Vanover v. SSA

Filing 15

MEMORANDUM OPINION & ORDER: (1) The decision of the Commissioner is supported by substantial evidence and is hereby AFFIRMED; (2) Plaintiff's Motion for Summary Judgment (Doc. # 11 ) is hereby DENIED; (3) Defendant's Motion for Summary Judgment (Doc. # 14 ) is hereby GRANTED; (4) A Judgment shall be entered contemporaneously herewith. Case Terminated. Signed by Judge David L. Bunning on 7/23/2014.(RBB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 13-93-DLB
DARLENE VANOVER

vs.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

CAROLYN W. COLVIN, Acting
Commissioner of Social Security

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 it is supported by
substantial evidence.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Darlene Vanover filed her application for Supplemental Security Income
(SSI) on October 20, 2005, alleging a disability onset date of October 18, 2005. (Tr. 103).
She claimed she was no longer able to perform substantial gainful activity due to disabling
back pain, dizziness, and depression. Plaintiff’s claim was denied initially (Tr. 113), and
again on reconsideration (Tr. 118). At Plaintiff’s request, an ALJ held a hearing on October
10, 2007, and thereafter denied her claim. (Tr. 92-98). The Appeals Council, however,
vacated the ALJ’s decision and remanded Plaintiff’s claim for further findings and
clarifications.

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The ALJ held another hearing on November 22, 2011, and again denied her claim.
(Tr. 47-58). Plaintiff appealed that decision to the Appeals Council, which denied her
request for review in March 2013. (Tr. 8-12). This appeal followed.
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. See id. Rather, we are to
affirm the Commissioner’s decision, provided it is supported by substantial evidence, even
if we 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,
474 (6th Cir. 2003); Preslar v. Sec’y of Health & Human Servs., 14 F.3d 1107, 1110 (6th
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Cir. 1994).
B. The ALJ’s Determination
At Step 1, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since October 20, 2005, the application date. (Tr. 52). At Step 2, the ALJ found that
Plaintiff’s back pain and affective mood disorder were severe impairments within the
meaning of the regulations. (Id.). At Step 3, the ALJ found that Plaintiff does not have an
impairment or combination of impairments that meets or medically equals the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 53).
At Step 4, the ALJ concluded that Plaintiff has the residual functional capacity (RFC)
to perform “a range of light work,” with the following limitations:
[Plaintiff] can lift up to 20 pounds occasionally and 10 pounds more
frequently; stand and/or walk six hours total out of eight; and sit six hours
total out of eight. There are no limitations on pushing or pulling and she can
frequently climb, balance, stoop, crouch, kneel and crawl but is limited on
vibration and overhead reaching with the upper right extremity to frequently.
There are no limitations in her ability to understand, remember and carry out
simple instructions or make judgments on simple work-related decisions.
She has mild limitations . . . in ability to understand, remember and carry out
complex job instructions; make judgments on complex work-related
decisions; or to interact appropriately with the public, coworkers and
supervisors. Finally, she has mild limitations in her ability to respond
appropriately to usual work situations and to changes in a routine work
setting.
(Tr. 56).
Accordingly, the ALJ proceeded to the final step of the sequential analysis. At Step
5, the ALJ found that Plaintiff was capable of performing her past relevant work as a hotel
maid, and otherwise capable of performing a significant number of jobs in the national
economy, to include housekeeping and laundry services. (Tr. 57). The ALJ based this
conclusion on the testimony from a vocational expert (VE), in response to a hypothetical
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assuming an individual of Plaintiff’s age, education, work experience, and RFC. (Tr. 58).
Based on the VE’s testimony and Plaintiff’s age, education, work experience, and RFC,
the ALJ found that Plaintiff was not under a “disability” as defined by the Social Security
Act. (Id.).
C.

