Owens v. SSA
MEMORANDUM OPINION & ORDER: (1) The decision of the Commissioner is found to be supported by substantial evidence and is hereby AFFIRMED; (2) Plaintiffs Motion for Summary Judgment (Doc. # 11 ) is hereby DENIED; (3) Defendants Motion for Summary Judgment (Doc. # 13 ) is hereby GRANTED; and (4) A Judgment in favor of Defendant Commissioner will be entered contemporaneously herewith. Signed by Judge David L. Bunning on 5/11/2017. (RBB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 16-148-DLB
ROBYN LYNN OWENS
MEMORANDUM OPINION & ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
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Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to
obtain judicial review of an administrative decision of the Commissioner of Social
Security. The Court, having reviewed the record and for the reasons set forth herein, will
affirm the Commissioner’s decision.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed an application for Disability Insurance Benefits (DIB) on January 18,
2013, alleging disability beginning June 20, 2012. (Tr. 109). Plaintiff’s application for DIB
was denied on March 14, 2013.
Plaintiff appealed, and his Request for
Reconsideration was denied on August 20, 2013. Id. Plaintiff then filed a Request for
Hearing by Administrative Law Judge. Id. On February 26, 2015, Administrative Law
Judge (ALJ) Roger Lott ruled that Plaintiff was not entitled to DIB. (Tr. 106). The decision
became final on June 1, 2016, when the Appeals Council denied review of Plaintiff’s claim.
(Tr. 1). On July 18, 2016, Plaintiff filed suit in this Court. (Doc. # 2). The parties then
filed Cross-Motions for Summary Judgment, which are now ripe for review. (Docs. # 11
Overview of the Process
Judicial review of the Commissioner’s decision is restricted to determining whether
it is supported by substantial evidence and was made pursuant to proper legal standards.
See Colvin v. Barnhart, 475 F.3d 727, 729 (6th Cir. 2007). “Substantial evidence” is
defined as “more than a scintilla of evidence but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
Courts are not to conduct a de novo review, resolve conflicts in the evidence, or make
credibility determinations. Id. Rather, the Court must affirm the Commissioner’s decision
if it is supported by substantial evidence even if the Court might have decided the case
differently, Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999), and even if
there is evidence favoring Plaintiff’s side, Listenbee v. Sec’y of Health & Human Servs.,
846 F.2d 345, 349 (6th Cir. 1988). Similarly, an administrative decision is not subject to
reversal merely because substantial evidence would have supported the opposite
conclusion. Smith v. Chater, 99 F.3d 780, 781-82 (6th Cir. 1996).
To determine disability, the ALJ conducts a five-step analysis. Step One considers
whether the claimant can still perform substantial gainful activity; Step Two, whether any
of the claimant’s impairments, alone or in combination, 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 past relevant work; and Step Five, whether a significant
number of other jobs exist in the national economy that the claimant can perform. For the
last step, the burden of proof shifts from the claimant to the Commissioner to identify “jobs
in the economy that accommodate [Plaintiff’s] residual functional capacity.” See Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003); see also Preslar v. Sec’y of
Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
The ALJ’s Determination
At Step One, the ALJ found that Plaintiff has not engaged in substantial gainful
activity since June 20, 2012, the alleged onset date. (Tr. 111). At Step Two, the ALJ
determined that Plaintiff has the following severe impairments: irritable bowel syndrome
(IBS) and ulcerated colitis. Id. At Step Three, the ALJ concluded that Plaintiff does not
have an impairment or combination of impairments that meets or medically equals one of
the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. (Tr. 115).
At Step Four, the ALJ found that Plaintiff possesses the residual functional capacity
(RFC) to perform light work, as defined in 20 C.F.R. § 404.1567(b), with the following
[Plaintiff can perform light work that] involve[es] sitting for 6 hours in an 8hour day, standing/walking for 6 hours in an 8-hour day, and that does not
require climbing ladders, ropes, and scaffolds, or more than occasional
climbing ramps and stairs, crouching, kneeling, and crawling.
(Tr. 115-18). Based on this RFC and relying on the testimony of a vocational expert (VE),
the ALJ concluded that Plaintiff was capable of performing her past relevant work as a
cashier, deli worker, and fast food worker. (Tr. 118). As a result, the ALJ did not proceed
to Step Five and concluded that Plaintiff has not been under a disability, as defined in the
Social Security Act, from June 20, 2012 through the date of the decision. Id.
Plaintiff alleges three errors in the hearing decision and asks this Court to reverse
the disability determination and remand for immediate payment of benefits or for a new
administrative hearing before a different ALJ. (Doc. # 11-1). Specifically, Plaintiff argues
that the ALJ erred by not including Plaintiff’s need for frequent trips to the bathroom in her
RFC, that “the ALJ’s determination that the Plaintiff is not disabled is not supported by
substantial evidence,” and that the ALJ should have credited the VE’s testimony that
adding a limitation of the need for frequent unscheduled breaks at least hourly would
eliminate jobs at all exertion levels. (Doc. # 11-1 at 11-16). Plaintiff’s arguments can be
characterized as follows: (1) the ALJ erred in assessing Plaintiff’s credibility, (2) the ALJ’s
RFC determination is not supported by substantial evidence, and (3) the ALJ’s conclusion
that Plaintiff can perform her past relevant work is not supported by substantial evidence.
