Neeley v. SSA
Filing
12
MEMORANDUM OPINION & ORDER: (1) that Plaintiffs Motion for Summary Judgment DE 10 is DENIED; and (2) that Defendants Motion for Summary Judgment DE 11 is GRANTED. Signed by Judge Joseph M. Hood on 08/27/2012.(KJA)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DIVISION OF KENTUCKY
SOUTHERN DIVISION at LONDON
RHONDA NEELEY,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Civil Case No.
6:12-cv-27-JMH
MEMORANDUM OPINION & ORDER
***
This matter is before the Court upon cross-motions for
summary
judgment
Commissioner's
insurance
reviewed
denial
benefits.
the
record
on
of
[Tr.
and
Plaintiff's
her
appeal
application
13-20].1
being
for
The
otherwise
of
the
disability
Court,
having
sufficiently
advised, will deny Plaintiff's motion and grant 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 & Human Servs., 14 F.3d 1107,
1110 (6th Cir. 1994) (citing 20 C.F.R. § 404.1520 (1982)).
"The burden of proof is on the claimant throughout the
first
four
steps
disabled." Id.
of
this
process
to
prove
that
he
is
"If the analysis reaches the fifth step
without a finding that the claimant is not disabled, the
burden transfers to the Secretary."
In
the
instant
matter,
the
Id.
ALJ
determined
that
Plaintiff did not engage in substantial gainful activity
during the relevant time period under step one. [Tr. 15].
2
Under step two, the ALJ found that while Plaintiff had four
medically
determinable
osteopenia,
irritable
impairments
bowel
-
fibromyalgia,
syndrome
(“IBS”),
and
generalized anxiety disorder, respectively – only the first
three impairments were “severe” as defined by the agency’s
regulations. [Tr. 15-16]; 20 C.F.R. § 404.1521.
During step three of the analysis, the ALJ considered
all of Plaintiff’s impairments and decided that none of
them met the criteria listed in 20 C.F.R. pt. 404, subpt.
P, app. 1. [Tr. 16-17].
After further review of the entire
record, the ALJ concluded at step four that Plaintiff had
the residual functional capacity (“RFC”) to do light work,
and was fully capable of performing her past relevant work
as a receptionist and/or retail store manager. [Tr. 18-19].
Thus, the ALJ determined that Plaintiff is not disabled
under the Social Security Act. [Tr. 19].
In this appeal, Plaintiff primarily argues that the
Commissioner’s
decision
evidence of record.
not
give
is
not
supported
by
substantial
Plaintiff contends that the ALJ did
appropriate
deference
to
the
opinion
of
Plaintiff’s treating physician throughout her analysis nor
adequate reasoning for discounting the treating physician’s
medical opinion.
She also argues that the ALJ failed to
consider the combined effects of her impairments on the
3
overall
severity
of
her
condition.
Specifically,
she
argues that the ALJ failed to consider the combination of
her impairments during step three of the analysis when she
concluded that Plaintiff’s ailments were insufficient to
meet a listed impairment.
Finally, Plaintiff contends that
the ALJ inappropriately discounted Plaintiff’s credibility
when considering her testimony concerning her physical and
emotional
problems
and
pain.
The
Court
has
considered
arguments by Plaintiff and the Commissioner, as well as the
administrative record, and, for the reasons stated below,
affirms the Commissioner’s decision.
II.
STANDARD OF REVIEW
In
reviewing
benefits,
the
the
Court
ALJ's
may
decision
not
try
the
to
deny
case
de
disability
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 & Human Servs., 803 F.2d 211, 213 (6th Cir.
1986).
"Substantial evidence" is "more than a scintilla of
4
evidence,
relevant
but
less
evidence
than
as
a
a
preponderance;
reasonable
adequate to support a conclusion."
mind
it
might
is
such
accept
as
Cutlip, 25 F.3d at 286.
III. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is currently forty-eight years old with a
high school education. [Tr. 151, 183].
She has past work
experience as a receptionist in a doctor’s office and as a
retail
store
disability
manager.
under
[Tr.
Title
II
202].
on
Plaintiff
July
7,
filed
2009,
for
alleging
disability beginning on May 14, 2009. [Tr. 13].
The claim
was denied both initially on October 28, 2009, and upon
reconsideration on February 5, 2012. [Tr. 13].
Plaintiff
requested
place
a
hearing
with
the
November 17, 2010. [Tr. 13].
ALJ,
which
took
on
The ALJ issued an unfavorable
decision denying disability on December 28, 2010. [Tr. 20].
