Benard v. SSA

Filing 10

MEMORANDUM OPINION & ORDER: Acting Commissioner's final decision is AFFIRMED. Plaintiff's motion for summary judgment 7 is DENIED. A separate judgment in conformity herewith shall this date be entered. Signed by Judge Joseph M. Hood on 2/14/2018.(STC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
LUTHER EVERETT BENARD, JR.,

)
)
) Action No. 5:17-cv-0096-JMH
)
)
) MEMORANDUM OPINION AND ORDER
)
)
)
)
)

Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.

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This matter is before the Court on the parties’ cross-Motions
for Summary Judgment (DEs 7 and 9) on Plaintiff’s appeal of the
Commissioner’s denial of his current application for Disability
Insurance Benefits (DIB).1

The matter having been fully briefed

by the parties is now ripe for this Court’s review pursuant to 42
U.S.C. § 405(g).
I.

Overview of the Process and the Instant Matter
In

determining

whether

an

individual

is

disabled,

an

Administrative Law Judge (“ALJ”) uses a five step analysis:
1. An individual who is working and engaging
in substantial gainful activity is not
disabled, regardless of the claimant’s
medical condition.
2. An individual who is working but does not
have
a
“severe”
impairment
which
significantly limits his physical or mental

1

These are not traditional Rule 56 motions for summary judgment. Rather, it is
a procedural device by which the parties bring the administrative record before
the Court.

ability to do basic work activities is not
disabled.
3. If an individual is not working and has a
severe impairment which “meets the duration
requirement and is listed in appendix 1 or
equal to a listed impairment(s)”, then he
is disabled regardless of other factors.
4. If a decision cannot be reached based on
current work activity and medical facts
alone, and the claimant has a severe
impairment, then the Secretary reviews the
claimant’s residual functional capacity and
the physical and mental demands of the
claimant’s previous work. If the claimant
is able to continue to do this previous
work, then he is not disabled.
5. If the claimant cannot do any work he did
in the past because of a severe impairment,
then the Secretary considers his residual
functional capacity, age, education, and
past work experience to see if he can do
other work. If he cannot, the claimant is
disabled.

Preslar v. Sec’y of Health & Hum. Servs., 14 F.3d 1107, 1110 (6th
Cir. 1994)(citing 20 C.F.R. § 404.1520(1982)).
II.

Standard of Review

When reviewing a decision made by the ALJ, the Court may not
“‘try the case de novo, resolve conflicts in evidence, or decide
questions of credibility.’”

Ulman v. Comm’r of Soc. Sec., 693

F.3d 709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d
506, 509 (6th Cir. 2007)).

“The ALJ’s findings are conclusive as

long as they are supported by substantial evidence.” 42 U.S.C. §
405(g); Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001)

(citations omitted).

Substantial evidence “‘means such relevant

evidence as a reasonable mind might accept.’” Foster, 279 F.3d at
353 (quoting Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524,
535 (6th Cir. 1991)).
III. Facts
Plaintiff applied for disability insurance benefits (DIB)
under Title II of the Social Security Act, alleging he became
disabled on February 19, 2013 (Tr. 309).
(ALJ)

Ronald

M.

Kayser

denied

Administrative Law Judge

Plaintiff’s

application.

The

agency’s Appeals Council then denied Plaintiff’s request that it
review the ALJ’s decision, rendering it the Commissioner’s final
decision for judicial review (Tr. 1-5, 173-84). See 20 C.F.R. §
404.981.
Plaintiff was 45 years old in February 2013, when he alleged
he became disabled due to multiple heart attacks, diabetes, high
blood pressure, and high cholesterol (Tr. 309, 327, 330). He
graduated high school and had past relevant work as a parts
manager, a skilled, light job (Tr. 227, 331). See 20 C.F.R. §§
404.1567 (exertional levels), 404.1568 (skill levels).
In 2006, Plaintiff had surgery to place four stents in his
heart

(see

Tr.

395).

