Brown v. SSA

Filing 12

MEMORANDUM OPINION & ORDER: The Court finds that the ALl's decision is supported by substantial evidence on the record. Accordingly, it is HEREBY ORDERED that the Plaintiff's Motion for Summary Judgment be OVERRULED and the Defendant's Motion for Summary Judgment be SUSTAINED. A judgment in favor of the Defendant will be entered contemporaneously herewith. Signed by Judge Henry R. Wilhoit, Jr on 11/22/2010. (MRS)cc: COR

Brown v. SSA

Doc. 12

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION afLONDON Civil Action No. 09-384-HRW JAMES D. BROWN, PLAINTIFF,

v.

MEMORANDUM OPINION AND ORDER

MICHAEL J. ASTRUE COMMISSIONER OF SOCIAL SECURITY,

DEFENDANT.

Plaintiff has brought this action pursuant to 42 U.S.C. §405(g) to challenge a final decision of the Defendant denying Plaintiffs application for disability insurance benefits and supplemental security income. The Court having reviewed the record in this case and the dispositive motions filed by the parties, and being otherwise sufficiently advised, for the reasons set forth herein, finds that the decision of the Administrative Law Judge is supported by substantial evidence and should be affirmed.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed applications for disability insurance benefits and supplemental security income benefits on June 28, 2007, alleging disability beginning on April 15, 2007. The applications were denied initially and on reconsideration. On January 22,2009, an administrative hearing was conducted

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by Administrative Law Judge Frank Letchworth (hereinafter "ALJ"), wherein Plaintiff, accompanied by counsel, testified. At the hearing, William Ellis, a vocational expert (hereinafter "VE"), also testified. At the hearing, pursuant to 20 C.F.R. § 416.920, the ALJ performed the following five-step sequential analysis in order to determine whether the Plaintiff was disabled: Step I: If the claimant is performing substantial gainful work, he is not disabled. Step 2: If the claimant is not performing substantial gainful work, his impairment(s) must be severe before he can be found to be disabled based upon the requirements in 20 C.F.R. § 416.920(b). Step 3: If the claimant is not performing substantial gainful work and has a severe impairment (or impairments) that has lasted or is expected to last for a continuous period of at least twelve months, and his impairments (or impairments) meets or medically equals a listed impairment contained in Appendix 1, Subpart P, Regulation No.4, the claimant is disabled without further inquiry. Step 4: If the claimant's impairment (or impairments) does not prevent him from doing his past relevant work, he is not disabled. Step 5: Even if the claimant's impairment or impairments prevent him from performing his past relevant work, if other work exists in significant numbers in the national economy that accommodates his residual functional capacity and vocational factors, he is not disabled.

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On May 28,2009, the ALI issued his decision finding that Plaintiff was not disabled. Plaintiff was 28 years old on the date of alleged onset. He has at least a high school education and past relevant work experience as a carpenter helper, material handler, washer and car detailer. At Step 1 of the sequential analysis, the ALI found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of disability (Tr. 13). The ALI then determined, at Step 2, that Plaintiff suffers from disorders of the back (discongenic and degenerative), residuals post status gunshot wound to the right leg and major depressive disorder which he found to be "severe" within the meaning of the Regulations (Tr. 13-15). At Step 3, the ALI found that Plaintiffs impairments did not meet or medically equal any of the listed impairments (Tr. 16). In doing so, the ALI specifically considered listings 12.00, 12.04, 12.06 (Tr. 16-17). The ALI further found that Plaintiff could not return to his past relevant work (Tr. 19) but determined that he has the residual functional capacity ("RFC") to perform a range of light work, with certain exceptions as set forth in the hearing decision (Tr. 17-19).

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The ALJ finally concluded that these jobs exist in significant numbers in the national and regional economies, as identified by the VE (Tr. 20). Accordingly, the ALJ found P l a i n t i f f not t o be disabled at Step 5 of the sequential evaluation process. The Appeals Council denied Plaintiffs request for review and adopted the ALJ's decision as the final decision of the Commissioner on October 6,2009 (Tr. 3-6). Plaintiff thereafter filed this civil action seeking a reversal of the Commissioner's decision. Both parties have filed Motions for Summary Judgment [Docket Nos. 10 and 11] and this matter is ripe for decision.