These arguments will be addressed in turn.
The ALJ did not err in assessing Plaintiff’s credibility.
Although relevant to the RFC assessment, a claimant’s description of his or her
symptoms is not enough, on its own, to establish the existence of physical or mental
impairments or disability.
20 C.F.R. § 404.1529(a).
When evaluating a claimant’s
symptoms, the ALJ must determine whether there is an underlying medically
determinable impairment that could be reasonably expected to produce the alleged
symptoms. Id. Once that is established, the ALJ must evaluate the intensity, persistence,
and limiting effects of the individual’s symptoms to determine the extent to which the
symptoms limit the individual’s ability to do basic work activities. Id. § 404.1529(c).
When a claimant’s complaints regarding the intensity and persistence of her
symptoms are unsupported by objective medical evidence, the ALJ must make a
credibility determination “based on a consideration of the entire case record,” including
lab findings, information from treating physicians, Plaintiff’s complaints of symptoms, and
other relevant evidence. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir.
2007) (quoting Soc. Sec. Rul. 96-7p, 1996 WL 374186 at *4). After making a credibility
determination, the ALJ must explain that decision with enough specificity “to make clear
to the individual and to any subsequent reviewers the weight the adjudicator gave to the
individual’s statements and the reasons for the weight.” 20 C.F.R. § 404.1529; Soc. Sec.
Rul. 96-7p, 1996 WL 374186, at *2. “Blanket assertions that the claimant is not believable
will not pass muster, nor will explanation as to the credibility which are not consistent with
the entire record and the weight of the relevant evidence.” Rogers, 486 F.3d at 248.
Once the ALJ has made the credibility determination, the reviewing court must give great
weight and deference to that conclusion. Id.
Plaintiff complains that the ALJ’s RFC “does not take into account [her] frequent
trips to the bathroom,” even though Plaintiff “testified as to having to go to the bathroom
every 30 minutes,” has had incontinence, and asserts that “[t]here is no reason to question
this part of her testimony as being credible.” (Doc. # 11-1 at 12). Plaintiff further argues
that the ALJ was wrong to use Plaintiff’s daily activities as evidence that she does not
need to go to the bathroom frequently because Plaintiff could just wait until she is having
a good day to take care of activities such as shopping. Id.
At Step Four, the ALJ found that the Plaintiff’s “medically determinable
impairments could reasonably expected to cause the alleged symptoms.” (Tr. 116).
However, the ALJ determined that Plaintiff’s “statements concerning the intensity,
persistence and limiting effects of [her] symptoms are not entirely credible.” Id. In
particular, the ALJ explained that Plaintiff’s testimony regarding how frequently she
needed to use the bathroom was inconsistent with her activities of daily living and other
testimony. “Details of the claimant’s largely independent married lifestyle sans required
assisted living services, prescribed devices (except eyeglasses), or formal childcare help
significantly undermine her alleged incapacitation.” (Tr. 116 (internal citations omitted)).
For example, the ALJ found that Plaintiff manages many activities associated with daily
living, such as shopping, driving, helping to raise her 3-year old son, and completing other
household chores and errands, including running errands in public. Id. The ALJ also
noted that Plaintiff told digestive specialists between February and August 2013 that her
condition only “moderately limits [her] activities.” (Tr. 116, 661, 663, 665). Plaintiff also
stated that she left her last job in October of 2011 because of the birth of her son, “not for
reasons related to the current allegations.” (Tr. 117, 300). The ALJ concluded that, “[i]n
conjunction with the modest treatment evidence, the lack of attempted return to work, and
her husband’s current unemployment while receiving Workers Compensation benefits,
this phenomenon reasonably raises the spectre of secondary gain—rather than genuine
medical exigency—as a basis for the current disability application.” (Tr. 117 (internal
Plaintiff disputes the weight the ALJ gave to her activities of daily living, arguing
that they are not necessarily inconsistent with her claimed need to go to the bathroom
every half hour. (Doc. # 11-1 at 12). But, as the ALJ explained, Plaintiff’s claimed
limitations are also inconsistent with her statements to her treatment providers (Tr. 661,
663, 665), and as discussed below, with the objective medical record. The Court’s role
is not to re-weigh the evidence. Smith, 99 F.3d at 782 (even if the Court would have
decided the matter differently than the ALJ, if substantial evidence supports the ALJ’s
decision, it must be affirmed).
The ALJ also reviewed the objective medical evidence.
