Baker v. SSA
Filing
12
MEMORANDUM OPINION & ORDER: (1) that Plaintiff's Motion for Summary Judgment [DE 10 ] is DENIED; and (2) that Defendant's Motion for Summary Judgment [DE 11 ] is GRANTED. Signed by Judge Joseph M. Hood on 9/26/11.(SYD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
KEVIN BAKER,
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Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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Civil Action No. 10-223-JMH
MEMORANDUM OPINION AND ORDER
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This matter is before the Court upon cross-motions for summary
judgment on the plaintiff's appeal of the Commissioner's denial of
her application for Supplemental Security Income and Disability
Insurance
Benefits
[Record
Nos.
10,
11].1
The Court, having
reviewed the record and being otherwise sufficiently advised, will
deny the plaintiff's motion and grant the defendant's motion.
I.
OVERVIEW OF THE PROCESS AND THE INSTANT MATTER
The
Administrative
Law
Judge
("ALJ"),
in
determining
disability, conducts 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.
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.
2.
An individual who is working but does not have a
"severe" impairment which significantly limits his
physical or mental 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 is 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 and Human Services, 14 F.3d 1107, 1110
(6th Cir. 1994) (citing 20 CFR § 404.1520 (1982)).
"The burden of
proof is on the claimant throughout the first four steps of this
process to prove that he is disabled." Id. "If the analysis reaches
the fifth step without a finding that the claimant is not disabled,
the burden transfers to the Secretary."
In
the
Plaintiff
instant
was
matter,
capable
of
Id.
the
Commissioner
performing
past
determined
work,
and
challenges the Commissioner’s conclusion at step four.
that
Plaintiff
Primarily,
Plaintiff argues that the Commissioner’s decision is not supported
by substantial evidence of record.
failed
to
consider
the
combined
He also argues that the ALJ
effects
of
all
Plaintiff’s
impairments on his ability to perform work and that the ALJ failed
to determine whether he could work full time, i.e., could perform
to the durational requirement of full time work. Finally, Plaintiff
suggests that the ALJ failed at step three of the analysis when he
failed to conclude that Plaintiff’s impairments were sufficient to
meet a listed impairment.
The Court has considered arguments by
Plaintiff and the Commissioner, as well as the administrative
record, and, for the reasons stated below, affirms the decision of
the Commissioner.
II.
STANDARD OF REVIEW
In reviewing the ALJ's decision to deny disability benefits,
the Court may not try the case de novo, nor resolve conflicts in the
evidence, nor decide questions of credibility. Cutlip v. Sec'y of
Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). Instead,
judicial review of the ALJ's decision is limited to an inquiry into
whether the ALJ's findings were supported by substantial evidence,
42 U.S.C. § 405(g), Foster v. Halter, 279 F.3d 348, 353 (6th Cir.
2001), and whether the ALJ employed the proper legal standards in
reaching his conclusion, see Landsaw v. Sec'y of Health and Human
Servs., 803 F.2d 211, 213 (6th Cir. 1986).
is
"more
than
a
scintilla
of
"Substantial evidence"
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.
III. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was 35 years old at the time of the ALJ’s decision.
He has a 9th or 10th grade education and past relevant work as a
cashier,
cook
and
delivery
person,
dishwasher,
housekeeper, and fast-food restaurant manager.
desk
clerk,
Plaintiff alleged
disability beginning on June 18, 2006, due to back problems, bowel
problems, bronchitis, asthma, and congestive heart failure.
The ALJ considered Plaintiff’s claim in accordance with the
five-step sequential evaluation process. At steps two and three, the
ALJ found that Plaintiff’s severe impairments included degenerative
disc disease, disc bulges, status post lumbar fracture, chronic
obstructive pulmonary disease, and history of congestive heart
failure, but that he did not have an impairment or combination of
impairments that met or medically equaled an impairment listed in
the Listing of Impairments (the Listings), 20 C.F.R. pt. 404, subpt.
P, app. 1 (2010). The ALJ then found at step four that Plaintiff
retained the residual functional capacity (RFC) to perform a reduced
range of light work.
