Webb v. SSA

Filing 19

MEMORANDUM OPINION & ORDER: 1. Plaintiff's 15 8 MOTIONS for Disability Reevaluation are DENIED. 2. Defendant's [ 15 MOTION for Summary Judgment is GRANTED. 3. Judgment in favor of defendant will be entered. Signed by Judge Joseph M. Hood on 10/24/2018.(GLD)cc: COR, pro se plaintiff

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

CORONA K. WEBB,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.

NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY

Civil Case No.
5:17-cv-489-JMH
MEMORANDUM ORDER
AND OPINION

Defendant.
***
Plaintiff Corona K. Webb, proceeding pro se, brings this
matter under 42 U.S.C. § 405(g) seeking judicial review of an
administrative
Security.

decision

of

the

Acting

Commissioner

of

Social

The Court, having reviewed the record and the motions

filed by the parties, will AFFIRM the Commissioner’s decision as
no

legal

error

occurred

and

the

decision

is

supported

by

substantial evidence.
I.

Standard for Determining Disability

Under the Social Security Act, a disability is defined as
“inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”

42 U.S.C. § 423(d)(1)(A).

In determining disability, an

Administrative Law Judge (“ALJ”) uses a five-step analysis.

See

Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).
Step

One

considers

substantial
claimant’s

gainful

whether

the

activity;

impairments

are

claimant

Step

“severe”;

Two,
Step

is

still

whether
Three,

performing

any

of

the

whether

the

impairments meet or equal a listing in the Listing of Impairments;
Step Four, whether the claimant can still perform past relevant
work; and, if necessary, 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.

Id.; see also Preslar v. Sec’y of

Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
II.

Procedural and Factual History

Webb initially filed an application for Disability Insurance
Benefits (DIB)1 in September 2014, alleging disability as of March
22, 2010, which was later amended to April 2010 based on the date
that Webb stopped working. [TR 166, 184]. Webb alleged disability
based on the following conditions: chronic obstructive pulmonary
disease (COPD), fibromyalgia, degenerative disc disease, severe
asthma, insomnia, urinary incontinence, blurry vision, muscle

1

Because Webb only applied for DIB and not Supplemental Security
Income, Webb was required to prove that she became disabled prior
to the date last insured. See 42 U.S.C. §§ 423(a)(1)(A), (c)(1);
Social Security Ruling (SSR) 83-10, 1983 WL 31251, at *8. The ALJ
determined that the date last insured in this case was June 30,
2015. [TR 11-12, 53-54].
2

spasms, pain all over her body, numbness, and headaches. [TR 184].
Webb’s

claim

for

reconsideration.

benefits

was

denied

initially

and

upon

[TR 71, 82].

Then, Webb pursued her claim at a hearing in front of ALJ
Bonnie Kittinger on August 1, 2016.

[TR 43-70].

Webb was

represented by attorney Frank Jenkins at the hearing.

Webb

testified at the hearing and explained that she could not walk for
very long periods of time due to COPD and asthma.

[TR 50].

Additionally, Webb stated that she used oxygen and inhalers because
of these respiratory issues. [TR 51]. Furthermore, Webb testified
that she had pain all over her body and that she fell often because
her balance was off.

[TR 52].

Webb also testified that she had

pain in her left knee and ankle and that she used a breathing
machine when sleeping at night.

[TR 52-53, 56].

In addition to

Webb’s testimony, the ALJ heard testimony from a vocational expert,
Dr. Rogers.

[TR 62-68].

On October 5, 2016, the ALJ issued an unfavorable decision.
[TR 11-20].

The ALJ found that Webb suffered from the following

severe impairments: COPD, degenerative disc disease, hypertension,
and fibromyalgia.

[TR 14].

Still, the ALJ determined that Webb

had the residual function capacity to perform sedentary work with
certain

limitations.

[TR

15].

Finally,

after

taking

the

vocational expert’s testimony into account, the ALJ found that
Webb could perform past semiskilled relevant work as a receptionist
3

or telephone solicitor. [TR 19]. On October 13, 2017, the Appeals
Council denied review.

