Foster v. SSA
Filing
20
MEMORANDUM OPINION & ORDER: 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 9/30/13.(SYD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
at LONDON
Civil Action No. 12-133-HRW
ASHLEY LASHAY FOSTER,
v.
PLAINTIFF,
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 Plaintiff s application for disability
insurance benefits and supplemental security income benefits. 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 her current applications for disability insurance benefits and
supplemental security income benefits on February 23,2009, alleging disability
beginning on January 28,2009, due to "Muscle disease and neuro cardiogenic
syncopy" (Tr. 180). The applications were denied initially and on reconsideration
(Tr. 107-110). On March 5, 2010, an administrative hearing was conducted by
Administrative Law Judge Robert C. King (hereinafter "ALJ"), wherein Plaintiff,
accompanied by counsel, testified. At the hearing, Cathy Sanders, 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 1: 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 August 5, 2010, the ALI issued his decision finding that Plaintiff was
not disabled (Tr. 39-46). Plaintiff was 26 years old at the time of the hearing
decision (Tr. 175). She has a 12th grade education (Tr. 186). Her past relevant
work experience consists of work as a certified nursing assistant, childcare
provider, payroll clerk and office assistant (Tr. 94-95).
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.41).
The ALI then determined, at Step 2, that Plaintiff suffers from obesity,
Charot-Marie Tooth syndrome ("CMT"), fibromyalgia, osteoarthritis of the knees,
degenerative changes in both sacroiliac joints, history of episodes of syncope,
bilateral carpal tunnel syndrome, obstructive sleep apnea and hypertension which
he found to be "severe" within the meaning of the Regulations (Tr. 41).
At Step 3, the ALI found that Plaintiffs impairments did not meet or
medically equal any of the listed impairments (Tr. 42). In doing so, the ALI
specifically considered listings 1.00 et seq. (Tr. 42).
The ALI further found that Plaintiff could perform to her past relevant work
as a payroll clerk (Tr. 54-46) and further determined that she has the residual
functional capacity ("RFC") to perform light level work with certain restrictions as
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set forth in the decision (Tr. 42).
The ALJ finally concluded that these jobs exist in significant numbers in
the national and regional economies, as identified by the VE (Tr. 45-46).
Accordingly, the ALJ found Plaintiff not to be disabled at Steps 4 and 5 of the
sequential evaluation process.
The Appeals Council denied Plaintiff s request for review and adopted the
ALl's decision as the final decision of the Commissioner on May 11, 2012 (Tr. 1
4).
Plaintiff thereafter filed this civil action seeking a reversal of the
Commissioner's decision. Both parties have filed Motions for Summary Judgment
[Docket Nos. 18 and 19] and this matter is ripe for decision.
III. ANALYSIS
A.
Standard of Review
The essential issue on appeal to this Court is whether the ALl'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). If the Commissioner's decision is supported by
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substantial evidence, the reviewing Court must affirm. Kirk v. Secretary ofHealth
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 no disability is erroneous
because: (1) the RFC did not account for all of her limitations and (2) the ALJ did
not properly assess her credibility. She also seeks a remand for consideration of
the opinions of Dr. Carol Peddicord and Dr. Lisa DeGnore.
C.
Analysis of Contentions on Appeal
Plaintiff s first claim of error is that the RFC did not account for all of her
limitations. This argument is without merit as it is clear from the hearing decision
that the ALJ considered Plaintiff s limitations and analyzed them based upon the
evidence in the record. For example, with regard to Plaintiffs syncopal episodes,
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the ALJ discussed the medical evidence and concluded that the episodes were
well-controlled with medication (Tr. 44). This finding is supported by
consultative examiner Dr. Mark Bum's statement that Plaint6iff obtained "good
relief" of her syncope with medication (Tr. 1407). Plaintiffs own testimony is
consistent in this regard; she stated she has not had a syncopal episode while on
the medication (Tr. 78).
Plaintiffs contention that the ALJ did not consider her obesity is unavailing
as well. The ALJ found obesity to be a severe impairment at Step 2 of the
sequential analysis. The ALJ further stated that in formulating the RFC, he
considered the "entire" record.
Plaintiffs argument that the ALJ did not consider Dr. DeMunbrun's July
28, 2009 report is also without merit. The ALJ explicitly cited this report in his
decision (Tr. 45) and, included its findings in the RFC (Tr. 42, 45).