Relying on the testimony of a vocational
expert (VE), the ALJ determined at step four that Plaintiff could
perform his past relevant work as a desk clerk.
Therefore, the ALJ
concluded that Plaintiff was not disabled.
In evaluating Plaintiff’s claims, the ALJ had the benefit of
the treatment records of Plaintiff’s treating physician, Dr. Wahab,
as well as a functional capacity evaluation completed by a physical
therapist at Dr. Wahab’s request, and Plaintiff’s treatment records
from the University of Kentucky.
IV. Analysis
At the fourth step in the analysis, Plaintiff must demonstrate
that he is unable to perform his vocationally relevant former work.
Only then does the burden shift to the Commissioner to demonstrate
that other work is available which the claimant can perform.
See
20 C.F.R. §§ 404.1520(g), 416.920(g).
Here, the ALJ relied on testimony given by a VE to conclude
that Plaintiff could perform his past relevant work as a desk clerk.
Defendant argues that the ALJ’s decision was, however, unsupported
by substantial evidence because the VE’s testimony was given in
response to a hypothetical question which failed to take into
account the appropriate RFC based on the evidence of record.
Specifically, Defendant argues that the ALJ should have given
substantial weight to the opinion of Russell Baker, a physical
therapist who examined Plaintiff at the request of Plaintiff’s
treating physician.
Baker concluded that Plaintiff could work only
part-time at the sedentary physical demand level.
A physical therapist is not, however, an “acceptable medical
source” under the applicable regulations. 20 C.F.R. §§ 404.1513(d),
416.913(d); see also Social Security Ruling (SSR) 06-3p, 2006 WL
2329939 (S.S.A.).
Opinions from other sources “may provide insight
into the severity of the impairment(s) and how it affects the
individual’s ability to function”, but they are not entitled to
controlling weight.
SSR 06-03P.
Thus, the physical therapist’s
opinion was not entitled to any special weight, even if it was
requested by a treating physician.
Further, as the ALJ pointed out
in his decision, the physical therapist’s opinion was contradicted
by other evidence of record.
The physical therapist’s proposed
restrictions for Plaintiff were based on chronic low back pain, but
he did not point to any portion of the record which contains
evidence
of
back
problems
which
would
necessitate
those
restrictions.
Further, Plaintiff has sought little treatment for back pain
from the alleged onset date.
Although Plaintiff was treated at UK
Kentucky from January to October 2008, his doctor visits were often
for complaints of dyspnea (shortness of breath), chronic obstructive
pulmonary disorder (COPD), gastroesophageal reflux disease (GERD),
and stomach pain. A reasonable mind might conclude that Plaintiff’s
lack of treatment indicates an alleviation of his symptoms.
White
v. Commissioner of Social Security, 572 F.3d 272, 284 (6th Cir.
2009) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Although Plaintiff visited the emergency room several times for back
pain, he never followed up with a regular doctor after being
discharged, and radiology reports consistently came back negative.
The
treatment
he
received
for
his
back
was
unremarkable
and
conservative in nature, nor were any limitations imposed upon him
during treatment by the physicians who did see him.
See Longworth,
402 F.3d at 596 (an absence of any limitations imposed provides
substantial evidence for a finding of not disabled).
The objective medical evidence is, frankly, not consistent with
the stringent limitations to which Baker opined.
A June 2006 CT
scan and x-ray of Plaintiff’s lumbar spine indicated old trauma at
T12/L1 with very minimal loss of height anteriorly and secondary
degenerative changes; however, they were otherwise normal). That
same month, a CT of his cervical spine and an xray of his thoracic
spine
revealed
no
acute
abnormalities.
As
the
ALJ
noted,
Plaintiff’s more recent radiographic imaging showed mainly old,
stable, vertebral body fractures in the thoracolumbar junction area.
For instance, an October 2008 MRI of Plaintiff’s lumbar spine showed
the vertical bodies at normal height and intensity.
Furthermore,
a November 2008 MRI scan of his cervical spine revealed disc bulges
at C5-6 and C6-7 but no evidence of a herniated disc.