The
ALJ
considered
Plaintiff’s
claim
in
accordance
with the five-step sequential evaluation process. [Tr. 1320].
At steps two and three, the ALJ found that Plaintiff
had three severe medical impairments, namely fibromyalgia,
osteopenia,
and
Plaintiff’s
allegations
symptoms,
treating
her
IBS.
daily
physicians,
[Tr.
of
13-14].
pain,
activities,
and
the
After
subjective
the
medical
considering
reports
opinions
opinions
of
of
of
her
State
agency consultants, the ALJ determined that Plaintiff was
5
capable of performing past relevant work as a receptionist
or retail store manager, despite her impairments. [Tr. 19].
Therefore,
the
ALJ
concluded
that
Plaintiff
was
not
had
the
disabled under the Social Security Act. [Tr. 15].
In
benefit
evaluating
of
the
Plaintiff’s
treatment
claims,
records
of
the
two
ALJ
of
Plaintiff’s
treating physicians, Dr. David Hays and Dr. Manoj Kohli.
[Tr.
252-317;
348-58;
389-530].
Additionally,
Dr.
Athy, Dr. Ann Demaree, and Dr. P. Saranga, three
agency
medical
consultants,
and
Dr.
Naushad
Jay
State
Haziq,
a
consultative examiner, also assessed Plaintiff’s condition
and created reports for the ALJ’s benefit. [Tr. 326-38;
359-71;
373-77].
Notably,
Plaintiff
worked
as
a
receptionist in Dr. Hays’ office from 2001 through 2009.
IV. Analysis
Plaintiff first argues that the ALJ did not give
appropriate
deference
to
Dr.
David
Hays’
opinion,
adequate reasons for refusing to accept the opinion.
Court
finds
that
Plaintiff’s
first
contention
nor
This
is
unwarranted.
While it is true that a treating physician’s opinion
is normally entitled to substantial deference, it is also
true
that
the
ALJ
is
not
bound
to
give
that
opinion
controlling weight. Jones v. Comm’r of Soc. Sec., 336 F.3d
6
469, 477 (6th Cir. 2003)(citing Shelman v. Heckler, 821
F.2d 316, 321 (6th Cir. 1987)); 20 C.F.R. § 404.1527(c)(2).
Rather,
controlling
weight
should
only
be
given
to
a
treating physician when his opinion is “not inconsistent
with the other substantial evidence in [the] case record.”
20 C.F.R. § 404.1527(c)(2); see also Bogle v. Sullivan, 998
F.2d
great
342,
347-48
weight
(6th
only
Cir.
1993)(“such
if
they
are
opinions
supported
by
receive
sufficient
clinical findings and are consistent with the evidence.”).
Indeed, in Jones, 336 F.3d at 477, the Sixth Circuit held
that
the
statements
ALJ
by
may
a
even
completely
treating
discredit
physician
if
he
conclusory
sets
forth
a
reasoned basis for the rejection. Jones, 336 F.3d at 477
(citing Shelman, 821 F.2d at 321); see also Hall v. Bowen,
837 F.2d 272, 276 (6th Cir. 1988)(citing King v. Heckler,
742 F.2d 968, 973 (6th Cir. 1984))(“the ALJ is not bound by
conclusory
statements
of
a
treating
physician
that
a
claimant is disabled, but may reject determinations of such
a
physician
when
good
reasons
are
identified
for
not
accepting them.”).
Because
substantial
Dr.
Hays’
evidence
in
opinion
the
case
is
inconsistent
record,
this
with
Court
is
satisfied that the ALJ did in fact give Dr. Hays’ opinion
appropriate
deference.
First,
7
Dr.
Hays’
opinion
is
inconsistent
with
that
physician, Dr. Kohli.
neither
an
of
Frankly,
other
treating
Dr. Hays’ treatment notes display
improvement
condition.
Plaintiff’s
nor
his
a
worsening
notes
of
concerning
Plaintiff’s
Plaintiff
are
skeletal at best, oftentimes only listing the date of the
appointment
and
displaying
the
any
medicine
evidence
of
prescribed,
diagnostic
and
expertise
therapeutic decision-making. [Tr. 528-31].
Dr.
Kohli’s
detailed
treatment
notes
rarely
or
In contrast,
reflect
a
gradual
improvement in Plaintiff’s ailments to the point where Dr.
Kohli reported in March 2009 that Plaintiff showed “marked
improvement of generalized pain.” [Tr. 267-74; 310].
Second, Dr. Hays’ opinion is also inconsistent with
Plaintiff’s
allegations
of
her
daily
activities.
