Griffith v. SSA

Filing 15

MEMORANDUM OPINION & ORDER: (1) The decision of the Commissioner is hereby AFFIRMED; (2) Plaintiffs Motion for Summary Judgment (Doc. # 13 ) is hereby DENIED; (3) Defendants Motion for Summary Judgment (Doc. # 14 ) is hereby GRANTED; and (4) A Judgment in favor of Defendant Commissioner will be entered. Signed by Judge David L. Bunning on 3/23/15.(SYD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 14-92-DLB
SHERMAN GRIFFITH

vs.

PLAINTIFF

MEMORANDUM OPINION & ORDER

CAROLYN W. COLVIN, Acting Commissioner
SOCIAL SECURITY ADMINISTRATION
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DEFENDANT
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This action was brought 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 and the parties’ dispositive motions, will affirm the Commissioner’s
decision, as it is supported by substantial evidence.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On July 25, 2011, Plaintiff Sherman Griffith applied for Supplemental Social Security
Income (SSI), alleging a disability onset date of January 1, 2001. (Tr. 134). Plaintiff
asserts that he is unable to work because of injuries to his wrists, ankles, and hips, liver
problems, and low back pain. (Tr. 50). His application was denied initially and again on
reconsideration.

(Tr. 50, 61).

At Plaintiff’s request, an administrative hearing was

conducted on January 14, 2013. (Tr. 10). On February 8, 2013, the Administrative Law
Judge (ALJ) ruled that Plaintiff was not disabled and therefore not entitled to SSI. (Tr. 18).
This decision became the final decision of the Commissioner when the Appeals Council

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denied Plaintiff’s request for review on March 28, 2014. (Tr. 1).
On April 17, 2014, Plaintiff filed the instant action. (Doc. # 2). The matter has
culminated in cross-motions for summary judgment, which are now ripe for review. (Docs.
# 13, 14).
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, 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 her
past relevant work; and Step 5, whether significant numbers of other jobs exist in the
national economy which the claimant can perform. At the last step, the burden of proof

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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 Cir. 1994).
B.

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

since the application date on July 25, 2011. (Tr. 12). At Step 2, the ALJ found that Plaintiff
had the following severe impairments: status post left ankle fracture; status post fracture
of right hand; status post fusion of the C6/7 vertebrae; depression, not otherwise specified;
history of alcohol and benzodiazepine abuse, allegedly in remission; right knee
osteoarthritis. (Id.). He further found that Plaintiff had non-severe gout and hepatitis. (Tr.
14). At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1. (Id.). Relevant to this appeal, the ALJ determined that
Plaintiff did not meet the requirements for Listing 12.04 because “the evidence does not
establish ‘marked’ limitations in [Plaintiff’s] daily activities, social functioning or ability to
maintain attention and concentration or any sustained episodes of decompensation . . . .”
(Id.).
At Step 4, the ALJ found that Plaintiff has the residual functional capacity (RFC) to
perform less than a full range of sedentary work with the following limitations: no climbing
of ropes, ladders or scaffolds; occasional climbing of stairs or ramps and occasional
stooping, kneeling crouching or crawling; restricted to frequent use of the right hand for
handling; and no operation of foot pedal controls with the left foot. (Tr. 15). The ALJ
further concluded that Plaintiff requires entry level work with simple repetitive procedures;
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no frequent changes in work routines; no detailed or complex problem solving, independent
planning or the setting of goals; and that he should work in an object oriented environment
with only occasional and casual contact with coworkers, supervisors, and the general
public. (Id.).
The ALJ found that Plaintiff has no past relevant work, and therefore proceeded to
the final step. (Tr. 16). At Step 5, the ALJ found that there are a significant number of jobs
in the national economy that Plaintiff can perform. (Tr. 17). 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. (Id.). The
VE testified that given all these factors, and notwithstanding reductions for Plaintiff’s
functional limitations, Plaintiff could perform unskilled entry level occupations at the
sedentary level, including, but not limited to, the following: bench assembly (6,000 in state/
500,000 nationally); and checking/inspecting jobs (550/280,000). (Id.). Based on the VE’s
testimony, and considering Plaintiff’s age, education, work experience, and RFC, the ALJ
concluded that Plaintiff is capable of making a successful adjustment to other work that
exists in significant numbers in the national economy, and is therefore “not disabled” under
the Social Security Act. (Tr. 17-18).
C.

