Delph v. SSA

Filing 12

OPINION & ORDER: (1) Plaintiff's Motion for Summary Judgment (DE 10) is DENIED; and (2) Defendant' s Motion for Summary Judgment (DE 11) is GRANTED. (3) the decision of the Commissioner is AFFIRMED pursuant to sentence four of 42 U.S.C.
67; 405(g) as it was supported by substantial evidence and was decided byproper legal standards; and (4) a judgment consistent with this Opinion and Order will be entered contemporaneously. Signed by Judge Karen K. Caldwell on 4/17/2014.(MRS)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DISTRICT AT LONDON
CIVIL ACTION NO. 6:13-CV-85-KKC
JOHNNY DELPH
v.

PLAINTIFF
OPINION AND ORDER

CAROLYN W. COLVIN,
Commissioner of Social Security.

DEFENDANT
**********

This matter is before the Court upon cross-motions for summary judgment on
Plaintiff Johnny Delph’s appeal of the Commissioner’s denial of his application for
Supplemental Security Income. The Court, having reviewed the record, will grant the
Commissioner’s motion and deny Delph’s motion because substantial evidence supports the
Administrative Law Judge’s decision.
I. FACTS AND PROCEDURAL HISTORY
Delph alleged disability beginning November 1, 2008, and filed an application for
Supplemental Security Income (“SSI”) on December 3, 2009. (AR, 122). The claim was
denied initially on April 8, 2010, and again upon reconsideration on July 13, 2010. (AR, 60,
61). He then filed a written request for a hearing before an Administrative Law Judge
(“ALJ”). (AR, 12). After the hearing, the ALJ issued a decision denying Delph SSI benefits
on December 28, 2011. (AR, 16–24).
At the time of his application for SSI, Delph was 45 years old and had an eleventh
grade education. (AR, 122, 40). Delph alleges that he injured his back and leg a coal-mining
accident in 1990, and that he did not work from that time until 2000. (AR, 40–41). Since
2000, Delph has work experience as a construction worker and rough carpenter. (AR, 406).

He claims that he became disabled on November 1, 2008 due to back and leg problems
arising from his accident in 1990. (AR, 122, 153).
In determining whether a claimant has a compensable disability under the Social
Security Act, the regulations provide a five-step process that the ALJ is required to follow.
20 C.F.R. § 404.1520(a)–(e); see Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir.
1997). If the claimant is found to be not disabled at any step, the inquiry stops, and
supplemental benefits are denied. The five steps, in summary, are as follows:
(1)

If the claimant is currently engaged in substantial gainful activity, he is not
disabled.

(2)

If the claimant is not engaged in substantial gainful activity, his impairment
must be severe before he can be found disabled.

(3)

If the claimant is not engaged in substantial gainful activity and is suffering
from a severe impairment that has lasted or is expected to last for a
continuous period of at least twelve months, and his impairment meets or
equals a listed impairment, the claimant is presumed disabled without
further inquiry.

(4)

If the claimant’s impairment does not prevent him from doing past relevant
work, he is not disabled.

(5)

Even if the claimant’s impairment does prevent him from doing his past
relevant work, if other work exists in the national economy that
accommodates his residual functional capacity and vocational factors (age,
education, skills, etc.), he is not disabled.

Id. The burden of proof is on the claimant to prove that he is disabled through the first four
steps of the process. Bowen v. Yuckert, 482 U.S. 137, 146, n. 5 (1987). If the ALJ reaches the
fifth step without finding that the claimant is not disabled, then the burden shifts to the
Commissioner to consider his residual functional capacity, age, education, and past work
experience to determine if he could perform other work. Importantly, the Commissioner
only has the burden of “proving that there is work available in the economy that the
claimant can perform.” Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999). If the

