Jones v. SSA

Filing 12

MEMORANDUM OPINION & ORDER: (1) Plaintiff's Motion for Summary Judgment (Doc. # 10 ) is hereby denied; (2) Defendant's Motion for Summary Judgment (Doc. # 11 ) is hereby granted; (3) This case shall be dismissed with prejudice; and (4) A Judgment shall be entered concurrently herewith. Signed by Judge David L. Bunning on 3/17/14.(SYD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 13-53-DLB
LISA M. JONES

vs.

PLAINTIFF

MEMORANDUM ORDER AND OPINION

CAROLYN W. COLVIN, Acting Commissioner
of Social Security Administration
***

***

***

DEFENDANT
***

Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review
of an administrative decision of the Commissioner of Social Security. The Court, having
reviewed the record, will affirm the Commissioner’s decision, as the ALJ did not commit
reversible error at Step 2 of the sequential analysis, and he posed a proper hypothetical
to the Vocational Expert.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Lisa M. Jones applied for Supplemental Security Income (SSI) on August
6, 2010, alleging a disability onset date of January 31, 2010. Her application was denied
initially and on reconsideration (Tr. 46-70). On October 4, 2011, Administrative Law Judge
Mark Siegel conducted an administrative hearing at Plaintiff’s request. (Tr. 26-45). After
considering the record and Plaintiff’s testimony, ALJ Siegel ruled that Plaintiff was not
entitled to SSI. (Tr. 10-25). Plaintiff appealed that decision to the Appeals Council, and
submitted additional evidence in support of her appeal. (Tr. 7-9). Thereafter, on January

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18, 2013, the Appeals Council denied Plaintiff’s request for review, making ALJ Siegel’s
decision the final decision. (Tr. 1-6).
Plaintiff filed the instant action on March 15, 2013. (Doc. # 1). It has culminated in
cross-motions for summary judgment (Docs. # 10, 11), which are ripe for review.
II. DISCUSSION
A.

Overview of the Process
Judicial review of the Commissioner’s decision is restricted to determining whether

it is supported by substantial evidence and was made pursuant to proper legal standards.
See Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
“Substantial evidence” is defined as “more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. Courts are not to conduct a de novo review, resolve
conflicts in the evidence, or make credibility determinations. Id. Rather, the Court is to
affirm the Commissioner’s decision, provided it is supported by substantial evidence, even
if the Court might have decided the case differently. See Her v. Comm’r of Soc. Sec., 203
F.3d 388, 389-90 (6th Cir. 1999).
The ALJ, in determining disability, conducts a five-step analysis. Step 1 considers
whether the claimant is still performing substantial gainful activity; Step 2, whether any of
the claimant’s impairments are “severe”; Step 3, whether the impairments meet or equal
a listing in the Listing of Impairments; Step 4, whether the claimant can still perform his past
relevant work; and Step 5, whether significant numbers of other jobs exist in the national
economy which the claimant can perform. As to the last step, the burden of proof shifts
from the claimant to the Commissioner. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469,
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474 (6th Cir. 2003); Preslar v. Sec’y of Health & Human Servs., 14 F.3d 1107, 1110 (6th
Cir. 1994).
B.

The ALJ’s Determination
At Step 1, the ALJ found that Plaintiff had not engaged in substantial gainful activity

since the alleged onset date. (Tr. 15). At Step 2, the ALJ found that Plaintiff had the
following severe impairments within the meaning of the regulations: seizure disorder,
obesity, and borderline intellectual funding. (Id.). However, the ALJ found that Plaintiff’s
alleged fibromyalgia, hearing problems, restless leg syndrome, right knee and back
disorder, and anxiety problems did not amount to medically determinable impairments, nor
do they cause more than minimal limitations in Plaintiff’s ability to work. Therefore, the ALJ
concluded that none of these impairments were severe within the meaning of the
regulations.
At Step 3, the ALJ concluded that Plaintiff does not have an impairment or
combination of impairments listed in, or medically equal to, an impairment listed in 20 CFR
Part 404, Subpart P, Appendix 1. (Tr. 16). In reaching this conclusion, the ALJ found that
Plaintiff had mild restrictions in activities of daily living, noting that she was able to care for
herself and her children, do housework, and prepare meals. Additionally, the ALJ found
that Plaintiff had moderate difficulties in social functioning, concentration, persistence, and
pace.
At Step 4, the ALJ found that Plaintiff has the residual functional capacity (RFC) to
perform a full range of work at all exertional levels, but with the following limitations:
[Plaintiff] is unable to climb rope, ladders or scaffolds and should not have
any exposure to work hazards. She is additionally limited to understanding,
remembering, and carrying out simple instructions.
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(Tr. 17).