Analysis
Plaintiff raises two arguments on appeal. First, that the ALJ erred in finding that he

does not meet Listing 12.04 for affective disorders. (Doc. # 13 at 5). And second, that the
ALJ erred in finding him “not disabled by mechanical application of the vocational
guidelines.” (Id. at 4).

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1.

Substantial evidence supports the ALJ’s conclusion that Plaintiff
does not meet Listing 12.04

Plaintiff asserts that the ALJ erred in finding that he does not meet Listing 12.04 for
affective disorders. (Id. at 5). A claimant is disabled if his impairment meets or equals one
of the listings in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. 20
C.F.R. § 404.1525(a); Reynolds v. Comm'r of Soc. Sec., 424 F. App'x 411, 414 (6th Cir.
2011). To meet a listing, a claimant must show that he “meet[s] all of the specified medical
criteria. An impairment that manifests only some of those criteria, no matter how severely,
does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
To meet Listing 12.04, a claimant’s impairment must satisfy the criteria in both
paragraphs A and B, or in paragraph C. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04.
Therefore, if a claimant cannot satisfy either paragraph B or C, he cannot meet Listing
12.04. Paragraph B requires at least two of the following: (1) marked restriction of activities
of daily living; (2) marked difficulties in maintaining social functioning; (3) marked difficulties
in maintaining concentration, persistence, or pace; or (4) repeated episodes of
decompensation, each of extended duration. Id.
Meanwhile, paragraph C requires:
Medically documented history of a chronic affective disorder of at least 2
years' duration that has caused more than a minimal limitation of ability to do
basic work activities, with symptoms or signs currently attenuated by
medication or psychosocial support, and one of the following: (1) repeated
episodes of decompensation, each of extended duration; (2) a residual
disease process that has resulted in such marginal adjustment that even a
minimal increase in mental demands or change in the environment would be
predicted to cause the individual to decompensate; or (3) current history of
1 or more years' inability to function outside a highly supportive living
arrangement, with an indication of continued need for such an arrangement.
Id.
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In his motion for summary judgment, Plaintiff does not cite the criteria for Listing
12.04 and provides no analysis as to how he meets the criteria. He does note that he was
evaluated by Michele Amburgey, M.A, who opined that he had depressive disorder,
borderline functioning, and a Global Assessment of Functioning Scale (GAF) of 51. (Tr.
408-09). He also points out that Amburgey concluded that he had marked limitations in
performing activities within a schedule, maintaining regular attendance, and responding
appropriately to changes in a work setting. (Tr. 410-11). Plaintiff does not suggest that
Amburgey is a treating source, and the evidence does not support such a finding.
Nevertheless, the ALJ explained why he did not give Amburgey’s opinion significant
weight. (Tr. 14, 16). First, it was inconsistent with Dr. Timothy L. Baggs’ evaluation that
Plaintiff’s intellectual functioning was in the average range, that he has no mental confusion
or disorientation, and that he can respond to workplace pressures only “mildly less than the
average worker.” (Tr. 14, 303, 305). It was also inconsistent with Plaintiff’s prior work
history, and his testimony that he has friends, likes race cars, and shops for groceries, does
laundry, and cooks. (Tr. 14, 170-73, 302). Finally, it was inconsistent with Amburgey’s own
observations that Plaintiff was oriented, pleasant, and cooperative during her evaluation.
(Tr. 14, 16, 406). Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 877 (6th Cir. 2007) (holding
that an ALJ can reject an opinion when it is inconsistent with the overall evidence of
record).
Turning to Listing 12.04's criteria, the ALJ concluded that Plaintiff did not meet
paragraph B (Tr. 14), a finding that is supported by substantial evidence. First, activities
of daily living includes cleaning, shopping, and cooking. 20 C.F.R. pt. 404, subpt. P, app.1,
§ 12.00(C)(1). As the ALJ noted, Plaintiff stated that he does laundry, shops for groceries,
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and cooks. (Tr. 14, 170-73). Second, social functioning includes the ability to get along
with family, friends, and others in the community. 20 C.F.R. pt. 404, subpt. P, app.1, §
12.00(C)(2). The ALJ cited Plaintiff’s statements that he has several friends and gets along
well with family. (Tr. 14, 173, 175, 302).
Third, concentration, persistence or pace is the “ability to sustain focused attention
and concentration sufficiently long to permit the timely and appropriate completion of tasks
found in work settings.” 20 C.F.R. pt. 404, subpt. P, app.1, § 12.00(C)(3). The ALJ found
compromised attention and concentration, but not “marked” limitations based on the
following: Dr. Bragg’s opinion that Plaintiff has average intellectual functioning, no
suggestion of mental confusion or disorientation, and the ability to respond to pressures in
a normal work setting only mildly less than the average worker. (Tr. 14, 303-05). Finally,
“repeated episodes of decompensation” require three episodes within one year, or an
average of once every four months, each lasting at least two weeks. 20 C.F.R. pt. 404,
subpt. P, app.1, § 12.00(C)(4). The ALJ found only one episode of decompensation – in
November, 2011 – and Plaintiff cites no evidence to the contrary. (Tr. 14).
The ALJ did not discuss paragraph C. However, the claimant has the burden of
proving he meets a listing. Jones, 336 F.3d at 474. Plaintiff’s motion for summary
judgment does not mention paragraph C, nor cite to facts that could potentially satisfy
paragraph C’s criteria. An independent review of the record supports the ALJ’s implicit
finding that Plaintiff did not meet the criteria of paragraph C, which applies to more chronic
affective disorders. In conclusion, substantial evidence supports the ALJ’s ruling that
Plaintiff does not meet Listing 12.04.