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Commissioner fails to meet this burden at step five, then the claimant will be deemed
disabled. 20 C.F.R 404.1520(f).
In this case, the ALJ began his analysis at step one by determining that Delph had
not engaged in substantial gainful activity since his application date, December 3, 2009.
(AR, 18). At step two, the ALJ determined that Delph has the following severe
impairments: lumbar degenerative disc disease; left knee injury; and pain disorder with
psychological features. (AR, 18). Continuing to the third step, the ALJ determined that
Delph does not have an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments. (AR, 18). The ALJ then found that,
based on the medical evidence and record, Delph has the residual functional capacity
(“RFC”) to perform light work as defined in the regulations, except that the he should have
no more than frequent exposure to vibration or work hazards; and that he would be limited
to simple to simple, routine, repetitive tasks with gradual and infrequent changes in the
work setting. (AR, 19).
At step four, the ALJ determined that Delph could not perform his past relevant
work. (AR, 22). However, after considering testimony from the Vocational Expert, the ALJ
determined that based on Delph’s age, education, work experience and RFC, there are other
jobs that exist in significant number in the national economy that Delph could perform.
(AR, 23). Accordingly, the ALJ determined that Delph was not disabled at step five. (AR,
23).
The ALJ’s decision that Delph is not disabled became the final decision of the
Commissioner when the Appeals Council subsequently denied his request for review on
February 22, 2013. (AR, 1). Delph has exhausted his administrative remedies and filed a
timely action in this Court. This case is now ripe for review under 42 U.S.C. § 405(g).

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II.

GENERAL STANDARD OF REVIEW
The decision of the Commissioner must be supported by substantial evidence. Varley

v. Sec’y of Health and Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). Once the decision of
the Commissioner is final, an appeal may be taken to the United States District Court
pursuant to 42 U.S.C. § 405(g). Judicial review of the Commissioner’s decision is restricted
to determining whether it is supported by substantial evidence and was made pursuant to
the proper legal standards. See Cutlip v. Sec’y of Health and 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. In reviewing the decision of the
Commissioner, courts are not to conduct a de novo review, resolve conflicts in the evidence,
or made credibility determinations. See id. Rather, the court must affirm the
Commissioner’s decision so long as it is supported by substantial evidence, even if the court
might have decided the case differently. See Her, 203 F.3d at 389–90. However, the court
must review 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).
III.

ANALYSIS
On appeal, Delph offers two reasons in support of his argument that the ALJ’s

decision is not supported by substantial evidence and was not decided by proper legal
standards. First, he contends that the ALJ failed to assign greater weight to the opinion of
his treating physician, Dr. Michael Moore, when assessing Delph’s RFC. Second, he asserts
that the ALJ improperly omitted an essential restriction when he asked the Vocational

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Expert the hypothetical question on which the ALJ relied in determining that there were
other jobs that Delph could perform.
1. Treating Physician’s Opinions
The Court turns first to the ALJ’s analysis of the opinions of Delph’s treating
physician, Dr. Moore. Delph contends that the ALJ failed to adopt Dr. Moore’s opinion that
he was limited to lifting or carrying objects less than ten pounds; that he could stand or
walk less than two hours in an eight hour workday; that he is sometimes limited in
reaching; that he could sit less than six hours in an eight hour workday; that he is limited
in pushing and/or pulling in both the upper and lower extremities; that he should never be
engaged in climbing, balancing, kneeling, crouching, crawling, or stooping; and that he
should not be exposed to temperature extremes, vibration, humidity/wetness, and hazards.
(AR, 520–23).
In general, an ALJ should give more weight to the opinions of treating physicians
than other sources because:
these sources are likely are to be the medical professionals most able to
provide a detailed longitudinal picture of [the Claimant’s] medical
experiment(s) and may bring a unique perspective to the medical evidence
that cannot be obtained from the objective medical findings alone or from
reports of individual examinations, such as consultative examinations or
brief hospitalizations.
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (quoting 20 C.F.R. §
404.1527(d)(2)). However, the Sixth Circuit has consistently stated that the “Secretary is
not bound by the treating physician’s opinions, and that such opinions receive great weight
only if they are supported by sufficient clinical findings and are consistent with the
evidence.” Bogle v. Sullivan, 998 F.2d 342, 347–48 (6th Cir. 1993) (citing Young v. Sec’y of
Health & Human Servs., 925 F.2d 146, 151 (6th Cir. 1990)). Put another way, Treatingsource opinions receive controlling weight if “(1) the opinion is well-supported by medically