In
Plaintiff’s Function Report, completed on August 5, 2009,
she admits to engaging in activities such as cleaning her
house, sweeping, mopping, doing laundry, taking care of her
personal
hygiene,
preparing
meals
daily,
shopping
for
groceries weekly, going to church three times weekly, and
taking care of her personal finances. [Tr. 192-98].
level
of
activity
does
not
suggest
that
This
Plaintiff
is
incapable of working and is inconsistent with Dr. Hays’
extreme
opinion
that
Plaintiff
8
must
take
a
break
from
working every five minutes to walk around for five minutes.
[Tr. 246].
Third, and finally, Dr. Haziq’s physical examination
of Plaintiff in September 2009 supports a conclusion that
Plaintiff is not disabled and is capable of working.
319-23].
[Tr.
For example, he observed that Plaintiff was able
to perform all requested range of motion exercises without
any
difficulty
Although
Dr.
or
Haziq
complaints
agreed
of
that
pain.
[Tr.
Plaintiff
321-33].
suffers
from
moderate to severe fibromyalgia and hypertension, he noted
that her condition was largely controlled with medication
and that she had no more than a moderate limitation on her
ability to work.
See Houston v. Sec'y of Health & Human
Servs., 736 F.2d 365, 367 (6th Cir. 1984)(finding that the
medical impairments of hypertension and osteoarthritis were
controlled with medication and therefore not disabling);
Hanson v. Astrue, No. 11-34-JBC, 2012 WL 405007 at *2 (E.D.
Ky. Feb 7, 2012)(explaining that the ALJ was entitled to
disregard
plaintiff’s
the
treating
impairments
physician’s
were
opinion
controlled
by
because
the
medication).
The Plaintiff also freely admitted at the hearing that her
medications alleviate her pain. [Tr. 43].
While Plaintiff also maintains that the ALJ did not
adequately explain why she discounted Dr. Hays’ opinion,
9
this
contention
is
also
without
merit.
As
previously
noted, the ALJ correctly observed that Dr. Hays provides
little objective medical evidence in his treatment notes of
Plaintiff, as they oftentimes only include the date of the
visit and the medication prescribed. [Tr. 528-31; 304-07].
Moreover, the ALJ also clearly pointed out that Dr. Hays’
overall
assessment
of
Plaintiff
was
internally
inconsistent, as he claimed on one page that Plaintiff’s
limitations
would
allow
her
to
engage
in
light
work
activity, but then later claimed she had limitations that
would preclude full time work. [Tr. 244-48].
In any event,
when there is not detailed corroborating medical evidence
for a treating physician’s opinion, deference to the ALJ’s
assessment is appropriate. See Blacha v. Sec’y of Health &
Human
Servs.,
927
F.2d
228,
230
(6th
Cir.1990)(“Without
detailed corroborating medical evidence, this court will
generally defer to the ALJ’s assessment.”).
Given that Dr.
Hays’ opinion lacks the requisite detailed evidence, such
deference is appropriate here.
Next, Plaintiff argues that the ALJ did not consider
the cumulative effect of her impairments when determining
her
RFC.
The
Sixth
Circuit
has
recognized
that
“[i]n
reaching a determination as to disability, the ALJ is to
consider
the
combined
effect
10
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 v. Sec’y of Health
& Human Servs., 980 F.2d 1066, 1071 (6th Cir. 1992) (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
combination,
where
the
the
effect
ALJ
of
the
impairments
specifically
refers
to
in
a
‘combination of impairments’”. Loy v. Sec’y of Health &
Human Servs., 901 F.2d 1306, 1310 (6th Cir. 1990) (citing
Gooch v. Sec’y of Health & Human Servs., 833 F.2d 589, 592
(6th
Cir.
1987))(noting
that
an
ALJ’s
reference
to
a
“combination of impairments” was sufficient evidence that
he
considered
all
decision-making,
of
the
because
plaintiff’s
“[t]o
require
ailments
a
more
in
his
elaborate
articulation of the ALJ’s thought processes would not be
reasonable.”).
Plaintiff fails to explain in what regard the ALJ did
not consider the combined effects of her impairments, nor
did she specifically explain how her combined impairments
would render her disabled.
Generally, this Court is not
required to “formulate arguments on the Plaintiff’s behalf”
or engage in an “open-ended review of the entirety of the
administrative
record
to
determine
11
...
whether
it
might
contain
evidence
that
arguably
is
inconsistent
with
the
Commissioner's decision.” Hollon ex rel. Hollon v. Comm’r
of Soc. Sec., 447 F.3d 477, 491 (6th Cir. 2006).
a
brief
review
demonstrates
that
Plaintiff’s
However,
contention
lacks merit.
