Belcher v. SSA

Filing 14

MEMORANDUM OPINION AND ORDER: (1) The decision of the Commissioner is found to be supported by substantial evidence and is hereby AFFIRMED; (2) Plaintiffs Motion for Summary Judgment (Doc. # 12) is hereby DENIED; (3) Defendants Motion for Summary Judgment (Doc. # 13) is hereby GRANTED. A Judgment in favor of Defendant Commissioner will be entered contemporaneously herewith.. Signed by Judge David L. Bunning on 4/21/2015. (JMB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 14-95-DLB
HENRY BELCHER

vs.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

CAROLYN W. COLVIN,
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 BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Henry Belcher filed his current application for Supplemental Security Income
(SSI) and Disability Insurance Benefits (DIB) payments, alleging disability as of October 18,
2010. (Tr. 200-17). Plaintiff’s claim was denied initially and on reconsideration. (Tr. 79108, 113-42). On October 18, 2012, Administrative Law Judge Bonnie Kittinger conducted
an administrative hearing at Plaintiff’s request. (Tr. 33-78). ALJ Kittinger ruled that Plaintiff
was not entitled to benefits on February 5, 2013. (Tr. 15-27). This decision became the
final decision of the Commissioner when the Appeals Council denied review on March 20,
2014. (Tr. 1-5).

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On April 18, 2014, Plaintiff filed the instant action. (Docs. # 1 and 2). This matter
has culminated in cross motions for summary judgment, which are now ripe for review.
(Docs. # 12 and 13).
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 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 the alleged onset date. (Tr. 17). At Step 2, the ALJ found Plaintiff’s degenerative disc
disease and depression to be severe impairments within the meaning of the regulations.
(Id.).
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
C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 17-18). Having reviewed the medical
evidence of record, the ALJ first found that “not all of the specific criteria have been
documented during the period at issue to establish that [Plaintiff’s] degenerative disc
disease meets or equals [Listing 1.04 (disorders of the spine)].” (Tr. 18). The ALJ also
determined that Plaintiff’s depression did not meet the requirements of Listing 12.04
(affective disorders) because his daily activities suggested only mild limitations in social
functioning and he had not experienced repeated episodes of decompensation. (Tr. 1819).
At Step Four, the ALJ concluded that Plaintiff has the residual functional capacity
(RFC) to perform sedentary work, as defined in 20 C.F.R. § 404.1567(b) and 20 C.F.R. §
416.967(b); that is:
[H]e can stand and walk for a total of 2 hours and sit for a total of 6 hours in
[an] 8-hour workday. He can occasionally balance, stoop, kneel, crouch,
crawl, and climb ramps and stairs. The claimant can never climb ladders,
ropes or scaffolds. He will need to avoid concentrated exposure to cold
temperature extremes, vibration, and humidity. The claimant must avoid
exposure to dangerous machinery and unprotected heights. He is able to
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understand and remember simple and detailed instructions, and can carry
out such instructions to complete tasks in 2 hour segments over an 8 hour
workday for a 5 day work week. He can relate adequately in work settings
and adapt to changes and pressures of a routine work setting.
(Tr. 20). The ALJ concluded that the claimant is unable to perform any past relevant work.
(Tr. 25).
Accordingly, the ALJ proceeded to the final step of the sequential evaluation. At
Step 5, the ALJ found that there were a significant number of jobs in the national economy
that Plaintiff could perform. (Tr. 25-26). 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.1 (Id.). The VE testified that a
hypothetical individual with Plaintiff's vocational profile and RFC could find work at the
sedentary level of exertion as a hand bender (240 Kentucky/13,000 nationally), table
worker fabrication (250 Kentucky/14,000 nationally) or surveillance system monitor (260
Kentucky/16,500 nationally). (Tr. 26). Based on the testimony of the VE and Plaintiff’s
age, education, work experience, and RFC, the ALJ found that Plaintiff is capable of
making a successful adjustment to other work and thus concluded that he was not under
a "disability," as defined by the Social Security Act. (Id.).
C.

