Eagle v. SSA

Filing 17

MEMORANDUM OPINION & ORDER: (1) that Plaintiff's Motion for Summary Judgment [D.E. 15 ] be, and the same hereby is, DENIED; and (2) that Defendant's Motion for Summary Judgment [D.E. 16 ] be, and the same hereby is, GRANTED. Signed by Judge Joseph M. Hood on 11/20/2014.(KJA)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
ANGELA MARIE EAGLE,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Civil Case No.
6:14-cv-10-JMH
MEMORANDUM OPINION
AND ORDER

***
This

matter

is

before

the

Court

upon

cross-motions

for

Summary Judgment [D.E. 15, 16] on Plaintiff’s appeal of the
Commissioner’s

denial

of

his

application

for

supplemental

security income. [Tr. 17-25].1 The Court, having reviewed the
record

and

being

otherwise

sufficiently

advised,

will

deny

Plaintiff’s motion and grant Defendant’s motion.
I. Overview of the Process and the Instant Matter
The

Administrative

Law

Judge

("ALJ"),

in

determining

disability, conducts a five-step analysis:
1.
An individual who is working and engaging in
substantial
gainful
activity
is
not
disabled,
regardless of the claimant's medical condition.
2.
An individual who is working but does not have a
"severe" impairment which significantly limits his

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.

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 & Hum. 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
steps of this process to prove that he is disabled.” Id. “If the
analysis
claimant

reaches
is

the

not

fifth

disabled,

step

without

the

burden

a

finding

that

the

transfers

to

the

Secretary.” Id.
In the instant matter, the ALJ determined that Plaintiff
did

not

engage

in

substantial

gainful

activity

during

the

relevant time period under step one. [Tr. 19]. Under step two,
the ALJ found that Plaintiff’s inguinal hernia and history of

2

lupus

with

stress

Reynaud’s

disorder,

phenomenon,

obesity,

and

depression,

history

of

post-traumatic

polysubstance

abuse

were “severe” as defined by the agency’s regulations. [Tr. 19];
20 CFR § 416.920(c).
During step three of the analysis, the ALJ considered all
of Plaintiff’s impairments and decided that none of them met the
criteria listed in 20 C.F.R. pt. 404, subpt. P, app. 1. [Tr. 2021]. After further review of the record, the ALJ concluded at
step

four

(“RFC”)

to

that

Plaintiff

perform

had

light

a

work,

residual
but

was

functional
limited

capacity

to

simple

instructions and tasks in a non-public setting with no more than
casual, infrequent contact with co-workers and supervisors. [Tr.
21].

Plaintiff

was

additionally

limited

in

that

any

work

performed by Plaintiff would have to accommodate her marginal
education. [Tr. 21].
The ALJ found that Plaintiff had no past relevant work.
[Tr. 24]. However, there were jobs in the national economy that
Plaintiff could perform. [Tr. 24]. Thus, the ALJ determined that
Plaintiff is not disabled under the Social Security Act. [Tr.
25].
On this appeal, Plaintiff argues that the ALJ erred by
failing to adopt a prior 1993 finding in favor of the Plaintiff,
that

the

limitations

ALJ
in

failed
the

to

residual

incorporate
functional
3

all

of

capacity

Plaintiff’s
finding

and

subsequent hypothetical to the vocational expert, and that the
ALJ’s determination was not based on substantial evidence.
II. Standard of Review
In

reviewing

the

ALJ's

decision

to

deny

disability

benefits, the Court may “not try the case de novo, nor resolve
conflicts in the evidence, nor decide questions of credibility.”
Cutlip v. Sec'y of Health & Hum. Servs., 25 F.3d 284, 286 (6th
Cir. 1994) (citations omitted). Instead, judicial review of the
ALJ's decision is limited to an inquiry into whether the ALJ's
findings were supported by substantial evidence, 42 U.S.C. §
405(g); Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001)
(citations omitted), and whether the ALJ employed the proper
legal standards in reaching her conclusion. See Landsaw v. Sec'y
of Health & Hum. Servs., 803 F.2d 211, 213 (6th Cir. 1986).
"Substantial evidence is 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." Cutlip, 25 F.3d at 286 (citations omitted).
III. Factual and Procedural Background
Plaintiff was 37 years of age at the alleged disability
date. [Tr. 17, 34]. She has a sixth grade education and stated
that

she

is

only

able

to

read

certain

small

words

and

was

generally not able to count money [Tr. 35]. As of the date of
the hearing, she had not worked in nine years, although her last
4

job

was

at

application

a

deli.

for

[Tr.

38].

supplemental

Plaintiff

security

filed

income

a

Title

(SSI),

XVI

alleging

disability beginning on August 1, 2006. The claim was denied
initially

and

upon

reconsideration.

