Jackson v. SSA

Filing 16

MEMORANDUM OPINION & ORDER: (1) That the Acting Commissioner's motion for summary judgment [DE 13 ] be, and the same hereby is, GRANTED. (2) That Plaintiff's motion for summary judgment [DE 12 ] be, and the same hereby is, DENIED. (3) That the Acting Commissioner's final decision be, and the same hereby is, AFFIRMED. A separate judgment in conformity herewith shall this date be entered..Signed by Judge Joseph M. Hood on 09/28/2017.(KJA)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
CARMELA RENEE JACKSON,

)
)
) Action No. 6:16-CV-00074-JMH
)
)
) MEMORANDUM OPINION AND ORDER
)
)
)
)
)

Plaintiff,
v.
NANCY J. BERRYHILL,
Acting Commissioner of
Social Security1
Defendant.
**

**

**

**

**

This matter is before the Court on the parties’ crossMotions for Summary Judgment (DE 12, 13) on Plaintiff’s appeal of
the

Commissioner’s

insurance benefits.2

denial

of

her

application

for

disability

The matter having been fully briefed by the

parties is now ripe for this Court’s review.3
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.

1

The caption of this matter is amended to reflect that Nancy A. Berryhill
became the Acting Commissioner of Social Security on January 23, 2017,
replacing Carolyn W. Colvin in that role.
2
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

Plaintiff has also filed a Motion for Leave to File Excess Pages [DE 11],
which the Court granted [DE 14].

1

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.
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.
Carmela Renee Jackson (“Jackson” or “Plaintiff”) filed an
application for Disability Insurance Benefits and Supplemental
Security

Income

on

September

27,

2012,

alleging

disability

commencing on September 1, 2012. (Tr. 24). After being denied
initially and upon reconsideration, Plaintiff filed a Request for
Hearing on October 4, 2013. (Tr. 24). Her case was heard by
2

Administrative Law Judge (ALJ) Tommye C. Mangus, who issued an
unfavorable decision on April 8, 2015. [Tr. 21-42].

Plaintiff had

previously applied and been denied after a hearing in front of an
ALJ in 2009 and ALJ Mangus adopted those findings as required by
Drummond v. Comm’r of Social Sec., 126 F.3d 837 (6th Cir. 1997)
(Tr. 24).
In the denial decision, the ALJ found Plaintiff had severe
degenerative disc disease and degenerative joint disease of the
lumbar and cervical spine, obesity, and depression, but that these
impairments

did

not

meet

or

equal

a

presumptively

disabling

impairment listed at 20 C.F.R. Part 404, Subpart P, App. 1 [Tr.
27]. Plaintiff had not engaged in substantial gainful activity
since the application date of September 27, 2012.

The ALJ found

that Plaintiff had the residual functional capacity (RFC) to
perform light exertion work as defined in 20 CFR 416.967(b) that
required no climbing ladders, ropes, or scaffolds; no crawling;
occasional

stooping,

bending,

or

crouching;

no

exposure

to

dangerous moving machinery and unprotected heights; an option to
alternate between sitting and standing every 30 minutes; and no
production-rate quota work (Tr. 28).

The Appeals Council denied

Plaintiff’s request for review (Tr. 1-4), making the ALJ’s decision
final.

See 20 C.F.R. § 416.1481.

This appeal followed.

Plaintiff contends the ALJ’s finding of her RFC is not
supported by the treating or examining evidence of record, that
3

the lay testimony proves she is totally disabled, that the ALJ
committed reversible error in failing to apply the Sixth Circuit
pain standard, and that the vocational expert’s testimony proves
Plaintiff is totally disabled. Plaintiff argues when determining
her Residual Functional Capacity (RFC), the ALJ failed to give
proper weight to her treating physicians.
Plaintiff was 43 years old as of the ALJ’s April 2015 decision
and she has an 11th-grade education (Tr. 190). Plaintiff’s earning
record showed no earnings since 1997, and less than twenty thousand
dollars total in her lifetime (Tr. 144).

Plaintiff’s treatment

occurred primarily at Red Bird Clinic (RBC) and Mercy Pain Clinic
(MPC).

The medical evidence from RBC and MPC provide a history of

evaluation and treatment most often for complaints of chronic neck
and lower back pain.
routine

follow-up

The RBC and MPC records primarily consist of

for

medication

refills;

they

show

similar

findings, conclusions, and conservative treatment regimens.
In August 2012, Cesar O. Agtarap, M.D. at MPC evaluated
Plaintiff (Tr. 324-327, 329-332).

