Vires v. SSA

Filing 13

MEMORANDUM OPINION & ORDER: IT IS ORDERED as follows: 1. The decision of the Commissioner is found to be supported by substantial evidence & is hereby AFFIRMED; 2. Plaintiff's Motion for Summary Judgment 7 is hereby DENIED; 3. Defendant's Motion for Summary Judgment 9 is hereby GRANTED; 4. A Judgment in favor of Defendant Commissioner will be entered contemporaneously herewith. Signed by Judge David L. Bunning on 8/24/2017.(KM)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
CIVIL ACTION NO. 16-349-DLB
CHERYL ANN JOAN VIRES
vs.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security

DEFENDANT

*************
Plaintiff 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. The Court, having
reviewed the record, will affirm the Commissioner’s decision, as it is supported by
substantial evidence.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On June 20, 2013, Plaintiff Cheryl Ann Joan Vires filed an application for disability
insurance benefits (“DIB”), alleging disability beginning on November 4, 2011. (Tr. 17377).

Specifically, Plaintiff alleged that she was limited in ability to work due to

osteoarthritis of her hands. (Tr. 211).
Plaintiff’s claim was denied initially and on reconsideration. (Tr. 89, 90; see also
107-09, 114-20). Plaintiff subsequently amended her disability date to July 27, 2012. (Tr.
195). At Plaintiff’s request, an administrative hearing was conducted on January 26,
2015, before Administrative Law Judge (“ALJ”) Greg Holsclaw. (Tr. 36-77). On June 23,
2015, ALJ Holsclaw ruled that Plaintiff was not entitled to benefits. (Tr. 14-34). This
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decision became the final decision of the Commissioner when the Appeals Council denied
review on July 13, 2016. (Tr. 1-6).
On September 11, 2016, Plaintiff filed the instant action. (Doc. # 1). This matter
has culminated in cross-motions for summary judgment, which are now ripe for the
Court’s review. (Docs. # 7, 9, and 12).
II. DISCUSSION
A.

Overview of the Process
Judicial review of the Commissioner’s decision is restricted to determining whether

it is supported by substantial evidence and was made pursuant to proper legal standards.
See Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th 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,
resolve conflicts in the evidence, or make credibility determinations. Id. Rather, the Court
must affirm the Commissioner’s decision, provided it is supported by substantial
evidence, even if the Court might have decided the case differently. See Her v. Comm’r
of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). If supported by substantial evidence,
the Commissioner’s findings must be affirmed, even if there is evidence favoring Plaintiff’s
side. Listenbee v. Sec’y of Health and Human Servs., 846 F.2d 345, 349 (6th Cir. 1988).
Similarly, an administrative decision is not subject to reversal merely because substantial
evidence would have supported the opposite conclusion. Smith v. Chater, 99 F.3d 780,
781-82 (6th Cir. 1996).

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The ALJ, in determining disability, conducts a five-step analysis.

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 her past relevant work; and Step Five, whether significant
numbers of other jobs exist in the national economy which the claimant can perform. As
to the last step, the burden of proof shifts from the claimant to the Commissioner. See
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003); Preslar v. Sec’y of
Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
B.

The ALJ’s Determination
At Step One, the ALJ found that Plaintiff had not engaged in substantial gainful

activity from her amended alleged onset date, July 27, 2012, through her date last
insured.

(Tr. 19).

impairments:

At Step Two, the ALJ determined that Plaintiff had two severe

arthritis of the hand(s) (to include left CMC joint arthritis)/lateral

epicondylitis; and a history of vertigo/syncope. (Tr. 20). At Step Three, the ALJ concluded
that Plaintiff did not have an impairment or combination of impairments that “meets or
medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1." (Tr. 22). Specifically, the ALJ considered Listing 1.02B and
found that the record did not show that Plaintiff was “unable to effectively perform fine
and gross movements effectively.”

(Tr. 22).

Nor did Plaintiff’s impairments show

inflammatory arthritis under the immune system disorders in Listing 14.09, or any other
impairment or combination that met or medically equaled a Listing. (Tr. 22-23).

