Parker v. SSA

Filing 20

MEMORANDUM OPINION & ORDER: 1) 19 MOTION for Summary Judgment is GRANTED. 2) 17 Memo in Support of Complaint, construed as a Motion for Summary Judgment, is DENIED. 3) Administrative decision will be AFFIRMED by separate Judgment this date. Signed by Judge Danny C. Reeves on 7/12/2017.(SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
JENNIFER PARKER,
Plaintiff,
V.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Civil Action No. 5: 16-417-DCR

MEMORANDUM OPINION
AND ORDER

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This matter is pending for consideration of cross-motions for summary judgment1 filed
by Plaintiff Jennifer Parker and Defendant Nancy A. Berryhill, Acting Commissioner of the
Social Security Administration (“the Commissioner.”) [Record Nos. 17, 19] Parker argues
that the Administrative Law Judge (“ALJ”) 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 in determining her residual functional capacity
(“RFC”) and that she made other errors of law. Parker requests an award of benefits in her
favor 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.

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The plaintiff has filed a “Memorandum in Support” of her Complaint, which is construed as
a Motion for Summary Judgment.
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For the reasons that follow, the Commissioner’s motion will be granted and the
administrative decision denying benefits will be affirmed.
I.

Procedural History

On August 5, 2013, Parker filed a Title II application for a period of disability and
disability insurance benefits, (“DIB”), alleging an onset of disability of September 19, 2008.
[Administrative Transcript, hereafter, “Tr.,” 147]

After being denied initially and on

reconsideration, Parker requested an administrative hearing. [Tr. 92, 97, 104] On June 11,
2015, she appeared before ALJ Bonnie Kittinger in Lexington, Kentucky. [Tr. 13-47] ALJ
Kittinger denied benefits in a written decision dated July 28, 2015, which the Appeals Council
affirmed. [Tr. 77-86, 1-7] Accordingly, the claimant has exhausted her administrative
remedies and this matter is ripe for review under 42 U.S.C. § 405(g).
II.

Background

Parker was 50-years-old at the time of the ALJ’s decision. [Tr. 18] She worked for 28
years as a secretary/receptionist, but was laid off in September 2008 when her office closed.
[Tr. 22] Although Parker had health problems, she drew unemployment benefits for nearly
two years after being laid off and was required to seek work during that time. [Tr. 22-24] At
the time of her application, Parker believed she could no longer work due to her diabetes,
diverticulitis, dizziness, and an inability to walk for prolonged periods. [Tr. 25, 33, 36] Parker
reported that she could lift no more than ten pounds without hurting herself. [Tr. 27] She
estimated that she was able to stand or walk for approximately fifteen minutes before needing
to sit down. [Tr. 27]
Parker was married and had a driver’s license, but did not drive frequently. [Tr. 19-20,
395] During her administrative hearing, she described the previous day as follows: she wore
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her CPAP machine until 11:00 a.m., ate a sandwich for lunch, and did laundry until her
husband got home at around 5:00 p.m. [Tr. 28-30] Parker and her husband then went to visit
her mother in a rehabilitation center before attending church that evening. Parker reported that
she watched a lot of television and that her husband did most of the household chores. [Tr.
31] Parker also reported that she did “some crocheting” and went shopping every two or three
weeks. [Tr. 30-31]
The record contains a collection of treatment notes from Parker’s primary care
providers, Dr. Anil Harrison and Physician Assistant Rebecca Rankin. Harrison and Rankin
treated Parker for a variety of conditions including diabetes mellitus and hypothyroidism.
Parker underwent a colonoscopy in May 2012. That procedure indicated that she suffered
from diverticulosis. [Tr. 619] Parker was encouraged to increase her water intake and eat a
high fiber diet. [Tr. 674] Parker was referred to Dr. Wendell Miers in 2010 for management
of her Type II diabetes, which was diagnosed in 2007. [Tr. 320] The record suggests that
there were some difficulties managing Parker’s blood sugar and that Dr. Miers made
medication changes as necessary. [Tr. 325, 358] Miers also educated Parker concerning
lifestyle changes.
Parker participated in physical therapy for several weeks in early 2012 to address her
balance issues. [Tr. 266-309] She showed improvement, but eventually stopped attending
therapy because of issues with her diabetes. [Tr. 267-68] She also completed a pulmonary
function study in October 2013, which indicated “very mild restrictive pulmonary disease.”
[Tr. 400]
State consultant Dr. Robert Brown reviewed Parker’s case in November 2013. [Record
No. 57] Noting Parker’s mild COPD, diverticulitis, and diabetes, Brown believed that she
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could occasionally lift/carry 50 pounds and frequently lift/carry 25 pounds. He further opined
that she could stand, walk, or sit about six hours in an eight-hour work day. Brown believed
Parker had the unlimited ability to push and pull. Dr. Paul Saranga reviewed the file upon
reconsideration. [Tr. 71] He agreed with the limitations that Dr. Brown had assessed, but
added postural limitations for climbing, balancing, stooping, crouching, and crawling. [Tr. 6970] Additionally, he opined that Parker should avoid concentrated exposure to vibration,
fumes, odors, dusts, gases, and poor ventilation.
Cristi Hundley, Ph.D. performed a mental status evaluation. [Tr. 395-398] Parker
reported many medical problems but advised Hundley that a doctor had not restricted her
activity. [Tr. 395] Hundley observed that Parker wore heeled sandals and walked slowly, but
without an assistive device.

Her memory was intact in all respects.

