Gahl v. SSA
Filing
13
MEMORANDUM OPINION & ORDER: 1) That Plaintiff's Motion for an Extension of Time [DE 10 ] to file his brief is GRANTED and that his Motion for SummaryJudgment is deemed timely filed; 2) that Plaintiff's Motion for Summary Judgment (DE 11 ) is DENIED and 3) that Defendant's Motion for Summary Judgment (DE 12 ) is GRANTED. Signed by Judge Joseph M. Hood on 9/29/2016.(RBB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
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) Action No. 6:15-CV-00125-JMH
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)
) MEMORANDUM OPINION AND ORDER
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)
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ROBERT GAHL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security
Defendant.
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This matter is before the Court on the parties’ cross-Motions
for Summary Judgment (DE 11, 12) on Plaintiff’s appeal of the
Commissioner’s denial of his application for disability insurance
benefits.1
The matter having been fully briefed by the parties is
now ripe for this Court’s review.
I.
In
determining
whether
an
individual
is
disabled,
an
Administrative Law Judge (“ALJ”) uses 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
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. Plaintiff has also requested leave to file his brief out of
time [DE 10], which will be granted.
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
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)).
II.
Plaintiff
filed
applications
for
disability
insurance
benefits (DIB) and supplemental security income (SSI), alleging
disability beginning on October 24, 2011 (AR at 175-83).
His
applications were denied initially and on reconsideration (AR at
112-15).
Plaintiff pursued and exhausted his administrative
remedies before the Commissioner (AR at 24-49 (hearing), 10-19
(decision),
1-3
(Appeals
Council
2
denial
of
review
of
ALJ
decision)). This case is ripe for review pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3).
III.
Plaintiff was 35 years old at the time he claims he became
disabled (see AR at 18). He completed 9th grade in school, obtained
his GED, and took certified nurse’s assistant (CNA) courses (AR at
509). He worked in the relevant past as a CNA, trash collector,
and
excavation
machine
operator
(AR
at
18,
224).
Plaintiff
originally alleged disability due to fibromyalgia, degenerative
disc disease, past right ankle surgery, a broken left foot, bad
knees, right hip pain, right shoulder pain, and “confusion” (AR at
203); he now also alleges disability due to mental impairments,
including
depression,
borderline
intellectual
functioning,
anxiety, and bipolar disorder (see Plaintiff’s Brief (Pl.’s Br.)
at 8).
Prior
to
Plaintiff’s
October
2011
alleged
onset
of
disability, Plaintiff went to Wabash County Hospital in Wabash,
Indiana, at least once a year from 2004 through 2010 with various
complaints, including congestion, chest tightness, a left hand
laceration, a hernia repair, abdominal pain, and a left foot injury
(see generally AR at 291-477). An October 2009 MRI of his lumbar
spine showed disc protrusion in one area with no stenosis or
narrowing (AR at 300), and an MRI of his left foot showed some
bone fragment and cystic changes (AR at 289). Also prior to
3
Plaintiff’s alleged onset of disability, he saw nurse practitioner
Barbara Starry at One Warsaw Medical Clinic four times in late
2010 and the first half of 2011 for foot pain (AR at 482-97).
In October 2011, Plaintiff saw Jon Karl, M.D., where an
examination revealed normal gait; grossly intact sensation; normal
motor strength; a nontender spine; no fibromyalgia tenderpoints;
limited spine flexion with lumbar pain but a full range of motion
on spine extension; and left foot tenderness with palpation (see
AR at 479-81). Plaintiff returned to Dr. Karl four months later—
in February 2012—and an examination showed the same (AR at 499501).
Plaintiff began seeing nurse practitioner Joan Gripshover for
follow
up
on
fibromyalgia.
his
degenerative
disc
disease
and
claims
of
He saw her approximately once a month through the
remainder of 2012 (see generally AR at 514-30). Right foot, ankle,
and leg x-rays showed no acute fractures but evidence of past
surgical
hardware
in
his
right
ankle
(AR
at
528-30).
Ms.
Gripshover’s notes indicate that she diagnosed Plaintiff with
chronic low back pain, depression, bipolar disorder, and posttraumatic stress disorder (PTSD) (AR at 514-30).
In December 2012, Plaintiff went to the Anne Wasson Clinic
for follow-up once a month through February 2013.
The notes of
these visits are handwritten and difficult to read at best (AR at
555-58) but indicate continuing treatment for the same body of
4
ailments. Finally, in March 2013, Plaintiff began going to the
Primary Care Centers of Eastern Kentucky, where he went once a
month through June 2013.
