Skelton v. SSA

Filing 21

MEMORANDUM OPINION & ORDER: (1) Ms. Skelton's Motion for Summary Judgment (Doc. # 15 ) is DENIED; (2) The Commissioner's Motion for Summary Judgment (Doc. # 20 ) is GRANTED; (3) This matter is DISMISSED and STRICKEN from the Court's active docket; and; (4) A separate Judgment shall be entered herewith. Signed by Judge David L. Bunning on 8/01/22. (JLM)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
CIVIL ACTION NO. 21-2-DLB
JUDITH BATES SKELTON
v.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

KILOLO KIJAKAZI,
ACTING COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

***********
I.

INTRODUCTION
This matter is before the Court on Plaintiff Judith Bates Skelton’s Motion for

Summary Judgment (Doc. # 15), filed pursuant to 42 U.S.C § 405(g), which allows Plaintiff
to obtain judicial review of an administrative decision by the Social Security
Administration. Defendant Kilolo Kijakazi, Acting Commissioner of the Social Security
Administration,1 has filed a Cross-Motion for Summary Judgment (Doc. # 20). The Court,
having reviewed the administrative record and the parties’ motions, and for the reasons
stated herein, affirms the Commissioner’s decision.
II.

FACTUAL AND PROCEDURAL BACKGROUND
Judith Bates Skelton is a 58-year-old resident of Danville, Kentucky. (Tr. 78). Ms.

Skelton filed an application for disability insurance benefits with the Social Security

During the pendency of this lawsuit, Dr. Kilolo Kijakazi became Acting Commissioner of
the Social Security Administration. The Commissioner of the SSA was named in the original
Complaint (Doc. # 1) of this lawsuit, and the Social Security Administration as an entity
nonetheless remains the official defendant, but the Court has added the current Acting
Commissioner’s name in the case caption.
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Administration (“SSA”) on March 28, 2016. (Tr. 208). In her application, Ms. Skelton
alleged disability beginning in April 2011, and continuing through the date of application,
based on various physical and mental ailments, including chronic pain, major depressive
disorder, and post traumatic stress disorder. (Tr. 225). In July 2016, Ms. Skelton’s claim
was initially denied (Tr. 115), and then it was denied on reconsideration in October 2016.
(Tr. 122). Ms. Skelton requested a hearing before an Administrative Law Judge (“ALJ”)
in the same month (Tr. 129), and a hearing was held before ALJ Boyce Crocker in April
2018. (Tr. 34). The ALJ issued an unfavorable decision in August 2018, finding that Ms.
Skelton was not disabled within the confines of the Social Security Act. (Tr. 10). Ms.
Skelton then appealed to the SSA’s Appeals Council, who denied her appeal in May 2019.
(Tr. 1053).
Then, in July 2019, Ms. Skelton filed an appellate action in this Court, and the SSA
asked the Court to remand the case for further proceedings in April 2020. (Tr. 1079). On
remand, the Appeals Council acknowledged that the ALJ “did not evaluate the nature and
severity of the claimant’s diagnosed somatic disorder” and provided the following details:
Notably, State agency psychologist, Ellen Shapiro, Ph.D., diagnosed the
claimant’s somatic disorder as a severe impairment (Exhibit 4A, pages 69). The Administrative Law Judge assigned great weight to Dr. Schapiro’s
[sic] opinion, but did not otherwise discuss the nature and the severity of the
disorder (Decision, pages 3-4 and 13). Moreover, other evidence of record
documents a pain disorder and that the claimant’s profile revealed a primary
elevation on the somatic scale (Exhibit 3F, pages 70-72 and 8F, page 5).
Accordingly, further evaluation is required.
(Tr. 1076). The Appeals Council accordingly ordered the case for rehearing by an ALJ,
and provided instructions to the second ALJ, including to “evaluate the nature and severity
of the claimant’s somatic/pain disorder in accordance with 20 C.F.R. 404.1591.”

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(Tr. 1077). ALJ Jerry Lovitt conducted the second hearing in October 2020 (Tr. 999) and
issued a second unfavorable decision to Ms. Skelton in November 2020. (Tr. 969). The
second unfavorable decision precipitated the filing of this action to review ALJ Lovitt’s
decision.
III.

ANALYSIS
A.

Standard of Review

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 Colvin v. Barnhart, 475 F.3d 727, 729-30 (6th Cir. 2007) (citing Walters v. Comm’r of
Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997)). “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.” Cutlip v. Sec’y of
Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citing Kirk v. Sec’y of Health &
Hum. Servs., 667 F.2d 524, 535 (6th Cir. 1981)). Courts are not to conduct a de novo
review, resolve conflicts in the evidence, or make credibility determinations. Id. (citing
Brainard v. Sec’y of Health & Hum. Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).

