Sumner v. SSA

Filing 14

MEMORANDUM OPINION & ORDER: (1) Plaintiff Charlene Sumner's Motion for Summary Judgment [DE 11 ] be, and is, hereby DENIED; (2) The Commissioner of Social Securitys Motion for Summary Judgment [DE 13 ] be, and is, hereby AFFIRMED; and (3) A Judgment will issue contemporaneously with this Memorandum Opinion and Order. Signed by Judge Joseph M. Hood on 04/26/2017.(KJA)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
CHARLENE SUMNER,

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

Civil No. 6:16-cv-149-JMH

MEMORANDUM OPINION AND ORDER

****

Plaintiff Charlene Sumner 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 January 7, 2008, Plaintiff filed a Title XVI application
for supplemental security income (“SSI”), alleging disability as
of July 1, 2003.

[TR 192-94].

Plaintiff’s claims were denied
2 

initially and on reconsideration.

[TR 63-64, 78-87].

then requested a hearing on the matter.

[TR 69-72].

Plaintiff
However,

Administrative Law Judge (“ALJ”) David Daugherty reviewed the
evidence of record and found that it “support[ed] a fully favorable
decision,” obviating the need for a hearing.

[Id.].

Accordingly,

on October 6, 2008, ALJ Daugherty issued a written decision, in
which he concluded that Plaintiff was disabled as of July 1, 2003.
[Id.].

Attorney Eric C. Conn represented Plaintiff throughout

this disability determination process.

[Id.].

The Office of the Inspector General later notified the Social
Security Administration (“SSA”) that there was reason to believe
that fraud was involved in certain cases submitted to the SSA by
Eric C. Conn, which included faulty evidence submitted by Bradley
Adkins, Ph. D., Srinivas Ammisetty, M.D., Frederic Huffnagle,
M.D., and/or David P. Herr, D.O., between January 2007 and May
2011.

[TR 20].

during

the

Because Plaintiff was represented by Eric C. Conn

aforementioned

time

period,

and

because

her

case

included evidence obtained from one or more of the aforementioned
medical providers, the SSA had to redetermine her eligibility for
benefits.

[Id.].

In redetermining Plaintiff’s claim for benefits, the Appeals
Council (“AC”) was obliged to disregard all evidence obtained from
the aforementioned medical providers.

3 

[Id.].

On July 16, 2015,

the AC found that ALJ Daugherty’s decision was not supported by
the remaining evidence.

[TR 73-74].

It then remanded the case to

ALJ Joseph R. Doyle for a new hearing and further redetermination
proceedings.

[Id.; TR 20].

On March 11, 2016, ALJ Doyle held a video hearing.

[TR 21].

Plaintiff, now represented by attorney Ronald C. Cox, participated
in the hearing, along with impartial vocational expert David E.
Stewart.

[Id.].

Consistent with the AC’s instructions, ALJ Doyle

disregarded evidence obtained from the aforementioned medical
providers, but “considered all other evidence relating to the
period prior to the original allowance date of October 6, 2008,
including new and material evidence reasonably related to the
period at issue.”

[TR 21].

ALJ Doyle also preserved Plaintiff’s

objection to the constitutionality of the redetermination process,
but explained that he lacked the authority to adjudicate the issue.
[Id.].

He

analysis.

then

proceeded

with

his

disability

determination

[Id.].

At Step One, ALJ Doyle found that Plaintiff had not engaged
in substantial gainful activity since the alleged onset date.
24].

[TR

At Step Two, he concluded that Plaintiff had the following

severe impairments: fibromyalgia/chronic pain syndrome, arthritis,
affective mood disorder, and sleep impairment.

[TR 21].

Three,

did

ALJ

Doyle

determined

that

4 

Plaintiff

not

At Step
have

an

impairment or combination of impairments listed in, or medically
equal to, an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1.

[TR 26-29].

In reaching this conclusion, ALJ Doyle

found that Plaintiff’s arthritis did not meet the requirements of
Listing 1.02 (major dysfunction of a joint) because she “ambulated
independently

without

difficulty,

demonstrated

intact

motor

strength in all extremities and was found to have normal gross
manipulation and grip strength.”

[TR 26].

ALJ Doyle also determined that Plaintiff’s back pain did not
meet Listing 1.04 (disorders of the spine) because the medical
records “did not establish the requisite evidence of nerve root
compression, spinal arachnoiditis or lumbar spinal stenosis.”2
[Id.].