Analysis

Plaintiff lists five issues on appeal: (1) whether the ALJ met the required standard
of giving appropriate weight to the treating physician; (2) whether the ALJ gave adequate
reasoning for refusing to accept the opinion of the treating physician; (3) whether a
reasonable person could conclude and justify that Plaintiff is not disabled in light of the
substantial limitations assigned by the treating physician, supported by overwhelming
evidence of a lifetime of such difficulties and further evaluation of the consultative
physician; (4) whether the ALJ considered the combined effects of all of her impairments;
and (5) whether the ALJ considered the duration requirement of substantial gainful activity
and not merely the ability to find a job and physically perform it.
1.

The ALJ’s decision to reject the opinion of Plaintiff’s treating
physician was both adequately explained and supported by
substantial evidence

The first three issues will be treated as one because they all relate to the ALJ’s
decision to reject the opinions of Plaintiff’s treating physician, Dr. Laura Asher. After
treating Plaintiff for seven months, Dr. Asher rendered a report in September 2009 that
Plaintiff suffers “severe” pain and would be forced to miss at least twenty days of work per
month because of her physical limitations. Dr. Asher opined that Plaintiff could work zero
hours a day, stand only one hour and sit only two hours in an eight-hour day. Further, Dr.
Asher found that Plaintiff could only occasionally bend and manipulate her hands, and she
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could never squat, crawl, climb or reach above shoulder level. Finally, Dr. Asher remarked
that Plaintiff was moderately restricted in her ability to drive automobiles. To be blunt, Dr.
Asher offered a grim outlook for Plaintiff.
Plaintiff believes Dr. Asher’s opinion is supported by objective medical evidence.
Specifically, she points to an MRI performed on July 26, 2012 MRI showing she had mild
indentation on the ventral thecal surface of the C5-C6 and C6-C7 disks, and narrowing of
the neural foraminals. She believes these results are consistent with an MRI performed
on October 18, 2011 (Tr. 416), and are supported by a second MRI performed that same
day, which found a mild anterior disc bulge at L2-L3 disc and degenerative changes
between the L1-L2 and L4-L5 discs. (Tr. 418). Additionally, Plaintiff believes Dr. Asher’s
opinion is supported by the report of Consultative Examiner Charles Laney, who opined
that Plaintiff cannot sit or stand more than an hour in an eight-hour day (Tr. 382). Because
this evidence supports the findings of Plaintiff’s treating physician, Plaintiff argues the ALJ
erred in failing to give her treating physician controlling weight.
A treating physician’s opinion as to the nature and severity of a claimant’s condition
is entitled to “controlling weight” if it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial evidence in
the case record.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007). Even
if the opinion is not entitled to “controlling weight,” there remain a presumption, albeit a
rebuttable one, “that the opinion of a treating physician is entitled to great deference.” Id.
In determining how much deference to give to the treating physician’s opinion, the ALJ
must consider a number of factors, including “the length, frequency, nature, and extent of
the treatment relationship; the supportability and consistency of the physician’s
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conclusions; the specialization of the physician; and any other relevant factors.” Id.
The ALJ must also “provide ‘good reasons’ for discounting treating physicians’
opinions, reasons that are sufficiently specific to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating source’s medical opinion and the reasons
for that weight.” Id. This rule ensures that claimants understand the disposition of their
case, particularly when their own physician deems them disabled, and also permits
meaningful appellate review of the ALJ’s decision. Id. Thus, even if the ALJ’s decision to
disregard the treating physician’s opinion is supported by the record, the decision may still
be reversed if adequate explanation is missing. Id.
Here, the ALJ explicitly stated that she did not accord Dr. Asher’s opinion any
significant weight for two reasons (Tr. 56, 57). First, Plaintiff conceded that Dr. Asher’s
functional limitations were based on the limitations she reported to the doctor at her
appointments. (Tr. 662. 663). For example, Dr. Asher’s opinions about how much Plaintiff
could lift or walk were based on Plaintiff’s own answers to those questions. It was
permissible for the ALJ to disregard the treating physician’s opinion on this basis,
particularly when the ALJ also concluded that Plaintiff was not credible. Smith v. Comm’r
of Soc. Sec., 482 F.3d 873, 877 (6th Cir. 2007). Second, the ALJ noted that Dr. Asher’s
opinions were inconsistent with the objective medical evidence.

