Ford v. SSA
Filing
17
MEMORANDUM OPINION & ORDER: The Court ORDERS as follows: 1. The Plaintiff's 13 MOTION for Summary Judgment is DENIED; 2. The Commissioner's 15 MOTION for Summary Judgment is GRANTED; and 3. Judgment in favor of the Commissioner shall enter promptly. Signed by Judge Gregory F. VanTatenhove on 3/5/2019.(KM)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
DOUG RAY FORD,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
V.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
***
***
***
Civil No. 5:17-cv-00392-GFVT
MEMORANDUM OPINION
&
ORDER
***
Plaintiff Doug Ray Ford seeks judicial review of an administrative decision of the
Commissioner of Social Security, which denied Hardin’s claims for supplemental security
income benefits and disability insurance benefits. Mr. Ford brings this action pursuant to 42
U.S.C. § 405(g), alleging various errors on the part of the ALJ considering the matter. The
Court, having reviewed the record and for the reasons set forth herein, will DENY Mr. Ford’s
motion for summary judgment but will GRANT judgment in favor of the Commissioner.
I
A
Plaintiff Doug Ray Ford filed an application for disability insurance benefits on
November 20, 2014 alleging disability beginning November 6, 2014 due to diabetes. [Tr. 19.]
Mr. Ford’s motion for summary judgment explains that he suffers from “acute diabetic
emergencies that result in his passing out suddenly,” despite being “generally compliant with his
diabetic regimen.” [R. 13-2 at 3.] These episodes occur approximately twice a week. Id.
Additionally, Mr. Ford experiences “pain, fatigue, tingling, and numbness which interfere[s]
with his concentration.” Id. Mr. Ford’s application was denied initially and upon
reconsideration. [Tr. 19, 78–81, 179.] Mr. Ford requested a hearing, which was held before
Administrative Law Judge (ALJ) Bonnie Kittinger on October 14, 2016. [Tr. 34.] Following the
hearing, ALJ Bonnie Kittinger issued a final decision denying both of Hardin’s claims for
benefits. [Tr. 15–27.]
To evaluate a claim for disability insurance benefit claims, an ALJ conducts a five-step
analysis. See 20 C.F.R. § 404.1520. First, if a claimant is performing a substantial gainful
activity, he is not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any
impairment or combination of impairments which significantly limit his physical or mental
ability to do basic work activities, he does not have a severe impairment and is not “disabled” as
defined by the regulations. 20 C.F.R. § 404.1520(c). Third, if a claimant’s impairments meet or
equal one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is
“disabled.” 20 C.F.R. § 404.1520(d). Before moving on to the fourth step, the ALJ must use all
of the relevant evidence in the record to determine the claimant’s residual functional capacity
(“RFC”), which assesses an individual’s ability to perform certain physical and mental work
activities on a sustained basis despite any impairment experienced by the individual. See 20
C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545.
Fourth, the ALJ must determine whether the clamant has the RFC to perform the
requirements of his past relevant work, and if a claimant’s impairments do not prevent him from
doing past relevant work, he is not “disabled.” 20 C.F.R. § 404.1520(e). Fifth, if a claimant’s
impairments (considering his RFC, age, education, and past work) prevent him from doing other
work that exists in the national economy, then he is “disabled.” 20 C.F.R. § 404.1520(f).
2
Through step four of the analysis, “the claimant bears the burden of proving the existence
and severity of limitations caused by her impairments and the fact that she is precluded from
performing her past relevant work.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir.
2003). At step five, the burden shifts to the Commissioner to identify a significant number of
jobs that accommodate the claimant’s profile, but the claimant retains the ultimate burden of
proving his lack of residual functional capacity. Id.; Jordon v. Comm’r of Soc. Sec., 548 F.3d
417, 423 (6th Cir. 2008).
ALJ Kittinger’s written decision proceeds sequentially through the five steps. [Tr. 22.]
As an initial matter, the ALJ found that Mr. Ford met the insured status requirements of the
Social Security Act through December 31, 2018. Id. At the first step, ALJ Kittinger found that
Mr. Ford had not engaged in substantial gainful activity since November 6, 2014, the alleged
onset date. Id. Although Mr. Ford did “small jobs for friends” which reportedly consisted of
five, eight-hour work days, the work was not documented, and the ALJ found that it did not rise
to the level of substantial gainful activity.
Next, at the second step, the ALJ found that Mr. Ford’s diabetes mellitus with
hypoglycemic unawareness amounted to a severe impairment. Id.; see 20 C.F.R. § 404.1520(c).
ALJ considered Mr. Ford’s diagnoses of hypertension, hyperthyroidism, hyperlipidemia, and
cataracts, but found that those ailments did not “impose any significant work-related limitations
of function,” and could not be considered “severe.” [Tr. 22.] ALJ Kittinger also considered Mr.