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acceptable clinical and laboratory diagnostic techniques; and (2) the opinion is not
inconsistent with the other substantial evidence in [the] case record.” Gayheart v. Comm’r
of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (internal citations omitted); 20 C.FR. §
404.1527(c)(2). Where an ALJ grants little weight to a treating physician’s opinion, he must
cite legitimate reasons for doing so. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The opinion
of state agency consultants and other program physicians can be given great weight if
supported by the evidence because they are experts in the Social Security disability field. 20
C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i); SSR 96-6p.
Here, the ALJ gave little weight to Dr. Moore’s opinion and cited several reasons for
doing so. First, the ALJ found Dr. Moore’s own treatment notes did not support the level of
impairment asserted by his assessment. (AR, 21). More specifically, the ALJ found that Dr.
Moore’s treatment notes were not detailed and reflected that his treatment of Delph’s
injuries has been conservative in nature, involving primarily medication management.
Gayheart, 710 F.3d at 376; (AR, 20). Second, the ALJ found that physical examinations of
Delph, which showed that he could ambulate without difficulty and has negative straight
leg raising with no weakness, sensory loss, or reflex asymmetry, were inconsistent with Dr.
Moore’s opinions. (AR, 21). The ALJ gave great weight to Dr. Barry Burchett’s consultative
physical examination of Delph, which revealed that although Delph walked with a mild
limp, he was able to walk, perform tandem gait, and squat without difficulty. (AR, 21).
Third, the ALJ found that evidence of Delph’s activities of daily living reveals that he
engages in a variety of daily activities including cooking, shopping, and independently
managing his affairs. (AR, 21); see Hash v. Comm’r of Soc. Sec., 309 Fed. Appx. 981, 987
(6th Cir. 2009).
After reviewing the record, the Court finds that the ALJ’s cited reasons for
discounting the opinions of Dr. Moore are legitimate and were supported by substantial

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evidence. The finding that Dr. Moore’s treatment notes and approach from 2000 forward
were not consistent with his August 2010 evaluation, coupled with the other medical
evidence and Delph’s own testimony about his daily activities, amounts to substantial
evidence to support the ALJ’s decision to give little weight to Dr. Moore’s restrictions when
assessing Delph’s RFC.
2. Hypothetical Question Posed to the Vocational Expert
Next, the Court turns to Delph’s second argument: that the ALJ improperly omitted
an essential restriction when he posed the hypothetical to the Vocational Expert. The ALJ
relied on the Vocational Expert’s opinion during his analysis under step five. As previously
noted, at this stage of a disability determination, the Commissioner has the burden of
establishing that there is sufficient work in the national economy that the claimant can
perform given his RFC, age, education, and work experience. See 20 C.F.R. § 404.1520(g);
20 C.F.R. § 404.1512(g); 20 C.F.R. § 404.1560(c). “To meet this burden, there must be a
finding supported by substantial evidence that plaintiff has the vocational qualifications to
perform specific jobs.” Varley v. Sec’y of Health and Human Servs., 820 F.2d 777, 779 (6th
Cir. 1987) (internal quotations and citation omitted). “Substantial evidence may be
produced through reliance on the testimony of a vocation expert in response to a
hypothetical question, but only if the question accurately portrays plaintiff’s individual
physical and mental impairments.” Id. (internal citations omitted).
The hypothetical question on which the ALJ relied posed the individual as capable of
light exertion, that should not have more than frequent exposure to vibration or work
hazards, and that is limited to simple, routine, repetitive tasks with gradual and infrequent
changes in the work setting. (AR, 55–56). Delph asserts the ALJ improperly excluded a
provision that the individual is moderately limited in his ability to tolerate stress and
pressure from day-to-day employment. Delph further contends that this limitation