Analysis
Plaintiff’s Motion for Summary Judgment provides no statement of the issues on

appeal. However, the Court was able to identify four arguments clearly raised therein: (1)

1) The ALJ pointed out that Medical-Vocational Rule 201.21 and 201.28 would require a finding of “not
disabled” if Plaintiff had the RFC to perform a full range of sedentary work. (Tr. 25-26). However, the ALJ
noted that Plaintiff was “impeded by additional limitations” and incorporated these limitations into the
hypothetical questions posed to the VE. (Id.).

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the ALJ failed to properly assess Plaintiff’s credibility; (2) the ALJ should have given more
weight to Dr. David Muffly’s opinion; (3) the ALJ erred in finding that Plaintiff’s impairments
did not meet or medically equal Listing 1.04 (disorders of the spine) or Listing 12.04
(affective disorders); and (4) the ALJ erred in determining that Plaintiff could perform other
work in the national economy. Each of these arguments will be addressed in turn. Any
other “issues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation,” are waived. See McPherson v. Kelsey, 125 F.3d 989, 995-96
(6th Cir. 1997).
1.

The ALJ reasonably assessed Plaintiff’s credibility

When a claimant’s complaints regarding the intensity and persistence of his or her
symptoms are unsupported by objective medical evidence, the ALJ must make a credibility
determination “based on a consideration of the entire case record.” Rogers v. Comm’r of
Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007)(quoting Soc. Sec. Rul. 96-7p, 1996 WL
374186 at *4 (July 2, 1996)). “The entire case record includes any medical signs and lab
findings, the claimant’s own complaints of symptoms, any information provided by the
treating physicians and others, as well as any other relevant evidence contained in the
record.” Id. Consistency between the claimant’s complaints and the case record supports
claimant’s credibility while “inconsistency, although not necessarily defeating, should have
the opposite effect.” Id. at 247-48. Credibility determinations cannot be based solely on
intangible or intuitive notions. Id. at 247.
Once the ALJ makes a credibility determination, the ALJ must explain his or her
decision with enough specificity “to make clear to the individual and to any subsequent
reviewers the weight the adjudicator gave to the individual’s statements and the reasons
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for the weight.” Id. at 248 (quoting Soc. Sec. Rul. 96-7p, 1996 WL 374186, at *2 (Dec. 2,
1996)); see also 20 C.F.R. § 404.1529. Blanket assertions that the claimant is not
believable will not suffice, nor will credibility explanations “which are not consistent with the
entire record and the weight of the relevant evidence.” Id. Reviewing courts must give
great weight and deference to the ALJ’s credibility determination. Id.
Although Plaintiff acknowledges that his subjective complaints are not enough to
establish a disability, he insists that there is ample objective medical evidence in the record
to support his testimony about his physical and mental conditions. (Doc. # 12 at 15). Even
if this is so, it does not automatically follow that the ALJ’s decision is unsupported by
substantial evidence. Plaintiff’s argument reads as though he is asking the Court to reweigh the evidence and make its own credibility determination, which is beyond the scope
of its review.
To the extent Plaintiff argues that the ALJ’s decision is not supported by substantial
evidence, he fails to explain why this is so. Did the ALJ fail to consider the entire medical
record? Was her finding impermissibly based on intangible or intuitive notions? Or did she
fail to explain her decision with the requisite specificity needed to facilitate meaningful
review? Because Plaintiff fails to identify the precise nature of the ALJ’s error, the Court
can only generally review her credibility assessment.
The hearing decision indicates that the ALJ carefully reviewed a variety of treatment
notes and medical records, then compared them against Plaintiff’s own testimony about the
intensity, persistence and limiting effects of his symptoms. (Tr. 20-25). She found that
Plaintiff’s statements were “not entirely credible” for three reasons. (Tr. 23). First, she
noted that Plaintiff “described activities of daily living that is [sic] not as limited as one would
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expect giving [sic] the complaints of symptoms and limitations.” (Id.). Plaintiff testified that
he enjoyed playing with his dogs and often helped his wife with household tasks such as
laundry, dusting and dishwashing. (Tr. 23-24). He also stated that he could drive short
distances and operate a riding lawn mower for about twenty-five minutes before needing
a break. (Tr. 24). Second, the ALJ pointed out that Plaintiff’s medication and treatment
was “effective in controlling his symptoms.” (Id.). Various treatment notes indicated that
Plaintiff’s depression was stable and that medication helped relieve his chronic back pain.
(Id.). Finally, the ALJ found that “the medical records do not reflect that [Plaintiff] has
reported to his doctors the same degree of pain and the same limiting effects that he
describes in his disability application.” (Id.).
As illustrated above, the ALJ conducted a detailed review of the medical evidence
in the record, summarized key aspects of Plaintiff’s testimony and highlighted the
inconsistencies between the two. She then provided an articulate summary of her reasons
for finding that Plaintiff was not entirely credible. Her analysis not only provides enough
detail to facilitate meaningful review, it dispenses with any suggestion that she relied on
intuitive notions or failed to properly review the record in rendering her assessment.
Considering the ALJ’s thorough credibility assessment and the level of deference afforded
to such determinations, the Court simply cannot conclude that her finding was unsupported
by substantial evidence.
2.