Providers there diagnosed thoracic spine
pain, osteoarthritis, and fatigue (AR at 548-55).
None of these
health care providers assessed Plaintiff for work limitations.
Then,
in
consultative
April
2012,
evaluation
of
Andrew
Koerber,
Plaintiff
in
M.D.,
performed
connection
with
a
his
disability application (AR at 502-08). The examination showed
normal posture and gait; no difficulty getting on and off the
examination table; no leg swelling; intact nerves; full (5/5)
strength in arms and legs; decreased sensation along the lateral
side of his right leg; normal reflexes; an ability to squat, toe,
and tandem walk without difficulty but mild difficulty performing
a heel walk; and decreased lumbar spine flexion and decreased
dorsiflexion of the right ankle but no other limitations throughout
(AR at 504-05).
Dr. Koerber diagnosed back pain and a prior right
ankle injury (AR at 505). He opined that Plaintiff could perform
activities
that
involved
sitting,
performing
gross
manipulation
and
standing,
gripping,
moving
and
about,
lifting
and
carrying objects up to 20 pounds, but would have difficulty lifting
or carrying objects greater in weight (AR at 505-06).
The
next
psychological
month,
evaluation
Emily
of
Skaggs,
Plaintiff
Psy.D.,
in
performed
connection
with
a
his
disability application (AR at 509-13). Plaintiff reported problems
5
mostly
physical
in
nature
to
Dr.
Skaggs,
but
added
that
he
experienced “episodes where there is like an explosion in my mind
and I don’t know where I’m [sic]” (AR at 509). He denied any
current psychiatric treatment and a mental status examination was
largely normal (AR at 510-12). She diagnosed mood disorder and
possible (“rule out”) psychotic features and cognitive disorder,
as well as noted that he had experienced physical abuse as a child
(AR
at
512).
Following
what
was
otherwise
a
largely
normal
examination, Dr. Skaggs opined that Plaintiff would have moderate
limitations
in
understanding,
remembering,
and
carrying
out
instructions toward the performance of simple repetitive tasks;
marked limitations in tolerating stress and pressures of day-today employment; moderate limitations in sustaining attention and
concentration toward performance of simple repetitive tasks; and
moderate limitations in responding appropriately to supervisors
and coworkers in a work setting (AR at 512-13).
In June 2012, state agency psychologist Mary Thompson, Ph.D.,
reviewed Plaintiff’s medical records and opined that he could
understand
and
remember
simple
and
detailed
instructions
and
procedures; sustain attention, concentration, and pace for simple
tasks
within
supervisors
regular
sufficiently
tolerances;
for
task
interact
completion
with
on
peers
at
least
and
an
occasional basis with the public; and adapt to work demands and
situational changes given reasonable support (see AR at 59-61).
6
Another
state
agency
psychologist,
Jill
Rowan,
Ph.D.,
later
reviewed Plaintiff’s medical records and largely agreed with Dr.
Thompson’s opinion, but added that Plaintiff would work best in an
environment that did not involve working with others or the general
public (AR at 90-92).
In October 2012, state agency physician
Carlos Hernandez, M.D., reviewed Plaintiff’s medical records and
opined that Plaintiff could lift and carry 20 pounds occasionally
and 10 pounds frequently; sit and stand/walk six hours each in an
eight-hour workday; occasionally operate bilateral foot controls
and climb ladders, ropes, and scaffolds, but frequently perform
other postural movements; and should avoid concentrated exposure
to hazards (AR at 87-90).
The
next
psychological
month,
Michelle
assessment
of
Amburgey,
Plaintiff
at
M.A.,
the
performed
request
of
a
his
attorney (AR at 531-36). Plaintiff reported a history of horrific
sexual and physical abuse and abandonment as a child to Dr.
Amburgey, as well as that he finished 9th grade, but he did not
report that he obtained his GED or took CNA courses to her (AR at
533). Dr. Amburgey performed intelligence testing and found that
he had a full scale IQ score of 61, placing him in the mild range
of mental retardation (AR at 534). She also assessed him with an
eighth grade reading level.
She diagnosed bipolar and anxiety
disorders but ruled out dissociative identity disorder (AR at 536).
Dr. Amburgey opined that Plaintiff could complete activities of
7
daily
living
and
comprehend
and
follow
through
with
basic
instructions, but that he would not be able to complete more
complex tasks due to limited intellectual functioning (AR at 535).