In

2007,

he

received

an

implantable

cardioverter defribillator (more commonly known as a “pacemaker”)
(see Tr. 598, 611-12). In August 2008, Plaintiff experienced chest
pain after surgeons turned his pacemaker off and then back on in

relation to a minimally invasive lower back surgery (Tr. 395-97,
422-23).
Plaintiff did not seek medical treatment for chest pain again
until March 2012, when he saw cardiologist James Crager, M.D.,
with complaints of periscapular pain with activity (Tr. 698-701).
Plaintiff underwent stent placement after studies showed narrowing
(stenosis) in three arteries (Tr. 711-16). Studies also revealed
severe left ventricular systolic dysfunction (heart failure), with
an ejection fraction of 20 to 25 percent (Tr. 715).

In April 2012,

Plaintiff told Dr. Crager that, with his medications, he had
experienced no recurrent chest discomfort and had minimal lethargy
(Tr. 914).
Plaintiff returned to see Dr. Crager in June 2012 with
complaints of significant fatigue but no overt chest discomfort or
increased shortness of breath (Tr. 912).

In October, Plaintiff

told Dr. Crager that he had not experienced any chest discomfort
or palpitations since his March stent placement (Tr. 910).

He

asked Dr. Crager about disability, and Dr. Crager wrote that
Plaintiff “would be, from a cardiac standpoint, disabled from his
current occupation” and should “apply through the SSI Department
otherwise” (Tr. 910).

The Court notes Plaintiff continued to work

at the same occupation for another four months, until he retired
in February 2013 and then sought disability benefits (see Tr. 200,
201, 309).

Plaintiff’s medical record subsequent to his alleged onset of
disability is rather sparse.

In June 2013, Plaintiff told Dr.

Crager that, other than one shock from his pacemaker that spring,
he had felt well (Tr. 908).

In March 2014, he again reported no

chest discomfort or palpitations, and he was not interested in new
heart medication (Tr. 982).

Updated studies showed somewhat

improved (30 to 35%) ejection fraction (Tr. 998-99).

Plaintiff

told Dr. Crager in August 2014 that during a trip to Hawaii he had
experienced some rectal bleeding (Tr. 1200).

He did not report

any cardiac issues, yet Dr. Crager opined that, “from a cardiac
standpoint, [Plaintiff] should be considered 100% disabled for any
form of labor” (Tr. 994).

In March 2015, Plaintiff again told Dr.

Crager

experienced

that

he

had

not

any

chest

discomfort

or

palpitations, but he continued to “struggle” with his pacemaker
(Tr.

1026).

Updated

studies

showed

an

improved

(but

still

abnormal) ejection fraction of 35% (Tr. 1027).
Plaintiff

had

a

health

maintenance

visit

Hufnagel, M.D. in November 2015 (Tr. 1244-49).

with

Larissa

He described his

overall health as “fair” and reported he exercised regularly (Tr.
1244).

He denied chest pain, shortness of breath with exertion,

and lower extremity swelling (Tr. 1247). One month later, however,
Plaintiff told Dr. Crager that he had little quality of life and
experienced shortness of breath with any activity (Tr. 1251).

In

January 2016, Dr. Crager completed a form opinion indicating that

Plaintiff met the requirements of the per se disabling impairment
listed at section 4.04 in the agency’s Listing of Impairments, see
20 C.F.R. Part 404, Subpart P, Appendix 1 § 4.04, due to congestive
heart failure, severe left ventricular dysfunction, and coronary
artery disease (Tr. 1235).
As part of Plaintiff’s application for disability benefits,
State agency physicians P. Saranga, M.D., and Donna Sadler, M.D.,
reviewed the record to evaluate his functional abilities (Tr. 24042, 251-53). See 20 C.F.R. § 404.1527(e)(2)(i) (State agency
medical consultants “are highly qualified physicians. . . who are
also experts in Social Security disability evaluation”). Both
doctors

agreed

that

Plaintiff

had

functional

limitations

consistent with a range of sedentary work (Tr. 240-42, 251-53).
See id. § 404.1567(a).
At

the

January

2016

hearing

before

the

ALJ,

Plaintiff

testified that he was very weak in the mornings and sometimes did
not have the energy to get out of his chair (Tr. 207).

However,

Plaintiff said that he played golf twice a week and mowed his 5.5acre lawn (Tr. 207, 209).

He estimated he could walk one-quarter

of a mile on concrete, one-half of a mile on grass, and threequarters of a mile on even ground (Tr. 215); and could stand for
15 minutes at a time, sit two hours at a time, and carry up to 50
pounds (but only rarely) (Tr. 215-17). He testified he had chest

pain three days per week, with each episode lasting between several
minutes and many hours (Tr. 222).
The

ALJ

found

that

Plaintiff

failed

to

establish

his

entitlement to disability benefits under the agency’s five-step
sequential

evaluation

process

C.F.R. § 404.1520(a)(4).