Plaintiff complained of dull,

achy, throbbing neck and low back pain, radiating to her hips,
legs, and shoulders.

She reported the severity of pain to be 8 on

a scale of 1-10 (10 being worse).

Dr. Agtarap diagnosed Plaintiff

with

severe;

chronic

pain,

moderate

to

lumbar

radiculopathy;

lumbago; degenerative disc disease; lumbar spine spondylosis;
intervertebral disc disorder; spinal stenosis; sciatica; obesity;
4

osteoarthritis; sacroiliac pain; facet arthropathy; and opioid
dependence.

Dr. Agtarap administered a steroid injection of 2

cc’s of 5% Bupivacaine into her sacroiliac joint (Tr. 328).
One month later, Plaintiff was again evaluated at MPC.

This

evaluation resulted in a similar diagnoses to that of the previous
month, with a reported pain severity of 5 (Tr. 320-323).

A late

October 2012 follow-up evaluation noted that Plaintiff continued
to complain of a dull, achy, throbbing neck and low back pain,
radiating to her hips, legs, and shoulders, and she reported a
pain level of 7-8 on a scale of 1-10 but was able to sleep 7-8
hours per night with medication.

Again, Dr. Agtarap provided a

very similar diagnoses, and noted that Plaintiff was “stable”
(Tr.316-319).
In October 2012 Plaintiff again visited MPC with pain levels
around 7-8 out of 10 in her neck, low back, hips, legs, and
shoulders.

The diagnosis was essentially unchanged.

Plaintiff was examined at RBC throughout this same time
period.

In early August 2012 Plaintiff reported abdominal, back,

and leg pain and headaches, with a diagnoses of hypertension; major
depressive

disorder;

gastroesophageal

reflux

disease;

osteoarthritis; fatigue; and insomnia; and a colonoscopy screening
was suggested (Tr. 412-413).

Plaintiff’s visits to RBC also

continued in 2014 and 2015, at least intermittently.

A February

2014 RBC examination and treatment record noted that Plaintiff’s
5

chief complaint was a urinary tract infection, and her diagnosed
conditions

consisted

of

hypertension;

thyroid

disease;

hyperlipidemia; arthritis; back pain; depression; human papilloma
virus (HPV); irritable bowel syndrome (IBS); and chronic neck pain
(Tr.

406,

410).

hypertension

as

In
well

September
as

leg

2014,

and

Plaintiff

back

pain

was

(Tr.

seen

398).

prescription medications were refilled (Tr. 400, 402-404).

for
Her
In

January 2015, a nurse practitioner at RBC diagnosed Plaintiff with
scabies; allergic rhinitis; obesity; and hypertension (Tr. 393,
395).

None of Plaintiff’s treating providers at MPC or RBC

provided opinions regarding the nature and severity of Plaintiff’s
alleged impairments or her functional limitations.
In April 2012, Plaintiff was evaluated by psychiatrist, John
Allahham, M.D. (Tr. 279-285).

This report included an attached

drug screen that showed a significantly high level of Oxycodone.
Dr. Allahham’s report shows that Plaintiff presented with reports
of

depression

and

feeling

“nervous.”

Plaintiff

denied

any

psychotic manifestations and/or suicidal ideation and professed to
normal activities of daily living including caring for two children
in a single parent home.

On mental status examination, Plaintiff

was alert and possessed normal psychomotor activities, speech,
thought processes, and stable affect.

Insight and judgment were

normal and she appeared to have average intellect and an intact
memory.

Dr. Allahham’s diagnoses were dysthymia and rule out
6

generalized

anxiety

disorder

with

a

global

assessment

of

functioning (GAF) rating of 75, denoting expectable reactions to
typical stressors.

He estimated Plaintiff had a highest GAF of

85 in the preceding 12 months, which is indicative of an individual
with no or minimal symptoms, who is generally satisfied with life,
and has no more than everyday problems or concerns (Tr. 283-85).
He

prescribed

antidepressants

and

anxiety medication

Remeron and Valium) (Tr. 279-85).

(Prozac,

There are no further records

from Dr. Allahham contained in the administrative record.
In

early

May

2013,

Timothy

L.

Baggs,

Psy.D.,

examined

Plaintiff in connection with her application for SSI (Tr. 381-87).
Plaintiff reported her psychological distress or problem to be “I
get depressed.”
“Life’s

hard.

She reported decreased motivation, and stated,
That’s

about

it.”

although

symptomatic for 15 years (Tr. 383).

she

claimed

to

be

Plaintiff admitted that she

had never required psychiatric hospitalization and was only seen
as an outpatient on two occasions.

