Masters v. SSA
MEMORANDUM OPINION & ORDER: 1) Pla's motion for leave to a 28 page brief 13 is GRANTED; 2) Pla's motion for s/j 12 is DENIED and 3) Dft's motion for s/j 14 is GRANTED. Signed by Judge Joseph M. Hood on 3/31/17.(MRS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
MARY K. MASTERS,
) Action No. 6:16-CV-00031-JMH
) MEMORANDUM OPINION AND ORDER
NANCY J. BERRYHILL,
Acting Commissioner of
This matter is before the Court on the parties’ cross-Motions
for Summary Judgment (DE 12, 14) on Plaintiff’s appeal of the
Commissioner’s denial of her application for disability insurance
benefits. 1 The matter having been fully briefed by the parties is
now ripe for this Court’s review. 2
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
2. An individual who is working but does not
significantly limits his physical or mental
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.
The Court being adequately advised and seeing no objection from Defendant,
Plaintiff’s Motion for Leave to File a 28 Page Brief [DE 13] will be granted.
ability to do basic work activities is not
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
Preslar v. Sec’y of Health & Hum. Servs., 14 F.3d 1107, 1110 (6th
Cir. 1994)(citing 20 C.F.R. § 404.1520(1982)).
income (SSI), alleging disability beginning in May 2012 (Tr. 16366). Her application was denied initially and on reconsideration
(Tr. 84, 99). Thereafter, Plaintiff pursued and exhausted her
(hearing), 21-32 (administrative law judge (ALJ) decision), 1-5
(Appeals Council’s denial of review of ALJ decision)). This case
is ripe for review pursuant to 42 U.S.C. § 1383(c)(3).
application (Tr. 30). She completed college (Tr. 42-43) and worked
in the past as a receptionist and substitute teacher (Tr. 197).
She alleged disability due to migraines, osteoarthritis, fatigue,
back and knee pain, fibromyalgia, painful bladder (interstitial
cystitis) with frequent urination, anemia, and depression (Tr.
The treatment notes show that Plaintiff went to various
providers during the relevant time period (May 2012 (her alleged
onset of disability) through January 2015 (the date of the ALJ’s
approximately once a month throughout the second half of 2012 for
complaints such as face swelling, a urinary tract infection,
congestion, a head injury following a fight, and bladder problems
(Tr. 403-25). Also that year, Plaintiff went to a physical therapy
evaluation for complaints of back and hip pain (see Tr. 331-38);
x-rays of her lumbar spine were normal on two occasions (Tr. 433,
Prior to her May 2012 alleged onset of disability, Plaintiff saw nurse
practitioner Tammy Freeman for routine complaints and generalized muscle pain
(Tr. 292-306); providers at the Family Health Center for complaints such as
urinary problems, muscle aches, low back pain, knee pain, and cold symptoms
(Tr. 356-402); emergency room doctors for nose pain (Tr. 282-90); and urologists
for microscopic hematuria (blood in her urine) and other bladder problems (Tr.
315-22, 328-30, 429-32).
437) and an x-ray of her hip was also normal (Tr. 352, 425). She
also went to an orthopedist for complaints of knee pain; x-rays of
both knees were normal and she was given steroid injections (Tr.
353, 441-46). Plaintiff went to the hospital once in September
2012 with complaints of a headache; a scan of her head was normal
(Tr. 342-51, 425). 4
In 2013, Plaintiff went to the hospital with complaints of
bladder pain, and doctors viewed her bladder with a cystoscopy
(Tr. 477-49). She also returned to Ms. Freeman once with complaints
of depression and hip pain (Tr. 307-12). The record does not
contain any treatment notes showing that Plaintiff presented for
any treatment during the second half of 2013 or at all during 2014.
In terms of the medical opinion evidence, in March 2013,
Naushad Haziq, M.D., performed an examination of Plaintiff in
examination was largely normal aside from generalized complaints
of pain in her joints and muscle pain but without any limited range
of motion (Tr. 460-61). Based on Plaintiff’s reported history and
urination, intermittent low back pain, and fatigue, but did not
opine that she had any specific work-related limitations (Tr. 462).
Plaintiff also went to a chiropractor five times in late 2012 and early 2013
The same month, Timothy Baggs, Psy.D., performed a psychological
evaluation of Plaintiff (Tr. 467-74). He diagnosed mild depression
and anxiety and opined that she could perform simple work with
adequate concentration and ability to get along with others but
that she may have mild limitations in adapting and responding to
work pressures (Tr. 473-74).
