Lowe v. SSA
MEMORANDUM OPINION & ORDER: 1) that Plaintiff's Motion for Summary Judgment (DE 9) is DENIED; and 2) that Defendant's Motion for Summary Judgment (DE 10) isGRANTED. Signed by Judge Joseph M. Hood on 09/29/17.(MRS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
) Action No. 6:16-CV-00065-JMH
) MEMORANDUM OPINION AND ORDER
NANCY A. BERRYHILL,
Acting Commissioner of
This matter is before the Court on the parties’ cross-Motions
for Summary Judgment (DE 9, 10) on Plaintiff’s appeal of the
Commissioner’s denial of his application for disability insurance
The matter having been fully briefed by the parties is
now ripe for this Court’s review.
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
ability to do basic work activities is not
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.
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)).
benefits (DIB), alleging disability beginning in June 2014 (Tr.
reconsideration (Tr. 79, 95). Thereafter, Plaintiff pursued and
exhausted his administrative remedies before the Commissioner (Tr.
25-59 (hearing), 10-20 (administrative law judge (ALJ) decision),
1-4 (Appeals Council’s denial of review of ALJ decision)). This
case is ripe for review pursuant to 42 U.S.C. § 405(g).
Plaintiff was 42 years old at the time he claims he became
disabled (see Tr. 173). He obtained a GED and served in the Army
and the Army National Guard since the mid-1990s (see Tr. 213).
including post-traumatic stress disorder (PTSD), back problems,
headaches, shoulder and elbow problems, and sleep apnea (Tr. 212).
Plaintiff solely sought treatment from the Department of Veteran’s
Affairs (VA) during the relevant time period. The VA notes—which
are lengthy and contain many duplicates—show he sought treatment
for complaints including mid- and lower back pain, dizziness,
hearing problems, a history of a traumatic brain injury, headaches,
memory problems, and PTSD (see generally 319-433, 443-536, 548758,
history of blast exposure and some residual cognitive impairments,
but that he had been to compensate throughout his military career
and that he “remain[ed] fit for full duty and me[t]  retention
standards from a neurocognitive perspective” (Tr. 538). A 2014 MRI
of his thoracic spine showed multilevel spondylosis (arthritis)
(Tr. 745-46) and x-ray of his thoracic spine two months later
unremarkable (Tr. 313). 2015 x-rays of his spine showed early lower
narrowing in one area of his cervical spine, but were otherwise
normal (Tr. 760-62). Later 2015 MRIs of his spine showed a normal
thoracic spine, mild disc protrusion in one area of his lumbar
spine, and mild narrowing in one area of his cervical spine (Tr.
971-73). Diagnoses included a bulging disc in his thoracic spine,
disturbance, headaches, and a history of a traumatic brain injury
(see, e.g., Tr. 538, 669). VA doctors gave him steroid injections
in his back and medications for his pain (see, e.g., Tr. 728, 877).
The VA assigned Plaintiff a 100% VA disability rating based
on VA standards (Tr. 163-65), but no VA or other doctor opined
that he had any mental or physical work-related limitations. Two
state agency psychologists reviewed Plaintiff’s medical records
and opined that his mental impairments did not significantly affect
his ability to perform work-related activities (Tr. 73-74, 87-88).
State agency physician P. Saranga, M.D., reviewed Plaintiff’s
medical records and opined that he could lift and carry 20 pounds
occasionally and 10 pounds frequently; sit and stand/walk six hours
each in an eight-hour workday; frequently stoop, crouch, crawl,
postural activities); and should avoid concentrated exposure to
hazards and vibration (Tr. 89-92).
After reviewing the record, the ALJ determined that Plaintiff
had severe impairments as a result of degenerative disc disease in
all areas of his spine, arthritis primarily affecting his shoulders
and elbows, migraines, vertigo, anxiety disorder, and affective
disorder (Tr. 12).
The ALJ found that Plaintiff could nonetheless
instructions and involved only occasional interaction with the
public and frequent interaction with supervisors and co-workers
(Tr. 16). The ALJ went on to find based, on vocational expert
testimony (see Tr. 53-56), that Plaintiff could not perform any of
his past work as the supervisor of a garage but could perform other
jobs in the national economy (Tr. 18-19), including the work of a
electrical accessories, and blueprint trimmer. Thus, the ALJ found
that Plaintiff was not disabled under the Social Security Act (Act)
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
Substantial evidence “‘means such relevant evidence as
a reasonable mind might accept.’” Foster, 279 F.3d at 353 (quoting
Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th
Plaintiff argues that the ALJ’s finding that, despite his
limitations, Plaintiff retained the residual functional capacity
to perform a reduced range of light work that did not involve
interaction with others was not supported by substantial evidence.
In determining “the most [a claimant] can still do despite his
impairments[,]” an ALJ is required to assess a claimant’s RFCbased on all of the relevant medical and other evidence. 20 C.F.R.