Finally, he concluded that Plaintiff’s mental impairments

did not meet the criteria of Listing 12.04 (depressive, bipolar
and related disorders) or Listing 12.06 (anxiety and obsessivecompulsive disorders) because Plaintiff had only mild restrictions
in

activities

of

daily

living,

moderate

difficulties

concentration, and no extended episodes of decompensation.3

with
[TR

27-28].

2
 ALJ Doyle noted that Plaintiff’s provider treated her back pain as arthritis.
[TR 26]. However, because treatment notes suggested that Plaintiff might suffer
from degenerative disc disease, ALJ Doyle considered Listing 1.04 out of an
abundance of caution. [Id.].
3
  ALJ Doyle also considered Section 1.00 (musculoskeletal impairments) and
Section 11.00 (neurological impairments), in light of Plaintiff’s chronic pain
syndrome, but found that “the evidence failed to meet or equal any listing under
either category of impairments.” [TR 27]. Similarly, he evaluated Plaintiff’s

5 

At Step Four, ALJ Doyle found that Plaintiff had the residual
functional capacity (“RFC”) to perform medium work as defined in
20 C.F.R. § 416.967(c), except that Plaintiff “could never climb
ladders,

ropes

or

scaffolds;

should

avoid

all

exposure

to

operational controls of moving machinery and unprotected heights;
and limited to the performance of simple, routine and repetitive
tasks.”

[TR 29].

Because Plaintiff had no past relevant work,

transferability of job skills was not an issue.

[TR 34].

ALJ Doyle then proceeded to the final step of the sequential
evaluation.

[TR 34-35].

At Step Five, he determined that there

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

[Id.].

ALJ Doyle 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 buffer (29,300 jobs
nationwide), checker (480,000 jobs nationwide) or hand packager
(43,100 jobs nationwide).
VE,

ALJ

Doyle

found

that

[Id.].

Based on the testimony of the

Plaintiff

successful adjustment to other work.

was

capable

[Id.].

of

making

a

Thus, he concluded

that Plaintiff was not under a “disability,” as defined by the

fibromyalgia under Section 1.00 (musculoskeletal impairments) and Section 12.06
(anxiety disorders), and reached the same conclusion. [Id.].
6 

Social Security Act, from January 7, 2008, the application date,
through October 6, 2008, the date of the prior decision.

[Id.].

On June 22, 2016, the AC denied Plaintiff’s request for review
of ALJ Doyle’s administrative decision. [TR 1-3]. Plaintiff filed
the instant action on July 18, 2016.

[DE 2].

Consistent with the

Court’s Standing Scheduling Order, the parties have submitted
cross motions for summary judgment, which are now ripe for review.
[DE 11, 13].
she

Plaintiff advances two arguments on appeal.

contends

that

unconstitutional

and

the

SSA’s

deprived

her

redetermination
of

Due

First,

process

Process.

is

Second,

Plaintiff broadly complains that ALJ Doyle’s RFC assessment was
not supported by substantial evidence.

The Court will address

each of these arguments in turn.
III.
Plaintiff’s Motion sets forth detailed arguments about the
constitutionality

of

the

redetermination

process.

However,

Plaintiff’s points mirror those previously addressed by the Court
in Perkins v. Colvin, Pikeville Civil Action No. 16-CV-35 (E.D.
Ky. December 16, 2016), as well as by Judge Reeves in a series of
decisions rendered on November 15, 2016, see 0:16-017-DCR, 0:16061-DCR, 7:16-051-DCR, 7:16-059-DCR, 7:16-068-DCR, 7:16-075-DCR,
7:16-101-DCR, and 7:16-153-DCR, from across the Eastern District
of Kentucky.

These decisions clearly explain why no due process
7 

error occurred in the redetermination procedure employed by the
Acting Commissioner.

Thus, Plaintiff is not entitled to summary

judgment on this issue.
By contrast, Plaintiff’s attack on ALJ Doyle’s disability
determination analysis is perfunctory at best:
When the record in this case is considered in its
entirety, the combined effects of Ms. Sumner’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.
…
It is the contention of the Plaintiff under these
standards of review, that there is not substantial
evidence to support the denial of h[er] application for
social security benefits.
The objective medical
evidence unequivocally documents that the Plaintiff
suffers
from
fibromyalgia/chronic
pain
syndrome;
arthritis; affective mood disorder, sleep impairment
hearing loss of the right ear requiring hearing aid;
obesity; post hysterectomy; benign breast lesion;
depression; and marginal 6th grade education.