Ford’s depression by evaluating the four broad functional areas set out in the disability
regulations. She found that Mr. Ford had no limitations in daily living activities or social
functioning, no episodes of decompensation of extended duration, and only mild limitation in
concentration, persistence or pace, and noted that Mr. Ford has not alleged mental impairment as
3
the basis of his disability claim. Id. The ALJ also credited the diagnosis of Dr. Harold Pretorius,
noting, “Harold Pretorius, MD, who is both a medical doctor and a psychologist, diagnosed
depression; however, treatment records do not show he has recommended mental health
treatment.” Id. Finding only mild limitation in concentration, the ALJ found that Mr. Ford’s
mental impairment of depression was non-severe. Id.
At step three, ALJ Kittinger found that Mr. Ford had the residual functional capacity to
perform medium work, except that he should not climb ladders, ropes or scaffolds, and should
avoid dangerous machinery. [Tr. 23.] In making this assessment, the ALJ found that Mr. Ford’s
impairments could reasonably be expected to cause the issues he described, such as fluctuations
in blood sugar and passing out. However, she did not completely credit Mr. Ford’s testimony
concerning the intensity and limiting affects of Mr. Ford’s symptoms. Nor did she credit Dr.
Pretorius’s opinions. While ALJ Kittinger recognized that “Dr. Pretorius has treated the
claimant for diabetes for more than five years,” she also found his medical opinions to be
“internally inconsistent,” and therefore afforded them only slight weight. [Tr. 24.]
Ultimately, the ALJ found that Mr. Ford was unable to perform any past relevant work.
[Tr. 25.] ALJ Kittinger credited the testimony of vocational expert Ms. Goss, who testified that
somebody with Mr. Ford’s characteristics could find work in the national market as a
representative, doing assembly or bench work, or as a sorter or packer. [Tr. 56.] Considering the
record before her, ALJ Kittinger found that Mr. Ford has not been under a disability, as defined
in the Social Security Act, from November 6, 2014 through the date of the decision. [Tr. 26.]
This appeal followed.
4
II
A
The Court’s review is generally limited to whether there is substantial evidence in the
record to support the ALJ’s decision. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611,
614 (6th Cir. 2003); Shelman v. Heckler, 821 F.2d 316, 319-20 (6th Cir. 1987). “Substantial
evidence” is “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.” Cutlip v.
Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citing Richardson v. Perales,
402 U.S. 389, 401 (1971)). The substantial evidence standard “presupposes that there is a zone
of choice within which [administrative] decision makers can go either way, without interference
by the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (quoting Baker v. Heckler,
730 F.2d 1147, 1150 (8th Cir. 1984)).
To determine whether substantial evidence exists, courts must examine the record as a
whole. Cutlip, 25 F.3d at 286 (citing Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535
(6th Cir. 1981), cert. denied, 461 U.S. 957 (1983)). However, a reviewing court may not
conduct a de novo review, resolve conflicts in the evidence, or make credibility determinations.
Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012); see also Bradley v. Sec’y of
Health & Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988). Rather, if the Commissioner’s
decision is supported by substantial evidence, it must be affirmed even if the reviewing court
would decide the matter differently, and even if substantial evidence also supports the opposite
conclusion. See Ulman, 693 F.3d at 714; Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007);
Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
5
B
Mr. Ford argues that the ALJ erred by failing to evaluate the opinion of Dr. Pretorius, Mr.
Ford’s treating physician, in accordance with Agency Policy and Sixth Circuit Precedent. [R. 132 at 2.] Instead, he argues, she “formulated an RFC based only on her law opinion.” Id.
First, the ALJ did not err when she decided to assign partial weight to the opinion of Dr.
Pretorius, Ford’s treating physician and endocrinologist. The Social Security Administration has
set forth certain guidelines that an ALJ must follow when determining how much weight to
assign a treating medical source. The regulations provide:
If we find that a treating source's opinion on the issue(s) of the nature and severity
of your impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in your case record, we will give it controlling weight. When we do not
give the treating source's opinion controlling weight, we apply the factors listed in
paragraphs (d)(2)(i) and (d)(2)(ii) of this section, as well as the factors in
paragraphs (d)(3) through (d)(6) of this section in determining the weight to give
the opinion. We will always give good reasons in our notice of determination or
decision for the weight we give your treating source's opinion.
20 C.F.R. § 404.1527(c)(2). Other factors which must be considered when the treating source
opinion is not given controlling weight include the length of the treatment relationship, the
frequency of examination, the nature and extent of the treatment relationship, the supportability
of the opinion, the consistency of the opinion with other evidence in the record, and whether the
treating source is a specialist. 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii), (c)(3)-(c)(5); 416.927(c)(2)(i)(ii), (c)(3)-(c)(5).
The regulations also contain a clear procedural requirement that an ALJ must give “good
reasons” for discounting a treating physician's opinion, specific enough “to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion
and the reasons for that weight.” 20 C.F.R. §§ 1527(c)(2), 416.927(c)(2); Social Security Ruling
6
(“SSR”) 96-2, 1996 WL 374188, at *5 (July 2, 1996). The purpose of the reason-giving
requirement is to allow “claimants [to] understand the disposition of their cases, particularly
where a claimant knows that his physician has deemed him disabled and therefore might be
bewildered when told by an administrative bureaucracy that she is not, unless some reason for
the agency's decision is supplied.” Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (citation
and internal quotation marks omitted). In addition, the requirement “ensures that the ALJ applies
the treating physician rule and permits meaningful appellate review of the ALJ's application of
the rule.” Id. Failure to follow the procedural requirement denotes a lack of substantial
evidence, even where the ALJ's conclusion may otherwise be justified on the record. Id. at 546.