Further, insofar as Plaintiff believes that his own testimony
substantiates Baker’s opinion, Plaintiff has not pointed to any
specific testimony from the hearing to support this contention.
Indeed, Baker testified that he drives, visits with his family, and
does
light
household
chores.
He
explained
in
his
application
materials that he cooks for himself, shops, and goes to the movies.
Indeed, in April 2006, Plaintiff told an emergency room doctor that
he attempted to carry a washing machine up the stairs.
Then, in
April 2007, he reportedly injured his toe while attempting to cut
down a tree. This level of activity does not suggest that Plaintiff
experienced the type of limitations to which Baker opined.
Further, and contrary to Plaintiff’s argument, the ALJ did
consider
the
effect
of
his
impairments
in
combination
when
developing an RFC.
The Sixth Circuit has recognized that “[i]n
reaching a determination as to disability, the ALJ is to consider
the combined effect of all of the claimant’s impairments without
regard to whether any such impairment, if considered separately,
would be of sufficient severity to render the claimant disabled.”
Walker, 980 F.2d at 1071 (citing 20 C.F.R. § 404.1523). However,
“[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. Sec. of Health and Human Servs., 901 F.2d 1306,
1310 (6th Cir. 1990) (citing Gooch v. Sec. of Health and Human
Servs., 833 F.2d 589, 592 (6th Cir. 1987)).
Plaintiff fails to explain in what regard the ALJ did not
consider the combined effects of his impairments, nor did he show
how his combined impairments affected his RFC.
Furthermore, a
review of the ALJ’s decision reveals that he sufficiently considered
Plaintiff’s
impairments.
For
example,
the
ALJ
stated,
that
Plaintiff “does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments”.
The
ALJ also made multiple references to Plaintiff’s “impairments” and
discussed each impairment.
Thus, the ALJ sufficiently considered
the cumulative effect of Plaintiff’s impairments.
Finally, as to whether the ALJ considered whether Plaintiff is
able to hold a job for a significant period of time, the Court
assumes that “[i]mplicit in the RFC assigned to Plaintiff by the ALJ
is a finding that Plaintiff is capable of maintaining employment.”
Garland v. Astrue, No. 07-181-DLB, 2008 WL 2397566, at *6 (E.D. Ky.
June 10, 2008).
There is no separate durational requirement.
See
Wilson v. Astrue, No. 6:10-089-DCR, 2010 WL 4024893, at *6 (E.D. Ky.
Oct. 13, 2010); Durham v. Astrue, No. 09-202-DCR, 2010 WL 672136,
at *6 (E.D. Ky. Feb. 22, 2010); Johnson v. Astrue, No. 08-298-JBC,
2009 WL 2473627, at *3 (E.D. Ky. Aug. 10, 2009).
Since the RFC
determination imposed no durational limitations on Plaintiff’s
ability to perform substantial gainful activity, the Court presumes
that the ALJ intended no such limitation and that the VE’s testimony
did not take such a limitation into account.
Finally, Plaintiff
cites to no evidence in the record which suggests that he is in
anyway limited from holding a job for a significant period of time.
Finally, Plaintiff also asserts that the ALJ erred when he
failed to conclude that Plaintiff’s impairments were sufficient to
meet a listed impairment, but he has not identified what listing he
believes that his impairments would meet or medically equal.
Since
his argument lacks the specificity required on appeal, the Court
will consider this argument no further.
See Hollon ex rel. Hollon
v. Commissioner of Social Security, 447 F.3d 477, 491 (6th Cir.
2006) (When a plaintiff fails to offer any particularized argument
to support his assertion, the Court will not “formulate arguments
on the Plaintiff’s behalf” or engage in an “open-ended review of the
entirety of the administrative record to determine ... whether it
might contain evidence that arguably is inconsistent with the
Commissioner's decision”).
IT IS ORDERED:
(1)
that Plaintiff’s Motion for Summary Judgment [DE 10] is
DENIED; and
(2)
that Defendant’s Motion for Summary Judgment [DE 11] is
GRANTED.
This the 26th day of September, 2011.
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