[Tr.

17].

Plaintiff

requested a hearing with the ALJ, which took place on December
14,

2011.

[Tr.

17].

The

ALJ

issued

an

unfavorable

decision

denying SSI on September 17, 2012. [Tr. 25].
According to the Plaintiff, she has pain in her hands,
feet, joints, and knees. [Tr. 49].
suffers

from

arthritis,

lupus,

chronic

Reynaud’s

She

reports

disease,
pulmonary

obstructive

hepatitis,
disease,

that

she

rheumatoid
as

well

as

post-traumatic stress disorder that limit her ability to work.
[Tr. 178].
In 1991, Plaintiff filed a claim for supplemental security
income and awarded benefits in 1993. Noting Plaintiff’s age (23
at the time), 6th grade education, and lack of work experience
the ALJ found her to be disabled and awarded her benefits. [Tr.
60-63].
Following

this

second

claim

for

benefits,

Plaintiff

provided medical records as early as 2001 from Kunath, Burte, &
Temming, M.D., that noted chronic pain in her hands, feet, and
joints as well as her Raynaud’s disease. [Tr. 872-907]. Her
medical

records

also

indicate

a

history

of

drug

abuse

and

hospitalization relating to her drug dependence. [Tr. 208; 228;
5

299;

495].

In

February

2009,

Plaintiff

was

admitted

to

the

Shannon West Texas Memorial Hospital ER in San Angelo, Texas,
with a bone fracture to her left forearm, the injury a result of
her slipping in the shower. She had surgery on the injury and
was

discharged

with

no

complications.

[Tr.

846].

She

was

hospitalized several times in 2010 for complications relating to
a spider bite and twice due to chest pain. [Tr. 342; 392; 431].
Her

records

also

indicate

a

history

of

psychiatric

problems. Most recently, Plaintiff has been under the care of
Dr. Sayed Raza at Appalachian Regional Healthcare who diagnosed
Plaintiff

with

major

depression

and

posttraumatic

stress

disorder. [Tr. 752-53]. She was also treated in 2011 and 2012 at
Cumberland

River

Comprehensive

Care

for

depression

and

difficulty sleeping. [Tr. 835; 873].
In connection with her application for benefits, Dr. Phil
Pack performed a psychological assessment of Plaintiff twice. On
March

4,

2011,

although

he

diagnosed

her

with

polysubstance

dependence in remission and anxiety disorder, Dr. Pack noted
that

the

test

results

were

likely

inconclusive,

suspected

Plaintiff’s efforts were inconsistent, and recommended further
review of her record. [Tr. 729-734]. He saw her again on August
8,

2011,

again

noting

dramatic”

and

accurately

describe

that

questioning
her

Plaintiff

was

whether

his

capabilities
6

based

tearful

and

assessment
on

her

“very
could

efforts.

Similar to her prior visit, Plaintiff reported she was homeless
and unable to count or read. She obtained a full-scale IQ score
of 43, but Dr. Pack otherwise did not provide a diagnosis. [Tr.
822-25].
On

March

16,

2011,

Plaintiff

underwent

a

consultative

examination by state agency physician, Dr. Susan Rhoads. [Tr.
736-750].

At

the

exam

Dr.

Rhoads

relayed

that

Plaintiff’s

intellectual functioning, hearing, and memory appeared normal.
[Tr. 739]. Dr. Rhoads wrote that the examination revealed no
tenderness, redness, warmth or swelling in the hands, and that
Plaintiff was able to make a fist, had a 5/5 grip strength, and
ability to write with her dominant hand. [Tr. 740]. However,
there was a loss in range of motion and bony enlargement in the
left wrist. [Tr. 743]. Dr. Rhoads found that Plaintiff’s ability
to perform work-related activities such as bending, stooping,
lifting,

prolonged

standing,

walking,

crawling,

squatting,

carrying and traveling, pushing and pulling were impaired due to
moderate

Chronic

Obstructive

Pulmonary

Disease

and

mild

Restrictive Pulmonary Disease, lupus with Reynaud’s phenomenon,
rheumatoid

arthritis,

hernia

post-traumatic

and

bradycardia
arthritis

and
in

chest
her

pain,

left

inguinal

wrist.

[Tr.

