Bailey v. SSA

Filing 16

MEMORANDUM OPINION & ORDER: The ALJ having properly applied the relevant legal standards and his decision being supported by substantial evidence,IT IS ORDERED that Bailey's motion (R. 11 ) is DENIED. IT IS FURTHER ORDERED that the Commissioners motion (R. 14 ) is GRANTED. The court will enter a separate judgment. Signed by Judge Jennifer B Coffman on 8/31/2011.(RBB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
CIVIL ACTION NO. 10-227-JBC
HARVEY L. BAILEY,
V.

PLAINTIFF,
MEMORANDUM OPINION AND ORDER

MICHAEL J. ASTRUE, COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION,

DEFENDANT.

***********
This matter is before the court upon cross-motions for summary judgment on
Harvey L. Bailey’s appeal of the Commissioner’s denial of his application for
Disability Insurance Benefits and Supplemental Security Income (R. 11, 14). The
court will deny Bailey’s motion and grant the Commissioner’s motion because
substantial evidence supports the administrative decision.
Bailey was a forty-three-year-old male with an eighth-grade education at the
time of the alleged disability onset date. AR 16. He has past relevant work as a
baler operator, equipment cleaner, gas attendant, housekeeper, and laborer. AR
121. He alleged disability beginning May 10, 2006, due to low back, right hip, and
leg pain, as well as depression. AR 11. He filed his claims for DIB and SSI on
December 6, 2007. AR 9. These claims were denied initially on January 14,
2008, and upon reconsideration on April 22, 2008. Id. After a hearing on May 8,
2009, Administrative Law Judge Frank Letchworth determined that Bailey was not
under a disability within the meaning of the Social Security Act. Id. At Step 1, see