Plaintiff’s medical records and opined that she did not have any
severe mental impairments that significantly affected her ability
Additionally, state agency physician Robert Brown, M.D., reviewed
Plaintiff’s medical records and opined that she could lift and
carry 20 pounds occasionally and 10 pounds frequently; stand and
walk six hours total in an eight-hour workday (with no limitations
on sitting); occasionally stoop, kneel, crouch, crawl, and climb
ramps and stairs; never climb ladders, ropes, or scaffolds; and
should avoid concentrated exposure to extreme cold and hazards and
even moderate exposure to vibration and noise (Tr. 110-12).
Finally, in October 2014, Arden Acob, M.D., opined that
Plaintiff experienced migraines several times a week that lasted
for several days, that she was unable to work while she was
experiencing one, that she would miss more than four days of work
per month, and that she was unable to work full time since 2007
(Tr. 481-82). There are no treatment notes from Dr. Acob in the
record and, prior to completing this opinion, Dr. Acob returned a
record request form indicating that he did not have any treatment
records of Plaintiff from the relevant time period (Tr. 439).
After careful review of the record, as relevant here, the ALJ
nonetheless perform a range of simple light work (Tr. 23).3 The
ALJ went on to find based on vocational expert testimony (see Tr.
77-78) that Plaintiff could not perform any of her past relevant
work but could perform other jobs that exist in significant numbers
in the national economy (Tr. 31-32). Thus, the ALJ found that
Plaintiff was not disabled under the Social Security Act (Tr. 32).
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.
On appeal, Plaintiff attacks the ALJ’s finding that, despite
her limitations, she retained the residual functional capacity to
Plaintiff argues, initially, that the ALJ failed to give proper
deference and great weight to the medical opinions and diagnoses
of her treating physician, Arden Acob, M.D., who opined that she
was not “capable of performing substantial gainful employment . .
. [This would mean working 5 days per week for 8 hours per day or
a 40-hour work week.]” (Tr. 482). The Court is not persuaded that
more deference was due than was provided.
In assessing Plaintiff’s residual functional capacity, the
ALJ considered and weighed the medical opinions of record (Tr. 2829). As noted, the ALJ gave Dr. Haziq’s and Dr. Baggs’s opinions—
findings—great weight (Tr. 28-29, see Tr. 457-65, 467-74). The ALJ
also considered Dr. Arden Acob’s opinion (the ALJ refers to him as
“Dr. Arden”) that Plaintiff’s headaches precluded work and had
done so since 2007 (Tr. 29, see Tr. 481-82). See 20 C.F.R. §
416.927(d)(2) (“Treatment relationship. . . . We will always give
good reasons in our notice of determination or decision for the
weight we give your treating source’s opinion.”); Wilson v. Comm’r
of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (“If the opinion
of a treating source is not accorded controlling weight, an ALJ
must apply certain factors—namely, the length of the treatment
relationship and the frequency of examination, the nature and
opinion, consistency of the opinion with the record as a whole,
and the specialization of the treating source—in determining what
weight to give the opinion.”).
In this instance, the ALJ gave Dr. Acob’s opinion “little
weight” for a number of reasons (Tr. 29). First, there is nothing
in the record indicating that Dr. Acob treated Plaintiff during
the relevant time period (Tr. 29). See 20 C.F.R. § 416.927(c)(2)(i)
(stating an ALJ should consider whether a treating source has seen
a claimant “a number of times and long enough to have obtained a
longitudinal picture” of the claimant’s impairment); Smith v.
Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007) (quoting 20
C.F.R. § 404.1502) (“A physician qualifies as a treating source if
the claimant sees her ‘with a frequency consistent with accepted
medical practice for the type of treatment and/or evaluation
required for [the] medical condition.’”). As the ALJ pointed out,
prior to authoring his opinion, Dr. Acob returned an evaluation
request saying he did not have any treatment notes for the relevant
time period (Tr. 29, see Tr. 439). Second, the ALJ noted that there
were no treatment notes of record from other providers to support
complain of headaches to her primary care doctors regularly and
she went to the hospital with complaints of headaches on only one
occasion, when a CT scan of her brain was normal (Tr. 342-51). See
20 C.F.R. § 416.927(c)(4) (stating an ALJ must consider whether an
opinion is consistent with the record as a whole); Cutlip v. Sec’y
of Health & Human Servs., 25 F.3d 284, 287 (6th Cir. 1994)
(treating physician opinions “are only accorded great weight when
consistent with the evidence.”). Therefore, the ALJ reasonably
discounted Dr. Acob’s extreme opinion in light of the fact that
there was nothing in the record to indicate that he actually
treated Plaintiff during the relevant time period and treatment
notes stemming from the relevant time period showed that Plaintiff
rarely even complained of headaches to her doctors (Tr. 29).
Plaintiff next argues that, while the ALJ concluded that she
additional observations are made of the presence of fibromyalgia.