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precludes the ability to produce a certain quota, and therefore, the hypothetical question
should have included a provision for jobs not requiring a quota. The latter contention is
without merit and the Court will not address it, as there was no medical evidence produced
regarding Delph’s ability to produce certain quota. See (AR, 405–410).
Delph asserts that he cannot tolerate day-to-day stress and pressure is based on Dr.
Jeanne Bennett’s opinions from her consultative examination. Dr. Bennett opined that
Delph’s capacity to understand, remember, carry out instructions, and sustain attention
and concentration towards the performance of simple and repetitive tasks is not affected by
his impairment. (AR, 410–11). She further opined that Delph’s ability to tolerate stress and
pressure of day-to-day employment is affected by his impairment with moderate limitations
noted, and that his capacity to respond appropriately to supervision, coworkers, and work
pressure in a work setting is affect by the impairment with slight limitations noted. (AR,
410–11).
For purposes of evaluating an SSI claim, a mental impairment must result in at
least two of the following: marked restriction of activities of daily living; marked difficulties
in maintaining social functioning; marked difficulties in maintaining concentration,
persistence, or pace; or repeated episodes of decompensation, each of extended duration. 20
C.F.R. Pt. 404, Subpt. P, App. 1, §12.07(B). A marked limitation means more than moderate
but less than extreme. 20 C.F.R. Pt. 404, Subpt. P, App. 1, §112.00.
The ALJ gave great weight to Dr. Bennett’s opinions and found that Delph has
“some moderate, although not debilitating, mental limitations in complex work with
frequent changes due to psychological feature of his pain disorder.” (AR, 21–22). The ALJ
found that Delph did not have a more than moderate limitation in his activities of daily
living, social functioning, and maintaining concentration, persistence, and pace. (AR, 18).
Delph also never experienced any extended period of decompensation. (AR, 18). The ALJ

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concluded that although Delph “may become nervous at times, the evidence showed that he
was able to think clearly, use good judgment, and act in his own best interest.” (AR, 22).
The ALJ also noted that Delph has received no mental health treatment from a specialist,
nor was he referred by his primary care physician to a specialist since the alleged onset
date of his disability. (AR, 22). The ALJ concluded that the evidence supported that the
Delph has the mental capacity to perform simple tasks with gradual and infrequent
changes. (AR, 22).
This Court finds that the ALJ’s conclusions as to Delph’s mental limitations were
supported by substantial evidence. The ALJ properly considered the evidence related to
Delph’s mental limitations and found them to only moderately affect his ability to work.
Consequently, the hypothetical question posed to the Vocational Expert accurately
portrayed Delph’s mental limitations because it included a provision that the individual is
limited to simple, routine, repetitive tasks with gradual and infrequent changes in the work
setting. The ALJ did not err by failing to include additional mental limitations as there was
not sufficient evidence that any limitation was more than moderate in accordance with the
Social Security regulations.
Accordingly, Delph has failed to establish entitlement to a period of disability and
disability insurance benefits. As set forth above, a review of the entire record reveals that
substantial evidence supports the ALJ’s RFC finding and that the Vocational Expert
identified jobs that would be compatible with his individual vocational characteristics and
RFC. In conclusion, the decision of the ALJ that Delph is not disabled is supported by
substantial evidence and was made pursuant to the proper legal standards.

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IV.

CONCLUSION
For the reasons set forth above, the Court, being fully and sufficiently advised,

hereby ORDERS as follows:
(1) Plaintiff’s Motion for Summary Judgment (DE 10) is DENIED; and
(2) Defendant’s Motion for Summary Judgment (DE 11) is GRANTED.
(3) the decision of the Commissioner is AFFIRMED pursuant to sentence four of 42
U.S.C. § 405(g) as it was supported by substantial evidence and was decided by
proper legal standards; and
(4) a judgment consistent with this Opinion and Order will be entered
contemporaneously.
This is the 16th day of April, 2014.

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