Boggs v. SSA
Filing
12
MEMORANDUM OPINION & ORDER: It is HEREBY ORDERED that the Plaintiff's Motion for Summary Judgment be OVERRULED and the Defendant's Motion for Summary Judgment be SUSTAINED. A judgment in favor of the Defendant will be entered contemporaneously herewith. Signed by Judge Henry R. Wilhoit, Jr on 09/28/2015.(KJA)cc: COR
UNITED STATES DISTRICT COURT
EASTER!'! DISTRICT OF KENTUCKY
SOUTHERN DIVISION
at LONDON
Civil Action No.14-166-HRW
PLAINTIFF,
GREGORY VERNON BOGGS,
v.
MEMORANDUM OPINION AND ORDER
CAROLYN COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
Plaintiff has brought this action pursuant to 42 U.S.C. §405(g) to challenge a final
decision of the Defendant denying Plaintiffs application for disability insurance benefits . The
Court having reviewed the record in this case and the dispositive motions filed by the parties, and
being otherwise sufficiently advised, for the reasons set forth herein, finds that the decision of the
Administrative Law Judge is supported by substantial evidence and should be affirmed.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed his current application for disability insurance benefits on August 3, 2011,
alleging disability beginning on June 8, 2011, due to "rheumatoid atihritis, carpal tunnel
syndrome, degenerative arthritis, osteoarthritis, fatty liver, type 2 diabetes mellitus, high blood
pressure, heart disease, black lung, ears, eyes and depression" (Tr. 232). This application was
denied initially and on reconsideration. Thereafter, upon request by Plaintiff, an administrative
hearing was conducted by Administrative Law Judge Bonnie Kittinger (hereinafter "ALJ"),
wherein Plaintiff, accompanied by counsel, testified. At the hearing, JoAnn Bullard, a
vocational expert (hereinafter "VE"), also testified.
At the hearing, pursuant to 20 C.P.R.§ 416.920, the ALJ performed the following five-
step sequential analysis in order to determine whether the Plaintiff was disabled:
Step 1: If the claimant is performing substantial gainful work, he is not disabled.
Step 2: If the claimant is not performing substantial gainful work, his impairment(s) must
be severe before he can be found to be disabled based upon the requirements in 20 C.F.R.
§ 416.920(b).
Step 3: If the claimant is not perf01ming substantial gainful work and has a severe
impahment (or impairments) that has lasted or is expected to last for a continuous period
of at least twelve months, and his impairments (or impairments) meets or medically
equals a listed impahment contained in Appendix 1, Subpart P, Regulation No.4, the
claimant is disabled without further inquiry.
Step 4: If the claimant's impahment (or impairments) does not prevent him from doing
his past relevant work, he is not disabled.
Step 5: Even if the claimant's impairment or impahments prevent him from performing
his past relevant work, if other work exists in significant numbers in the national
economy that accommodates his residual functional capacity and vocational factors, he is
not disabled.
Plaintiff was 51 years old on the date he allegedly became disabled and 53 years old at the
time of the Commissioner's final decision on August 7, 2013 (Tr. 30, 80 (date ofbirth)). Plaintiff
graduated from high school and worked as a laborer and miner prior to his alleged onset of
disability (Tr. 233-34).
At Step I of the sequential analysis, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since the alleged onset date of disability (Tr. 35).
The ALJ then dete1mined, at Step 2, that Plaintiff suffers from rheumatoid arthritis,
osteoarthritis and depression, which she found to be "severe" within the meaning of the
Regulations (Tr. 36-37).
At Step 3, the ALJ found that Plaintiffs impairments did not meet or medically equal any
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of the listed impairments (Tr. 37-39).
The ALJ further found that Plaintiff could not return to his past relevant work as a driller
helper, coal miner, welder, construction worker, pourer and material handler (Tr. 41) but
determined that he has the residual functional capacity ("RFC") to perform light work, as
defined by 20 C.F.R. 404.1567(b), with the following additional limitations: occasional climbing
ofladders, ropes, or scaffolds; frequent stooping, kneeling, crouching, crawling, or climbing
ramps or stairs; understanding and remembering simple and detailed instmctions and procedures;
sustaining attention and pace for simple tasks within regnlar tolerances or two-hour time blocks;
interacting with peers and supervisors sufficiently for task completion; occasional interacting
with the general public; and adapting to work demands and situational changes given reasonable
support (Tr. 39-41).
The ALJ finally concluded that these jobs exist in significant numbers in the national and
regional economies, as identified by the VE (Tr. 42).
Accordingly, the ALJ found Plaintiff not to be disabled at Step 5 of the sequential
evaluation process.
The Appeals Council denied Plaintiffs request for review and adopted the ALl's decision
as the final decision of the Commissioner. Plaintiff thereafter filed this civil action seeking a
reversal of the Commissioner's decision. Both parties have filed Motions for Summary
Judgment [Docket Nos. 10 and 11] and this matter is ripe for decision.
