Adams 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 4/9/2014.(MRS)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
MARY ALENE ADAMS,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
Defendant.

Civil Action No.
6:13-cv-51-JMH
MEMORANDUM OPINION &
ORDER

***

This matter is before the Court upon cross-motions for
summary
pursuant

judgment
to

42

[DE

10,

11]

on

U.S.C.

§

405(g),

of

Plaintiff’s
the

appeal,

Commissioner’s

denial of her application for disability insurance benefits
and disabled widow’s benefits.1

The Court, having reviewed

the record and the parties’ motions, will deny Plaintiff’s
motion and grant Defendant’s motion.
I.
The Administrative Law Judge (“ALJ”), conducts a fivestep analysis to determine disability:
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

disabled.”

steps
Id.

of

“If

this

the

process

analysis

to

prove

reaches

that

the

he

fifth

is

step

without a finding that the claimant is not disabled, the
burden transfers to the Secretary.” Id.
Here,
disability,

Plaintiff

filed

disability

applications

insurance

for

benefits

a

period

(DIB),

of
and

disabled widow’s benefits on May 4, 2009 and June 8, 2009,
2

respectively [Administrative Record (“AR”) at 71-72, 18083].2 An ALJ held a hearing on May 17, 2011 [AR at 27-52]
and issued a decision unfavorable to Plaintiff on June 17,
2011 [AR at 13-22]. The Appeals Council denied Plaintiff’s
request for review on July 24, 2012 and granted Plaintiff’s
request for more time to file a civil action on January 10,
2013 [AR at 1, 3-5]. This case is now ripe for review
pursuant to 42 U.S.C. § 405(g).
Plaintiff was 53 years old at the time of the ALJ’s
decision, had a 12th grade education, and had worked in the
past as a bus driver [AR at 22, 31, 46, 180, 207, 210].
Plaintiff alleged onset of disability on March 11, 2009,
due to nerve damage in her legs and arms, neck and back
problems,

and

fibromyalgia

[AR

at

180,

207].

After

considering the testimony and evidence in the record, the
ALJ

determined

that

Plaintiff

retained

the

residual

functional capacity (RFC) to perform a reduced range of
medium

work

[AR

at

18-20].

Based

on

Plaintiff’s

age,

education, RFC, and vocational expert testimony, the ALJ

2

Plaintiff had previously filed an application for a
period of disability and disability insurance benefits,
alleging disability beginning February 15, 2006.
That
application was finally denied when an ALJ determined that
Plaintiff was not disabled in a decision dated March 12,
2009 [AR at 56-64].
There is no record that Plaintiff
filed an appeal or sought further review of that decision.
3

found Plaintiff could perform jobs existing in significant
numbers in the national economy [AR at 21-22]. Therefore,
the ALJ found that Plaintiff was not disabled [AR at 22].
II.
This Court’s review of administrative decision in this
matter is limited to determining whether the Commissioner’s
findings are supported by substantial evidence and whether
the

correct

legal

standards

were

applied.

42

U.S.C.

§

405(g); Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th
Cir.

2010).

Substantial

evidence

is

such

evidence

as

a

reasonable person might accept as adequate to support a
conclusion. Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601,
604 (6th Cir. 2009). In reviewing a case for substantial
evidence, the court may not try the case de novo, resolve
conflicts in evidence, or decide questions of credibility.
Jordan v. Comm’r of Soc. Sec., 548 F.3d 417, 422 (6th Cir.
2008).

An

reversal

administrative

merely

supported

the

because

opposite

decision

substantial
conclusion.

is

not

subject

evidence
Blakley

v.

would

to
have

Comm’r

of

Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009).
III.
Plaintiff argues that the Commissioner erred (1) by
failing

to

give

proper

weight
4

to

the

opinions

of

her

treating physician and failing to give good reasons for
refusing

to

accept

those

opinions;

(2)

by

failing

to

consider the combined effects of all of her impairments
without regard to whether such impairments, if considered
separately, would be of sufficient severity to render her
disabled;

and

(3)

because

the

substantial

evidence

record demonstrates that she is, in fact, disabled.
in

her

brief,

she

suggests

that

the

ALJ

erred

of

Later,
when

he

concluded that she was not disabled by application of the
Medical-Vocational (“grid”) Rules due to her very serious
physical and emotional problems.
As a practical matter, she has provided this Court
with nothing more than conclusory assertions with respect
to any of these arguments.

As a general matter, the Court

declines to put flesh on the bones of these arguments and,
even if it was so inclined, it could not since she does not
specify
position.

the

portions

of

the

record

which

support

her

See Hollon ex rel. Hollon v. Comm’r of Soc.

Sec., 447 F.3d 477, 491 (6th Cir. 2006); see also McPherson
v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“[I]ssues
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
5

in the most skeletal way, leaving the court to . . . put
flesh

on

its

omitted)).

bones.”)