. .” (DE 12-2 at 24, Page ID# 595). A diagnosis of fibromyalgia
alone is not disabling. 5 See Stankoski v. Astrue, 532 F. App’x 614,
Plaintiff also argues that her bladder pain is “another source of
disability” (Pl.’s Br. at 27).
She has set forth no additional limitations
that might be necessary as a result of this claimed impairment which are not
accommodated by the limitation to a reduced range of light work with normal
work breaks (Tr. 26). See 20 C.F.R. § 416.945.
The Court considers this
conclusory argument no further.
619 (6th Cir. 2013) (unpublished) (“But a diagnosis of fibromyalgia
does not equate to a finding of disability or an entitlement to
benefits.”) (citation omitted)); Vance v. Comm’r of Soc. Sec., 260
F. App’x 801, 805 (6th Cir. 2008) (unpublished) (“[A] diagnosis of
fibromyalgia does not automatically entitle Vance to disability
benefits . . . .”). The relevant question is what functional
limitations stem from an impairment. 20 C.F.R. § 416.945. The ALJ
acknowledged Plaintiff’s fibromyalgia diagnosis in the decision
and accounted for it by assessing a restrictive RFC. On appeal,
Plaintiff does not provide specific examples of what additional
limitations that she believes should have been included in the RFC
based on this severe impairment beyond those included by the ALJ.
At best, she argues that the ALJ failed to adequately account
for her pain in the RFC because he did not consider the factors
set forth in 20 C.F.R. § 416.929(c)(3) and how they relate to the
evidence in this case, relying on Felisky v. Bowen, 35 F.3d 1027,
claimant’s credibility was not supported by substantial evidence
where he failed to apply the full test for evaluating subjective
complaints of pain). 6 The ALJ did, however, consider these factors
Factors relevant to your symptoms, such as pain, which we will consider
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or
(iii) Precipitating and aggravating factors;
in establishing the RFC. He observed that she engaged in daily
activities related to raising her children, attending to her own
personal care and hygiene, completing housework, shopping, and
frequency, and intensity of her pain and other symptoms, as well
as the precipitating and aggravating factors which could give rise
to her pain and other symptoms, the medication taken to alleviate
pain and other symptoms, and treatment other than medication for
relief of pain or other symptoms (Tr. 26-29). He considered these
factors but reached a different conclusion that Plaintiff desires
– greater limitations imposed due to pain. This is not error as it
is supported by substantial evidence of record.
Ultimately, the responsibility for determining a claimant’s
residual functional capacity is reserved to the Commissioner. See
20 C.F.R. §§ 416.927(d)(2), 416.945. The ALJ considers numerous
factors in constructing a claimant’s residual functional capacity,
including the medical evidence, the non-medical evidence, and the
(iv) The type, dosage, effectiveness, and side effects of any
medication you take or have taken to alleviate your pain or other
(v) Treatment, other than medication, you receive or have received for
relief of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other
symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes
every hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and
restrictions due to pain or other symptoms.
20 C.F.R. § 416.929(c)(3).
claimant’s believability. See Coldiron v. Comm’r of Soc. Sec., 391
F. App’x 435, 443 (6th Cir. 2010) (unpublished). In making this
determination, the ALJ is required to resolve conflicts in the
evidence and incorporate only those limitations that he finds
assessment. See Casey v. Sec’y of Health & Human Servs., 987 F.2d
regarding the evidence, the ALJ’s findings of whether Plaintiff’s
claims are believable 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)).
Affording that deference in this matter, the Court is not persuaded
that the ALJ erred as Plaintiff suggests. Rather, the decision of
the ALJ with respect to his determination concerning Plaintiff’s
evidence in the record.
Finally, the Court notes Plaintiff’s argument that the ALJ
somehow erred in assessing her credibility in light of her long
past work history, including 29 quarters of wages from 1992 to
2011. It is unclear how this fact is relevant in the absence of
some evidence, for example, that her impairments have worsened
since the time that she worked.
limitations when he limited Plaintiff to performing a range of
simple light work. The ALJ gave good reasons for rejecting the
only evidence—Dr. Acob’s opinion and, to some extent, Plaintiff’s
own claims—upon which Plaintiff relies to suggest that she was
more limited. See Norris v. Comm’r of Soc. Sec., 461 F. App’x 433,
440 (6th Cir. 2012) (unpublished) (“So long as the ALJ’s decision
adequately explains and justifies its determination as a whole, it
review.”). The decision of the Commissioner is affirmed.
Accordingly, for all of the reasons set forth above, IT IS
That Plaintiff’s Motion for Leave to File a 28 Page Brief
[DE 13] is GRANTED;
that Plaintiff’s Motion for Summary Judgment (DE 12) is
that Defendant’s Motion for Summary Judgment (DE 14) is
This the 31st day of March, 2017.
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