743].
In April 2011, non-examining consultative physician Dr. Dan
Vandivier reviewed Plaintiff’s record. He found some exertional
7

limitations, that Plaintiff could not push and pull frequently
with lower extremities due to knee pain and tenderness and had a
limited ability to squat as well. [Tr. 72]. Plaintiff was also
limited in her bilateral handling due to pain in wrists and
limited range of motion. [Tr. 73]. However, Dr. Vandivier found
based

on

understand

his

review

and

of

the

remember

record

simple

that

Plaintiff

instructions,

could
sustain

concentration, interact frequently with co-workers but not with
the public, and adapt to her environment. [Tr. 76-77].
Vocational expert Ms. Jane Hall testified at the hearing
before the ALJ. [Tr. 51-54]. Ms. Hall testified that there would
be jobs in the national economy that someone with Plaintiff’s
RFC could perform. [Tr. 52-]. Ms. Hall acknowledged that all of
these jobs would require the Plaintiff to use her hands. [Tr.
54].
Plaintiff

testified

that

the

Reynaud’s

disease

creates

problems using her hands, and requires her to have assistance
when getting dressed and in the shower. [Tr. 43-45]. Plaintiff
also testified that she smokes approximately a pack a day. [Tr.
41]. She gets winded and has trouble breathing and does not go
out for this reason, but rides on the motorized devices at the
grocery

store

if

she

accompanies

her

daughter.

[Tr.

47].

Maintaining that she does not go out, Plaintiff included that
she has not been to the tanning bed in years, [Tr. 36], although
8

she used to go because it relieved the pain in her joints. [Tr.
50]. Plaintiff also testified that she does not drive. [Tr. 38].
In

addition,

Plaintiff

referenced

her

history

of

rape

and

molestation by her brothers and stated that flashbacks of her
experience

lead

to

thoughts

of

hurting

herself

and

feeling

nervous around people. [Tr. 38]. She has been proscribed and is
taking Prozac, Traxodone, and Neurontin. [Tr. 40].
Finally,
Cooperative

the

record

Disability

also

contains

Investigations

Unit

a

report
of

the

from
SSA,

the
which

initiated an investigation of Plaintiff based on alleged fraud.
[Tr. 827]. The investigator found that Plaintiff holds an Ohio
driver’s license that expired in 2011 and a criminal history
relating to controlled substances and public intoxication. [Tr.
831]. The proprietor of a local store told the investigator that
the Plaintiff visited the store one or two times a week, was
able to count change and purchase her items without assistance,
and walk around the store without any noticeable difficulty.
[Tr. 832]. The owner of a local tanning bed salon stated on
October 21, 2011 that the Plaintiff visited the salon twice per
week and the visit log reflected that Plaintiff had used the
tanning beds on 25 occasions between January 2011 and May 2011.
[Tr. 832-33].
IV. Analysis

9

Plaintiff raises three arguments to support her claim, and
the Court will address each in turn.
1. The ALJ did not err by deviating from the previous ALJ
finding from 1993.
Plaintiff argues that, pursuant to Drummond v. Commissioner
of Social Security, 126 F.3d 837 (6th Cir. 1997), and the Social
Security Acquiescence Ruling, AR 98-4(6) (S.S.A. June 1, 1998),
the ALJ should have adopted the 1993 decisional finding awarding
Plaintiff benefits. The Commissioner responds that Plaintiff’s
condition has changed, and thus the ALJ was not bound by the
prior finding.
In Drummond, the Sixth Circuit held that “[a]bsent evidence
of an improvement in a claimant's condition, a subsequent ALJ is
bound by the findings of a previous ALJ.” 126 F.3d at 842. The
SSA

incorporated

this

holding

in

AR

98-4(6),

in

which

it

instructed ALJs to adopt the findings in prior claims “unless
there is new and material evidence relating to such a finding.”
AR 98-4(6).
In the 1993 decision awarding benefits to the Plaintiff,
the

ALJ

report.

relied
It

noted

heavily
a

on

series

the
of

state

agency

psychological

psychiatrist’s
issues

as

well

Plaintiff’s low IQ. The ALJ’s finding, however, focused on the
Plaintiff’s low IQ and learning disability as the reason no work
was possible. [Tr. 62, “Considering age (23), education (6th
10

grade),

and

possible.”].

work
It

experience

is

clear

(none),

from

the

there

record

is

no

that

work

there

is

substantial evidence to suggest that Plaintiff’s circumstances
relating to a learning disability have since changed.
For example, the Plaintiff’s own disability report stated
that

she

could

agency’s

read

and

investigation

understand

into

English.

Plaintiff’s

[Tr.

claims

177].
supplied

The
a

statement by a local store proprietor that Plaintiff often shops
there

and

is

able

to

do

her

own

shopping

and

count

change

without assistance. [Tr. 832]. The state agency’s consultative
examiner, Dr. Rhoads, noted “[i]ntellectual functioning appears
normal

during

the

examination.”

[Tr.

739].