Finally, in February 2012, Robert Hoskins, M.D., performed a
one-time examination of Plaintiff at the request of his attorney
(AR at 540-45). The examination showed right ankle swelling, right
shoulder pain, and an unsteady gait, but otherwise largely normal
findings (AR at 542). After completing this examination, Dr.
Hoskins opined that Plaintiff could lift and carry 20 to 25 pounds
infrequently and 10 to 15 pounds occasionally; stand or walk 15 to
20 minutes at a time for two hours total in an eight-hour workday;
sit for one hour at a time; never climb or balance and rarely
stoop, crouch, kneel, and crawl; had limitations reaching and
handling; and should avoid all environmental conditions except
noise and humidity (AR at 537-39, see also AR at 542-43).
ALJ Bonnie Kittinger ultimately concluded that Plaintiff had
some severe impairments (degenerative disc disease, degenerative
joint disease, past right ankle surgery, and depression) (AR at
12) but that Plaintiff could nonetheless perform a range of simple,
light work (AR at 16). The ALJ specified that Plaintiff could
perform light work (requiring lifting and carrying 20 pounds
occasionally and 10 pounds frequently) that involved occasionally
performing of all postural activities but never climbing ladders,
ropes,
or
stairs;
required
avoiding
8
concentrated
exposure
to
hazards; and allowing for the ability to alternate between sitting
and standing every 45 to 60 minutes (AR at 16). The ALJ also found
that Plaintiff could perform simple, routine and basic tasks that
involved occasionally interacting with co-workers and supervisors
(but not the public) and adapting to changes that were gradually
introduced (AR at 16). Based on vocational expert testimony (see
AR 45-47) in response to a hypothetical question with these same
limitations, she concluded that Plaintiff could not perform any of
his past work, but could perform other that existed in significant
numbers in the national economy (AR at 18-19). Thus, the ALJ found
that Plaintiff was not disabled under the Social Security Act (AR
at 19).
III.
When reviewing a decision made by the ALJ, the Court may not
“‘try the case de novo, resolve conflicts in evidence, or decide
questions of credibility.’” Ulman v. Comm’r of Soc. Sec., 693 F.3d
709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506,
509 (6th Cir. 2007).
“The ALJ’s findings are conclusive as long
as they are supported by substantial evidence.” 42 U.S.C. § 405(g);
Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (citations
omitted).
Substantial evidence “means such relevant evidence as
a reasonable mind might accept.” Foster, 279 F.3d at 353.
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IV.
Plaintiff argues that the ALJ erred in weighing the various
medical opinions in the record in order to reach the conclusion
that, despite his physical and mental impairments, he retained the
residual functional capacity to perform a reduced range of simple,
light work.
[AR at 10.]
The Court concludes, as explained below,
that the ALJ did not err and that, in fact, the decision of the
ALJ is supported by substantial evidence in the record of this
matter.
The responsibility for determining a claimant’s residual
functional capacity is reserved to the Commissioner.
C.F.R. §§ 404.1527(d)(2), 404.1545.
See 20
The ALJ considers numerous
factors in constructing a claimant’s residual functional capacity,
including the medical evidence, the non-medical evidence, and the
claimant’s credibility.
See Coldiron v. Comm’r of Soc. Sec., 391
F. App’x 435, 443 (6th Cir. 2010) (unpublished).
The ALJ resolves
conflicts in the evidence and incorporates only those limitations
that
she
finds
assessment.
1230,
credible
in
the
residual
functional
capacity
See Casey v. Sec’y of Health & Human Servs., 987 F.2d
1234-35
(6th
Cir.
1993).
Where
there
are
conflicts
regarding the evidence, the ALJ’s findings of credibility are
entitled to great deference.
See Anthony v. Astrue, 266 F. App’x
451, 460 (6th Cir. 2008) (unpublished) (citing King v. Heckler,
742 F.2d 968, 974-75 (6th Cir. 1984)).
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As an initial matter, the Court rejects Plaintiff’s argument
that, on the evidence of record, he is limited to sedentary work
by his physical impairments alone and that the ALJ failed to reach
a decision supported by the record.
As a practical matter, the
residual function capacity of limited, light work assigned by the
ALJ
largely
if
not
entirely
tracked
the
physical
limitation
recommendations of the two examining physicians, Drs. Hoskins and
Koerber. Plaintiff has pointed to no evidence to support a contrary
conclusion and the Court declines to consider this matter further.