The ALJ gave appropriate weight to Dr. Muffly’s opinion

In social security disability cases, medical evidence may come from treating sources,
non-treating sources and non-examining sources. 20 C.F.R. § 404.1502. A treating source
is the claimant’s “own physician, psychologist, or other acceptable medical source who
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provides [claimant], or has provided [claimant], with medical treatment or evaluation and
who has, or has had, an ongoing treatment relationship with [claimant].” Id.; see also
Abney v. Astrue, Civ. A. No. 5:07-394-KKC, 2008 WL 2074011, at *11 (E.D.K.Y. May 13,
2008) (stating that one meeting is insufficient to establish an ongoing treatment
relationship). A non-treating source is an acceptable medical source who has examined
the claimant but does not have an ongoing treatment relationship with him or her, while a
non-examining source has not examined the claimant but provided medical or other opinion
evidence in the case. Id.
A treating source’s opinion is entitled to controlling weight if the “opinion on the
issue(s) of the nature and severity of [the claimant’s] impairment(s) is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent
with other substantial evidence in [his or her] case record.” 20 C.F.R. § 404.1527(c)(2).
If the opinion is not entitled to controlling weight, the ALJ must decide how much weight to
give it by considering the length, frequency, nature and extent of the treatment relationship;
evidence in support of the opinion; consistency of the opinion with evidence in the record;
physician’s specialization; and other factors brought to the ALJ’s attention. 20 C.F.R. §
404.1527(c)(1)-(6). These same factors guide the ALJ in determining how much weight to
give a non-treating or non-examining source’s opinion. Id.
While an ALJ will likely prioritize a treating source’s non-controlling opinion over a
non-treating source’s opinion (and a non-treating source’s opinion over a non-examining
source’s opinion), deviation from this general approach is not a per se error of law. 20
C.F.R. § 404.1527(c)(1) (noting that treating sources “are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of your medical
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impairment(s)”); Norris v. Comm’r, 461 Fed. Appx. 433 (6th Cir. 2012); Blakely v. Com’r,
581 F.3d 399, 409 (6th Cir. 2009)(quoting Soc. Sec. Rul. 96-6p, 1996 WL 374180 at *3
(July 2, 1996)). That being said, “opinions from other acceptable medical sources may be
entitled to great weight, and may even be entitled to more weight than a treating source’s
opinion in appropriate circumstances, [but] opinions from sources other than treating
sources can never be entitled to ‘controlling weight.’” Soc. Sec. Rul. 96-2p, 1996 WL
374188, at *2 (July 2, 1996).
On May 5, 2011, Dr. David E. Muffly performed an orthopedic evaluation on Plaintiff
in connection with his Workers’ Compensation claim. (Tr. 22-23). The ALJ reviewed Dr.
Muffly’s notes, which indicated that Plaintiff had L5-S1 disc herniation and chronic low back
pain. (Tr. 23). Dr. Muffly ultimately opined that Plaintiff could only lift up to ten pounds and
needed to change position every half hour. (Id.). He would also need to lie down to obtain
pain relief. (Id.). The ALJ “accounted for some of these limitations by limiting the claimant
to a reduced range of sedentary work.” (Id.).
Plaintiff complains that the ALJ should have given more weight to Dr. Muffly’s
opinion, but fails to explain how much weight would have been appropriate. Because the
ALJ did incorporate some of Dr. Muffly’s opinions into Plaintiff’s RFC, the Court presumes
that Plaintiff would like to see the rest of Dr. Muffly’s assessments incorporated into his
RFC. Instead of explaining how the ALJ erred in weighing this opinion, Plaintiff seems to
invite the Court to re-weigh the opinion in a manner that is favorable to him. This the Court
will not do. Its review shall be limited to whether the ALJ’s treatment of Dr. Muffly’s opinion
is supported by substantial evidence.