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At Step Four, the ALJ concluded that Plaintiff had the residual functional capacity
(“RFC”) to perform a limited range of medium work, as defined in 20 C.F.R. § 404.1567(c),
with the exertional and non-exertional limitations as follows:
[N]o more than six hours of standing/walking out of an eight-hour workday,
sitting no more than six hours out of an eight hour workday, and pushing/pull
only to the medium weight limits except should never climb ladders, ropes,
or scaffolds; no more than frequent (versus constant/continuous) climbing
of ramps/stairs, stooping, kneeling, crouching or crawling; unlimited
balancing; no exposure to dangerous moving machinery or unprotected
heights; and no work that requires more than frequent fine fingering with the
left, non-dominant hand.
(Tr. 23). Based upon the RFC, the ALJ concluded that Plaintiff was not able to perform
her past relevant work. (Tr. 28). Accordingly, the ALJ proceeded to Step Five and found
that, considering Plaintiff’s age, education, work experience, and RFC, jobs existed in
significant numbers in the national economy that Plaintiff could perform. Id. The ALJ
therefore concluded that Plaintiff was not under a disability, as defined in the Social
Security Act, from the alleged onset date through the date of decision. (Tr. 30).
C.

Plaintiff’s Arguments
Plaintiff advances two arguments on appeal. First, Plaintiff argues that the ALJ

failed to give controlling weight to the opinion of her treating physician, instead assigning
“great weight” to other medical opinions. (Doc. # 7-1 at 1). Second, Plaintiff alleges that
the ALJ misapplied the “Unsuccessful Work Attempt” rules against the Plaintiff. Id. Each
of these arguments will be addressed in turn.
1.

The ALJ did not err in weighing the opinion of Doctor Hunt, a treating
source.

In social security disability cases, medical evidence may come from treating
sources, non-treating sources, and non-examining sources. 20 C.F.R. § 404.1502. A
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treating source is the claimant’s “own physician, psychologist, or other acceptable
medical source who provides [claimant], or has provided [claimant], with medical
treatment or evaluation and who has, or has had, an ongoing treatment relationship with
[claimant].” Id. 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, and a
non-examining source is one that has not examined the claimant but has provided
medical or other opinion evidence in the case. Id.
Generally, the ALJ must give “controlling weight” to the opinions of treating
sources, so long as that source’s opinion on the “nature and severity of [the] impairment
is well-supported by medically acceptable clinical and laboratory diagnostic techniques,
and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R.
§ 404.1527(c)(2); see also Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365 (6th Cir.
2013).
If the ALJ does not give the claimant’s treating physician controlling weight for the
reasons above, the ALJ must still consider the treating source’s opinion and determine
how much weight to give it, by considering a number of factors.

20 C.F.R. §

404.1527(c)(2). The ALJ must consider 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. § 404.1527(c)(1)-(6). The ALJ evaluates the opinions of non-treating
sources by considering these same factors. See id.
Plaintiff’s Motion for Summary Judgment (Doc. # 7) assigns as error the weight the
ALJ gave to the medical opinions of Doctors Hunt, Westerfield, and Sadler. (Doc. # 7-1
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at 11).

Plaintiff’s arguments, however, only go to the ALJ’s alleged failure to assign

Doctor Hunt’s opinion “controlling weight.” Id. at 11-13. Plaintiff argues that the ALJ failed
to give good reasons why Doctor Hunt’s opinions were not supported by “any objective
findings in the record” or were inconsistent with the other substantial evidence in the
record. Id. at 12.
Plaintiff’s position on the relevant codes and case law is unsupported by either.
There is no “any objective finding” requirement for the first prong of the controlling-weight
test; instead, the opinion must be “well-supported by medically acceptable clinical and
laboratory diagnostic techniques.”
404.1257(c)(2)).

Gayheart 710 F.3d at 376 (citing 20 C.F.R. §

In addition, the opinion must not be “inconsistent with the other

substantial evidence in [the] case record.” Id. The two-prong test as laid out in subsection
(c)(2), and enunciated in Gayheart, requires both prongs to be met for a treating source
opinion to be given controlling weight. If Doctor Hunt’s opinions fail to satisfy either prong,
controlling weight need not be given to those opinions.
In determining the Plaintiff’s RFC, the ALJ analyzed the record, including medical
and testimonial evidence. (Tr. 23-27). The ALJ considered Plaintiff’s testimony at the
hearing on this matter, the questionnaires she had filled out, the objective radiographic
findings, and the treatment notes from Doctor O’Neill, Doctor Hunt, and Jill Crawford,
ARNP. (Tr. 24-25, 27). The ALJ also considered the March 2015 opinion of treatingphysician Doctor Hunt; the September 2013 opinion of examining physician Doctor
Westerfield; the December 2013 opinion of reviewing physician Doctor Sadler; the
medical records of previous physician Doctor O’Neill; the medical records submitted from