(citation

and

quotation

marks

Notably, in the argument section of her brief,

she cites only to pages 305 and 430 of the Administrative
Record and only in support of her “argument” that she is
severely impaired and that the Commissioner failed to take
into

consideration

impairments.

the

cumulative

effect

of

those

These documents appear to be cover pages for

the transmission of medical records and information which
follow.

The

Court

assumes

that

she,

through

counsel,

wishes the Court to review the entire content of those
materials – but the Court is at a loss to determine the
specific

facts

contained

therein

that

she

relies

upon.

Nonetheless, the Court offers the following analysis.
With respect to Plaintiff’s first argument, the ALJ
clearly undertook to articulate his reasons for rejecting
her treating physician’s opinion and did so at length in
keeping with the requirement that he give good reasons for
giving diminished or no weight to a treating physician’s
opinion.
F.3rd

[AR at 18-20]; Allen v. Comm’r of Soc. Sec., 561

646,651

(6th

Cir.

2009);

see

generally

Warner

v.

Comm’r of Soc. Sec., 375 F. 3d 387 (6th Cir. 2004); Jones v.
Comm’r

of

Soc.

Sec.,

336

F.

3d

6

469

(6th

Cir.

2003).

Additionally,

it

appears

to

the

Court

that

he

also

considered the combined effects of all of her impairments
without regard to whether such impairments, if considered
separately, would be of sufficient severity to render her
disabled [See AR at 16, 18-20].
record

which,

disabled,

on

and

balance,

the

He has cited evidence of

demonstrates

she

declines

Court

that
comb

the

to

is

not

record

searching for evidence to the contrary if Plaintiff is not
so inclined [AR at 18-22].
impairments
which

the

and
ALJ

her

This is true for her physical

mental

considered

or

in

psychological

light

of

impairments

listing

12.04

or

12.05, to determine that she was not “disabled” because she
did not meet the criteria listed [AR at 16-18].
To

the

extent

that

Plaintiff

has

presented

any

argument that the ALJ erred in not giving more deference to
Dr. Chaney’s opinion and did not provide adequate reasons
for not giving it more weight, the Court cannot agree.3

3

The treating physician, James Chaney, M.D., provided
a November 2010 physical capacity evaluation form in which
he stated Plaintiff could only work two hours a day,
perform no standing, sit two hours a day, lift five pounds
occasionally and lift nothing frequently [AR at 431]. He
opined Plaintiff could frequently manipulate her hands,
occasionally bend, squat, and reach above the shoulder and
occasionally needed to elevate her legs but could never
crawl or climb [Id.]. He further opined Plaintiff had no
restriction for marked changes in temperature and humidity
or exposure to dust, fumes and gasses; a mild restriction
7

First, she completely fails to account for an ALJ’s earlier
determination, which she did not appeal, that she was not
disabled and how that bound the ALJ in this instance.

She

has made no reference to new or material evidence obtained
from evaluations since March 12, 2009 [AR at 56-65], that
she was not disabled that would change that outcome or
evidence which was not addressed by the ALJ in the June 17,
2011, opinion before this Court [see AR at 13-22, 214].
When

a

plaintiff

previously

has

been

adjudicated

not

disabled, she must show that her condition so worsened in
comparison to her earlier condition that she was unable to
perform substantial gainful activity.

See Casey v. Sec’y

of Health & Human Servs., 987 F.2d 1230, 1232-33 (6th Cir.
1993) (“when a plaintiff previously has been adjudicated
not disabled, she must show that her condition so worsened
in comparison to her earlier condition that she was unable
to

perform

substantial

gainful

activity”);

Drummond

v.

Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997); see also
Acquiescence Ruling 98-4(6), 1998 WL 283902 at *3 (S.S.A.
1998) (explaining how the Commissioner applies Drummond in
the Sixth Circuit).
in driving automobile equipment, unprotected heights and
moving machinery; she needed a frequent sit/stand option;
and that she would miss more than four days of work per
month [Id.].
8

The ALJ found Plaintiff’s medical evidence since the
March 2009 ALJ’s decision revealed some but not significant
changes in her symptoms or limitations [AR at 19].

Indeed,

the records from both time periods reveal findings such as
limited range of motion, muscle spasm and tenderness in
Plaintiff’s

back

and

neck

with

some

limited

range

of

motion, antalgic gait and pain in the lower extremities
[compare AR at 361-64 with AR at 330-33]. This is reflected
in Dr. Chaney’s records from June and November 2009, which
reveal reports of moderate pain and pain at four out of ten
with treatment, similar to his records in September and
December 2008, which was within the period considered by
the

previous

ALJ

[AR

at

330,

332,

361,

363].

