Hunter v. SSA

Filing 16

MEMORANDUM OPINION & ORDER: 1) Pla's motion for s/j is DENIED; 2) SSA's motion for s/j is AFFIRMED; 3) A jgm will issue contemporaneously. Signed by Judge Joseph M. Hood on 5/3/17.(MRS)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
SANDRA LEAN HUNTER,

)
)
Plaintiff,
)
)
V.
)
)
NANCY A. BERRYHILL,1 Acting
)
Commissioner of Social Security, )
)
Defendant.
)

Civil No. 6:16-cv-120-JMH

MEMORANDUM OPINION AND ORDER

****

Plaintiff Sandra Lean Hunter brought this action pursuant to

42 U.S.C. § 405(g) to obtain judicial review of an administrative
decision of the Commissioner of Social Security. The Court, having
reviewed the record, will AFFIRM the Commissioner’s decision, as
it is supported by substantial evidence.
I.
Judicial review of the Commissioner’s decision is limited to
determining whether it is supported by substantial evidence and
was made pursuant to proper legal standards.

Cutlip v. Sec’y of

Health

(6th

&

Human

Servs.,

25

F.3d

284,

286

Cir.

1994).

“Substantial evidence” is defined as “more than a scintilla of
evidence but less than a preponderance; it is such relevant

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.

1

evidence as a reasonable mind might accept as adequate to support
a conclusion.”
resolve

Id.

Courts are not to conduct a de novo review,

conflicts

determinations.

in

Id.

the

evidence,

or

make

credibility

Rather, we are to affirm the Commissioner’s

decision, provided it is supported by substantial evidence, even
if we might have decided the case differently.

See Her v. Comm’r

of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
The ALJ, in determining disability, conducts a five-step
analysis.

See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474

(6th Cir. 2003).

Step One considers whether the claimant is still

performing substantial gainful activity; Step Two, whether any of
the claimant’s impairments are “severe”; Step Three, whether the
impairments meet or equal a listing in the Listing of Impairments;
Step Four, whether the claimant can still perform his past relevant
work; and Step Five, whether significant numbers of other jobs
exist in the national economy which the claimant can perform.

As

to the last step, the burden of proof shifts from the claimant to
the Commissioner.

Id.; see also Preslar v. Sec’y of Health & Human

Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
II.
On March 19, 2013, Plaintiff protectively filed a Title II
application for a period of disability and disability insurance
benefits (“DIB”).

[TR 178-81].
2

She also protectively filed a

Title XVI application for supplemental security income (“SSI”) on
that date.

[TR 182-93].

disability

beginning

In both applications, Plaintiff alleged

January

5,

2013.

[TR

178-81,

182-93].

Plaintiff’s claims were denied initially and on reconsideration.
[TR 47-100].
(“ALJ”)

On November 14, 2014, Administrative Law Judge

Bonnie

Kittinger

Plaintiff’s request.
written

decision,

February 2, 2015.

held

an

administrative

[TR 25-46, 126-28].

denying

Plaintiff’s

hearing

at

ALJ Kittinger issued a

claim

for

benefits,

on

[TR 23-35].

At Step One of the disability determination process, ALJ
Kittinger found that Plaintiff had not engaged in substantial
gainful activity since the alleged onset date.

[TR 13].

Two,

following

she

concluded

that

Plaintiff

had

the

At Step
severe

impairments: degenerative disc disease and carpal tunnel syndrome.
[TR 13-14].
At Step Three, ALJ Kittinger explained that Plaintiff “does
not allege that she has an impairment of listing level severity,
nor has she met her burden of presenting medical evidence that
supports such a finding.”

[TR 14].

Nevertheless, she “reviewed

the medical evidence of record in its entirety and f[ound] that
the claimant’s impairments do not meet or equal the level of
severity set forth in any of the listed impairments, including
listing section 1.02 and 1.04 of Appendix 1.”

3

[Id.].

Before proceeding to Step Four, ALJ Kittinger found that
Plaintiff had the residual functional capacity (“RFC”) to perform
less than the full range of light work, as defined in 20 C.F.R. §
404.1567(c) and § 416.967(b).

[TR 14-18].

She explained:

The claimant is able to lift carry 20 pounds occasionally
and 10 pounds frequently and is able to stand/walk six
hours and sit six hours in an eight-hour day. She is
able to climb ramps and stairs, stoop, kneel, crouch and
crawl occasionally and frequently handle objects; but
she should not climb ladders, ropes or scaffolds. She
should avoid concentrated exposure to cold temperature
extremes and vibration and should avoid hazards, such as
dangerous machinery and unprotected heights.
[TR 15].