II. ANALYSIS
A.
Standard of Review
The essential issue on appeal to this Court is whether the ALJ' s decision is supported by
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substantial evidence. "Substantial evidence" is defined as "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion;" it is based on 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 (6'h Cir. 1984). If the Commissioner's decision is supported by
substantial evidence, the reviewing Court must affirm. Kirk v. Secretmy ofHealth and Human
Services, 667 F.2d 524, 535 (6'h Cir. 1981), cert. denied, 461 U.S. 957 (1983). "The court may
not try the case de novo nor resolve conflicts in evidence, nor decide questions of credibility."
Bradley v. Secretmy ofHealth and Human Services, 862 F.2d 1224, 1228 (6 1h Cir. 1988).
Finally, this Comt must defer to the Commissioner's decision "even ifthere is substantial
evidence in the record that would have supported an opposite conclusion, so long as substantial
evidence supports the conclusion reached by the ALJ." Key v. Callahan, 109 F.3d 270,273 (6th
Cir.1997).
B.
PlaintifPs Contentions on Appeal
Plaintiff asserts several e1Tors on appeal, but fails to present them to this Court properly.
Plaintiff provides only cursory arguments in support of his motion for summmy judgment, which
is little more than a recitation of portions of the ALJ's decision and the record. The United
States Court of Appeals for the Sixth Circuit has
decline[ d] to fonnulate arguments on [a claimant's] behalf, or to
undertake an open-ended review of the entirety of the
administrative record to determine (I) whether it might contain
evidence that arguably is inconsistent with the Commissioner's
decision, and (ii) if so, whether the Commissioner sufficiently
accounted for this evidence. Rather, we limit our consideration to
the particular points that [a claimant] appears to raise in [his /her]
brief on appeal.
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Hollon ex rel. Hollan v. Commissioner ofSocial Security, 447 F.3d 477,491 (6 1h Cir. 2006). In
Hollan, the court also refused to consider claimant's generalized arguments regarding the
physician's opinions of record:
[Claimant] has failed to cite any specific opinion that the ALJ
purportedly disregarded or discounted, much less suggest how such
an opinion might be impe1missibly inconsistent with the ALJ's
findings. In the absence of any such focused challenge, we decline
to broadly scrutinize any and all treating physician opinions in the
record to ensure that they are properly accounted for in the ALJ's
decision.
!d. See also, McPherson v. Kelsey, 125 F.3d 989, 995-996 (6 1h Cir. 1997) ("' [I]ssues adverted
to in a perfunct01y manner, unaccompanied by some effort at developed argumentation, are
deemed waived. It is not sufficient for a party to mention a possible argument in the most
skeletal way, leaving the court to ... put flesh on its bones.'") (citations omitted); United States v.
Phibbs, 999 F.2d 1053, 1080 n. 12 (6'h Cir. 1993)(noting that "it is not our function to craft an
appellant's arguments").
The lack of supporting argument, alone, wan·ants a denial of Plaintiffs dispositve
motion. The Court has reviewed the parties' motions and the administrative record, nevertheless,
and it appears that the Plaintiffs motion should be denied on its me1its as well.
Plaintiff claims that the ALJ erred in his evaluation of the opinion evidence. But again,
Plaintiff does not provide any meaningful argumentation to support his claim. Rather, her simply
summarizes two opinions from the record, namely, those of Dr. Jayalakshmi Pampati and Dr.
David Muffly.
Plaintiff suggests that the ALJ should have given more effect to a Febmary 13,2012,
opinion from Dr. Pampati, stating that Plaintiff was totally disabled. Plaintiffs claim is not
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supported by the record; Dr. Pampati did not author any opinion on that date and her treatment
records do not extend past 2011 (although some were printed in January 2012) (see Tr. 464-98).
The Court notes that Dr. Pampati, in March 2014, opined that P1aintiffwas "[c]ompletely
disabled for any occupation". This opinion was not accompanied by any functional limitations.
Nor was it presented to the ALJ, who issued her opinion in Febmary 2013. (Tr. 513). The
Appeals Council, did, in fact, consider the March 2014 opinion but detetmined that it did not
provide a basis for changing the ALI's decision (Tr. 5). The Appeals Council's decision was
conect, as conclusory statements on matters reserved to the Commissioner, i.e., whether or not a
claimant is disabled, are not medical opinions and are not dispositive. See 20 C.F.R. §
404.1527(d). Moreover, Plaintiff has not argued the Appeals Council erred in its detetmination.
Therefore, the suggestion that Dr. Pampati's opinion was not properly considered is without
merit.
Plaintiff also refers to an opinion from examining physician David Muffly, M.D. (Pl. Br.