(Tr.

175-84).

See

generally

20

As relevant here, the ALJ found that

Plaintiff’s impairments did not meet or medically equal a per se
disabling listed impairment (Tr. 175-76). Instead, the ALJ found
that Plaintiff retained the residual functional capacity (RFC) to
perform a range of light work (Tr. 176).

Relying on a vocational

expert’s testimony, the ALJ found that this would allow Plaintiff
to perform work existing in significant numbers in the national
economy (Tr. 183; see Tr. 230-31).

The ALJ thus concluded at step

five that Plaintiff had failed to meet the strict standard to
establish disability under the Act (Tr. 184).
IV.

Analysis
a. The ALJ’s determination that Plaintiff is not per se
disabled pursuant to Listing 4.04 was supported by
substantial evidence

Plaintiff raises two arguments in his challenge to the ALJ’s
decision.

He argues that the ALJ failed to give adequate reasons

for discounting the treating physician’s statement that Plaintiff
meets the requirements of Listing 4.04.

He further argues that

the ALJ formulated a less restrictive RFC than any opinion offered
in the record, thus, the RFC was not based upon substantial

evidence.

For the reasons stated below, the Court disagrees with

Plaintiff.
Listing

4.04

sets

forth

per

se

disabling

impairments.

“Because satisfying the listings during the third step yields an
automatic determination of disability based on medical findings,
rather than a judgment based on all relevant factors for an
individual claimant, the evidentiary standards for a presumptive
disability under the listings are more strenuous than for claims
that proceed through the entire five-step evaluation.” Peterson v.
Comm’r of Soc. Sec., 552 F. App’x 533, 539 (6th Cir. 2014)
(unpublished).
The

ALJ

explicitly

considered

whether

Plaintiff

met

the

requirements of Listing 4.04 but found that he did not (Tr. 175).
Listing 4.04 requires that Plaintiff provide specific medical
evidence related to his cardiac condition. 20 C.F.R. Pt. 404,
Subpt. P, App. 1 § 4.04.

The ALJ found that “[t]he evidence of

[Plaintiff’s] ischemic heart disease is insufficient to satisfy
the requirement of listing 4.04 relating to: the results of
exercise tolerance testing; the frequency of ischemic episodes; or
the severity of coronary artery disease (Tr. 175).

Thus, the ALJ

reasonably concluded that Plaintiff had failed to provide the
requisite medical evidence to establish disability under Listing
4.04.

Id.

Plaintiff

does

not

challenge

these

findings.

Rather,

he

argues that the ALJ should have adopted Dr. Crager’s opinion that
he met Listing 4.04. The ALJ considered this opinion (Tr. 180), but
ultimately rejected it because it “constitute[d] administrative
findings on the ultimate issue of disability,” which are reserved
to the Commissioner (Tr. 182).
Opinions on an issue reserved to the Commissioner, even
opinions by a long-time treating physician, are never due special
weight or significance. 20 C.F.R. § 404.1527(d)(1)-(3); SSR 965p, 1996 WL 374183, at *2. One of the issues that the agency’s
regulations explicitly reserve to the Commissioner is whether a
claimant’s medical condition(s) meet or medically equal a Listing.
20 C.F.R. § 404.1527(d)(2).

Thus, Dr. Crager’s opinion that

Plaintiff met Listing 4.04 was not due controlling weight or
special significance.
A

review

Commissioner’s
opinions.

of

Dr.

Crager’s

regulations

opinion

prohibit

demonstrates

blind

reliance

why
on

the
such

Dr. Crager made no effort to describe the medical

evidence required to establish disability under Listing 4.04 (see
Tr. 1235). Instead, he merely listed diagnoses of congestive heart
failure, severe left ventricular dysfunction, and coronary artery
disease (see Tr. 1235).

While such diagnoses are relevant to some

of Listing 4.04’s criteria, they do not address other requisite
criteria. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 4.04; see also

Bartyzel v. Comm’r of Soc. Sec., 74 F. App’x 515, 527 (6th Cir.
2003) (unpublished) (recognizing that the diagnosis of a condition
is insufficient to meet a Listing).
Plaintiff erroneously avers that there is no opinion in the
record that Plaintiff did not meet Listing 4.04 (Pl. Br. 9).
the

contrary,

State

agency

reviewing

physician

Dr.