Rather, the Court must affirm the

Commissioner’s decision if it is supported by substantial evidence, even if the Court might
have decided the case differently. Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th
Cir. 1999) (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). In other words, if
supported by substantial evidence, the Commissioner’s findings must be affirmed even if
there is evidence favoring Plaintiff’s side. Id.; see also Listenbee v. Sec’y of Health &
Hum. Servs., 846 F.2d 345, 349 (6th Cir. 1988).

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In determining whether the

Commissioner’s conclusion is supported by substantial evidence, courts “must examine
the administrative record as a whole.” Cutlip, 25 F.3d at 286.
B.

The ALJ’s Determination

To determine disability, an ALJ conducts a five-step analysis. Walters, 127 F.3d
at 529.

Under Step One, the ALJ considers whether the claimant is engaged in

substantial gainful activity; Step Two, whether any of the claimant’s impairments, alone
or in combination, 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 his
past relevant work; and Step Five, whether a significant number of other jobs exist in the
national economy that the claimant can perform. See id. (citing 20 C.F.R. § 404.1520).
The burden of proof rests with the claimant for Steps One through Four. Jones v. Comm’r
of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003) (citing Bowen v. Yuckert, 482 U.S. 137,
146 n.5 (1987)). At Step Five, the burden of proof “shifts to the Commissioner to identify
a significant number of jobs in the economy that accommodate the claimant’s residual
functional capacity.” Id. (citing Bowen, 482 U.S. at 146 n.5).
Here, the ALJ determined at Step One that Ms. Skelton had not engaged in
substantial gainful activity since the alleged onset date of her disability, in addition to
clarifying that Ms. Skelton met the insured status requirements of the Social Security Act.
(Tr. 974). At Step Two, the ALJ found that Ms. Skelton’s severe impairments were
somatoform disorder, anxiety, depression, post-traumatic stress disorder, obesity,
obstructive sleep apnea, partial rotator cuff tear with arthroscopy, cervical postlaminectomy syndrome, and degenerative disc disease of the cervical and lumbar spines.
(Id.). While Ms. Skelton’s application also listed impairments relating to gastroesophageal

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reflux disease, hyperlipidemia, vitamin B12 deficiency, hypertension and headaches, the
ALJ determined at Step Two that those impairments were not “severe” within the
definitions provided by the Social Security Act and its regulations. (Tr. 975). At Step
Three, the ALJ concluded that Ms. Skelton did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments
within the Social Security Act, and so the analysis proceeded to the next step. (Tr. 976).
Before completing the fourth step, the ALJ found that Ms. Skelton had the residual
functional capacity (“RFC”) “to perform light work as defined in the DOT,” with a lengthy
list of limitations, including with “no more than occasional exposure to temperature
extremes, vibrations, and workplace hazards,” and “with frequent contact with
supervisors, but only occasional contact with co-workers and the general public.” (Tr.
979). The ALJ’s analysis at Step Four was particularly lengthy, in accordance with the
Appeals Council’s instructions on remand. (See Tr. 979-991). More specifically, the ALJ
found that Ms. Skelton’s “statements concerning the intensity, persistence, and limiting
effects of [her] symptoms are not entirely consistent with the medical evidence and other
evidence in the record[.]” (Tr. 981). In making that finding, the ALJ pointed out medical
evidence that undercut Ms. Skelton’s testimony with respect to her spine (Tr. 981),
shoulders and arms (Tr. 982), sleep apnea (Tr. 984), obesity (Tr. 984-85), and mental
health impairments, including somatoform disorder, anxiety, depression, and posttraumatic stress disorder (Tr. 985). During his evaluation of Ms. Skelton’s mental health
impairments, the ALJ reviewed the record evidence with respect to many different
healthcare providers and assigned weight of consideration to each. (E.g., Tr. 987). At
the end of Step Four, the ALJ concluded that with the determined RFC, Ms. Skelton would