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Doctors O’Neill, Westerfield, and Hunt; the physical therapy records submitted from
Doctor Hunt; and the medical records produced by Jill Crawford, ARNP. (Tr. 24-27).
The ALJ declined to give Doctor Hunt’s opinion controlling weight, finding that it
was not well-supported by, and was inconsistent with, the record evidence. First, Doctor
Hunt’s opinion was inconsistent with Plaintiff’s own testimony regarding her activities of
daily living. The Plaintiff testified she was able to “care for her own personal care needs
... drive, do laundry, play board games with her grandchild, feed self ... do dishes several
times a week, and grocery shop weekly.” (Tr. 27).
Furthermore, the ALJ determined that Doctor Hunt’s March 2015 medical opinion
that Plaintiff could rarely grasp or handle was not supported by the evidence. (Tr. 25).
The medical evidence related to Plaintiff’s experience with both Doctors Hunt and O’Neill
showed a “treatment history [that] has overall remained relatively modest with noted
improvement with medication and physical therapy intervention.” (Tr. 26). The treatment
history showed that by June 2013, Plaintiff was making “considerable” progress with
physical therapy, and that in a January 2015 follow up report, indicated her symptoms
were “manageable.” Id. In a parallel timeline, Plaintiff saw Doctor Hunt for treatment in
mid-2013, but then did not see him again until December 2014. Id. In effect, the ALJ
compared the year and a half between treatments, the type of work Plaintiff had engaged
in during the interim, and Doctor Hunt’s notes about Plaintiff in January 2015 with Doctor
Hunt’s opinion given just two months later, and found that the March 2015 opinion was
unsupported by the evidence.
In contrast, the ALJ gave great weight to the opinions of examining physician
Doctor Westerfield and reviewing physician Doctor Sadler, finding that the conclusions
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were “reasonably supported by and consistent with the weight of the evidence as a
whole.” (Tr. 25). In addition, the ALJ found that Doctor Sadler’s “opinion [was] based
upon a thorough review of the available medical record before her (and since), wellreasoned, and rendered by an individual with a comprehensive understanding of agency
rules and regulations.” Id.
After conducting an examination in in September 2013, Dr. Westerfield’s final
impression was that “[i]t may be that [Plaintiff] cannot do repetitive motions with her hands,
but she certainly is capable of using her hands in most work activities.” (Tr. 288).
Similarly, Doctor Sadler opined that Plaintiff had excertional limits of 50 pounds
occasionally, up to 25 pounds frequently, the same limits on pushing and pulling,
unlimited gross manipulation, and limited ability to finger on her left hand. (Tr. 96-98).
The ALJ explained that Doctor Hunt’s opinion was inconsistent with and not
supported by the medical evidence in the record. Thus, the ALJ determined Doctor Hunt’s
opinion did not merit controlling weight and detailed his “good reasons” for doing so in
accordance with 20 C.F.R. § 404.1527(c). Accordingly, the Court finds no error in this
portion of the ALJ’s Step Four analysis.
In the end, Plaintiff is asking this Court to find that the ALJ misinterpreted the
evidence or emphasized certain aspects of the medical record in favor of others.
However, this is equivalent to requesting a de novo review of the record, a task far beyond
the Court’s limited role in determining whether the ALJ’s finding is supported by
substantial evidence. See Roberts v. Astrue, No. 1:09-01518, 2010 WL 2342492, at *9
(N.D. Ohio June 9, 2010). As stated earlier, an administrative decision is not subject to
reversal merely because substantial evidence would have supported the opposite
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conclusion. Smith v. Chater, 99 F.3d at 781-82. Substantial evidence exists to support
the ALJ’s decision, and the Court’s review must stop there.
2.

The ALJ’s consideration of Plaintiff’s unsuccessful work attempt was
properly used to evaluate Plaintiff’s credibility.