On

Sadler

explicitly considered whether Plaintiff met or medically equaled
Listing 4.04 (see Tr. 250-51 (listing 4.04 under “Adult Listings
Considered”)).

She then signed the Disability Determination and

Transmittal form, indicating her opinion that Plaintiff did not
meet or medically equal any Listing (Tr. 245). See Sheets v. Bowen,
No. 88-3463, 875 F.2d 867, 1989 WL 47444, at *4 (6th Cir. 1989)
(unpublished table opinion) (holding that signatures of State
agency medical consultants on the disability determination and
transmittal forms implicitly indicate that the claimant did not
meet or equal the listing); Branch v. Astrue, No. 4:10CV0485, 2010
WL 5116948, at *8 (N.D. Ohio Dec. 9, 2010) (unpublished) (finding
that an ALJ could rely on State agency medical consultants’
signature on the Disability Determination and Transmittal form as
an expert opinion to determine whether a claimant met a listing
requirement (citations omitted)).
Plaintiff argues that “the opinion of the treating specialist
[Dr.

Crager]

cardiology

was

records

accompanied
going

back

by
years

numerous
and

and

complicated

documenting

a

long-

standing treatment relationship” (Pl. Br. 7). Be that as it may,
a long-standing treatment relationship is not one of the requisite
criteria of Listing 4.04, and “numerous and complicated cardiology
records,”

without

medical

evidence

consistent

with

the

requirements of Listing 4.04, are irrelevant to the step-three
analysis. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 4.04.
Plaintiff next argues that the ALJ was required to develop
the record further before rejecting Dr. Crager’s opinion that he
met Listing 4.04, by calling a medical expert to testify (Pl. Br.
8-9).

Yet Plaintiff points to no law, regulation, or case in

support of his argument.

The Commissioner’s regulations provide

the ALJ the flexibility to determine whether a medical expert’s
testimony

is

needed

in

a

particular

case.

20

C.F.R.

§

404.1527(e)(2)(iii) (“Administrative law judges may also ask for
and consider opinions from medical experts on the nature and
severity of your impairment(s) and on whether your impairment(s)
equals the requirements of any impairment listed in appendix 1 to
subpart P of part 404 of this chapter.” (emphasis added)); see also
Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 275 (6th Cir. 2010)
(“The ALJ has discretion to determine whether additional evidence
is

necessary.”).

“Ordinarily,

development

should

not

be

undertaken for the purpose of determining whether a treating
source’s medical opinion should receive controlling weight if the
case record is otherwise adequately developed.” SSR 96-2p, 1996 WL

374188, at *4.

Thus, the ALJ was not required to develop the

record further before he rejected Dr. Crager’s opinion.
The

ALJ

reasonably

rejected

Dr.

Crager’s

opinion

that

Plaintiff met Listing 4.04.
b. The ALJ did not err in his assessment of the RFC
As part of the ALJ’s assessment of Plaintiff’s RFC, he
considered the medical opinions relevant to Plaintiff’s functional
abilities (Tr. 181-82). See SSR 96-8p, 1996 WL 374184, at *7 (“The
RFC assessment must always consider and address medical source
opinions.

If the RFC assessment conflicts with an opinion from a

medical source, the adjudicator must explain why the opinion was
not adopted.”); 20 C.F.R. § 404.1527(c)(2) (“We will always give
good reasons in our notice of determination or decision for the
weight we give your treating source’s opinion.”).
State agency physicians Drs. Saranga and Sadler opined that
Plaintiff could perform a range of sedentary work (Tr. 240-42,
251-53).

Dr. Crager, on the other hand, opined that Plaintiff was

“100% disabled for any form of labor” (Tr. 994).

It was the ALJ’s

duty to resolve these conflicts in the evidence.

Perales, 402

U.S. at 399 (“We . . . are presented with the not uncommon situation
of conflicting medical evidence.
to resolve that conflict.”).