Finally, the ALJ found that despite allegations of disabling impairments,
Plaintiff engages in a wide variety of household and other daily activities. The
Sixth Circuit Court of Appeals has stated that "[a]n ALJ may consider household
and social activities engaged in by the claimant in evaluating a claimant's
assertions of pain or ailments." Walters v. Comm 'r ofSocia I Security, 127 F.3d
525, 532 (6th Cir. 1997). In this case, Plaintiff testified that she cares for her
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daughters, ages 7 and 3 (Tr. 62-63). She prepares meals, takes care of her personal
needs, washed dishes and dusts (Tr. 63-65). Additionally, she testified that visits
with friends twice a week and attends church three Sundays a month (Tr. 65-66).
She drives two-t-three times per week, shops for groceries and dines out once a
month (Tr. 6869). She is able to mow the lawn using a riding mower and manages
her own finances (Tr. 200-201). Plaintiff s abilities to engage in these activities
supports the ALl's determination that although she is limited, she retained her
ability to perform work-related activities.
Plaintiffs second claim of error is that the ALJ did not properly assess her
credibility.
It is well established that as the "ALJ has the opportunity to observe the
demeanor of a witness, (her) conclusions with respect to credibility should not be
discarded lightly and should be accorded deference." Hardaway v. Secretary of
Health and Human Services, 823 F.2d 922,928 (6th Cir. 1987). In this case, the
ALJ found Plaintiffs credibility to be "fair" with regard to his allegations of
disabling pain. (Tr. 17). Subjective claims of disabling pain must be supported by
objective medical evidence. Duncan v. Secretary ofHealth and Human Services,
801 F.2d 847, 852-853 (6th Cir. 1986). Based upon the record, Plaintiffs
subjective complaints do not pass Duncan muster. The testimony pfPlaintiffand
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her mother painted a picture which is not supported by the record. There is simply
no evidence of limitation beyond that in the RFC.
Finally, Plaintiff a remand for consideration of the opinions of Dr. Carol
Peddicord and Dr. Lisa DeGnore.
Sentence six of 42 U.S.C. §405(g) provides:
The court ... may at any time order additional evidence
be taken before the Commissioner of Social Security, but
only upon a showing that there is new evidence which is
material and that there is good cause for the failure to
incorporate such evidence into the record in a prior
proceeding.
42 U.S.C. §405(g). However, the limited circumstances under which
remands are permitted arise when the party seeking remand shows that: (1) there is
new, non-cumulative evidence: (2) the evidence is "material" - i.e., both relevant
and probative, so that there is a reasonable possibility that it would change the
administrative result; and, (3) there is good cause for failure to submit the
evidence at the administrative leveL Willis v. Secretary ofHealth and Human
Services, 727 F.2d 551, 554 (6th • Cir. 1984). While it is not, generally, difficult for
a party seeking remand to show that evidence is new, it is, generally, onerous to
demonstrate that the new evidence is materiaL
In this case, the evidence proffered by Plaintiff is not materiaL Dr.
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Peddicord opined that Plaintiff could no almost no work-related activities. This is
inconsistent with Plaintiffs reported daily activities and inconsistent with the
opinion of Dr. Thio who, after reviewing all the evidence, concluded that Plaintiff
retained the ability to perform some work-related activities. It is also at odds with
the opinion of Dr. Bums who examine Plaintiff a few months before the ALl's
decision and opined that Plaintiff could perform so work-related activity. It is
simply not probable, given the contradictory evidence, that the ALJ would have
assigned greater weight to the opinion of Dr. Peddicord and, thus, unlikely that her
opinion would have generated a different disposition. See Sizemore v. Sec y of
Health and Human Services, 865 F.2d 709, 711 (6 th Cir. 1988). Therefore, remand
for the consideration of Dr. Peddicord's opinion is not warranted.
Nor is remand warranted for the consideration of the report of Dr. DeGnore.
The Alj found that Plaintiff was not disabled between January 28,2009 and
August 5, 2010. Dr. DeGnore's report is dated November 9,2011. The report
says nothing of Plaintiffs condition during the relevant period of time. As such, it
is not an appropriate basis for remand.
III. CONCLUSION
The Court finds that the ALl's decision is supported by substantial evidence
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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.
This 30th day of September, 2013.
SIgned ByHenry R. \\tJoit Jr.
Unffed States Dtstnct Judge
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