[TR 1-6].

On December 12, 2017, Webb pursued judicial review of the
Commissioner’s decision by filing this appeal.

[DE 1].

In its

entirety, Webb’s complaint says, “My name [is] Corona K. Webb and
I am suing [the] United States Social Security Office, for my
disability of appeal (sic), of Commissioner of Social Security
(sic).”

[DE 1 at 1, Page ID # 1].

On February 16, 2018, Webb

filed a pro se motion for disability reevaluation, which states,
“During trial, judge and disability examiner were more concerned
with

previous

job

habits

rather

than

severity

of

health

disabilities. Exertional requirements[] [and] residual function
capacity [were] not established. Examiner did not present nor
analyze certain factors from medical evidence records concerning
impairments.” [DE 8 at 2, Page ID # 18]. The Commissioner answered
Webb’s complaint on April 20, 2018.

[DE 11, 11-1].

On April 23, 2018, the Court issued a standard scheduling
order requiring Webb to move for summary judgment or judgment on
the pleadings within sixty days of the Commissioner filing an
answer

and

certifying

administrative record.

a

copy

[DE 12].

of

the

transcript

of

the

The scheduling order required

the Commissioner to file a counter-motion or response within thirty
days of Webb filing a motion for summary judgment or judgment on
the pleadings.

[Id.].
4

Webb filed a letter styled as a motion for reconsideration
and approval of dire need disability benefits on June 22, 2018.
[DE 13].

Webb’s letter largely reiterated her previous motion,

stating, “The case was erroneously denied because focus was only
on previous job history and not on physical status.”
Page ID # 1307].

[DE 13 at 1,

Webb attached a list of medical conditions [DE

13-1] and a physician’s note from Dr. Debra Tallo from a visit on
March 20, 2018, [DE 13-2] to her motion.
In response, the Commissioner moved for summary judgment on
July 23, 2018.

[DE 15].

On September 4, 2018, Webb moved for an

extension of time to respond to Commissioner’s motion for summary
judgment.
Webb

to

[DE 16].
move

for

The Court granted Webb’s motion and required
summary

judgment

or

otherwise

respond

to

Commissioner’s motion for summary judgment on or before October
15, 2018.

[DE 17].

On October 19, 2018, Webb filed a two-page letter in response
reiterating her previous claims and asking for reevaluation of the
Commissioner’s decision.

[DE 18].

as an exhibit to her response.

Webb attached medical records

[DE 18-1].

Since the Commissioner

has moved for summary judgment and Webb has responded, this case
is ripe for review.

5

III. Standard of Review
When reviewing the ALJ’s decision, this Court may not “try
the

case

de

novo,

resolve

questions of credibility.”
709, 713 (6th Cir. 2012).

conflicts

in

evidence,

or

decide

Ulman v. Comm’r of Soc. Sec, 693 F.3d
This Court determines only whether the

ALJ’s ruling is supported by substantial evidence and was made
pursuant to proper legal standards.

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.

The Court is to affirm the decision, provided it is supported

by substantial evidence, even if this Court might have decided the
case differently.

See Her v. Comm’r of Soc. Sec., 203 F.3d 388,

389-90 (6th Cir. 1999).
IV. Analysis
While unclear, Webb appears to generally argue that the ALJ
erred by focusing on Webb’s past work history instead of focusing
on Webb’s the medical evidence.

[See DE 1; DE 8].

Additionally,

Webb has attached recent medical evidence to her filings and asks
the

Court

to

consider

Commissioner’s decision.

this

evidence

when

[See DE 13-2; 18-1].

6

reviewing

the

A.

ALJ’s Consideration of the Medical Evidence
First, Webb’s assertion that the ALJ did not consider the

relevant medical evidence is not supported by a review of the
record and the ALJ’s written decision.

The ALJ considered a

voluminous transcript of medical records in making her decision
and discussed the medical evidence in her written opinion in this
case.
For instance, the ALJ discussed Webb’s shortness of breath
and COPD.