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2.

The ALJ properly relied on VE testimony in finding that there are a
significant number of jobs in the national economy that Plaintiff could
perform

Plaintiff contends that because he has psychological impairments in addition to
physical impairments, the ALJ improperly relied on the Medical-Vocational Guidelines
(grids) in concluding that he is “not disabled.” (Doc. # 13 at 4-5); 20 C.F.R. pt. 404, subpt.
P, app.2. In support, he cites Abbott v. Sullivan, 905 F.2d 918 (6th Cir. 1990). In Abbott,
the court held that when an individual suffers from both exertional and nonexertional
impairments, an ALJ may not rely solely on the grids in making a finding of “not disabled.”
905 F.2d at 926. However, a finding of “not disabled” may be found if a VE, who is
informed of a claimant’s nonexertional limitations, testifies “that there are jobs in the
national economy for a person with the claimant’s characteristics.” Id. at 927 (quoting
Tucker v. Heckler, 776 F.2d 793, 795–96 (8th Cir.1985)).
Plaintiff cites good case law, but his argument is factually incorrect. The ALJ
recognized that Plaintiff’s ability to perform all the requirements of his RFC “has been
impeded by additional limitations,” and therefore did not rely on the grids. (Tr. 17). Instead,
he asked the VE whether jobs exists in the national economy, based on Plaintiff’s age,
education, work experience, and RFC, which included Plaintiff’s nonexertional limitations.
(Tr. 17, 45-46). Based on the VE’s testimony, the ALJ found that Plaintiff is capable of
adjusting to work that exists in significant numbers in the national economy. Because the
ALJ relied on the VE’s testimony, his decision is supported by substantial evidence. See
Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004) (“[I]f a claimant suffers
from a limitation not accounted for by the grid, the Commissioner may use the grid as a

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framework for her decision, but must rely on other evidence to carry her burden. In such
a case, the Commissioner may rely on the testimony of a vocational expert to find that the
claimant possesses the capacity to perform other substantial gainful activity that exists in
the national economy.”).
III. CONCLUSION
Accordingly, for the reasons stated herein, IT IS ORDERED as follows:
(1)

The decision of the Commissioner is hereby AFFIRMED;

(2)

Plaintiff’s Motion for Summary Judgment (Doc. # 13) is hereby DENIED;

(3)

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

(4)

A Judgment in favor of Defendant Commissioner will be entered

and

contemporaneously herewith.
This 23rd day of March, 2015.

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