussed the claimant’s primary care notes and her ongoing issues with pain. [Tr.
102] He relied on Dr. Nold’s examination, which indicated that Jacobi had no significant joint
problems, but commented that Jacobi was limited due to fibromyalgia and migraines. Id. Dr.
Saranga opined that the claimant could occasionally lift and/or carry 50 pounds and could
frequently lift and/or carry 25 pounds. He believed she could stand, stand and/or walk six
hours in an eight hour workday. [Tr. 101] Further, she could balance, stoop, crouch, crawl,
and climb ramps and stairs frequently, but could only climb ladders, ropes, or scaffolds
occasionally. [Tr. 102] Dr. Saranga believed that Jacobi should avoid concentrated exposure
to hazards such as machinery and heights. [Tr. 103]
After considering the entire record, the ALJ determined that Jacobi had the RFC to
perform medium work as defined in 20 C.F.R. § 404.1567(c), which was the same RFC
recommended by Dr. Saranga. [Tr. 69] The ALJ further concluded that Jacobi was capable of
performing her past relevant work as a receptionist and teacher’s aide. [Tr. 71] Accordingly,
he determined that she had not been under a disability through March 31, 2014, the date last
insured. [Tr. 72]
Standard of Review
Under the Act, a “disability” is defined as “the inability to engage in ‘substantial gainful
activity’ because of a medically determinable physical or mental impairment of at least one
year’s expected duration.” Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007)
(citing 42 U.S.C. § 423(d)(1)(A)). A claimant’s Social Security disability determination is
made by an ALJ in accordance with “a five-step ‘sequential evaluation process.’” Combs v.
Comm’r of Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (en banc). If the claimant satisfies the
first four steps of the process, the burden shifts to the Commissioner with respect to the fifth
step. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).
A claimant must first demonstrate that she is not engaged in substantial gainful
employment at the time of the disability application. 20 C.F.R. § 404.1520(b). Second, the
claimant must show that she suffers from a severe impairment or a combination of
impairments. 20 C.F.R. § 404.1520(c). Third, if the claimant is not engaged in substantial
gainful employment and has a severe impairment which is expected to last for at least twelve
months and which meets or equals a listed impairment, she will be considered disabled without
regard to age, education, and work experience. 20 C.F.R. § 404.1520(d). Fourth, if the
claimant has a severe impairment but the Commissioner cannot make a determination of the
disability based on medical evaluations and current work activity, the Commissioner will
review the claimant’s RFC and relevant past work to determine whether she can perform her
past work. If she can, she is not disabled. 20 C.F.R. § 404.1520(f).
Under the fifth step of the analysis, if the claimant’s impairments prevent her from
doing past work, the Commissioner will consider her RFC, age, education, and past work
experience to determine whether she can perform other work. If she cannot perform other
work, the Commissioner will find the claimant disabled. 20 C.F.R. § 404.1520(g). “The
Commissioner has the burden of proof only on ‘the fifth step, proving that there is work
available in the economy that the claimant can perform.’” White v. Comm’r of Soc. Sec., 312
F. App’x 779, 785 (6th Cir. 2009) (quoting Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th
A court reviewing a denial of Social Security benefits must only determine whether the
ALJ’s findings were supported by substantial evidence and whether the correct legal standards
were applied. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Substantial
evidence is such relevant evidence as reasonable minds might accept as sufficient to support
the conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Bass v. McMahon, 499 F.3d
506, 509 (6th Cir. 2007). The Commissioner’s findings are conclusive if they are supported
by substantial evidence. 42 U.S.C. § 405(g).
The ALJ’s Consideration of Opinion Evidence
Jacobi challenges the ALJ’s reliance on the opinion of consulting source Dr. Saranga
who did not have the opportunity to review Dr. Cole’s treatment notes after September 2013.
It well-established that, in certain instances, opinions from State agency medical sources may
be entitled to greater weight than those of treating or examining sources. Blakley v. Comm’r
of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009) (citing SSR 96–6p, 1996 WL 374180, at *3
(July 2, 1996)). However, when a consultant’s opinion is based on an incomplete case record,
the ALJ must give an indication that he or she considered the fact that the source did not have
the opportunity to review the entire record. Id.
The ALJ did not err in his assessment of the opinion evidence. In stating that he gave
great weight to Dr. Saranga’s opinion, the ALJ noted that Saranga had reviewed the “available
medical evidence in September 2013.” [Tr. 71] The ALJ also discussed Dr. Cole’s treatment
notes at length, as well as the dates of treatment, which extended through September 2014. It
is clear that the ALJ made a reasoned decision to afford great weight to Dr. Saranga’s opinion,
despite his inability to review all of Dr. Cole’s treatment notes.