Dr. Baggs found that Plaintiff

did not appear to be experiencing any significant psychological
distress, and recorded essentially normal findings (Tr. 386).

On

mental status examination, Plaintiff’s predominant mood appeared
neutral; affect was congruent with mood; and thought processes
appeared to demonstrate reality contact.

There was no suggestion

of mental confusion or disorientation and Plaintiff denied any
homicidal or suicidal ideation.

Dr. Baggs estimated Plaintiff’s
7

intellectual functioning to be in the low average range.
and personal judgment were also deemed to be average.

Insight
Plaintiff

was oriented to person, place, and time; with her recent and remote
memory appearing intact.
Dr. Baggs opined that Plaintiff retained the ability to
understand and remember simple instructions with only a mild
deficiency in her ability to maintain and sustain concentration
and persistence in the completion of tasks in a normal amount of
time (Tr. 386-387).

Dr. Baggs reported that his observations were

suggestive of an individual who probably could relate adequately
with people in either a workplace environment or social setting
(Tr. 387).

Dr. Baggs opined that Plaintiff’s ability to adapt and

to respond effectively to pressures found in normal work settings
was deemed commensurate with the average worker, and that her
prognosis

was

“fairly

good”

(Tr.

386-87).

During

the

administrative proceedings, state agency medical consultants Alex
Guerrero, M.D., and Laura Cutler, Ph.D., reviewed Plaintiff’s
records and assessed limitations consistent with a range of light
work, with the absence of a severe mental impairment (Tr. 123-26).
At the most recent ALJ hearing on January 29, 2015, Plaintiff,
her attorney, and Vocational Expert Dr. James Miller appeared
before the ALJ (Tr. 23, 43-62).

Plaintiff testified that she had

an eleventh-grade education and had not done any work since 1997.
She stated her height is 5 feet, four inches, and her weight is
8

about240 pounds (Tr. 49-50).

Plaintiff described her back as

having a “dull, throbbing, aching, stabbing pain that goes into my
left hip, sometimes in my right. But mostly into my left hip and
then goes into my leg.” (Tr. 50).
She explained further about her hip and leg pain moving about
with certain activities, saying, “every 15 to 20 minutes I have to
go from one hip to the other hip. So I can lay on my back a few
minutes, you know, but I’m all the time having to move positions.
Because I have arthritis, he said, in both hips.” (Tr. 50-51].
She testified about the pain medications she is taking as
follows:
Suboxone helps but not like the pain medicine
helps. And Meloxicam, I couldn’t live without
it. Because if I just miss a day or two, I
can tell my fingers. I got joint, arthritis
in my joints of my hands. They’re real sore.
I’ve got knots and stuff on them. And if I
don’t take Meloxicam, I couldn’t even get out
of the bed. I would have to have someone come
help me get up. You know, I have trouble anyway
but they do help. I have to stay in Meloxicam.
I’ve been on them for a while. And I also use
heat pads and cold packs too.”
(Tr. 51).

She added that Dr. John Gilbert, a physician at

the first pain clinic she went to, suggested surgery and weight
loss (Tr. 51).
The ALJ asked a vocational expert a hypothetical question as
to an individual of Plaintiff’s vocational profile who could do a
range of light exertion work that involved no climbing ladders,

9

ropes or scaffolds; no crawling; occasional climbing stairs and
ramps; occasional stooping, bending, or crouching; no exposure to
dangerous moving machinery and unprotected heights; an option to
alternate between sitting and standing every 30 minutes; and no
production-rate quota work (Tr. 59).
the

individual

positions

of

could

hand

do

the

packer,

The expert testified that

representative

small

product

light

inspector,

exertion
non-quota

production worker, and hand assembler; and indicated that his
testimony

was

consistent

with

the

Dictionary

of

Occupational

Titles (DOT) (Tr. 59-60).
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 (quoting
Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th
Cir. 1991)).
IV.

10

Plaintiff argues the ALJ’s erred by not giving “great weight”
to the medical opinions and diagnoses of Plaintiff’s treating
physicians.

Plaintiff is correct that the “treating physician

rule” requires the ALJ to give controlling weight to the opinions
of

treating

medically

doctors

if

acceptable

techniques.

those

opinions

clinical

and

20 CFR § 416.927(c)(2).

are

well-supported

laboratory

by

diagnostic

The Acting Commissioner is

correct, however, in pointing out that this argument is inapposite
here because there are no treating physicians who opinioned on
Plaintiff’s physical impairments or functional limitations within
the meaning in the regulation.