The ALJ’s written opinion explains she assigned only slight weight to two and partial
weight to one of Dr. Pretorius’s opinions. [Tr. 24.] Dr. Pretorius’s opinions dated June 10, 2015
and October 10, 2015 were given slight weight because they were “not consistent with or
supported by his treatment records.” Id. As the Commissioner pointed out in her motion for
summary judgment, “whereas Dr. Pretorius opined that Plaintiff could only stand and/or walk for
less than 2 hours and sit for less than 2 hours in an 8-hour workday, Dr. Pretorius’s physical
examinations did not reveal any abnormal objective findings that would support such extreme
limitations.” The ALJ afforded partial weight to Dr. Pretorius’s because she found it internally
inconsistent: “it supports lifting 50 pounds and twisting, stooping, crouching and climbing up to
two-thirds of an eight-hour day, while stating he can stand/walk les than two hours per day.” Id.
The opinions of treating physicians are only given substantial deference “when supported
by objective medical evidence.” See Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir.
2004). The fact that Dr. Pretorius’s opinions were not supported with treatment records and
were internally inconsistent, then, is a good reason for assigning the opinion only partial weight
7
under the relevant regulations. See 20 C.F.R. § 404.1527(c)(3) (explaining the importance of
supportability and noting that “[t]he better an explanation a source provides for an opinion, the
more weight we will give that opinion”). Furthermore, the Court notes that the ALJ
appropriately gave at least some consideration to Dr. Pretorius’s opinion despite its
shortcomings. See Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *4 (July 2, 1996); Fisk, 253 F.
App’x at 585.
C
Mr. Ford also contends that the ALJ erred in failing to have a qualified psychologist or
psychiatrist review the medical evidence related to Mr. Ford’s mental impairments, despite the
ALJ’s finding that Mr. Ford suffered from depression. In support of his position, Mr. Ford cites
§ 421(h) of the Social Security Act, which states in relevant part:
An initial determination under subsection (a), (c), (g), or (i) shall not be made
until the Commissioner of Social Security has made every reasonable effort to
ensure—
(1)
In any case where there is evidence which indicates the existence of a
mental impairment, that a qualified psychiatrist or psychologist has completed the
medical portion of the case review and any applicable residual functional capacity
assessment[.]
42 U.S.C. § 421(h)(1). A fair reading of the statute reveals that § 421(h) does not apply to the
ALJ’s decision. Rather, §421(h) applies specifically to initial determinations made under
subsections (a), (c), (g), or (i), none of which refer to administrative review by an ALJ. Id. The
Sixth Circuit has found the same. See Key v. Callahan, 109 F.3d 270, 274 (6th Cir. 1997).
Additionally, Mr. Ford did not seek disability insurance benefits due to mental
impairment, but diabetes. Mr. Ford did not mention depression in his disability paperwork and
did not testify about any depression at the ALJ hearing. [Tr. 179, 191–193; Tr. 38–54.] While
Dr. Pretorius did diagnose Mr. Ford with depression at some point, there is no evidence that Mr.
8
Ford was ever prescribed medication for his depression or even advised to seek mental health
treatment. [Tr. 250–88.] An ALJ is only required to seek review of a Plaintiff’s medical records
by a psychiatrist or psychologist where “the claimant brings forth sufficient evidence to raise an
inference that he suffers from a mental impairment.” See Marcum v. Commissioner, 2000 U.S.
App. LEXIS 787, *11–*12 (6th Cir. Jan. 18, 2000) (finding a single mention of depression by
treating physician not “sufficient evidence” to require review by psychiatrist). Here, there is a
dearth of evidence in the record that Mr. Ford had depression that limited his ability to work.
The ALJ was not required to seek the opinion of a qualified psychiatrist or psychologist.
III
Importantly, the Court must uphold the ALJ’s decision even if the Court would weigh the
evidence differently, and even if substantial evidence also supports Mr. Ford’s arguments. See
Ulman, 693 F.3d at 714; McMahon, 499 F.3d at 509. While substantial evidence may, therefore,
support some of Mr. Ford’s positions, he has not demonstrated that the ALJ’s decision was not
also supported by substantial evidence or that the ALJ failed to follow applicable procedural
rules. For the reasons discussed above, the Court denies the motion for summary judgment filed
by Mr. Ford but grants summary judgment in favor of the Commissioner.
Being otherwise sufficiently advised, the Court hereby ORDERS as follows:
1. The Plaintiff’s Motion for Summary Judgment [R. 13] is DENIED;
2. The Commissioner’s Motion for Summary Judgment [R. 15] is GRANTED; and
3. Judgment in favor of the Commissioner shall enter promptly.
9
This the 5th day of March, 2019.
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?