That opinion was

adequately explained and supported by substantial evidence.
As the ALJ explained, Plaintiff’s MRIs showed mild to minimal limitations. This is
even true of the MRIs Plaintiff relies upon in support of her argument that she is disabled.
For example, Plaintiff’s July 16, 2012 MRI, which she cites in her motion for summary
judgment, found that her “vertebral bodies are normal in height,” there is “mild indentation
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. . .on the ventral thecal surface at C5-C6 and C6-C7 disk space,” and that the “rest of the
cervical disks are normal in height and signal intensities and shows no significant herniation
of the nucleus pulposus.” (Tr. 20) (emphasis added). The MRI did note degenerative
changes in the facet joints at C5-C6 and C6-C7 bilaterally, but described “mild” stenosis
at each of those joints. (Id.).
An October 18, 2011 MRI produced equally unremarkable results. (Tr. 420). It
found that Plaintiff’s “thoracic vertebral bodies are normal in heigh” and that there is “no
evidence of acute compression fracture or spondylolisthesis.” (Id.). The MRI also found
that Plaintiff’s thoracic cord is “normal in configuration and signal intensity” and “no
significant herniation of the nucleus pulposus.”

(Id.) (emphasis added).

“visualized soft tissue appear[ed] grossly unremarkable.”

Moreover,

(Id.). (emphasis added).

Ultimately, the MRI rendered “negative results.” (Id.).
Another MRI from October 18, 2011 revealed some structural abnormalities, but
showed nothing to support Dr. Asher’s grim functional limitations. It noted “mild scoliosis,”
“mild anterior marginal osteophytes,” and “disc degenerative changes . . . with decreased
T2 signal intensity from L1-L2, though L4-L5 discs.” (Tr. 418). But the MRI also found that
lumbar vertebral bodies and lumbar disks were normal in height and signal intensity. There
was no significant herniation of the nucleus pulposus, nor was there stenosis of the spinal
cord. (Id.).
The ALJ also explained that treatment notes were inconsistent with Dr. Asher’s
report and Plaintiff’s subjective complaints. Doctors routinely noted that Plaintiff had normal
gait and station, and muscle strength, although they did note reduced range of motion at
times. (Tr. 484, 489, 498, 501, 503, 508, 517, 521, 525, 535, 541, 550, 555). In fact,
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Plaintiff reported to a different doctor at the same time she was seeing Dr. Asher, and did
not complain of numbness in her hands as she had complained to Dr. Asher. (Tr. 572,
573). Moreover, Dr. Elizabeth Douglas, who treated Plaintiff immediately after Dr. Asher,
noted in May 2011 that Plaintiff had negative signs of numbness in her hands and negative
straight leg raise test.

Dr. Douglas was also unable to maneuver Plaintiff’s upper

extremities to recreate the pain that Plaintiff complained about. (Tr. 489).
Additionally, the ALJ found that Dr. Asher’s opinions were inconsistent with the
findings of Consultative Examiner Dr. Marc Burns. In December 2005, Dr. Burns noted that
Plaintiff complained of pain when flexing and extending her lumbar spine, and doing
straight leg raises. (Tr. 211). Despite these complaints, Dr. Burns found that her physical
and orthopedic examinations were within normal limits. (Id.). He also noted that her gait
and station, grip strength and gross manipulation were all normal. (Id.). As a result of
these findings, Dr. Burns opined that Plaintiff is capable of sitting, standing, moving about,
lifting carrying, handling objects, hearing, seeing, speaking and traveling. (Id.).
Dr. Burns examined Plaintiff again in May 2011 – well after Dr. Asher had completed
her treatment – and again found that she was without limitation. Dr. Burns did, however,
note that Plaintiff had decreased range of motion with straight leg raises in the supine
position. (Tr. 404). As the ALJ reported, though, Dr. Burns found this result inconsistent
with Plaintiff’s ability to raise her leg to 90 degrees in the sitting position. (Id.). Dr. Burns
ultimately concluded that Plaintiff could perform sedentary activities without limitation (Id.),
which provides additional support for the ALJ’s decision to give Dr. Asher’s opinion little
weight.