She then found that Plaintiff was capable of performing

past relevant work as a house cleaner at Step Four.

[TR 18].

Nevertheless, ALJ Kittinger proceeded to the final step of
the

sequential

evaluation.

[TR

18-20].

At

Step

Five,

she

determined that there were a significant number of other jobs in
the national economy that Plaintiff could perform.

[Id.].

ALJ

Kittinger based this conclusion on testimony from a vocational
expert (“VE”), in response to a hypothetical question assuming an
individual of Plaintiff’s age, education, work experience, and
RFC.

[Id.].

The VE testified that such an individual could find

work as a labor packer (5,500 Kentucky/280,000 nationally), bench
assembler
(7,000

(4,000

Kentucky/197

Kentucky/339,000

testimony

of

the

VE,

nationally),

nationally).
ALJ

Kittinger

4

or

[Id.].

machine
Based

alternatively

tender
on

found

the
that

Plaintiff was capable of making a successful adjustment to other
work.

[Id.].

Thus, she concluded that Plaintiff was not under a

“disability,” as defined by the Social Security Act, from January
5,

2013,

the

alleged

onset

administrative decision.

date,

through

the

date

of

the

[Id.].

ALJ Kittinger’s decision became the final decision of the
Commissioner when the Appeals Council denied review on May 10,
2016.

[TR 1-6].

2016.

[DE 2].

Order,

the

Plaintiff filed the instant action on June 24,
Consistent with the Court’s Standing Scheduling

parties

have

submitted

cross

judgment, which are now ripe for review.
argues

that

ALJ

Kittinger’s

motions

for

[DE 13, 15].

administrative

summary

Plaintiff

decision

is

not

supported by substantial evidence for two reasons, both of which
relate to the RFC assessment. First, she argues that ALJ Kittinger
failed to afford controlling weight to the opinion of Dr. Bethany
Crispin, her treating physician.

Second, she contends that ALJ

Kittinger erred in affording great weight to the opinions of two
non-examining physicians, Dr. Jack Reed and Dr. Keith Bauer.

The

Court will address each of these arguments in turn.
III.
In order to determine whether Plaintiff is able to perform
past relevant work, the ALJ must first “evaluat[e] the medical
evidence and the claimant’s testimony to form an assessment of
5

[his or her] residual functional capacity.”

Webb v. Comm’r of

Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004) (internal quotations
omitted).

The residual functional capacity (“RFC”) assessment is

a determination of how the claimant’s “impairments, and any related
symptoms, such as pain, … cause physical and mental limitations
that affect what [he or she] can do in a work setting.”
§ 404.1545(a)(1).

20 C.F.R.

The RFC assessment is “based on all of the

relevant medical and other evidence” in the case record, including
“statements about what [the claimant] can still do that have been
provided by medical sources,” as well as descriptions of the
claimant’s limitations that have been provided by the claimant and
his or her family members.
aforementioned
sources,

medical

non-treating

20 C.F.R. § 404.1545(a)(3).

sources

may

be

classified

sources,

and

non-examining

as

The

treating

sources.

20

C.F.R. § 404.1527(c).
A.

Treatment of Dr. Crispin’s Opinion
A treating source is a “physician, psychologist, or other

acceptable medical source who … has, or has had, an ongoing
treatment relationship” with the claimant.

Id.

A treating

source’s opinion is entitled to controlling weight if the “opinion
on the issue(s) of the nature and severity of [the claimant's]
impairment(s) is well-supported by medically acceptable clinical

6

and laboratory diagnostic techniques and is not inconsistent with
other substantial evidence in [his or her] case record.”

Id.

“If the ALJ decides not to give a treating physician’s opinion
controlling weight, the ALJ may not reject the opinion but must
apply other factors to determine what weight to give the opinion.”
Minor v. Comm’r of Soc. Sec., 513 F. App’x 417, 437 (6th Cir. 2013)
Such factors include “‘the length of the treatment relationship
and the frequency of examination, the nature and extent of the
treatment relationship, supportability of the opinion, consistency
of the opinion with the record as a whole, and the specialization
of the treating source.’”

Id. (quoting Wilson v. Comm’r of Soc.