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Dr. Muffly qualifies as a non-treating source because he only examined Plaintiff on
one occasion. Since his opinion could not be given controlling weight, the ALJ weighed it
using the 20 C.F.R. § 404.1527(c) factors. She considered the length of the treatment
relationship (one visit), the context of the visit (Worker’s Compensation claim), the tests
performed (straight leg raising test and lumbar range of motion exam) and the ultimate
diagnosis (L5-S1 disc herniation and chronic low back pain). The ALJ then afforded some
weight to Dr. Muffly’s opinion, as evidenced by her decision to account for some of those
limitations in limiting Plaintiff to a reduced range of sedentary work. Because the ALJ
engaged in the proper analysis and reached a conclusion that is supported by substantial
evidence, the Court finds no error in her treatment of Dr. Muffly’s opinion.
3.

The ALJ did not err in finding that Plaintiff’s impairments did not meet
Listing 1.04 (disorders of the spine) or Listing 12.04 (affective
disorders)

At the third step in the disability determination process, the Commissioner considers
the medical severity of the claimant’s impairments. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). The Commissioner must determine whether the claimant’s impairment
meets or equals one of the listings in 20 C.F.R. Part 404, Subpart P, Appendix 1, which
“describes for each of the major body systems impairments that [the SSA] consider[s] to
be severe enough to prevent an individual from doing any gainful activity, regardless of his
or her age, education or work experience.” Id.; 20 C.F.R. § 404.1525(a). If the claimant
can satisfy all of the objective medical criteria as well as the duration requirement, then he
or she “will be deemed conclusively disabled, and entitled to benefits.” Reynolds v. Comm’r
Social Sec., 424 F. App’x 411, 414 (6th Cir. 2011); see also 20 C.F.R. § 404.1509 (stating
that the impairment “must have lasted or must be expected to last for a continuous period
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of at least 12 months,” unless it is expected to result in death). Alternatively, the claimant
will be deemed disabled if he or she demonstrates that the impairment is “at least equal in
severity and duration to the criteria of any listed impairment” and meets the duration
requirement. 20 C.F.R. § 404.1525(c)(3).
At Step 3, the ALJ identified Listings 1.04 (disorders of the spine) and 12.04
(affective disorders) as possible Listings of Impairments that Plaintiff might meet. (Tr. 18).
She then set out the criteria for each Listing and compared it against the medical records
and Plaintiff’s testimony. (Id.). Although Plaintiff’s medical records indicated that he had
degenerative disc disease, disc herniation and mild diffuse bulging disc, there was no
evidence of a compromised nerve root. (Tr. 18-23). Thus, the ALJ concluded that “not all
of the specific criteria have been documented during the period at issue to establish that
[Plaintiff’s] degenerative disc disease meets or equals [Listing 1.04 (disorders of the
spine)].” (Id.). As for Listing 12.04, the ALJ noted that Plaintiff had only mild limitations in
activities of daily living, as he played with the dogs, performed basic chores and enjoyed
positive family relationships. (Id.). He also had no history of repeated episodes of
decompensation. (Id.).
Plaintiff contends that there is evidence in the record to establish that he meets the
requirements of Listing 1.04 (disorders of the spine) and Listing 12.04 (affective disorders).
(Doc. # 12 at 11-12). Plaintiff relies heavily on Dr. Muffly’s opinion in support of this
proposition. (Id.). After reviewing Plaintiff’s medical records and conducting an in-person
orthopaedic evaluation, Dr. Muffly assessed Plaintiff with L5-S1 disc herniation and chronic
low back pain. (Tr. 535). He further opined that Plaintiff should be restricted to lifting ten
pounds and have the opportunity to change positions every half hour. (Id.).
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Plaintiff’s reliance on Dr. Muffly’s opinion is misplaced for several reasons. The
Court has already found that the ALJ did not err in weighing Dr. Muffly’s opinion. If the
Court were to conclude that Plaintiff met the criteria for Listing 1.04 based on Dr. Muffly’s
impressions, it would not only contradict its own analysis, it would impermissibly re-weigh
Dr. Muffly’s opinion.2 Plaintiff again misunderstands the nature and scope of the Court’s
review in asking for such relief. The key inquiry is not whether there is substantial evidence
to support the finding proposed by Plaintiff, but rather, whether there is substantial
evidence to support the ALJ’s decision. And yet, Plaintiff focuses on evidence that
supports his interpretation, rather than pointing to a lack of substantial evidence to support
the ALJ’s conclusion. The Court cannot find any error in the ALJ’s conclusion based upon
this bare argument. The ALJ identified the appropriate criteria to be met for each Listing,
reviewed the medical evidence in detail and explained which aspects of each Listing were
not satisfied. Thus, there is substantial evidence to support her findings.
4.