To
the
extent
that
Plaintiff
argues
that
the
ALJ
erred
in
discounting examining consulting physician Dr. Hoskins’ opinion
because
it
was
internally
inconsistent
–
which
assessment
Plaintiff does not counter in his brief – and based largely on
Plaintiff’s subjective complaints, the ALJ did so reasonably.
See
20 C.F.R. § 404.1527(c)(3) (“The more a medical source presents
relevant evidence to support an opinion, particularly medical
signs and laboratory findings, the more weight we will give that
opinion.”); Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 391 (6th
Cir. 2004) (“Dr. Sonke’s conclusion regarding the amount of weight
that Warner could lift regularly appears to be based not upon his
own medical conclusion, but upon . . . Warner’s own assessment of
his weight-lifting limitations.”).
Next, Plaintiff complains that the ALJ failed to include
limitations
which
reflected
the
11
findings
in
the
evaluation
conducted by examining psychologist Dr. Skaggs, who concluded that
claimant had marked limitations or was severely limited in his
ability
to
employment.
those
tolerate
stress
and
the
pressure
of
day
to
day
He argues as well that the ALJ also failed to include
limitations
proposed
by
Michelle
Amburgey,
M.A.,
who
Plaintiff with bipolar disorder, mild mental retardation, and
anxiety order, assessing a GAF of 50 and a full scale IQ of 61.
Based on those conclusions, she opined that he would not be a
dependable employee, would have unpredictable behavior, and that
he appeared not to be in control of his mood.
The results of the
testing that she conducted provide the sole evidence concerning
his
I.Q.
–
a
full
scale
I.Q.
of
61
–
and
his
mild
mental
retardation.
With
respect
to
his
mental
abilities,
the
ALJ
assessed
Plaintiff with a residual functional capacity that was in line
with the state agency psychologists’ conclusions that Plaintiff
could perform simple and repetitive tasks and adapt to changes in
the work setting if they were gradually introduced but could only
interact with co-workers and supervisors occasionally and never
interact with the general public.
Thus, the ALJ rejected Ms.
Amburgey’s conclusions regarding Plaintiff’s abilities in part
because Plaintiff provided an account of his history that was not
reflected elsewhere in the record and his failure to advise Ms.
Amburgey that, while he had quit school in the ninth grade, he had
12
obtained his GED and taken CNA classes, which indicated greater
abilities than simply dropping out of school.
The ALJ further
noted that while Dr. Amburgey’s testing indicated that Plaintiff’s
full scale IQ score fell in the range associated with mild mental
retardation, she also assessed him as reading at an eighth grade
level. The ALJ properly considered, as well, that Plaintiff denied
attending special education courses during the course of his school
work, undermining the test results obtained by Ms. Amburgey, and
that Ms. Amburgey looked only at Plaintiff’s physical medical
records, not those that were mental in nature.
the
ALJ’s
conclusion
that
Amburgey’s
In other words,
opinion
was
based
on
subjective complaints and was inconsistent with the record as a
whole, is grounded in objective evidence and is part of the errand
assigned to the ALJ.
See 20 C.F.R. § 404.1527(c)(4) (stating an
ALJ must consider whether an opinion is consistent with the record
as a whole).
Similarly, the Court cannot say that the ALJ erred
in declining to fully adopt Drs. Skaggs or Amburgey’s assessments
as her own in light of the inconsistency between her largely normal
examination findings which provided little objective evidence to
support the marked limitations that she believed him to possess.
Ultimately, the Court agrees with the Commissioner that, the
ALJ adequately explained and justified his determination. In light
of
the
minimal
treatment
notes
and
the
records
in
the
administrative transcript of this matter, including the medical
13
sources, that is enough.
benefits
is
supported
by
The Commissioner’s decision denying
substantial
evidence
because
she
developed an RFC which reflected the evidence of record and based
her opinion on the testimony of VE which was responsive to a
hypothetical question which reflected that RFC.
of
Soc.
Sec.,
378
F.3d
541,
548
(6th
Wilson v. Comm’r
Cir.
2004)
(“[T]he
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
economy.”).
in
the
national
The Court affirms the decision.
Accordingly, for all of the reasons set forth above, IT IS
ORDERED:
1)
That Plaintiff’s Motion for an Extension of Time [DE 10]
to file his brief is GRANTED and that his Motion for Summary
Judgment is deemed timely filed;
2)
that Plaintiff’s Motion for Summary Judgment (DE 11) is
DENIED and
3)
that Defendant’s Motion for Summary Judgment (DE 12) is
GRANTED.
This the 29th day of September, 2016.
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