[TR 16-17].

constituted
treatment

a

has

severe
been

While the ALJ found that Webb’s COPD

impairment,

conservative

the
and

ALJ
that

noted

that

Webb’s

“[t]reatment

notes

suggest[ed] that when [Webb] took medication as prescribed, her
symptoms associated with respiratory impairments were controlled.”
[TR 16].

The ALJ considered and provided detailed analysis of an

April 2014 CT scan of Webb’s chest.

[TR 16-17, see TR 639].

Finally, the ALJ reviewed medical treatment notes that suggested
that Webb was doing well with Prednisone and oxygen therapy for
her respiratory issues.

[TR 17].

Next, the ALJ considered the medical evidence concerning
Webb’s

pain

affecting

her

entire

body.

Initially,

the

ALJ

considered the results of MRIs of Webb’s cervical spine and lumbar
spine.

[TR 17; see TR 635, 640].

Additionally, the ALJ noted

that the results of an EMG and nerve condition studies of the upper
and

lower

extremities

were

normal.
7

[TR

17,

see

TR

597].

Furthermore, the ALJ noted that the results of a December 2014
musculoskeletal examination were basically normal but that “there
were multiple tender areas consistent with fibromyalgia.”

[TR 17-

18, see TR 567].
In addition to review of the medical exhibits, the ALJ also
considered and assigned weight to opinion evidence provided by
medical experts.
First, the ALJ considered the opinion evidence provided by
Webb’s primary care physician, Dr. E. Clarke Standiford.

[TR 18].

As the ALJ noted, Dr. Standiford opined that, “[a]t present [Webb]
remains unable to work as a result of ongoing fibromyalgia.”
625, see TR 18].

[TR

The ALJ gave no significant weight to Dr.

Standiford’s opinion because Dr. Standiford did not discuss Webb’s
functional limitations.

Additionally, the ALJ correctly observed

that Dr. Standiford’s opinion that Webb was unable to work is not
a

medical

opinion

but

Commissioner by law.

is

instead

an

issue

reserved

to

the

20 C.F.R. § 404.1527(d); White v. Comm’r of

Soc. Sec., 572 F.3d 272, 286 (6th Cir. 2009); Buxton v. Halter,
246 F.3d 762, 773 (6th Cir. 2001).
assign

little

weight

to

the

Thus, the ALJ’s decision to

opinion

of

Dr.

Standiford

was

reasonable.
Second, the ALJ assigned no weight to the opinion of Dr. Lucia
Hardi.

[See TR 1173-94].

The ALJ incorrectly stated that Dr.

Hardi’s stated opinion that Webb had a “significant impairment of
8

function . . . [that] prevents her from holding a job at this
time,” was made after the date last insured.
p. 10, Page ID # 1329].

[See TR 18; DE 15,

Dr. Hardi’s statement was made on April

10, 2015, prior to the date last insured of June 30, 2015.

[TR

1188, see TR 11-12, 53-54]. Still, this error is harmless because,
as the ALJ pointed out, Dr. Hardi’s statement was not specific
regarding Webb’s functional limitations.

[TR 18].

Furthermore,

Dr. Hardi’s opinion that Webb was unable to hold a job is not a
medical opinion that must be accorded controlling weight.
C.F.R. § 404.1527(d).

20

Thus, the ALJ’s assignment of no weight to

Dr. Hardi’s opinion is reasonable as well.
Third, the ALJ considered and accorded partial weight to the
opinion evidence of a state agency medical consultant.

[TR 18].

After reviewing the record evidence, Dr. Allen Dawson, a state
agency medical consultant, opined that Webb could perform a range
of light work.

[TR 92-95].

Here, Webb’s main concern seems to be that the ALJ was more
concerned with her prior work history than the medical evidence.
But consideration of a claimant’s past relevant work history and
residual function capacity are integral parts of the five-step
sequential analysis that is employed to determine if someone is
disabled.

See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474

(6th Cir. 2003).

Consequently, medical evidence standing alone is

insufficient

demonstrate

to

that
9

a

person

is

disabled.