The trier of fact has the duty

The ALJ ultimately gave limited

weight to Dr. Crager’s opinion and discounted the opinions of Drs.
Saranga and Sadler (Tr. 182). He concluded that Plaintiff had the

same non-exertional limitations opined by the State agency medical
consultants but determined that the evidence supported an RFC for
light work, not the sedentary work that Drs. Saranga and Sadler
had indicated (Tr. 182; compare Tr. 176 with Tr. 240-42, 251-53).
Plaintiff protests that, because the ALJ’s RFC assessment was
less

restrictive

than

opined

by

a

medical

source,

it

was

unsupported by substantial evidence (Pl. Br. 11-12). Plaintiff’s
arguments rests on the mistaken premise that RFC is a medical
finding.

On the contrary, RFC is an administrative finding, not

a medical finding. SSR 96-5p, 1996 WL 374183, at *2 (stating that
some issues, such as RFC, are not medical issues regarding the
nature and severity of an individual’s impairment(s) but instead
administrative findings that are dispositive of a case, and thus
are reserved to the Commissioner); see Warner v. Comm’r of Soc.
Sec., 375 F.3d 387, 390 (6th Cir. 2004) (“The determination of
disability is ultimately the prerogative of the Commissioner, not
the treating physician.”); Deaton v. Comm’r of Soc. Sec., 315 F.
App’x 595, 598 (6th Cir. 2009) (unpublished) (“[S]tatements from
medical sources about what a claimant can still do are relevant
evidence, but they are not determinative inasmuch as the ALJ has
the ultimate responsibility of determining disability and residual
functional capacity.”).
The Sixth Circuit addressed a similar issue in Ford v. Comm’r
of Soc. Sec., 114 F. App’x 194 (6th Cir. 2004) (unpublished).

In

Ford, the claimant’s treating physician opined that the claimant
was totally disabled. Id. at 196.

The ALJ rejected the treating

physician’s opinion and instead relied on the examination findings
of a consultative examiner. Id.

That consultative examiner did

not provide an opinion of the claimant’s limitations; he simply
recorded his clinical findings. See id. at 196, 197. Although there
was no opinion in the record supportive of the ALJ’s RFC finding,
the Sixth Circuit affirmed, noting that the RFC finding was
supported by substantial evidence because “the ALJ relied upon
considerable objective medical evidence in the record indicating
that [the claimant] was capable of performing light work with
restrictions.” Id. at 197-98.
Here, as in Ford, the ALJ relied on considerable objective
evidence in the record indicating that Plaintiff was capable of
performing light work with restrictions (see Tr. 176-82). The ALJ
noted, for example, the fact that Plaintiff denied any cardiac
symptoms as recently as November 2015 (Tr. 181; see Tr. 1247);
Plaintiff’s ability to vacation in Hawaii in 2014 (Tr. 181; see
Tr. 1200); Plaintiff’s testimony that he could play golf twice a
week, mow his 5.5 acre property, and use a weed eater (Tr. 181;
see

Tr.

207,

209-10);

and

other

evidence

inconsistent

with

Plaintiff’s reportedly debilitating cardiac symptoms (Tr. 181).
Thus the ALJ’s limiting Plaintiff to light work was supported by
substantial evidence in the record.

Even if the ALJ erred when he limited Plaintiff to light
rather

than

sedentary

work,

the

vocational

expert

identified

sedentary jobs in the national economy that Plaintiff could perform
(see Tr. 231-32).

When the ALJ asked the vocational expert about

a hypothetical individual with limitations consistent with the
opinions of Drs. Saranga and Sadler (compare Tr. 231 with Tr. 24042, 251-53), the vocational expert identified two occupations that
such an individual could perform, representing 269,000 national
positions (Tr. 232).

The ALJ’s rejection of the state agency

opinions, if error, is therefore harmless because ultimately, the
claimant could perform work existing in significant numbers in the
national economy if the excluded limitations had been included in
his RFC. See Walton v. Astrue, No. CIV.A. 10-185-GWU, 2011 WL
3847431, at *4 (E.D. Ky. Aug. 30, 2011) (unpublished); Clore v.
Astrue, No. 1:08CV77-J, 2009 WL 1010875, at *4 (W.D. Ky. Apr. 14,
2009) (unpublished).
V.

Conclusion
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

summary judgment (DE 7) be, and the same hereby is, DENIED.

for

A separate judgment in conformity herewith shall this date be
entered.
This the 14th day of February, 2018.