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not be able to perform any of her past relevant work, which consisted of working as a high
school English teacher. (Tr. 991).
Lastly, at Step Five, the ALJ determined that a significant number of jobs existed
within the national economy that Ms. Skelton could have performed within her RFC and
its limitations, while considering her age, experience, and education. (Tr. 991). The ALJ
wrote that a vocational expert testified that Ms. Skelton could perform the jobs of office
helper, stock checker for apparel, and mail room clerk, which exist in significant numbers
within the national economy. (Tr. 992). Because those jobs can be performed within the
limitations of Ms. Skelton’s RFC, the ALJ concluded that she was not under a disability,
within the definitions of the Social Security Act, during the relevant period between April
2011 and December 2016. (Tr. 992).
On appeal to this Court, Ms. Skelton argues that the ALJ’s decision is not
supported by substantial evidence because he failed to appropriately weigh the opinion
evidence in determining her RFC. (Doc. # 15-1 at 5). After reviewing the filings made by
Ms. Skelton and by the Commissioner, the Court has decided that Ms. Skelton’s argument
does not warrant reversal and remand, and the Commissioner’s decision is thus affirmed
for the foregoing reasons.
C.

Review

Ms. Skelton argues that the ALJ in her case “failed to weigh the opinion evidence,
including the opinions of treating therapist, Linda F. Richardson, LCSW; consultative
examiner, Jennifer Fishkoff, Psy.D.; examiner Anthony Cabot, M.D.; and treating
physician, Twiggy Harris, M.D., in accordance with the appropriate legal standards.”
(Doc. # 15-1 at 6). In response, the Commissioner has posited that the ALJ’s decision

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was supported by substantial evidence (Doc. # 20 at 7) and that he appropriately weighed
the medical opinions (id. at 9). The Court agrees with the Commissioner.
As previously stated, “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.” Cutlip, 25 F.3d at 286. The
Court cannot weigh the evidence or re-litigate the case, but only examine the sufficiency
of the evidence, even if the Court may have decided the case in a different manner. See
Her, 203 F.3d at 389-90. If the ALJ’s decision is supported by substantial evidence, the
Court must affirm the decision. Cutlip, 25 F.3d at 286.
With specific respect to the weighing of medical opinions, relevant Social Security
regulations instruct ALJs to “consider the medical opinions in [a] case record together
with all the relevant evidence[.]” 20 C.F.R. § 404.1527(b). More weight is given to the
medical opinions of healthcare providers who examine the claimant than those of
providers who do not examine the claimant. Id. at (c)(1). Additionally, greater weight is
given to opinions from healthcare providers with a more extensive “treatment relationship”
to the claimant. Id. at (c)(2). The regulations proscribe certain factors that indicate more
extensive treatment relationships, including length of the treatment relationship and the
frequency of examination, the nature and extent of the treatment relationship,
supportability, consistency, and specialization. Id. The Sixth Circuit has interpreted these
rules to say that “if the ALJ gives the treating source’s opinion other-than-controlling
weight, the ALJ must give ‘good reasons’ for having done so.” Engebrecht v. Comm’r of
Soc. Sec., 572 F. App’x 392, 397 (6th Cir. 2014) (citing Hensley v. Astrue, 573 F.3d 263,
267 (6th Cir. 2009)).

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To the extent that “nonmedical sources” or “non-acceptable medical sources”
provide medical opinions, the ALJ is instructed to weigh those opinions using the
appropriate factors for weighing medical sources, and “explain the weight” to “ensure
that the discussion . . . allows a claimant or subsequent reviewer to follow the adjudicator’s
reasoning, when such opinions may have an effect on the outcome of the case."2 20
C.F.R. § 404.1527(f). In other words, “an ALJ has discretion to determine the proper
weight to accord opinions from ‘other sources.’” Cruse v. Comm’r of Soc. Sec., 502 F.3d
532, 541 (6th Cir. 2007) (citing Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 530 (6th
Cir. 1997)). However, opinions that relate directly to the administrative findings reserved
to the Commissioner, such as whether a person is disabled, are “not give[n] any special
significance.” 20 C.F.R. § 404.1527(d).
When using the record evidence to determine a claimant’s RFC, irrespective to the
type of source, the ALJ is required to “include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts and nonmedical
evidence.”

SSR 96-8P, 1996 WL 374184, at *7 (July 2, 1996).

If any “material

inconsistencies or ambiguities” exist, the ALJ must “explain how [they] were considered
and resolved.” Id. Courts within the Sixth Circuit have interpreted this ruling to require
that “the ALJ must always build an ‘accurate and logical bridge’ from the evidence to her
conclusions.” Ripley v. Comm’r of Soc. Sec., 415 F. Supp. 3d 752, 767 (N.D. Ohio 2019);
see also Fleischer v. Astrue, 774 F. Supp. 2d 875, 877 (N.D. Ohio 2011) (citing Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 544-46 (6th Cir. 2004)). With these rules in mind,

“Acceptable medical sources” and “Nonmedical sources” are defined at 20 C.F.R.
§ 404.1502.
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the Court will evaluate the ALJ’s decision with respect to each of the opinions raised by
Ms. Skelton in turn.
1.