The ALJ did not err in finding that Plaintiff could perform other work in
the national economy

At Step 5, ALJs may consider “‘reliable job information’” from various vocational
publications “as evidence of the claimant’s ability to do other work ‘that exists in the national
economy.” Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 603 (6th Cir. 2009) (quoting
Soc. Sec. Rul. 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000)); see also 20 C.F.R. §§
404.1566(d), 416.966(d). Such publications include the Dictionary of Occupational Titles,
which “includes information about jobs (classified by their exertional and skill requirements)

2) Even if the Court were inclined to give more weight to Dr. Muffly’s opinion, he does not indicate that Plaintiff
has a compromised nerve root with arachnoiditis or pseudoclaudication. (Tr. 532-535).

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that exist in the national economy.” Id. (quoting 20 C.F.R. § 416.969). ALJs may also
“consider the testimony of so-called ‘vocational experts’ (“VEs”) as a source of occupational
evidence.” Id. (citing S.S.R. 00-4p, 2000 WL 1898704, at *2).
In posing a hypothetical question to a vocational expert, an ALJ must accurately
describe Plaintiff’s functional limitations. Varley v. Sec’y of Health and Human Servs., 820
F.2d 777, 779. (6th Cir. 1987). However, the ALJ need only incorporate those limitations
he finds to be credible. Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235
(6th Cir. 1993).
In this case, the ALJ asked the VE to suppose someone with Plaintiff’s age,
education, work experience and residual functional capacity, and asked whether jobs exist
in the national economy for such an individual. (Tr. 29). The VE replied that there were,
giving representative occupations. (Id.). Plaintiff complains that this hypothetical failed to
properly account for Dr. Muffly’s opinion and his own testimony. However, the Court has
already found the ALJ’s assessments of both Dr. Muffly’s opinion and Plaintiff’s testimony
to be sound. Because the ALJ is only obliged to incorporate the limitations that she finds
to be credible, and because she did so in this case, the Court finds no error in the
hypothetical posed to the VE.
III. Conclusion
Accordingly, for the reasons stated, IT IS ORDERED as follows:
(1)

The decision of the Commissioner is found to be supported by substantial

evidence and is hereby AFFIRMED;
(2)

Plaintiff’s Motion for Summary Judgment (Doc. # 12) is hereby DENIED;

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(3)

Defendant’s Motion for Summary Judgment (Doc. # 13) is hereby GRANTED.

A Judgment in favor of Defendant Commissioner will be entered contemporaneously
herewith.
This 21st day of April, 2015.

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