However, the ALJ also concluded that Plaintiff is unable to perform any past

relevant work. (Tr. 18).
Accordingly, the ALJ proceeded to the final step of the sequential evaluation. At
Step 5, he ALJ found that there are a significant number of jobs in the national economy
that Plaintiff could perform (Tr. 19-20). The ALJ based this conclusion on testimony from
a vocational expert (VE), in response to a hypothetical question assuming an individual of
Plaintiff’s age, education, work experience, and RFC. (Tr. 20). The VE testified that a
hypothetical individual with Plaintiff’s vocational profile and RFC could find work at the
heavy exertion level as a janitor (1,700 regionally/132,000 nationally), farm worker (1,800
regionally/116,000 nationally), and packer (1,200 regionally/87,000 regionally). At the
medium exertion level, the VE testified that the hypothetical individual could find work as
a material mover (9000 regionally/567,000 nationally), production worker (3,700
regionally/194,000 nationally), and laundry worker (7000 regionally/40,000 nationally).
Finally, the VE testified that the hypothetical individual could find work at a light exertional
level as a machine feeder (1,400 regionally/42,000 nationally), dishwasher (1,500
regionally/139,000 nationally), and a janitor (1,700 regionally/133,000 nationally). Based
on the VE’s testimony, and Plaintiff’s age, education, work experience, and RFC, the ALJ
found that Plaintiff is capable of making a successful adjustment to other work that exists
in significant numbers in the national economy. (Tr. 20). Thus, the ALJ concluded that she
was not under a “disability” as defined by the Social Security Act. (Id.).
C.

Analysis
Plaintiff advances three arguments on appeal. First, Plaintiff argues that the ALJ

erred in finding that her back and anxiety problems were not severe impairments. Second,
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Plaintiff contends that the ALJ failed to pose a proper hypothetical to the VE because he
omitted an essential restriction. Finally, Plaintiff believes that the ALJ’s determination is not
based on substantial evidence. Each of these arguments will be addressed in turn.
1.

The ALJ did not commit reversible error in finding that Plaintiff’s back
and anxiety problems are not severe impairments

Plaintiff argues the ALJ erred in finding that her back and anxiety problems are not
severe impairments. Although she does not say as much, it seems Plaintiff is attacking the
ALJ’s analysis at step two of the five-step disability analysis. At that step, the ALJ must
determine whether the individual has a “severe medically determinable physical or mental
impairment” or “combination of impairments that is severe.” 20 C.F.R. § 404.1520(a)(4)(ii).
An impairment is severe if it “significantly limits [a claimants] physical or mental ability to
do basic work activities.”

20 C.F.R. § 404.1520©.

The severity inquiry has been

“construed as a de minimum hurdle in the disability determination process.” Higgs v.
Brown, 880 F.2d 860, 862 (6th Cir. 1988).
If the ALJ finds that at least one of the claimant’s alleged impairments is severe in
nature, the claim survives the step two screening process. 20 C.F.R. § 404.1520(a)(4).
Because the Regulations instruct the ALJ to consider both severe and non-severe
impairments in the remaining steps of the disability determination analysis, any impairment
erroneously labeled as “non-severe” will not be ignored altogether.

