Burke v. SSA
Filing
12
MEMORANDUM ORDER AND OPINION: (1) that the Commissioners motion for summary judgment, DE 11 , is GRANTED; and (2) that Plaintiffs motion for summary judgment, DE 10 , is DENIED.. Signed by Judge Joseph M. Hood on 8/12/2015. (JMB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
LINDA SUSAN BURKE,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
***
***
Civil Action No.
6:14-CV-222-JMH
MEMORANDUM ORDER AND OPINION
***
This matter is before the Court upon cross-motions for Summary
Judgment [DE 10, 11] on Plaintiff’s appeal of the Commissioner’s
denial of her application for disability insurance benefits.1
For
the reasons discussed below, the Commissioner’s motion will be
granted and Plaintiff’s motion will be denied.
I. Overview of the Process and the Instant Matter
The
Administrative
Law
Judge
(ALJ),
in
determining
disability, must conduct 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
physical or mental ability to do basic work activities
is not disabled.
1
These are not traditional Rule 56 summary judgment motions.
Rather, it is a procedural device by which the parties bring the
administrative record before the Court.
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 & Human 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
reaches the fifth step without a finding that the claimant is not
disabled, the burden transfers to the Secretary.”
The
ALJ
determined
that
Plaintiff
had
Id.
not
engaged
in
substantial gainful activity since May 2010, through her date last
insured of June 30, 2010.
that
Plaintiff
depression,
had
the
fibromyalgia,
Considering step two, the ALJ found
medically
and
determinable
arthritis.
The
impairments
ALJ
of
concluded,
however, that Plaintiff did not have an impairment or combination
of impairments that significantly limited her ability to perform
basic
work-related
activities
for
2
12
consecutive
months
and,
therefore, did not have a severe impairment pursuant to 20 C.F.R.
§ 404.1421 et seq.
As a result, the ALJ determined, Plaintiff
possessed the abilities and aptitudes required to do most jobs and
was not disabled as defined by the Social Security Act.
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 & Human 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
his conclusion.
See Landsaw v. Sec'y of Health & Human 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. Analysis
At the time of the ALJ’s decision, Plaintiff was fifty-seven
years old and lived with her husband and mother-in-law.
a
high-school
education
and
her
3
previous
employment
She had
included
janitorial work (1982–1989) and factory work (1997-2003), as well
as some babysitting in her home.
Plaintiff reported an inability
to work beginning in mid-2010 due to her “body just hurting.”
She
states that she also became confused during this time and lost her
memory.
Additionally, she complained of a lack of energy.
A.
The ALJ did not err in determining that the Plaintiff’s
impairments were not severe.
Plaintiff claims that the ALJ erred in finding that her
impairments were not severe under step two of his analysis.
“[A]n
impairment can be considered not severe only if it is a slight
abnormality that minimally affects work ability regardless of age,
education, and experience.”
(6th Cir. 1988).
Higgs v. Bowen, 880 F.2d 860, 862
Plaintiff carries the burden of proving the
severity of her impairments.
A physical or mental impairment must
be established by medical evidence consisting of signs, symptoms,
and laboratory findings, not only by the Plaintiff’s statement of
symptoms.
20 C.F.R. § 416.908.
This Court must affirm the ALJ’s
finding that Plaintiff’s impairments were not severe unless that
finding is not supported by substantial evidence in the record.
See 42 U.S.C. § 405(g).
The ALJ concluded that Plaintiff’s medically determinable
mental
impairment
caused
no
more
than
mild
limitations
and,
therefore, was non-severe.
He noted that, aside from one incident
of
in
psychological
decline
mid-2012
4
(which
was
long
after
Plaintiff’s insured status had expired), Plaintiff’s depression
was stable and largely controlled by medication.
Aside from the
brief period in mid-2012, Plaintiff never received specialized
psychiatric care.
Following that period, she received treatment
and achieved good success and had very mild limitations.
function
report,
Plaintiff
stated
that
she
In a
retrieved
her
grandchild from school daily and cared for her.
She also went
shopping
and
regularly
and
prepared
simple
meals
performed
housekeeping.
Upon a review of the record, treatment notes from Plaintiff’s
primary care provider indicate that Plaintiff was being treated
for depression during the relevant time period, though the notes
are largely illegible.
One legible portion of the notes reveal
that in January 2010, Plaintiff’s medications were adjusted and
counseling was recommended when it was felt that her depression
was not fully controlled.