By February 2013,
doctors’ notes indicated “healed ulcerative colitis” confirmed by scoping and biopsy
results. (Tr. 117, 573-74). The ALJ explained that:
Otherwise, records reflect only sporadic—and far less acute—flare-ups
every 4-6 months, and largely effective symptom control or mitigation
through conventional drug therapy.
Thus, aside from reported tenderness as well as occasionally mild pain and
diarrhea, the majority of exams are unremarkable for gastric, intestinal, or
systemic abnormalities corroborative of the claimant’s grave allegations of
wholly crippling symptoms.
Accordingly, doctors exclusively and conservatively treat the claimant’s IBS
and ulcerated colitis through a combination of recommended dietary
restrictions and medication management of commonly prescribed drugs like
the anti-inflammatory agent Mesalamine (i.e., Asacol) and the
anticholinergic Dicyclomine (i.e., Bentyl) sans alleged or manifested side
In fact, recent appointment records dated July 2014 describe the claimant’s
ulcerative colitis as “controlled” and “doing well with regular meds.”
(Tr. 117-18 (internal citations omitted)). As a result, the ALJ concluded that Plaintiff’s
statements regarding the intensity, frequency, and limiting effects of her symptoms were
not entirely credible. Having reviewed the ALJ’s credibility assessment, which carefully
detailed the inconsistencies between Plaintiff’s daily activities, subjective complaints, and
the objective medical evidence, the Court finds no error.
The ALJ’s RFC determination is supported by substantial
The RFC determination is “an administrative assessment of the extent to which an
individual’s medically determinable impairment(s), including any related symptoms, such
as pain, may cause physical or mental limitations or restrictions that may affect his or her
capacity to do work-related physical and mental activities.” Soc. Sec. Rul. 96-8p, 61 Fed.
Reg. 34,474, 34,475 (Jul. 2, 1996). Put another way, the RFC is “what an individual can
still do despite his or her limitations.” Id. “In assessing the total limiting effects of [the
claimant’s] impairment(s) and any related symptoms, [the ALJ] will consider all of the
medical and nonmedical evidence” in the record. 20 C.F.R. § 404.1545(e). The ALJ is
only required to incorporate those limitations that he or she finds credible into the RFC
assessment. Irvin v. Social Sec. Admin., 573 F. App’x 498, 502 (6th Cir. 2014) (citing
Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993)).
Plaintiff broadly alleges that the ALJ erred by failing to find her disabled because
there is not substantial evidence to support the ALJ’s RFC determination, and because
“the combined effects of [Plaintiff’s] physical and mental impairments reflect that [s]he
could not perform a wide range of even sedentary work on a regular and sustained basis.”
(Doc. # 11-1 at 14). That argument, a conclusory assertion of disability, fails.
At Step Four of the analysis, the ALJ carefully reviewed the entire record and found
that Plaintiff was capable of doing light work with the limitations specified. (Tr. 115-18).
As explained above, the ALJ properly discounted Plaintiff’s subjective symptoms to the
extent they lacked credibility. Because the ALJ incorporated the limitations that he found
credible into the RFC and because substantial evidence supports the RFC, there is no
The ALJ’s determination that the Plaintiff can perform past
relevant work is supported by substantial evidence.
Plaintiff also argues that the ALJ erred in finding her not disabled because the VE
testified that a need for frequent unscheduled breaks at least hourly would eliminate the
jobs available in the national economy that she could perform. (Doc. # 11-1 at 12-13).
An ALJ’s reliance on VE testimony is acceptable only to the extent that the VE testifies in
response to an accurate hypothetical, Varley v. Sec'y of Health & Human Servs., 820
F.2d 777, 779 (6th Cir. 1987), but the “ALJ is required to include in the hypothetical
questions only those limitations that accurately portray a claimant’s physical and mental
impairments,” Brewer v. Soc. Sec. Admin., 39 F. App’x 252, 254 (6th Cir. 2002). “The
ALJ is not obligated to include unsubstantiated complaints in his hypothetical questions.”
Id. As discussed above, in this case, the ALJ found Plaintiff’s professed need to go to
the bathroom every half hour to be “not entirely credible,” and that credibility determination
was supported by substantial evidence. (Tr. 116). The ALJ therefore was not required
to rely on the VE’s testimony about a hypothetical that included frequent unscheduled
breaks at least hourly in reaching his conclusion.
Instead, the ALJ posed a hypothetical that was consistent with the ALJ’s RFC
assessment, which the Court has already found is supported by substantial evidence.
(Tr. 118, 158-59). For that reason, the ALJ was entitled to rely on the VE’s response to
that hypothetical in concluding that Plaintiff was capable of performing her past relevant
work. Id.; Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010).
For the reasons stated herein, IT IS ORDERED as follows:
The decision of the Commissioner is found to be supported by substantial
evidence and is hereby AFFIRMED;
Plaintiff’s Motion for Summary Judgment (Doc. # 11) is hereby DENIED;
Defendant’s Motion for Summary Judgment (Doc. # 13) is hereby
A Judgment in favor of Defendant Commissioner will be entered
This 11th day of May, 2017.
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