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In apparent disregard for the overwhelming evidence refuting Dr. Asher’s opinion,
Plaintiff believes the opinion of Consultative Examiner Charles Laney supports Dr. Asher’s
finding that she cannot work because of her back pain. However, as the ALJ noted, Dr.
Laney’s opinion is itself replete with problems as it is inconsistent with his own
observations. Dr. Laney opined that Plaintiff cannot lift or carry objects, can only stand and
walk for an hour a day, sit for four hours a day, and can never stoop, kneel, crouch, or
crawl. (Tr. 381-384). But, as the ALJ pointed out, Dr. Laney’s observation notes do not
support these conclusions.
Upon examination, Dr. Laney reported that Plaintiff’s range of motion in her ankle,
cervical spine, elbow, hip, knee, lumbar spine, wrist and shoulder were all within the normal
range. (Tr. 380). Dr. Laney also observed that Plaintiff could rise from a seated position
and ambulate without assistance, though she could not bend or squat.

(Tr. 378).

Additionally, Plaintiff was reported as having maximum grip strength with adequate fine
motor movements. Finally, Dr. Laney observed that Plaintiff had strong neck movement
against resistance and was able to perform “good” shoulder shrugs. (Tr. 378). Each of
these observations are inconsistent with Dr. Laney’s ultimate conclusion, giving the ALJ
adequate reasons to reject Dr. Laney’s opinion.
2.

The ALJ did consider the combined effect of Plaintiff’s
impairments

Plaintiff makes a cursory argument that the ALJ failed to consider the combined
effect of her impairments. It seems Plaintiff is arguing that the ALJ discussed each of her
impairments individually and failed to discuss them in tandem.
The Sixth Circuit has found that an ALJ’s analysis of a claimant’s combined
impairments sufficient where the ALJ referred to a “combination of
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impairments” in deciding the claimant did not meet the listings, the ALJ
referred to the claimant’s “impairments” as not being severe enough to
preclude performance of his past relevant work, the ALJ’s decision was made
after careful consideration of the “entire record,” and, “all of the claimant’s
impairments were discussed individually in the decision. See Gooch v. Sec’y
of Heath and Human Servs., 833 F.2d 589, 592 (6th Cir. 1987). “To require
a more elaborate articulation of the ALJ’s thought process would not be
reasonable.” Id. The Sixth Circuit has also found that the ALJ properly
considered the combined effects of the claimant’s impairments where the
ALJ’s decision properly referred to the claimant’s “severe impairments” and
“combination of impairments.” See Loy v. Sec’y of Health and Human Servs.,
901 F.2d 1306, 1310 (6th Cir. 1990).
Burke v. Comm’r of Soc. Sec., No. 1:10-cv-871, 2012 WL 512620, at *9 (W.D. Mich. Jan.
27, 2012).
Here, the ALJ’s opinion indicates he considered the combined effects of Plaintiff’s
impairments. The Court notes multiple instances where the ALJ referred to Plaintiff’s
impairments in the plural form, indicating that the ALJ did consider the combined effect of
Plaintiff’s impairments. The ALJ’s findings made reference to “severe impairments” (plural)
and later referred to them as a “combination of impairments” in finding that they do not meet
or medically equal a listing. Additionally, the ALJ reached an RFC assessment that included
both Plaintiff’s physical and mental limitations, and posed a hypothetical to the vocational
expert based on that RFC. All of this shows the ALJ considered the combined effect of
Plaintiff’s impairments.
3.