As

the

Commissioner has pointed out, additional records from Dr.
Chaney in March 2010 were largely unchanged [AR at 420-21],
and a February 2011 record from the Anne Wasson Clinic
revealed

no

examination,

significant
although

the

abnormalities
Court

notes

that

on

physical

there

is

an

illegible notation about Plaintiff’s back [AR at 432-33].
This

alone

gave

the

ALJ

good

reason

to

conclude

that

Plaintiff was not disabled.
Further, the ALJ gave limited weight to Dr. Chaney’s
opinion statement about her status in the period between
9

that

first

matter

denial

because

subjective

and

it

reports

his

consideration

appeared
and

to

was

be

not

of

based

on

consistent

the

present

Plaintiff’s

with

his

own

treatment notes and the overall findings of record [AR at
19-20].

Specifically,

Chaney’s

opinion

indicated

that

Plaintiff suffered from moderate to severe pain while his
records

indicated

that

her

pain

was

only

moderate

in

nature, i.e., only at a level of four out of ten with
treatment

[AR

at

330,

332,

420,

431].

Thus,

the

ALJ

properly concluded that Chaney’s conclusion that Plaintiff
could work only two hours a day, never stand at work, and
sit only two and hours [AR at 431], which would seemingly
preclude

work

on

a

regular

and

unsupported by his own records.
390-91

(treating

physician

continuing

basis,

was

See Warner, 375 F.3d at

opinion

properly

rejected

because it was based on subjective complaints as opposed to
objective medical evidence and inconsistent with evidence);
Price v. Comm’r of Soc. Sec., 342 F. App’x 172, 176-77 (6th
Cir.

2009)

supported
opinion).

(inconsistency

ALJ’s

decision

with
to

own

discount

treating
treating

records
source

Ultimately, the ALJ had and articulated good

reasons for discounting Dr. Chaney’s opinion.

10

Nor
opinion

did

the

from

ALJ

err

in

consultative

his

consideration

examiner,

Psy.D., as Plaintiff suggests.

Christopher

of

the

Catt,

Dr. Catt assessed Plaintiff

with a global assessment of functioning (GAF) score of 55
and stated that Plaintiff could not manage her own funds at
the time of his evaluation. [DE 10 at 3-4.]

As the ALJ

noted, Dr. Catt’s opinion did not indicate Plaintiff was
disabled

[AR

at

20]

and,

notwithstanding

her

limited

ability to manage funds at the time of the report, found
only

moderate

limitations

in

functioning [AR 17, 309-10].

social

and

occupational

Further, as the ALJ noted,

Plaintiff had received mental health treatment for only a
short

time,

during

the

time

period

after

her

husband’s

death following a heart attack, but had not returned for
further treatment [AR 19, 426-27].

That sporadic treatment

could support the conclusion that she was not disabled on
these grounds.
(6th

Cir.

1990)

See Moon v. Sullivan, 923 F.2d 1175, 1182
(the

sporadic

nature

of

mental

health

treatment supported the ALJ’s conclusion that claimant was
not disabled).
Next, the ALJ’s decision reflects that he did consider
Plaintiff’s impairments in combination in that his finding
at step two referenced “severe impairments” (plural) and
11

the

end

of

impairments
plural)

his

that

[AR

at

RFC
cause

16,

finding

stated

significant

20].

Further,

Plaintiff

limitations”
the

ALJ

“has

(again,

also

found

Plaintiff did not have a “combination of impairments” that
met

or

medically

equaled

a

listing

[AR

at

16].

When

considered in combination with the extended discussion of
evidence obtained from the records of Drs. Chaney and Catt,
this is enough to demonstrate that the ALJ undertook the
required analysis.

See Loy v. Sec’y of Health & Human

Servs., 901 F. 2d 1306, 1310 (6th Cir. 1990).
Ultimately, the ALJ presented a hypothetical question
to

the

vocational

expert

that

accurately

portrayed

the

claimant’s impairments as he saw them and recorded them in
his RFC finding. See Gant v. Comm’r of Soc. Sec., 372 F.
App’x 582, 585 (6th Cir. 2010) (citing Varley v. Sec’y of
Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987));
[AR at 18, 47-49]. Since the Court has concluded that the
RFC was supported by substantial evidence of record, the
vocational expert’s testimony provided substantial evidence
on which the ALJ could rely. See Gant, 372 F. App’x at 585.
The ALJ properly concluded that Plaintiff did not have an
“inability to engage in any substantial gainful activity by
reason

of

any

medically

determinable
12

physical

or

mental

impairment which can be expected to result in death or
which has lasted or is expected to last for a continuous
period

of

not

less

than

12

months.”

42

U.S.C.

§

423(d)(1)(A); see 20 C.F.R. § 404.1512(a)(2012); Ferguson
v. Comm’r of Soc. Sec., 628 F.3d 269, 275 (6th Cir. 2010).
Accordingly, and for the reasons expressed in this opinion,
the decision of the Commissioner will be AFFIRMED.
For

all

of

the

reasons

stated

above,

the

Court

concludes that Summary Judgment in favor of Defendant is
warranted.
(1)

Accordingly, IT IS ORDERED:
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 9th day of April, 2014.

13