Linda F. Richardson, LCSW

Ms. Richardson is a therapist who saw Ms. Skelton at Kaiser Permanente in
Kennesaw, Georgia. (Tr. 676). In a letter dated January 30, 2012, Ms. Richardson wrote
that Ms. Skelton was “in a serious car accident in March 2011 and experienced injuries
that prevented her from being capable of working in her position as a teacher.” (Id.). She
also wrote that Ms. Skelton had “made minimum progress in therapy and ha[d] a long
way to go,” as Ms. Skelton continued to suffer from psychological symptoms that should
be taken “in consideration when making any decision regarding her los[t] wages
payment.” (Tr. 677).
The ALJ afforded Ms. Richardson’s opinions “little weight . . . as it is not a medical
opinion and Ms. Richardson is not an acceptable medical source under agency
regulations.” (Tr. 987). According to Ms. Skelton, the ALJ’s weighing here was incorrect,
as Ms. Richardson is a treating source and thus her opinion should have been entitled to
more weight. (Doc. # 15-1 at 7). Ms. Skelton additionally posits that because Ms.
Richardson’s conclusions are supported by records, it “seems analogous to a medical
opinion that the ALJ should have considered.” (Id. at 8).
Unfortunately for Ms. Skelton, the ALJ’s weighing of Ms. Richardson’s opinions are
supported by substantial evidence. Because she is a Licensed Clinical Social Worker
(“LCSW”), Ms. Richardson’s opinions are not considered to be from an “acceptable
medical source” within the definitions of the Social Security Act. See SSR 06-03p, 2006
WL 2263437, at *45594 (Aug. 9, 2006) (referring to social workers as a non-acceptable

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medical source). As such, the ALJ is only required to “explain the weight” provided. 20
C.F.R. § 404.1527(f). The ALJ explained that Ms. Richardson “did not express any
specific limitations that affected the claimant’s ability to work,” (Tr. 987), and otherwise
reasoned thoroughly why other opinions were given more weight than Ms. Richardson’s.
(Tr. 986-89). Otherwise, to the extent that Ms. Richardson asserted her opinion that Ms.
Skelton was disabled, the ALJ is instructed to afford no “special significance” to that type
of assertion, and he accordingly dismissed it. 20 C.F.R. § 404.1527(d); (Tr. 987).
Accordingly, because “an ALJ has discretion to determine the proper weight to
accord opinions from” sources such as an LCSW, the Court finds that the ALJ properly
weighed her opinion.
2.

Jennifer Fishkoff, Psy.D.

Dr. Fishkoff is a licensed psychologist employed by the Commonwealth of
Kentucky, who evaluated Ms. Skelton in June 2016. (Tr. 647). After examining Ms.
Skelton, Dr. Fishkoff reported that Ms. Skelton’s “impairments are long-term and chronic,”
that her ability to “maintain employment is poor,” and that her “ability to sustain attention
and to perform simple and repetitive tasks as would be required over an 8-hour workday
is impaired.” (Tr. 652).
The ALJ summarized Dr. Fishkoff’s findings (Tr. 986-87), and gave “limited weight”
to her opinions because the “overall objective medical evidence did not properly support
the magnitude of limitations as indicated by Dr. Fishkoff.” (Tr. 988). Ms. Skelton contends
that the ALJ incorrectly weighed Dr. Fishkoff’s opinions, as she is a treating source, and
that the ALJ did not provide adequate reasoning to support his conclusion. (Doc. # 15-1

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at 8-9). After reviewing the ALJ’s decision, the Court finds that his conclusion regarding
Dr. Fishkoff is supported by substantial evidence.
While the regulations provide for greater weight to “treating sources,” they also
provide that certain factors are to be considered when assigning weight, and if an ALJ
“gives the treating source’s opinion other-than-controlling weight,” the ALJ should use
those factors to provide “good reasons for having done so.” Engebrecht, 572 F. App’x at
397; 20 C.F.R. § 404.1527(c).