Plaintiff’s “durational requirement” argument is without merit

Finally, Plaintiff questions “[w]hether the ALJ has considered the durational
requirement of substantial gainful activity and not merely the ability to find a job and
physically perform it.” (Doc. # 11-1). Aside from listing this issue, though, Plaintiff does not
develop it any further in her brief. The Court will overrule this claim of error for multiple

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reasons.
This is not the first time Plaintiff’s counsel has presented this identical claim in cursory
fashion. In Reid v. Colvin, No. 13-36-ART, 2013 WL 3270436, at *6 (E.D. Ky. June 25,
2013), Plaintiff’s counsel did just as he did here: he questioned whether the ALJ considered
“the durational requirement of substantial gainful activity and not merely the ability to find
a job and physically perform it” without “develop[ing] the meaning of this statement or
present[ing] evidence in support of his position.” Id. Judge Thapar overruled this claim
because the Eastern District of Kentucky’s standing order for social security benefits cases
prohibits plaintiffs from making general arguments without providing specific evidence for
their claim. Id. Additionally, Judge Thapar cited Sixth Circuit authority for the proposition
that the Court is justified in deeming an argument waived when the party has raised it in “the
most skeletal ways, leaving the court to . . .put flesh on its bones.” Id. (quoting McPherson
v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)). Just as Judge Thapar did in Reid, the
Court will overrule Plaintiff’s claim of error here because she failed to present anything more
than a bald assertion of error.
Even if Plaintiff had developed this argument, it would fail on the merits just as it has
every other time it has been raised by Plaintiff’s counsel. The Court is all too familiar with
the argument at this point: Plaintiff’s counsel generally relies on a Ninth Circuit Court of
Appeals decision for the proposition that an ALJ must separately consider whether a
claimant is capable of holding an available job for a significant period of time. See Gatliff
v. Comm’r of Soc. Sec., 172 F.3d 690 (9th Cir. 1999). Every judge in the Eastern District
of Kentucky, including the undersigned, has repeatedly rejected the argument that there is
a separate durational requirement, instead finding that the ALJ takes the claimant’s ability
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to maintain employment into account when determining an RFC. See Clark v. Astrue, No.
11-260-ART, 2011 WL 6742926, at *4 (E.D. Ky. Dec. 23, 2011) (collecting cases). Until
counsel provides an explanation as to why this Court’s previous adverse rulings were
incorrect, this argument will be dismissed outright.
The Court will also remind counsel of his obligations under Federal Rule of Civil
Procedure 11(b)(1) and (2). By presenting this argument to the Court, he has certified that
to the best of his knowledge, information and belief, the argument is not being presented for
any improper purpose and it is warranted by existing law. Over a two-year period ending
in 2011, Plaintiff’s counsel raised this argument fifty-one times in the Eastern District of
Kentucky, failing all fifty-one times. Clark, 2011 WL 6742926, at *4. Judge Reeves has
said he was “troubled” by the number of times Plaintiff’s counsel has raised this baseless
argument, particularly because counsel continued to bring it without acknowledging the
growing body of case law against the argument. Id. Judge Thapar and the late Judge
Forrester have joined in Judge Reeves’ sentiment. This Court joins their ranks today and
cautions counsel that he may run afoul of Rule 11 if he continues to present this argument
without explaining why the Court’s prior rulings are incorrect.
III. CONCLUSION
For the reasons stated herein, the court concludes that the ALJ’s finders were
adequately explained and supported by substantial evidence. Accordingly, for the reasons
stated,
(1)

The decision of the Commissioner is supported by substantial evidence and

is hereby AFFIRMED;
(2)

Plaintiff’s Motion for Summary Judgment (Doc. # 11) is hereby DENIED;
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(3)

Defendant’s Motion for Summary Judgment (Doc. # 14) is hereby GRANTED;

(4)

A Judgment shall be entered contemporaneously herewith.

This 23rd day of July, 2014.

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