Although Plaintiff received inpatient
mental health care in June 2012, post-insured status evidence is
only minimally probative and generally not relevant.
Higgs, 880
F.2d at 863; Bagby v. Harris, 650 F.2d 836, 839 (6th Cir. 1981).
Plaintiff does not dispute the ALJ’s determination that her date
last insured is June 30, 2010.
Accordingly, she is entitled to
benefits only if she became disabled on or before that date.
42
U.S.C. § 423(a)(1); Slone v. Sec. of Health & Human Servs., 825
F.2d 1082 n.1 (6th Cir. 1987).
5
As far as Plaintiff’s claims of fibromyalgia and arthritis,
the record supports the ALJ’s determination that these impairments
were not severe.
The record is devoid of any objective testing
that would support the diagnoses of arthritis or fibromyalgia.
Specifically, Plaintiff fails to identify any x-rays, laboratory
results, or physical examination results that would indicate the
existence of these conditions. It appears that Plaintiff’s primary
care provider relied upon Plaintiff’s subjective complaints in
making these diagnoses.
Plaintiff’s
When asked what medical findings support
limitations,
Dr.
Perry
failed
to
identify
any
objective findings, responding “extreme muscle and joint pain in
all regions of body including neck/back/[illegible].”
is
no
indication
in
the
record
that
Plaintiff
Also, there
ever
saw
an
orthopedist, a rheumatologist, or any other specialist for these
problems. The Commissioner is not required to defer to unsupported
medical assumptions, even when made by a treating physician. Higgs
at 863–64 (citing Landsaw v. Sec. of Health & Human Servs., 803
F.2d 211, 213 (6th Cir. 1986)).
Accordingly, the ALJ’s findings
that these impairments were not severe is supported by substantial
evidence.
B.
The ALJ did not err regarding the weight given to the
opinion of the treating source or the Plaintiff’s husband.
The social security regulations require that if the opinion
of
the
claimant’s
treating
physician
6
is
“well-supported
by
medically acceptable clinical and diagnostic techniques and [is]
not inconsistent with the other substantial evidence in [the] case
record, it must be given controlling weight.”
Wilson v. Comm’r of
Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (internal quotation
marks omitted); 20 C.F.R. § 404.1527(d)(2).
As explained above,
however, the ALJ provided an explanation as to why Dr. Perry’s
opinion was not supported by the record.
Dr. Perry’s notes were
largely illegible but the portions that could be read did not
support a finding of disability.
provide
any
conclusions.
objective
findings
Further, Dr. Perry did not
whatsoever
to
support
his
The ALJ concluded that there was a lack of medical
evidence to support Dr. Perry’s opinion and that conclusion is
supported by substantial evidence.
Plaintiff also contends that the ALJ erred in failing to give
weight to Plaintiff’s husband’s opinion regarding Plaintiff’s
level of function.
the
third-party
The ALJ’s opinion indicates that he considered
report
completed
by
Plaintiff’s
accordance with the Social Security rules.
WL 374186, *1.
husband,
in
See S.S.R. 96-7p, 1996
The ALJ’s decision to give the opinion little
weight is supported by substantial evidence, however, because, as
the ALJ pointed out, it inconsistent with the medical evidence of
record.
The
ALJ
determined
that
Plaintiff
had
only
worked
sporadically in the past and had not earned at substantial gainful
7
activity since 1990.
The ALJ felt that this was indicative of a
weak motivation to work.
The ALJ’s credibility determinations
generally are entitled to great weight and deference.
Soc. Sec. Admin., 336 F.3d 469, 477 (6th Cir. 2003).
Jones v.
Further, it
is acceptable for an ALJ to consider poor work history when
evaluating credibility.
See e.g., Matula v. Comm’r of Soc. Sec.,
No. 13-cv-10673, 2013 WL 6713829, *7 (E.D. Mich., Dec. 20, 2013).
Here, the ALJ not only relied upon Plaintiff’s past employment
records, but also the medical evidence and her hearing testimony
to conclude that her motivation to work was compromised.
This
constitutes substantial evidence and, thus, the Commissioner’s
decision will not be disturbed on this ground.
IV.
Conclusion
Accordingly, IT IS ORDERED:
(1)
that the Commissioner’s motion for summary judgment, [DE
11], is GRANTED; and
(2)
that Plaintiff’s motion for summary judgment, [DE 10],
is DENIED.
This the 12th day of August, 2015.
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