Preslar v. Sec’y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994);
20 C.F.R. § 404.1520, the ALJ found that while Bailey had engaged in some
gainful activity since the alleged disability onset date, that activity was not
substantial. AR 11. At Step 2, the ALJ found that Bailey had severe impairments
of degenerative disk disease of the lumbar spine and depression. Id. The ALJ then
determined at Step 3 that Bailey’s impairments, singly or in combination, did not
meet or medically equal a listing in the Listing of Impairments. AR 13. At Step 4,
the ALJ found that Bailey is unable to perform any past relevant work. AR 15.
The ALJ concluded at Step 5 that jobs exist in significant numbers in the national
economy that Bailey can perform, and he then denied Bailey’s claims for DIB and
SSI. AR 16-17. On June 18, 2010, the Appeals Council denied Bailey’s request
for a review of the ALJ’s decision and Bailey commenced this action.
Bailey asserts that the ALJ’s decision was not supported by substantial
evidence, see Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681
(6th Cir. 1989) (citing Richardson v. Perales, 402 U.S. 389 (1971)), for the
following reasons: first, the ALJ improperly relied on Dr. Ross, the agency’s nonexamining source, whose opinion is not supported by other evidence in the record;
and second, the ALJ failed to accurately advise the vocational expert of the
restrictions in attention and concentration that he adopted.
The ALJ properly relied on the opinions of Dr. Ross in conjunction with the
other medical evidence of record, and Bailey has provided no evidence that any
mistakes in Ross’s opinion prejudicially influenced the ALJ’s conclusions. Bailey
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asserts that the ALJ’s reliance on Ross’s opinion was improper because Ross relied
on an initial determination that the ALJ did not enter into evidence, he never saw
the records from Bailey’s psychiatric hospitalization at Baptist Regional, and he
mischaracterized the February 2008 Comprehensive Care record as evidence of
substance abuse. Bailey further contends that because the ALJ relied on the
mistaken summarization of the evidence by Dr. Ross, the mental RFC he adopted is
not based on substantial evidence. There is, however, substantial evidence in the
record to justify the ALJ’s findings, and Bailey fails to explain how the ALJ’s
reliance on Ross’s opinion is grounds for reversal of his decision.
The ALJ gave proper consideration to Ross’s opinion, as required by SSR 966p, 1996 WL 374180 (Jul. 2, 1996), but Ross’s mental health report was only a
minimal aspect of the evidence relied upon by the ALJ. AR 13. While Ross may
not have reviewed Bailey’s medical records from Baptist Regional, the ALJ did so,
noting Bailey’s presentation to the emergency room with suicidal ideation, his
opiate-positive drug screening, his generally positive interactions and responses,
and his discharge in stable condition after four days. Id. As the ALJ discussed
Bailey’s hospitalization at Baptist Regional at length, his later finding that Bailey
“has no history of formal mental health treatment or past inpatient psychiatric
hospitalization,” AR 15, is properly understood to refer to the period before Bailey
applied for disability. This interpretation of the ALJ’s statement is supported by
the ALJ’s next finding that Bailey “did not seek any treatment for his allegedly
disabling symptoms of depression until 18 months after he filed his disability
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application.” Id. Furthermore, the ALJ’s finding that Bailey had outpatient care for
alcoholism was not based on Ross’s report, but on the medical records from
Cumberland River Comprehensive Care Center in which Bailey was diagnosed with
alcohol dependence, currently in partial remission. AR 15, 217. Bailey’s assertion
that resolution of the ALJ’s errors would have yielded a different result is
groundless, because the ALJ’s findings and the mental RFC crafted from those
findings are supported by substantial medical evidence in the record, not based on
any mistaken assertions in Ross’s mental health opinion.
The ALJ’s findings regarding other work Bailey can perform are also based
on substantial evidence, because the ALJ’s hypothetical question to the vocational
expert adequately portrayed Bailey’s mental impairments. See Ealy v. Comm’r of
Soc. Sec., 594 F.3d 504, 517 (6th Cir. 2010); Varley v. Sec’y of Health & Human
Servs., 820 F.2d 777, 779 (6th Cir. 1987). Bailey challenges the ALJ’s
hypothetical because the ALJ did not include any restrictions regarding Bailey’s
ability to sustain concentration, persistence, and pace. For this argument Bailey
relies on the ALJ’s assessment of the “paragraph B” criteria, in which the ALJ
noted that Bailey has “no more than ‘moderate’ limitations in concentration,
persistence, or pace.” AR 14. The assessment of “paragraph B” criteria, however,
is used in Steps 2 and 3 to determine whether an impairment is “severe” and
whether the impairment meets or medically equals a listed impairment, see AR 13,
20 C.F.R. §§ 404.1520a(d), 416.920a(d), and is separate from the mental RFC
assessment used at Steps 4 and 5. See SSR 96-8p, 1996 WL 374184 (Jul. 2,
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1996). The RFC assessment takes into account all of the relevant evidence in the
case record, id., and the ALJ was not required to specifically adopt “paragraph B”
findings in his development of a complete and accurate assessment of Bailey’s
mental impairment. See Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001).
Even though Bailey testified that he has problems regarding concentration,
persistence, or pace, the ALJ was entitled to consider this testimony in light of the
objective medical evidence of record and the ALJ’s own determinations regarding
Bailey’s credibility. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th
Cir. 2003). The ALJ specifically found in fashioning the RFC that the record
contains no evidence that Bailey’s concentration skills do not allow for the
completion of simple, one- or two-step instructions, and found based on Bailey’s
testimony that the activities he performs on a daily basis demonstrate that he has
such sufficient concentration skills. AR 14, AR 15. Bailey asserts that the ALJ’s
determination does not take into account the observation by Dr. Salim that Bailey’s
ability to maintain attention and concentration is poor. AR 254. This statement,
however, in the context of Salim’s overall analysis, which also provides that Bailey
is “oriented to time, place, person and situation,” that his “memory is intact for
recent and remote events although immediate recall is poor,” that his “thought
processes are linear and logical,” and that his “judgment, awareness and insight
appear to be intact,” id., provides substantial evidence for the ALJ’s finding that
Bailey is capable of completing simple one- or two-step instructions. AR 14.

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The ALJ, having considered the medical evidence of record and Bailey’s testimony,
properly found that Bailey had the mental RFC to perform work activity that
involves no more than occasional, casual contact with other persons in an objectfocused work environment and that he can relate better to things than other
people. AR 14. These findings, which are more restrictive than any mental
assessments found in the medical evidence of record, see Mitchell v. Astrue, 256
Fed. Appx. 770, 772 (6th Cir. 2007), were included in the ALJ’s hypothetical to
the vocational expert. AR 46-47. The ALJ’s reliance on the vocational expert’s
opinion is therefore supported by substantial evidence. See Ealy, 594 F.3d at 517;
Varley, 820 F.2d at 779.
The ALJ having properly applied the relevant legal standards and his decision
being supported by substantial evidence,
IT IS ORDERED that Bailey’s motion (R.11) is DENIED.
IT IS FURTHER ORDERED that the Commissioner’s motion (R.14) is
GRANTED.
The court will enter a separate judgment.

Signed on August 31, 2011

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