III. ANALYSIS A. Standard of Review

The essential issue on appeal to this Court is whether the ALJ's decision is supported by substantial evidence. "Substantial evidence" is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion;" it is based on the record as a whole and must take into account whatever in the record fairly detracts from its weight. Garner v. Heckler, 745 F.2d 383,387 (6th Cir. 1984). lfthe Commissioner's decision is supported by substantial evidence, the reviewing Court must affirm. Kirk v. Secretary ofHealth
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and Human Services, 667 F.2d 524,535 (6th Cir. 1981), cert. denied, 461 U.S. 957
(1983). "The court may not try the case de novo nor resolve conflicts in evidence, nor decide questions of credibility." Bradley v. Secretary ofHealth and Human

Services, 862 F.2d 1224, 1228 (6th Cir. 1988). Finally, this Court must defer to the
Commissioner's decision "even if there is substantial evidence in the record that would have supported an opposite conclusion, so long as substantial evidence supports the conclusion reached by the ALJ." Key v. Callahan, 109 F.3d 270,273 (6th Cir.1997).

B.

Plaintiff's Contentions on Appeal

Plaintiff contends that the ALl's finding of n o disability is erroneous because: (1) the ALJ did afford appropriate weight to the opinion of his treating physician, Dr. Robert Drake and (2) the ALJ failed to consider his impairments in combination.

C.

Analysis of Contentions on Appeal

Plaintiffs first claim of error is that the ALJ did afford appropriate weight to the opinion of h i s treating physician, Dr. Robert Drake, specifically, his June 17,2009 evaluation in which he opined that Plaintiff suffers from disabling physical limitations (Tr. 264). In order to be given controlling weight, the opinions of a treating source on
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issues involving the nature and severity of a claimant's impairments must be well supported by medically acceptable clinical and laboratory diagnostic techniques, and be consistent with other substantial evidence in the case record. 20 C.F.R. § 416.927(d)(2). Such opinions receive great weight only if they are supported by sufficient medical data. Harris v. Heckler, 756 F.2d 431,435 (6 th Cir. 1985). As noted by the ALl, Dr. Drake's opinion, as articulated in the subject evaluation, is inconsistent with his own treatment notes. Indeed, nowhere in these records does one find any suggested or prescribed limitation. Further, the evaluation itself appears to be based upon Plaintiff s subjective statements, rather than clinical or diagnostic testing. Finally, Dr. Drake's opinion is not supported by the other credible medical evidence of record. He stands alone in his suggestion of disability. Given the inconsistency with his own records, as well with that of the opinions of the other physicians of record, the Court finds no error in the ALl's assessment of Dr. Drake's opinion. Plaintiff s second claim of error is that the ALl failed to consider his impairments in combination. A review of the hearing decision reveals that the ALl considered Plaintiff s impairments in combination at various stages in his evaluation. The ALl
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discussed Plaintiffs impairments, both physical and mental, both severe and nons e v e r e , at Step 3 of the sequential evaluation process, and specified that he considered the same, alone and "in combination" (Tr. 16). Such articulations have been found to be sufficient upon review. See Gooch v. Secretary ofHealth and Human Services, 833 F.2d 589, 592 (6th Cir. 1987). Indeed, the Sixth Circuit Court of Appeals stated in Loy v. Secretary ofHealth and Human Services, "[a]n ALJ's individual discussion of multiple impairments does not imply that he failed to consider the effect of the impairments in combination, where the ALJ specifically refers to a 'combination of impairments' in finding that the plaintiff does not meet the listings." Loy v. Secretary ofHealth and Human Services, 901 F.2d 1306,1310 (6th Cir. 1990). The Court finds that the ALl's approach in this case is consistent with Gooch and Loy and that Plaintiffs argument in this regard is without merit. Plaintiff makes additional arguments, which are conclusory and otherwise undeveloped. The Court need not address the same. Issues 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. McPherson v. Kelsey, 125 F.3d 989,995-996 (6th Cir. 1997) (internal citations omitted). See
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also, United States v. Phibbs, 999 F.2d 1053, 1080 n. 12 (6 th Cir. 1993)(noting that

"it is not our function to craft an appellant's arguments"). III. CONCLUSION The Court finds that the ALl's decision is supported by substantial evidence on the record. Accordingly, it is HEREBY ORDERED that the Plaintiffs Motion for Summary Judgment be OVERRULED and the Defendant's Motion for Summary Judgment be SUSTAINED. A judgment in favor of the Defendant will be entered contemporaneously herewith. This z.vQay of November, 2010.

Henry R. Wilhoit, Jr., Senior Judge

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