An unsuccessful work attempt is a carve-out from the ALJ’s determination of
whether a claimant has engaged in substantial gainful activity.

See 20 C.F.R. §

404.1574(a)(1) (“[The Commissioner] generally consider[s] work that [the claimant is]
forced to stop or to reduce below the substantial gainful activity level after a short time
because of [an] impairment to be an unsuccessful work attempt.

[The claimant’s]

earnings from an unsuccessful work attempt will not show that [he or she is] able to do
substantial gainful activity.”); see also Anderson v. Comm’r of Soc. Sec., No. 3:13-CV145, 2014 WL 346296, at *9 (N.D. Ohio Jan. 20, 2014) (“Unsuccessful work attempts may
serve as evidence that an individual is unfit to work, but this evidence, on its own, does
not require the Commissioner to conclude that the person is disabled.”).
Plaintiff’s unsuccessful work attempt was used to neither prove nor disprove her
claim of disability, but to evaluate her credibility. The ALJ explicitly stated that he was
considering the unsuccessful work attempt within the context of Plaintiff’s credibility as to
the intensity, persistence, and limiting effects of her impairment: “The claimant is not
entirely credible, inasmuch as she has been able to do work activity that is close to SGA
levels.” (Tr. 27; see also Tr. 25). In support of this determination, the ALJ contrasts
Plaintiff’s statements as to her disability with those of her treating physician—Doctor
Hunt—as the clinical notes indicate:
The patient is a 60-year old female we saw last year for the same similar
complaints. She has CMC joint arthritis. She is trying to apply for disability
with this. She is starting a new job.” (Tr. 346); and “The patient is here
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today for a follow up. She is a 60-year old female who has tried therapy
and different bracing. It doesn’t seem to help. It seems to be manageable
for her at this point and time. She is doing an inspection job at Toyota, but
that is still bothering her.
(Tr. 345).
The ALJ also noted from these reports that although the Plaintiff had “decreased
strength for pincer grip of the left thumb ... she was noted to have manageable
symptoms.” (Tr. 27). The unsuccessful work attempt was used solely as evidence to
help the ALJ assess Plaintiff’s credibility regarding the intensity, persistence, and
limitations of her impairment.
The Court must afford the ALJ great weight and deference in determining Plaintiff’s
credibility, so long as the determination is supported by substantial evidence. Jones, 336
F.3d at 475-76. Contrary to Plaintiff’s assignment of error, her unsuccessful work attempt
was not used to determine that she could work, but that her testimony was less credible.
See, e.g., Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007) (holding that
when a claimant’s complaints concerning the intensity and persistence of her symptoms
are unsupported by objective medical evidence, the ALJ is required to make a
determination of the claimant’s credibility “based on a consideration of the entire case
record.”); See also Moore v Comm’r of Soc. Sec. 573 F.Appx. 540, 542 (6th Cir. 2014).
In this case, the ALJ found Doctor Hunt’s medical notes and Plaintiff’s unsuccessful work
attempt created doubt as to Plaintiff’s total credibility concerning her impairment. (Tr. 25,
27).
Finally, Plaintif suggests that the Commissioner’s Motion for Summary Judgment
should be construed to admit that Plaintiff was disabled before the ALJ decision, and that
the only question remaining is when she became disabled. (Doc. # 12). As stated supra,
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this Court’s review of the Commissioner’s decision is limited to whether the decision was
made following proper legal standards and whether the decision is supported by
substantial evidence.

See Gayheart, 710 F. 3d at 374.

This Court has already

determined that the ALJ’s decision was supported by substantial evidence. Plaintiff
cannot now ask the Court to make a factual determination that Plaintiff became disabled
at some time before the ALJ decision. Such a request is both contrary to, and well
beyond, the scope of the Court’s review.
III. CONCLUSION
Accordingly, for the reasons stated herein, IT IS ORDERED as follows:
(1)

The decision of the Commissioner is found to be supported by substantial

evidence and is hereby AFFIRMED;
(2)

Plaintiff’s Motion for Summary Judgment (Doc. # 7) is hereby DENIED;

(3)

Defendant’s Motion for Summary Judgment (Doc. # 9) is hereby

GRANTED; and
(4)

A Judgment in favor of Defendant Commissioner will be entered

contemporaneously herewith.
This 24th day of August, 2017.

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