Finally,

recent

medical records from Plaintiff’s treating physicians (Dr. Raza
in particular) indicate that Plaintiff’s intellectual capacities
were normal. [Tr. 910, “Insight and judgment is fair;” Tr. 1066
“Has normal logical associations and normal reasoning pattern
status;” Tr. 1092, “Has fair memory and fund of knowledge.”].
The only evidence to the contrary is Plaintiff’s performance at
both

of

the

state

agency’s

psychiatric

assessments

with

Dr.

Pack, both of which Dr. Pack suspected Plaintiff was malingering
and distrusted her efforts. [Tr. 728; 820].
The ALJ identified such evidence and concluded that new,
material

evidence

showed

the

Plaintiff

at

least

capable

of

carrying out simple instructions. [Tr. 22-24]. This Court finds
11

that because the circumstances had changed, the ALJ was not
bound by the prior decision and thus, did not err in reaching a
different conclusion.
2. The ALJ’s RFC finding and hypothetical posed to the
vocational expert was based on substantial evidence.
Plaintiff

argues

that

the

ALJ

erred

when

it

failed

to

include a restriction based on exposure to cold and Plaintiff’s
mental

impairments

in

its

RFC

finding

and

subsequent

hypothetical to the vocational expert. The Commissioner responds
that

the

ALJ

did

take

Plaintiff’s

mental

impairments

into

account and that the exposure to cold restriction was properly
excluded from the RFC finding and regardless, such a restriction
would not change the ultimate conclusion that Plaintiff is not
disabled.
Plaintiff
Burte,

refers

Temming,

M.D.,

to

records

where

from

the

office

Plaintiff

was

treated

of

Kunath,

from

2001

until 2005. The 2005 record indicates Plaintiff was seen for
chronic pain, livedo, and lupus and the physician proscribed
Plaintiff medicine but stressed “preventative measures to keep
her extremities warm.” [Tr. 885]. The ALJ’s residual functional
capacity

finding

does

not

include

any

limitation

regarding

temperature exposure. However, no treating physician after 2005,
[Tr. 342; 370; 397; 436; 481; 624; 911; 1066; 1092], nor any of
the state agency’s consultative examiners, [Tr. 739-43; 64-78],
12

noted the same or any similar restriction. Given the wealth of
evidence

that

exposure

to

cold

was

not

among

Plaintiff’s

limitations after 2005, the ALJ did not err in excluding such a
limitation from his RFC finding and subsequent hypothetical to
the vocational expert.
Concerning Plaintiff’s mental health, the ALJ did take this
into account, requiring no more than casual, infrequent contact
with

co-workers

consistent

with

examiner’s

and

supervisors

the

recommendations

review

of

the

in

record.

a

non-public

of

[Tr.

the

setting,

state

21;

agency

76-77].

Thus,

Plaintiff’s argument is unavailing.
3.

The

ALJ’s

determination

is

based

on

substantial

evidence.
Plaintiff finally argues that the ALJ’s determination is
not based on substantial evidence because the “objective medical
evidence unequivocally documents that the Plaintiff has several
severe

conditions

responds

that

evidence,

and

which

the

ALJ’s

that

are

disabling.”

finding

Plaintiff

is

has,

The

supported

by

nevertheless,

Commissioner
substantial
waived

her

argument for failure to support her claim with citations to the
record.
While

it

is

difficult

to

discern

from

Plaintiff’s

bare

assertion on this point, if the evidence Plaintiff refers to is
the 2001-2005 medical records regarding Plaintiff’s sensitivity
13

to cold, or Plaintiff’s mental health record, the Court has
already determined above that this argument is unpersuasive and
that the ALJ’s decision is based on substantial evidence. Beyond
that, Plaintiff has not identified other parts of the ALJ’s
decision that lack support and has failed to develop an argument
on

this

point.

“Under

these

circumstances,”

the

Court

“decline[s] to formulate arguments on [the Plaintiff’s] behalf,
or

undertake

an

open-ended

review

of

the

entirety

of

the

administrative record.” Hollon ex rel. Hollon v. Comm'r of Soc.
Sec., 447 F.3d 477, 491 (6th Cir. 2006). On the record before
the

Court,

it

appears

that

the

ALJ’s

decision

was

based

on

substantial evidence, and Plaintiff has provides no reasons why
an alternative conclusion is warranted.
V. Conclusion
Accordingly, for the foregoing reasons, IT IS ORDERED:
(1)

that Plaintiff’s Motion for Summary Judgment [D.E. 15]

be, and the same hereby is, DENIED; and
(2)

that Defendant’s Motion for Summary Judgment [D.E. 16]

be, and the same hereby is, GRANTED.
This the 20th day of November, 2014.

14