Among those factors are “supportability” and

“consistency,” which refer to “relevant evidence to support a medical opinion,” and
“consisten[cy] . . . with the record as a whole.” Id. at (3)-(4).
Here, the ALJ pointed out that Dr. Fishkoff’s opinions regarding Ms. Skelton’s
abilities were inconsistent with the (otherwise voluminous) record, and unsupported by
her own observations. More specifically, the ALJ reasoned that while Dr. Fishkoff noted
that Ms. Skelton “did not appear capable of tolerating the stress and pressures associated
with day to day work activity,” her own “treatment history [did] not support [those] opinions,
as there is no evidence of advanced mental health symptoms[.]” (Tr. 988). The ALJ also
pointed to therapy notes and Dr. Fishkoff’s own observations that Ms. Skelton was
capable of “engaging in activities . . on nearly a daily basis.” (Tr. 989). In short, the ALJ
provided “good reasons” for discounting Dr. Fishkoff’s opinion, and so the weight
assigned was in line with federal regulations and Sixth Circuit case law. To the extent
that Ms. Skelton points out contradictory evidence within the record, the Court notes that
it is not to conduct a de novo review, resolve conflicts in the evidence, or make credibility
determinations. Cutlip, 25 F.3d at 286. Thus, the ALJ’s weighing of Dr. Fishkoff’s opinion
is supported by substantial evidence.

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3.

Anthony Cabot, M.D. and Twiggy Harris, M.D.

Dr. Cabot and Dr. Harris are physicians who evaluated Ms. Skelton in April 2012,
and June 2013, respectively. Dr. Cabot is an orthopedic surgeon in Smyrna, Georgia (Tr.
687), and Dr. Harris is an internist at Townpark Internal Medicine in Georgia (Tr. 678).
Dr. Harris wrote that Ms. Skelton “is considered totally disabled” to work as a teacher (id.),
and Dr. Cabot wrote that Ms. Skelton “is definitely compromised in vocational and
recreational activities,” and that she “would be limited to 10 pounds of lifting and frequent
rest breaks” when working. (Tr. 687). The ALJ gave little weight to the opinions of both
doctors. (Tr. 987-988). Ms. Skelton argues that the assigning of weight was improper,
as she attests that the ALJ “picked and chose” evidence while evaluating her somatic
disorder, as the ALJ only considered objective evidence and not psychological evidence.
Ms. Skelton’s arguments with respect to Dr. Cabot and Dr. Harris fail for the same
reason as her argument with respect to Dr. Fishkoff. Even though Dr. Cabot and Dr.
Harris are “treating sources,” the ALJ only needs to provide “good reasons” within the
regulations to assign less-than-controlling weight. Engebrecht, 572 F. App’x at 397; 20
C.F.R. § 404.1527(c). Here, the ALJ noted extensively that Dr. Cabot’s opinions were
not otherwise supported by other evidence, including the notes of Dr. Yilling and Dr.
Hamann. (Tr. 987). The ALJ also cited ample evidence when discounting Dr. Harris’
opinions, including Dr. Yilling’s notes, and the ALJ also noted that Dr. Harris sought to
opine on Ms. Skelton’s disability status, which is to be afforded “no significant weight”
under governing regulations. (Tr. 988); 20 C.F.R. § 404. 1527(d). All in all, the ALJ
provided “good reasons” for discounting Dr. Cabot’s and Dr. Harris’ opinions, and so his
weighing is supported by substantial evidence.

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IV.

CONCLUSION
Otherwise, to the extent that Ms. Skelton points out inconsistencies within the

evidence beyond how the ALJ weighed medical opinions, the Court again notes that it
cannot re-litigate the case, and it cannot resolve conflicts in the evidence. Cutlip, 25 F.3d
at 286.

Even if evidence exists that supports Plaintiff’s side, the Commissioner’s

conclusions must be affirmed if they are supported by substantial evidence. Listenbee,
846 F.2d at 349. Here, the ALJ provided a lengthy explanation as to his reasoning on
each conclusion made. (See Tr. 979-991). The ALJ complied with the Appeals Court’s
remand order (Tr. 1076-77), and he sufficiently built an “accurate and logical bridge” from
the evidence to his conclusions. Ripley, 415 F. Supp. 3d at 767. Thus, his conclusions
are supported by substantial evidence and must be affirmed.
Accordingly, IT IS ORDERED that:
(1)

Ms. Skelton’s Motion for Summary Judgment (Doc. # 15) is DENIED;

(2)

The Commissioner’s Motion for Summary Judgment (Doc. # 20) is

GRANTED;
(3)

This matter is DISMISSED and STRICKEN from the Court’s active docket;

(4)

A separate Judgment shall be entered herewith.

and;

This 1st day of August, 2022.

K:\DATA\SocialSecurity\MOOs\Lexington\21-2 Skelton MOO.docx

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