For example, the ALJ stated that Plaintiff “did not
have
an
impairment
significantly
or
limited
combination
her
activities.” [Tr. 16].
ability
of
to
impairments
perform
basic
that
work
She also specifically noted that
she “considered all symptoms and the extent to which those
symptoms can reasonably be accepted as consistent with the
objective medical evidence.” [Tr. 17].
that
the
ALJ
did
not
specifically
While it is true
discuss
Plaintiff’s
osteopenia or IBS impairments in detail, Plaintiff herself
did not even mention these impairments during her hearing,
instead concentrating solely on her fibromyalgia pain. [Tr.
27-63].
also
A review of Plaintiff’s medical treatment notes
reveals
problems
that
during
her
Plaintiff
did
office
visits
not
of
complain
late,
of
but
these
instead
reported these issues as part of her medical history. [Tr.
267].
The fact that the ALJ spent the majority of her
analysis on Plaintiff’s fibromyalgia pain is, quite simply,
reflective of Plaintiff’s complaints in the record. Thus,
12
the ALJ sufficiently considered the cumulative effect of
Plaintiff’s impairments.
Plaintiff’s
adequately
final
explain
contention,
the
level
of
that
the
ALJ
not
that
credibility
did
was
assigned to Plaintiff’s own testimony concerning her pain,
also falls short.
While an ALJ must consider a plaintiff’s
statements about her pain when determining whether she is
disabled, “[d]iscounting credibility to a certain degree is
appropriate
where
an
ALJ
finds
contradictions
among
the
medical reports, claimant’s testimony, and other evidence.”
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.
1997).
Furthermore,
credibility
of
the
“an
ALJ’s
applicant
findings
are
to
be
based
on
accorded
the
great
weight and deference, particularly since an ALJ is charged
with
the
duty
credibility.”
of
observing
a
witness’s
demeanor
and
Id. at 531 (citing Villareal v. Sec’y of
Health & Human Servs., 818 F.2d 461, 463 (6th Cir. 1987)).
In
this
partially
case,
discounted
the
ALJ
clearly
Plaintiff’s
explained
credibility
that
she
because
the
pain and symptoms that she alleged are inconsistent with
both
Plaintiff’s
testimony
and
the
evidence in the record. [Tr. 17-18].
objective
medical
For example, while
Plaintiff claims on one hand that she has such pain that
she cannot engage in any type of work whatsoever, she also
13
readily admits to cleaning her house, taking care of her
personal hygiene, preparing meals, shopping for groceries,
going to church, visiting family, and taking care of her
personal
finances.
[Tr.
192-98].
The
ALJ
appropriately
discounted Plaintiff’s credibility to the extent that her
involvement in these daily activities are inconsistent with
her
complaints
of
pain.
See
Walters,
127
F.3d
at
532
(citing Blacha, 927 F.2d at 231; Crisp v. Sec’y of Health &
Human Servs., 790 F.2d 450, 453 (6th Cir. 1986)) (“An ALJ
may also consider household and social activities engaged
in by the claimant in evaluating a claimant’s assertions of
pain or ailments.”).
Moreover, any contention that Plaintiff is completely
incapable of light work is inconsistent with the objective
medical
evidence.
administrative
Quite
record
does
persuasively,
any
nowhere
physician,
in
treating
the
or
otherwise, claim that Plaintiff is completely incapable of
light work such as that required by her past relevant work
as a receptionist and retail store manager.
For example,
Dr. Hays opines in the May 21, 2010 questionnaire that
Plaintiff is “capable of low stress jobs”, and his analysis
of Plaintiff’s limitations in the questionnaire supports a
conclusion that she can work so long as she is permitted to
take breaks throughout the day. [Tr. 244-48].
14
Dr. Kohli,
Plaintiff’s other treating physician, provided no opinions
as to whether Plaintiff was capable of working or not in
his
treatment
consultative
notes.
[Tr.
examiner,
266-74].
noted
during
Dr.
his
Haziq,
examination
the
of
Plaintiff that she had no difficulty standing, sitting, or
walking,
and
opined
that
she
would
limitations on her ability to work.
Plaintiff’s
assertions,
have
moderate
Therefore, contrary to
Plaintiff’s
“ignored” in this matter.
only
testimony
was
not
Rather, it was appropriately
considered in light of the entire administrative record.
[Pl. Br. at 5].
In conclusion, the objective evidence in this case did
not establish that Plaintiff is disabled within the meaning
of
the
Social
Security
Act,
and
substantial
evidence
supports the ALJ’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 27th day of August, 2012.
15
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