§§ 404.1520(a)(4), 404.1545(a)(1) & (5), 404.1545(a)(3). Thus, no
medical source opinion is alone conclusive on this issue. SSR 965p, 1996 WL 374183, at *2, 4-5. Similarly, a claimant’s subjective
disability. 20 C.F.R. § 404.1529(a). While there is a limited
burden shift to the Commissioner at step five of the sequential
evaluation to identify work existing in significant numbers in the
national economy that a claimant can perform, the claimant retains
the burden of establishing his RFC limitations. Jordon v. Comm’r
of Soc. Sec., 548 F.3d 417, 423 (6th Cir. 2008) (citation omitted)
(“The SSA’s burden at the fifth step is to prove the availability
of jobs in the national economy that the claimant is capable of
performing . . . The claimant, however, retains the burden of
proving her lack of RFC.”) (citing Her v. Comm’r of Soc. Sec., 203
F.3d 388, 391-92 (6th Cir. 1999)). He has failed to carry that
burden in this matter.
Essentially, in the absence of medical source opinions to
support his claim that he had greater limitations, Plaintiff Lowe
relies on his VA disability rating.
This is not enough without
more because VA disability ratings are based on VA criteria for
disability, Deloge v. Comm’r of Soc. Sec. Admin., 540 F. App’x
517, 519 (6th Cir. 2013) (“The VA relies on independent and
eligible for Social Security disability benefits.”), whereas the
Social Security Act’s criteria for disability do not contemplate
degrees of disability or allow for an award of benefits based on
partial disability. See Clark v. Sullivan, 891 F.2d 175, 177 (7th
Cir. 1989) (drawing distinction between the Seocial Security Act
and a worker’s compensation system).
That said, the ALJ considered Plaintiff’s VA medical records
throughout his decision (Tr. 12, 13, 17), even though it ultimately
concluded that his VA disability rating was not persuasive evidence
Notably, the ALJ was aware that the VA disability
rating inquiry was directed toward degrees of disability, noting
that VA doctors expressed concern that Plaintiff was exaggerating
his headaches and psychological symptoms “in an attempt to obtain
a higher [VA] rating that is not warranted” (Tr. 13, 18, see Tr.
498, see also Tr. 542 (“showed a significant over reporting of
unusual symptoms; this may be due to exaggeration or severe
psychopathology”). He also observed that Plaintiff sought “very
little treatment” for arthritis, yet arthritis accounted for some
appropriately engaged with the record evidence from the VA’s
medical care providers, and it was reasonable for the ALJ to
consider that evidence but not rely on the VA disability rating as
he did. See Ritchie v. Comm’r of Soc. Sec., 540 F. App’x 508, 510
(6th Cir. 2013) (“We have held that a disability rating from the
[VA] is entitled to consideration, but we have not specified the
weight such a determination should carry when determining social
security disability eligibility.”); see also Fisher v. Shalala, 41
F.3d 1261, 1262 (8th Cir. 1994) (“There is no support for Fisher’s
contention that his sixty-percent service-connected disability
rating equates with an inability to engage in any substantial
gainful activity under social security standards.”).
The Court also considers Plaintiff’s argument that the ALJ’s
determination of his RFC is not supported by substantial evidence
because treating physician opinions show that he is unable to
perform the physical and mental demands of that RFC.
however, no treating physician opinion in the record.
ALJ had agency consulting physician and psychologists’ opinions
upon which to rely.
Dr. Saranga opined that Plaintiff could
perform a range of light work in his medical source opinion on
Plaintiff’s physical abilities. (Tr. 89-92)..
In the two mental
medical source opinions available in the record, Drs. Brake and
Ebben conclude that Plaintiff did not have any mental impairments
that significantly affected his ability to perform work.
The ALJ ultimately agreed with the restriction to
light work but gave Plaintiff the benefit of the doubt and limited
him to work that did not involve complex instructions or more than
occasional interaction with the public or frequent interaction
with coworkers and supervisors. (Tr. 16). Thus, the ALJ reasonably
weighed the only medical opinions available and assessed a residual
functional capacity that was even more restrictive in some ways
than these opinions.
Considering the record as a whole, his
reliance on the only opinions of record was entirely reasonable.
consultants “are highly qualified physicians, psychologists, and
other medical specialists who are also experts in Social Security
Finally, the Court is not persuaded by Plaintiff’s general
challenge to the ALJ’s reliance on the vocational expert in finding
that he could perform jobs in the national economy (Pl.’s Br. at
7-8). In light of an RFC supported by substantial evidence, the
otherwise unobjectionable testimony as to the jobs available to an
individual so limited in the national economy.
See Smith v.
Halter, 307 F.3d 377, 378 (6th Cir. 2001) (“A vocational expert’s
constitute substantial evidence where the testimony is elicited in
response to a hypothetical question that accurately sets forth the
plaintiff’s physical and mental impairments.”).
The Court declines to disturb the well-reasoned decision of
the ALJ on review, and the decision of the Commissioner will be
affirmed. 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
The decision of the Commissioner will be affirmed.
Accordingly, for all of the reasons set forth above, IT IS
that Plaintiff’s Motion for Summary Judgment (DE 9) is
that Defendant’s Motion for Summary Judgment (DE 10) is
This the 29th day of September, 2017.
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