6). Once again, Plaintiff does nothing more than summarize the portions of that opinion which he
believes are helpful to his claim. Dr. Muffly examined Plaintiff on May 24, 2012 (Tr. 501-09).
Dr. Muffly opined that Plaintiff could lift 10 pounds; could not do fine manipulation with his
hands; could not operate foot controls; could do "very limited" bending and stooping; could walk
one hour per day; could sit three hours a day; and needed to be able to lie down to obtain pain
relief. Dr. Muffly stated that Plaintiff was "totally disabled" (Tr. 504). These limitations were
repeated, with more detail, on another form: Plaintiff could never climb, crawl, or balance; could
occasionally crouch or kneel; had limitations in reaching, handling, feeling, and pushing/pulling;
and could not work at heights, or around moving machinety, dust, and noise (Tr. 506-09).
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The ALJ reasonably declined to give Dr. Muffly's opinion significant weight (see Tr. 3637, 40-41). Opinions from an examining source, such as Dr. Muffly, cannot receive controlling
weight because only a treating physician's opinion is eligible for controlling weight. See 20
C.P.R. § 404.1527( c)(2). The ALJ determines the weight to give examining source opinions
based on whether they are supported by medically acceptable clinical and laboratory diagnostic
teclmiques and are not inconsistent with other substantial evidence in the record, among other
factors. See 20 C.P.R.§ 404.1527(c)(l), (3)-(6).
Here, the ALJ found Dr. Muffly's opinion to be at odds with other evidence in the record,
including notes fi·om Dr. Pampati and the examination and opinion rendered by Paul von
Herrmann, M.D. (Tr. 36-37, 41).
As for Dr. Muffly's remark that Plaintiff is "totally disabled", the ALJ was correct in
disregarding it. It is within the province of the ALJ to make the legal determination of disability.
The ALJ is not bound by a treating physician's conclusory statement, particularly where the ALJ
determines, as she did in this case, where these is medical proof that Plaintiff retains the RFC to
See King v. Heckler, 742 P.2d 968, 973 (6'h
work in some capacity other than her past work.
Cir. 1984).
Plaintiff also maintains that the ALJ did not properly evaluate his subjective complaints
of pain. Upon review of an ALJ's decision, this Comt is to accord the ALJ's detetminations of
credibility great weight and deference as the ALJ has the opportunity of observing a witness'
demeanor while testifying. Walters v. Commissioner ofSocial Security, 127 P.3d 525, 528 (6'h
Cir. 1997). Subjective claims of disabling pain must be supported by objective medical evidence.
Duncan v. Secretwy ofHealth and Human Services, 801 P.2d 847, 852-853 (6'h Cir. 1986).
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Based upon the record, Plaintiff's subjective complaints do not pass Duncan muster. For
instance, the physical examinations in the record were mostly normal and slight abnormalities
were only sporadically present (Tr. 307, 340-447, 352, 362-63, 366, 369,373, 376-77, 379, 38586, 413, 417, 442-44). X-rays showed only mild degenerative changes (Tr. 331, 333-34). The
ALJ reasonably considered this objective evidence in determining Plaintiff's subjective
complaints were not entirely credible (Tr. 11 0-13). The Court finds that the ALJ's assessment of
Plaintiffs credibility is supported by substantial evidence.
Finally, Plaintiff suggests that the ALJ could not rely on the testimony of the vocational
expert to find that he could perfmm other work in the national economy. The Court assumes that
Plaintiff is challenging the hypothetical questions posed to both VE.
Hypothetical questions posed to the VE must comply with this circuit's long-standing
rule that the hypothetical question is proper where it accurately describes a claimant's functional
limitations. Varley v. Secretary ofHealth and Human Services, 820 F.2d 777,779. (6'h Cir.
1987). This rule is necessarily tempered by the requirement that the ALJ incorporate only those
limitations which he or she finds to be credible. Casey v. Secretary ofHealth and Human
Services, 987 F.2d 1230, 1235 (6'h Cir. 1993).
In this case, the hypotheticals posed accurately portray the RFC as formulated based upon
the objective medical evidence. To the extent that Plaintiff may suggest that he has certain
manipulative impairments which would preclude the performance of jobs cited by the VE, the
record is devoid of credible medical evidence suggesting functional limitations beyond those
found by the ALJ. Given the objective medical evidence in the record, the hypotheticals were
factually supported by the evidence of record and, thus, the responses thereto constitute
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substantial evidence in support of the AU's decision.
III. CONCLUSION
The Court finds that the ALJ's decision is supported by substantial evidence on the
record. Accordingly, it is HEREBY ORDERED that the Plaintiff's Motion for Summary
Judgment be OVERRULED and the Defendant's Motion for Summary Judgment be
SUSTAINED. A judgment in favor of the Defendant will be entered contemporaneously
herewith.
This
dY~ay of~~~
,2015.
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