Sec., 378 F.3d 541, 544 (6th Cir. 2004) (citing 20 C.F.R. §
404.1527(d)(2)).
The ALJ must articulate “‘specific reasons for the weight
given to the treating source’s medical opinion, supported by the
evidence in the case record, and must be sufficiently specific to
make clear to any subsequent reviewers the weight the adjudicator
gave to the treating source’s medical opinion and the reasons for
that weight.’”

Id. (quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188,

at *5); see also 20 C.F.R. § 1527(d)(2) (explaining that such
deference is given to treating physicians because “these sources
are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of [the claimant’s] impairments”).

7

In this case, Plaintiff had a treating relationship with Dr.
Bethany

Crispin.

The

administrative

decision

includes

following discussion of Dr. Crispin’s opinion:
Dr. Bethany Crispin at White House Clinic wrote a letter,
dated March 2, 2014, stating the claimant had bilateral
carpal tunnel syndrome and low back pain with radiation
to her right leg. Carpal tunnel syndrome was confirmed
by EMS on October 19, 2013, showing severe median nerve
compression.
Dr.
Crispin
reported
the
claimant
experienced pain, weakness, and intermittent numbness
and tingling in bilateral wrists and hands. She
recommended restrictions as follows: Ms. Hunter is
unable to lift more than 10 pounds occasionally. Wrist
pain, tingling, and numbness are worsened by using hands
for grasping, handling, and fingering; therefore limited
to performing those activities occasionally throughout
the day. The claimant has low back pain with radiation
to her right leg and numbness in her right leg that is
exacerbated
with
lifting
more
than
10
pounds
occasionally and with prolonged sitting, standing, or
walking. The claimant must change positions frequently
in order to alleviate pain. Ms. Hunter also likely has
fibromyalgia, with diffuse pain unrelated to the pain
she experiences from her [l]ower back and wrists. She
has been referred to rheumatology for further evaluation
of probable fibromyalgia.
…
The claimant’s visits to her primary care physician, Dr.
Bethany Crispin, have been routine follow-up visits,
usually at three-month intervals, except that she
received ESIs for her bilateral CTS on several
occasions. Dr. Crispin routinely noted that Lortab
helped her low back pain and enabled her to perform
activities of daily living. None of the treatment notes
included recommendations for restriction of activities.
She prescribed Zoloft for claimant’s depression and
routinely noted her psychiatric status to be normal; so
the medication was apparently effective. These treatment
notes are somewhat inconsistent with her letter dated
March 2, 2014, wherein she states claimant is unable to
lift more than 10 pounds occasionally and should perform
grasping, handling and fingering only occasionally.
8

the

Although
Dr.
Crispin
diagnosed
fibromyalgia,
a
rheumatologist, as discussed below did not confirm this
diagnosis.
Only slight weight is accorded to the opinion of Dr.
Crispin because of the inconsistency with her treatment
notes. Moreover, the claimant drives, shops, cooks,
performs household chores, takes care of her disabled
husband and minor son, attends church, visits relatives
and handles family finances. These activities are
consistent with light work activity.
[TR 17-18].
As

this

passage

illustrates,

ALJ

Kittinger

specifically

stated that she was not giving controlling weight to Dr. Crispin’s
opinion

regarding

inconsistent

Plaintiff’s

with

Dr.

limitations

Crispin’s

own

because

treatment

it

was

notes

and

Plaintiff’s activities of daily living. She then provided specific
examples of these inconsistencies.

For example, she observed that

Dr. Crispin did not recommend any restriction in Plaintiff’s
activities

in

her

treatment

notes,

but

then

restrictions in her March 2014 letter to SSA.

offered

several

She also noted that

these restrictions were inconsistent with Plaintiff’s activities
of daily living and other medical evidence in the record.2

Having

2

 Plaintiff insists that her activities of daily living were not inconsistent
with the restrictions suggested by Dr. Crispin. She contends that “attending
church, visiting relatives and handling family finances are sedentary activities
that wouldn’t require more than occasional grasping, handling or fingering” and
that “[t]here is no indication that she ‘takes care’ of [her husband], other
than doing some household activities like cooking and light laundry.” [DE 13-1
at 6]. In making this argument, Plaintiff essentially asks the Court to reweigh
her testimony and function report, then find that the reweighed evidence
supports the restrictions suggested by Dr. Crispin. However, this Court’s role
is limited to determining whether there is substantial evidence to support the
ALJ’s decision. Cutlip, 25 F.3d at 286. It cannot conduct a de novo review or
reweigh the evidence. Id. Thus, Plaintiff’s argument fails.