She responded

appropriately to questions regarding judgment and abstract reasoning, and was able to perform
simple calculations. Hundley opined that Parker’s ability to understand and remember simple
instructions was fair to good, as was her ability to maintain attention and concentration. [Tr.
398] She assigned Parker 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).
ALJ Kittinger determined that Parker did not have an impairment or combination of
impairments that met a listing under 20 C.F.R. Part 404, Subpart P, Appendix 1. However,
she concluded that Parker had the following severe impairments: diabetes mellitus, chronic
obstructive pulmonary disease, diverticulitis, and obesity. After considering the entire record,
the ALJ found that Parker had the RFC to perform light work as defined in 20 C.F.R. §
404.1567(b). Specifically, the ALJ concluded that Parker was able to:
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lift/carry twenty pounds occasionally, ten pounds frequently, and she was able
to stand/walk up to six hours, sit at least six hour in an eight-hour workday. She
was able to occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl,
and she could not climb ladders, ropes, or scaffolds. The claimant needed to
avoid concentrated exposure to vibration and pulmonary irritants.
Based on this RFC, the ALJ determined that Parker was capable of performing her past
relevant work as a receptionist and she had not been under a disability through December 31,
2013, the date last insured. [Tr. 86]
III.

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
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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
Cir. 1999)).
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).
IV.

Analysis

The claimant contends that the ALJ failed to give proper consideration to the opinions
of her treating sources pursuant to 20 C.F.R. § 404.1527. Greater deference generally is given

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to the opinions of treating physicians.2 See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544
(6th Cir. 2004). However, Parker has failed to identify any treating source that provided an
opinion in this case. Upon reviewing the administrative transcript, the Court did not locate a
treating source opinion.
The only item of record that arguably could be construed as a treating source opinion
is a letter from Rebecca Rankin, P.A., dated June 1, 2015. [Tr. 753] Rankin commented that
Parker had “balance issues,” “fatigue/weakness,” and “neuropathy of legs.” [Tr. 753] The
letter was submitted three weeks after the administrative hearing during which Parker’s nonattorney representative advised the ALJ that the record was complete. [Tr. 752, 16] Further,
the claimant’s date last insured is December 31, 2013. To the extent Ms. Rankin intended to
address Parker’s impairments prior to that date, the letter contained no specific opinions
regarding her functional limitations. See Strong v. SSA, 88 F. App’x 841, 845 (6th Cir. 2004)
(“Evidence of disability obtained after the expiration of insured status is generally of little
probative value.”). Regardless, the Appeals Council correctly noted that Rankin did not
recommend any limitations greater than those included in the ALJ’s RFC. [Tr. 6]
Parker also asserts that the ALJ erred in relying on the opinion of consultative
psychological consultant Cristi Hundley, Ph.D. [Tr. 395] Parker essentially argues that
Hundley’s use of a GAF score disqualifies her assessment from consideration by the ALJ.
[Record No. 17, p. 10] While a GAF score is not dispositive by itself, it may help an ALJ
assess a claimant’s mental RFC. Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 836 (6th Cir.
2016). ALJ Kittinger did not rely solely on Parker’s GAF score of 75 in finding an absence of

2

 This

rule applies to claims filed before March 27, 2017. 20 C.F.R. § 404.1527. 
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mental impairments. Instead, she discussed the factors underpinning the score, which were
derived from Dr. Hundley’s apparently thorough evaluation. [Tr. 83-84]
The basis of any claimed mental limitations is unclear. In the application for DIB,
Parker reported “part of brain does not work,” but this appears to be connected to her problems
with vertigo and balance. [Tr. 217] She advised Hundley that she had no problems with her
mood, thinking, or behavior. [Tr. 397] During her hearing with the ALJ, she did not describe
any mental or emotional limitations. While Parker objects to the ALJ’s acceptance of
Hundley’s opinion, she has not cited any competing evidence or suggested what mental
limitations should have been included in the RFC.
Parker also contends that the ALJ misstated her testimony regarding her activity in the
two-year period following her lay-off in September 2008. [Record No. 17, p. 13] During the
hearing, the claimant testified that she was required to actively seek employment while
collecting unemployment compensation. [Tr. 23] Parker testified that she would have taken
a job if it had been offered to her because she was required to do so. [Tr. 23-24] She advised
the ALJ that she would have attempted the work, but she was unsure whether she would have
been able. [Tr. 24] The ALJ accurately summarized this testimony in her written opinion,
concluding that such evidence is inconsistent with limitations so severe as to be unable to
engage in any substantial activity during that time period. [Tr. 83] There is no indication,
however, that the ALJ gave significant weight to this inconsistency or that it unduly prejudiced
the claimant. Despite the state consultants’ recommendations regarding moderate work, the
ALJ determined that light work was appropriate based on Parker’s complaints of pain and
weakness. [Tr. 83]

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Finally, the claimant has devoted a brief portion of her memorandum to a section
labeled “Listing Not Met.” [Record No. 17, p. 8] It is unclear whether Parker attempts to
argue that the ALJ erred or simply points out that she did not meet a listing under Appendix 1.
Because she does not suggest a listing that she believes is met, the Court will assume it is the
latter. See e.g., McPherson v. Kelley, 125 F.3d 989, 995-96 (6th Cir. 1997) (“[I]ssues adverted
to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed waived. It is not sufficient for a party to mention a possible argument in the most
skeletal way, leaving the court to . . . put flesh on its bones.”).
Based on the foregoing, it is hereby
ORDERED as follows:
1.

Defendant Nancy A. Berryhill’s Motion for Summary Judgment [Record No.

19] is GRANTED.
2.

Plaintiff Jennifer Parker’s Memorandum in Support of Complaint, construed as

a Motion for Summary Judgment, [Record No. 17] is DENIED.
3.

The administrative decision will be AFFIRMED by separate Judgment this

date.
This 12th day of July, 2017.

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