Hunter v. SSA
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,
NANCY A. BERRYHILL,1 Acting
Commissioner of Social Security, )
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.
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
“Substantial evidence” is defined as “more than a scintilla of
evidence but less than a preponderance; it is such relevant
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.
evidence as a reasonable mind might accept as adequate to support
Courts are not to conduct a de novo review,
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
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.
to the last step, the burden of proof shifts from the claimant to
Id.; see also Preslar v. Sec’y of Health & Human
Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
On March 19, 2013, Plaintiff protectively filed a Title II
application for a period of disability and disability insurance
She also protectively filed a
Title XVI application for supplemental security income (“SSI”) on
In both applications, Plaintiff alleged
Plaintiff’s claims were denied initially and on reconsideration.
On November 14, 2014, Administrative Law Judge
February 2, 2015.
[TR 25-46, 126-28].
ALJ Kittinger issued a
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.
impairments: degenerative disc disease and carpal tunnel syndrome.
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.”
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.”
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).
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.
She then found that Plaintiff was capable of performing
past relevant work as a house cleaner at Step Four.
Nevertheless, ALJ Kittinger proceeded to the final step of
determined that there were a significant number of other jobs in
the national economy that Plaintiff could perform.
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
The VE testified that such an individual could find
work as a labor packer (5,500 Kentucky/280,000 nationally), bench
Plaintiff was capable of making a successful adjustment to other
Thus, she concluded that Plaintiff was not under a
“disability,” as defined by the Social Security Act, from January
ALJ Kittinger’s decision became the final decision of the
Commissioner when the Appeals Council denied review on May 10,
Plaintiff filed the instant action on June 24,
Consistent with the Court’s Standing Scheduling
judgment, which are now ripe for review.
[DE 13, 15].
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.
Court will address each of these arguments in turn.
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
[his or her] residual functional capacity.”
Webb v. Comm’r of
Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004) (internal quotations
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.”
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.
20 C.F.R. § 404.1545(a)(3).
C.F.R. § 404.1527(c).
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.
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
and laboratory diagnostic techniques and is not inconsistent with
other substantial evidence in [his or her] case record.”
“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. §
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
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”).
In this case, Plaintiff had a treating relationship with Dr.
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
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
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.
rheumatologist, as discussed below did not confirm this
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.
stated that she was not giving controlling weight to Dr. Crispin’s
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
restrictions in her March 2014 letter to SSA.
She also noted that
these restrictions were inconsistent with Plaintiff’s activities
of daily living and other medical evidence in the record.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.
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.
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
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
evidence in the case.
“[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,
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
impairments. The undersigned has determined more
stringent restrictions are appropriate, based on the
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,
[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.”
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.
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.
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).
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
Thus, the Court finds that ALJ Kittinger’s weighing of
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
Judgment [DE 13] be, and is, hereby DENIED;
The Commissioner of Social Security’s Motion for Summary
Judgment [DE 15] be, and is, hereby AFFIRMED; and
Memorandum Opinion and Order.
This the 3rd day of May, 2017.
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