9

identified these discrepancies, and having considered the nature
and extent of the treatment relationship at issue, ALJ Kittinger
decided to afford little weight to Dr. Crispin’s opinion.

Because

ALJ Kittinger gave sufficiently specific reasons for the weight
given to Dr. Crispin’s opinion, and supported that conclusion with
citations to evidence in the record, the Court finds that her
weighing

of

this

treating

source

opinion

is

supported

by

substantial evidence.
B.

Treatment of Dr. Reed’s and Dr. Bauer’s Opinions
A non-treating source is an acceptable medical source who has

examined the claimant but does not have an ongoing treatment
relationship with him or her, while a non-examining source has not
examined

the

claimant

evidence in the case.

but

provided

medical

or

other

opinion

Id.

“[O]pinions from sources other than

treating sources can never be entitled to ‘controlling weight.’”
Soc. Sec. Rul. 96–2p, 1996 WL 374188, at *2 (July 2, 1996).
Instead, the ALJ must weigh the opinion by considering “the length
of the treatment relationship and the frequency of examination,
the

nature

and

extent

of

the

treatment

relationship,

supportability of the opinion, consistency of the opinion with the
record as a whole, and the specialization of the treating source.”
20 C.F.R. § 404.1527(d)(2).

While an ALJ will likely prioritize

a treating source's non-controlling opinion over a non-treating
source's opinion (and a non-treating source's opinion over a non10

examining source's opinion), deviation from this general approach
is not a per se error of law.

20 C.F.R. § 404.1527(c).

In her administrative decision, ALJ Kittinger stated:
The undersigned also accords great weight to the State
agency medical consultants, Dr. Jack Reed and Dr. Keith
Bauer, who reviewed all available medical evidence and
opined the claimant could perform light work activity,
with weight restrictions and other restrictions to
accommodate
her
low
back
and
bilateral
wrist
impairments. The undersigned has determined more
stringent restrictions are appropriate, based on the
claimant’s testimony.
[TR 18].
Here, Plaintiff complains that Dr. Reed’s and Dr. Bauer’s
opinions should not have been afforded great weight because they
were unable to review the results of EMG testing from October 9,
2013.

[DE 13-1 at 7].

This “abnormal study” revealed “evidence

of a severe bilateral median neuropathy at the wrists (carpal
tunnel syndrome), electrically similar in severity.”

[TR 294].

Plaintiff suggests that Dr. Reed and Dr. Bauer would have opined
that additional restrictions were necessary if these test results
had been available to them.
more than speculation.

This argument is based on nothing

Although the EMG testing confirmed that

Plaintiff suffered from carpal tunnel syndrome, she had already
been receiving treatment for that condition for two years.

There

is simply no indication that confirmation of Plaintiff’s condition
would have led Dr. Reed and Dr. Bauer to impose restrictions that
were not already warranted by two years of treatment notes.
11

Plaintiff also complains that the opinions of Dr. Reed and
Dr. Bauer should not have been given great weight because they
were contrary to Dr. Crispin’s opinion.

However, as the Court has

already discussed, it was not per se error for ALJ Kittinger to
give more weight to a non-examining physician’s opinion than a
treating source’s opinion.

Such treatment was permissible, so

long as she gave “good reasons” for discounting the treating
source’s opinion and weighed the opinion of the non-examining
physician using the appropriate factors.

Minor v. Comm’r of Soc.

Sec., 513 F. App’x at 437; 20 C.F.R. § 404.1527(c).

ALJ Kittinger

complied with the first of these requirements, as explained above.
The Court further finds that ALJ Kittinger appropriately weighed
the opinions of Dr. Reed and Dr. Bauer, as she considered the type
of source and the consistency of their opinions with the record as
a whole.
these

Thus, the Court finds that ALJ Kittinger’s weighing of

non-examining

source

opinions

is

also

supported

by

substantial evidence.
IV.
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
(1)

Plaintiff

Sandra

Lean

Hunter’s

Judgment [DE 13] be, and is, hereby DENIED;

12

Motion

for

Summary

(2)

The Commissioner of Social Security’s Motion for Summary

Judgment [DE 15] be, and is, hereby AFFIRMED; and
(3)

A

Judgment

will

issue

Memorandum Opinion and Order.
This the 3rd day of May, 2017.

13

contemporaneously

with

this