A medical opinion is defined as

“statements from physicians and psychologists or other acceptable
medical
severity

sources
of

that

your

restrictions.”

reflect

judgments

impairment(s),

and

about

your

20 CFR § 416.9527(a)(2).

the

physical

nature
or

and

mental

No such opinion exists

in the record; accordingly, there was no treating physician opinion
which could have been given controlling weight.

The ALJ has no

duty to give observations in medical notes “controlling weight or
provide good reasons for not doing so” when those observations are
not medical judgments or opinions under the regulations and are
based largely on the patient’s own reports.

Bass v. McMahon, 400

F.3d 506, 510 (6th Cir. 2007).
Plaintiff’s

second

and

third

arguments—which

purport

to

challenge the ALJ’s treatment of lay testimony and application of
11

the “pain standard”—are essentially challenges to the ALJ’s finding
that her statements as to the intensity, persistence, and limiting
effects of her symptoms were not supported by the record.
Pl.’s Br. at 21-23].

[DE 15,

The ALJ’s analysis of Plaintiff’s symptom

complaints is entitled to particular deference from this Court.
See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003)
(“Upon

review,

we

are

to

accord

the

ALJ’s

determinations

of

credibility great weight and deference particularly since the ALJ
has the opportunity, which we do not, of observing a witness’s
demeanor while testifying,”).

Here, the ALJ extensively reviewed

Plaintiff’s record and concluded that her “RFC assessment is
supported by the clinical and diagnostic evidence of record” (Tr.
36).
Despite Plaintiff’s assertions otherwise, the ALJ clearly set
forth

his

reasons

credibility.

for

his

conclusions

regarding

Plaintiff’s

The ALJ reasonably concluded that Plaintiff’s own

inconsistent statements cast doubt on the believability of her
subjective complaints (Tr. 35).

For example, the ALJ found “the

claimant’s testimony regarding the degree of diminished functional
ability is at odds with her report to pain management that her
medications

allowed

for

the

completion

of

including at one point, housekeeping work.”
original).
inconsistent

Furthermore,
statements

Plaintiff’s
about
12

the

lack

daily

activities

(Tr. 35)(emphasis in
of

work

effectiveness

history,
of

pain

management,

conservative

treatment

regimen,

and

generally

unremarkable examinations also appropriately factored into the
ALJ’s analysis of her subjective complaints (Tr. 35-36).

See 20

C.F.R. § 416.929(c)(3) (stating an ALJ must consider evidence about
a claimant’s prior work record); Matula v. Comm’r of Soc. Sec.,
2013 WL 6713829 at *7 (E.D.Mich., Dec.20, 2013) (it is “appropriate
for

ALJ

to

consider

poor

work

history

when

evaluating

credibility”).
Plaintiff’s

argument

likewise misplaced.

regarding

the

“pain

standard”

is

She cites Felisky v. Bowen, 35 F.3d 1027 (6th

Cir. 1994), but the so-called pain standard derives from 20 C.F.R.
§ 416.929.

While the Court in Felisky held that it was error to

rely on lack of objective evidence alone to discount a claimant’s
claims about the severity of her pain, that is not what the ALJ
did here.

Rather, the medical opinions, Plaintiff’s inconsistent

statements, and her course of treatment all supported the ALJ’s
finding that her symptoms were not as severe as she alleged.
Finally, Plaintiff inarticulately argues—to the best the
Court can construe—that the hypothetical question posed to the
vocational expert should have included Plaintiff’s subjective
complaints of pain and reports of limitations.

As noted above,

the ALJ discounted some of Plaintiff’s subjective claims regarding
her

pain

levels

and

functional

limitations

as

not

credible.

Accordingly, these were not included in the RFC determination, and
13

the RFC determination was properly utilized in the hypothetical
questions posed to the vocational expert. The ALJ was not required
to incorporate limitations reported by Plaintiff that he found to
be not credible.

Casey v. Sec’y of Health & Human Servs., 987

F.2d 1230, 1235 (6th Cir. 1993).
V.
Having reviewed the entire administrative record, the Court
concludes that ALJ Mangus’ decision, which ultimately became that
of the Acting Commissioner, is supported by substantial evidence.
Accordingly, IT IS ORDERED herein as follows:
(1)

That

the

Acting

Commissioner’s

motion

for

summary

judgment [DE 13] be, and the same hereby is, GRANTED.
(2)

That Plaintiff’s motion for summary judgment [DE 12] be,

and the same hereby is, DENIED.
(3)

That the Acting Commissioner’s final decision be, and

the same hereby is, AFFIRMED.
A separate judgment in conformity herewith shall this date be
entered.
This the 28th day of September, 2017.

14