20 C.F.R. §

404.1545(a)(2). For this reason, courts have consistently held that an ALJ does not commit
reversible error when he decides that some of claimant’s impairments are not severe, but
finds that other impairments are severe and proceeds with his analysis. Maziarz v. Sec’y
Health & Human Serv., 837 F.2d 240, 244 (6th Cir. 1987) (“Since the Secretary properly
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could consider claimant’s cervical condition in determining whether claimant retained
sufficient residual functional capacity to allow him to perform substantial gainful activity, the
Secretary’s failure to find that claimant’s cervical condition constituted a severe impairment
could not constitute reversible error.”); McGlothin v. Comm’r, 299 F. App’x 516, 522 (6th
Cir. 2008) (finding it “legally irrelevant” that the ALJ determined that some of claimant’s
impairments were severe and some were not because “once any one impairment is found
to be severe, the ALJ must consider both severe and non-severe impairments in the
subsequent steps”).
Here, the ALJ concluded that Plaintiff had three severe impairments: seizure
disorder, obesity, and borderline intellectual functioning. The ALJ then proceeded to the
remaining steps of the sequential analysis, as he was required to do, and considered both
Plaintiff’s severe and non-severe impairments. At Step 3, he considered “all of the
claimant’s impairments individually and in combination but . . . [found] no evidence that the
combined clinical findings from such impairments reach the level of severity contemplated
in the Listings.” (Tr. 16). And at Step 4, he specifically discussed Plaintiff’s complaints of
back pain and anxiety. He found there was “little [or] no objective evidence of . . . anxiety
or “nerve” problems in the record” to support Plaintiff’s allegations that her anxiety caused
panic attacks or problems sleeping. (Tr. 17). Regarding her complaint of back pain, the
ALJ found that “there is no indication that the claimant has required treatment other than
pain medication.” (Tr. 18). Moreover, he found that the objective testing and medical
imaging did not support Plaintiff’s complaints of debilitating back pain. (Id.). Ultimately,
because the ALJ found that Plaintiff had multiple severe impairments and then considered
her severe and non-severe impairments in the remaining steps, it was “legally irrelevant”
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that Plaintiff’s back pain and anxiety were determined non-severe. See McGlothin, 299 F.
App’x at 522. This alleged error does not warrant reversal.
2.

The ALJ posed a proper hypothetical question to the Vocational Expert

Plaintiff argues that the ALJ posed an improper hypothetical to the VE because it
failed to account for her “non-exertional impairments.” (Doc. # 10-1 at 16). While
Plaintiff’s briefing on this issue is unclear, she seems to argue that the ALJ’s hypothetical
should have included quota limitations because she is unable to keep pace. Plaintiff
believes the opinion of Dr. Robert S. Spangler, Ed. D., supports this limitation, and that the
ALJ erred in according Dr. Spangler’s opinion little weight.
“The ALJ is required to include in the hypothetical questions only those limitations
that accurately portray a claimant’s physical and mental impairments.” Brewer v. Soc. Sec.
Admin., 39 F. App’x 252, 254 (6th Cir. 2002). “The ALJ is not obligated to include
unsubstantiated complaints in his hypothetical questions.” Id. Additionally, the ALJ is not
required to include limitations assessed by any treating or non-treating source so long as
that source’s opinion is properly rejected. Grant v. Commissioner of Soc. Sec., 372 F.
App’x 582, 587 (6th Cir. 2010) (“Because the ALJ properly discounted the medical opinions
of the other doctors, he also properly excluded the limitations assessed by the doctors from
the hypothetical question.”).
The question, then, is whether the ALJ properly rejected the limitations assessed by
Dr. Robert S. Spangler. The ALJ considered Dr. Spangler as “not an acceptable medical
source.” (Tr. 18). Plaintiff does not challenge this consideration. As an “other source,” the
ALJ has the discretion to determine the proper weight to give Dr. Spangler’s opinion. Cruse
v. Comm. of Soc. Sec., 502 F.3d 532, 541 (6th Cir. 2007). Social Security Ruling 06-03P
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gives the ALJ five factors he must consider in exercising this discretion: how long the
source has known the individual, how consistent the opinion is with other evidence, the
degree to which the source presents relevant evidence to support an opinion, how well the
source explains the opinion, and whether the source has a specialty or area of expertise
related to the individual’s impairment(s). Id. (citing Martin v. Barnhart, 470 F. Supp. 2d
1324, 1328-29 (D. Utah 2006)); SSR 06-03P, 2006 WL 2329939 at *5-6. Additionally, the
Social Security Ruling requires the ALJ to “explain the weight given to opinions for these
‘other sources, or otherwise ensure that the discussion of the evidence in the determination
or decision allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning.
. . . “ SSR 06-03P, 2006 WL 2329939 at *6.
The ALJ appropriately exercised his discretion in according Dr. Spangler’s opinion
little weight. As the ALJ explained, Dr. Spangler had minimal familiarity with the Plaintiff;
he conducted an exam of Plaintiff one month before the evidentiary hearing, but never
provided her with any sort of treatment. (Tr. 18). Pursuant to SSR 06-03P, Dr. Spangler’s
limited history with Plaintiff served as one strike against the credibility of his opinion.
Additionally, Dr. Spangler formed his opinion based solely on Plaintiff’s subjective
complaints. (Id.). In doing so, he accepted all of Plaintiff’s subjective complaints as true.
(Id.). The evidence supporting Dr. Spangler’s opinion was thus suspect, at best, serving
as a second strike against the credibility of his opinion.