Cole did not provide objective testing or other examination results, as discussed in the
ALJ’s opinion. Her notes consisted mainly of the claimant’s subjective complaints and
information regarding the claimant’s medications. [Tr. 71] The claimant’s other treating
physician, Dr. Angel, did not provide an opinion at all. Id. And while Dr. Nold’s physical
examination provided objective information regarding the claimant’s capabilities, Nold’s
opinion regarding work limitations was very limited. In short, Saranga’s opinion was reliable
and useful, and the ALJ was able to consider Cole’s treatment notes and opinion separately.
Ultimately, the ALJ assigned no weight to Cole’s opinion that Jacobi would miss two
days of work per month related to her symptoms. [Tr. 71] He reasoned that the opinion
appeared to be based on the claimant’s subjective report that she previously missed two days
of work per week. Id.
The opinion was not supported by any objective testing or any type
of examination, other than Cole’s statement that Jacobi could not straighten her knee
completely. [Tr. 703] The ALJ acknowledged that Cole had treated Jacobi several times but,
for the stated reasons, the opinion was not given any weight. Because good reasons were
provided for the weight given to Dr. Cole’s opinion, the ALJ did not err. See Wilson v. Comm’r
of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004); 20 C.F.R. § 404.1527.
The ALJ’s Consideration of Arthritis
Jacobi contends that the ALJ did not properly consider her diagnosis of arthritis at step
two of the sequential evaluation, and throughout the remainder of the opinion. [Record No.
10–1, p. 5] While the ALJ determined that the claimant’s fibromyalgia was severe, he found
that her arthritis was not. [Tr. 66]
Establishing a severe impairment at step two is a de minimis hurdle and is intended to
screen out totally meritless claims. Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1998). An
impairment is not severe “only if it is a slight abnormality that minimally affects work ability
regardless of age, education, and experience.” Id. However, upon the finding of at least one
severe impairment, the ALJ must go on to consider the limitations imposed by all impairments.
See Fisk v. Astrue, 253 F. App’x 580, 583 (6th Cir. 2007). Accordingly, the failure to
characterize osteoarthritis as a severe impairment is of little consequence. Rather, the relevant
inquiry is whether all impairments were considered in determining the claimant’s RFC. Id.
The ALJ discussed the claimant’s complaints of left knee pain, as well the claimant’s
reported inability to straighten her knee completely in December 2014. [Tr. 66] However,
this appears in the “problem story” of Dr. Cole’s treatment note, and there is no indication that
Cole performed any objective testing concerning Jacobi’s knee. [Tr. 703] The claimant
achieved improvement with medication, refused an injection, and deferred an orthopedic
evaluation. Id. It does not appear that she ever received further intervention for her knee
problems. And, as the ALJ noted, only mild osteoarthrosis was observed on an x-ray. [Tr. 66]
The claimant argues that the ALJ failed to incorporate the limitations resulting from
her arthritis at step four, but she does not identify the nature of those limitations. [See Record
No. 10–1, p. 5–6] While Dr. Cole offered a conclusory opinion that Jacobi would have a high
rate of absenteeism from work, neither Dr. Cole nor any other source opined regarding
functional limitations caused by arthritis. Although fibromyalgia is not a form of arthritis, it
impairs the joints and/or soft tissues and causes chronic, diffuse pain. See Eastin v. Reliance
Std. Life Ins. Co., No. 2: 12-cv-140, 2013 WL 4648736, at *2 (E.D. Ky. Aug. 23, 2013). The
claimant has not established that her arthritis caused any impairments beyond those caused by
fibromyalgia, which the ALJ discussed extensively in his opinion. Further, Jacobi has not
explained how she believes her RFC should be further restricted to account for the alleged
limitations caused by arthritis.
Accordingly, the ALJ did not err with respect to his
consideration of the claimant’s arthritis.
Full and Fair Hearing
The claimant contends that she was deprived a full and fair hearing because the ALJ
assigned to this case “seemed to be on ‘auto pilot’ at times,” made a confusing statement and,
on three occasions, stopped and stared “for an awkward amount of time.” [Record No. 10–1,
p. 1] However, she does not claim that the alleged conduct prevented the ALJ from fully
evaluating the evidence. Based on the hearing transcript and the thorough discussion of the
evidence included in the ALJ’s opinion, it is clear that he examined the record thoroughly.
The claimant has failed to identify any prejudice she might have suffered, and she has
presented this argument in a general and superficial manner. See McPherson v. Kelsey, 125
F.3d 989, 995–96 (6th Cir. 1997) ([I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argument are deemed waived.”) Accordingly,
Jacobi has failed to demonstrate that the ALJ’s alleged conduct is a basis for reversing the
Based on the foregoing, it is hereby
ORDERED as follows:
Defendant Nancy A. Berryhill’s Motion for Summary Judgment [Record No.
12] is GRANTED.
Plaintiff Jennifer Gayle Jacobi’s Motion for Summary Judgment [Record No.
10] is DENIED.
The administrative decision will be AFFIRMED by separate Judgment entered
This 10th day of April, 2017.
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