In

determining whether Webb was disabled, the ALJ was required to
consider her residual function capacity and determine whether Webb
could still perform past relevant work.
Ultimately, upon review of the record and the ALJ’s written
decision in this matter, the contention that the ALJ failed to
consider the medical evidence is without support.

Here, the ALJ

considered numerous medical exhibits and discussed some of the
relevant medical testing and procedures in detail.
18].

[See TR 16-

Additionally, the ALJ reviewed opinion evidence provided by

multiple medical professionals and stated reasons for assigning
various degrees of weight to those opinions.

In finding that Webb

was not disabled, the ALJ was not required to discuss every piece
of medical evidence contained in the record so long as the ALJ
considered the evidence as a whole and reached a reasonable
conclusion.
199

(6th

See Boseley v. Comm’r of Soc. Sec., 397 F. App’x 195,
Cir.

2010).

As

a

result,

Webb’s

request

for

reconsideration is without merit.
B.

Additional Medical Evidence and Records
Webb attached a handwritten list of her current medical

conditions [DE 13-1] and a physician’s note from a visit with Dr.
Tallo [DE 13-2] to her motion for reconsideration.

Additionally,

Webb attached eighty-four pages of medical evidence and records to
her response to the Commissioner’s motion for summary judgment.
[DE 18-1].

Some of the records attached to the response are
10

duplicates of medical records that are already contained in the
administrative transcript.

Alternatively, some of the evidence

contained attached to Webb’s response are results from recent
provider visits and medical tests.
For Social Security appeals, evidence is generally limited to
the administrative record prepared by the agency.
§ 405(g).

See 42 U.S.C.

Additional evidence may be considered “only upon a

showing that there is new evidence which is material and that there
is good cause for failure to incorporate such evidence into the
record in a prior proceeding.”

Id.

Here, the Court may only consider evidence that is contained
in the administrative transcript.

The Commissioner’s decision in

this case became final on October 13, 2017, when the Appeals
Council denied review.

The present appeal is a review of the

Commissioner’s final decision.

Thus, this appeal looks backward

and considers relevant evidence contained in the administrative
transcript before October 2017.
Additionally, Webb cannot demonstrate any good cause for
failure to incorporate the recent medical evidence into the record
in a prior proceeding because the evidence did not exist before
the prior proceedings.
introduce

medical

Thus, to the extent that Webb attempts to

evidence

created

evidence is irrelevant to this appeal.

11

after

October

2017,

that

Furthermore, any new medical evidence that existed prior to
the Commissioner’s final decision but was not introduced into the
administrative transcript is also inadmissible because Webb has
failed to show good cause for failure to incorporate the medical
evidence into the record for the prior administrative proceedings.
In fact, other than general statements, Webb has provided no
commentary or argument as to why the medical evidence she has
attached to her motions is relevant to her disability appeal.
As a result, the medical records and evidence that Webb attached
to her motions [DE 13-1; DE 13-2; DE 18-1] is inadmissible for
this appeal.
C.

Any Other Arguments are Waived
Webb has generally asserted that the ALJ erred in her case

but other than a general allegation that the ALJ failed to consider
the medical evidence, Webb fails to provide any further discussion
or argument alleging error. “[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.”

Vasquez v. Astrue, No. 6:12–CV–

125–KSF, 2013 WL 1498895, at *6 (E.D. Ky. Apr. 11, 2013) (citing
McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir.1997)); see
also Hollon ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477,

12

491 (6th Cir. 2006).

As a result, any additional arguments that

Webb has attempted to make on appeal are waived.
V. Conclusion
Having found no legal error on the part of the ALJ and that
the decision is supported by substantial evidence, the Acting
Commissioner’s final decision is AFFIRMED.
Accordingly, it is hereby ORDERED as follows:
(1)

Plaintiff’s Motions for Disability Reevaluation [DE 8;

DE 13] are DENIED;
(2)

Defendant’s

Motion

for

Summary

Judgment

[DE

15]

is

GRANTED;
(3)

Judgment in favor of the Defendant will be entered

contemporaneously herewith.
This the 24th day of October, 2018.

13