When these two strikes were

coupled together, the ALJ acted well within his discretion to reject Dr. Spangler’s opinion.
The ALJ, therefore, did not err in posing a hypothetical to the ALJ that did not include
limitations supported only by Dr. Spangler’s opinion.

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3.

Plaintiff’s “Substantial Evidence” Argument

Plaintiff generally argues that “there is not substantial evidence to support the denial
of his [sic] application for social security benefits.” (Doc. # 10-1 at 18). She offers no
specific challenge in this regard other than to say that “[t]he objective medical evidence
unequivocally documents that the Plaintiff has several severe conditions which are
disabling.” (Id.).
Plaintiff’s counsel has apparently presented this same terse argument in at least one
other Social Security appeal filed in the Eastern District of Kentucky, which was rejected
by Senior Judge Karl Forester. In Vasquez v. Astrue, Judge Forester summarized the law
on how the court should treat undeveloped arguments as follows:
Issues adverted to in a perfunctory manner, unaccompanied by some effort
at developed augmentation, are deemed waived. It is not sufficient for a
party to mention a possible argument in the most skeletal way, leaving the
court to . . . put flesh on its bones. In Hollon ex rel. Hollon v. Commissioner
of Social Security, 447 F. 3d 477, 490-91 (6th Cir. 2006), a claimant similarly
contended that the Commissioner’s decision to discontinue her benefits was
not supported by substantial evidence, yet made little effort to develop this
argument in her brief or to identify any specific aspects of the
Commissioner’s determination that lacked support in the record. In these
circumstances, the Sixth Circuit noted that it
decline[d] to formulate arguments on [a claimant's] behalf, or to
undertake an open-ended review of the entirety of the administrative
record to determine (I) whether it might contain evidence that arguably
is inconsistent with the Commissioner's decision, and (ii) if so, whether
the Commissioner sufficiently accounted for this evidence. Rather, we
limit our consideration to the particular points that [a claimant] appears
to raise in [his/her] brief on appeal.
Id. at 491. . .
Vasquez v. Astrue, 6:12-cv-125-KSF, 2013 WL 1498895, at *7 (E.D. Ky. April 11, 2013).
Because the plaintiff failed to develop any particular error in arguing that the ALJ’s decision
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was not supported by substantial evidence, Judge Forester held that the plaintiff’s general
argument was deemed waived. Id.
The Court finds Judge Forester’s holding in Vasquez equally applicable here.
Plaintiff’s general claim that “objective medical evidence unequivocally documents that
[she] has several severe conditions which are disabling” leaves the Court with little
argument to analyze. (Doc. # 10-1). The Court will not guess as to what those conditions
may be or how they entitle Plaintiff to a finding that she is disabled. Therefore, Plaintiff’s
general argument that the ALJ’s decision is not supported by substantial evidence is
deemed waived.
D.

Conclusion
Accordingly, for the reasons set forth herein,
IT IS ORDERED as follows:
(1)

Plaintiff’s Motion for Summary Judgment (Doc. # 10) is hereby denied;

(2)

Defendant’s Motion for Summary Judgment (Doc. # 11) is hereby granted;

(3)

This case shall be dismissed with prejudice; and

(4)

A Judgment shall be entered concurrently herewith.

This 17th day of March, 2014.

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