[DE 11-12 at 11-12].
“[I]ssues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived.

It

is not sufficient for a party to mention a possible argument in a
most skeletal way, leaving the court to … put flesh on its bones.”
McPherson

v.

Kelsey,

125

F.3d

989,

995-96

(6th

Cir.

1997).

Although Plaintiff does indicate that ALJ Doyle erred in finding
that she had the RFC to perform a reduced range of medium work,

8 

she

fails

to

identify

which

aspects

of

unsupported by substantial evidence and why.

his

conclusion

are

For instance, there

is no suggestion that ALJ Doyle erred in weighing the medical
evidence or improperly assessed Plaintiff’s credibility.
Court could easily deem this argument waived.

The

However, out of an

abundance of caution, the Court will briefly explain why ALJ
Doyle’s RFC assessment at Step Four is supported by substantial
evidence.
As explained supra, the ALJ is responsible for “evaluating
the medical evidence and the claimant’s testimony to form an
‘assessment of [his] residual functional capacity’” at Step Four
of the disability determination process.

Webb v. Comm’r of Soc.

Sec., 368 F.3d 629, 633 (6th Cir. 2004) (quoting 20 C.F.R. §
416.920(a)(4)(iv)). The RFC is an assessment 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.”

20 C.F.R. § 416.945(a)(1).

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. § 416.945(a)(3).

9 

The

aforementioned

medical

sources

may

be

classified

as

treating sources, non-treating sources, and non-examining sources.
20 C.F.R. § 416.927(a)(2).

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

20 C.F.R. § 416.927(c)(2).

If the opinion is not

entitled to controlling weight, the ALJ must decide how much weight
to give it by considering the length, frequency, nature and extent
of the treatment relationship; evidence in support of the opinion;
consistency of the opinion with evidence in the record; physician's
specialization; and other factors brought to the ALJ's attention.
20 C.F.R. § 416.927(c)(2)-(6).
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).
10 

Instead, the ALJ must weigh the opinion using the same factors
discussed above.

Id.

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

20 C.F.R. § 416.927(c)(2)-(6).

In this case, the hearing decision indicates that ALJ Doyle
carefully considered a wide variety of medical record and treatment
notes.

When faced with medical opinion evidence, he appropriately

identified the source of the opinion, discussed its content, and
highlighted supporting evidence.
whole

for

evidence

that

was

He then scoured the record as a
inconsistent

with

the

opinion.

Finally, he compared the opinion and its supporting evidence
against all inconsistent evidence in the record, then determined
how much weight to afford it.
For instance, ALJ Doyle afforded some weight to the opinion
of Dr. Burns, a consulting physician, who determined that Plaintiff
“had the ability to sit, stand, move about, lift, carry, handle
objects, hear, see, speak and travel without any noted limitation.
[Id.].

While ALJ Doyle observed that these conclusions were

“supported by essentially normal physical exam findings,” he noted
that they did not account for Plaintiff’s consistent reports of
pain and history of treatment for pain management, and discounted
the opinion accordingly.

[Id.].
11 

Because ALJ Doyle engaged in a

similarly thorough analysis with regard to other medical opinions
in the record, carefully adhering to the applicable regulations in
so doing, the Court finds that this aspect of his Step Four
analysis was supported by substantial evidence.
The ALJ must engage in a similar analysis when a claimant’s
complaints regarding the intensity and persistence of his or her
symptoms are unsupported by objective medical evidence.
Comm’r

of

Soc.

Sec.,

486

F.3d

234,

247

(6th

Rogers v.

Cir.

2007).

Specifically, the ALJ must make a credibility determination “based
on a consideration of the entire case record.”

Id. (quoting Soc.

Sec. Rul. 96-7p, 1996 WL 374186 at *4 (July 2, 1996)).

“The entire

case record includes any medical signs and lab findings, the
claimant’s own complaints of symptoms, any information provided by
the treating physicians and others, as well as any other relevant
evidence contained in the record.”

Id.

The ALJ must then explain his or her 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.”

Id. at 248.

Blanket

assertions that the claimant is not believable will not suffice,
nor will credibility explanations “which are not consistent with
the entire record and the weight of the relevant evidence.”

Id.

However, reviewing courts must give great weight and deference to
the ALJ’s credibility determination.
12 

Id.

In this case, ALJ Doyle found that Plaintiff’s testimony about
the intensity and limiting effects of her symptoms were not
entirely consistent with the medical evidence of record.

For

instance, Plaintiff stated that she led a limited lifestyle at the
hearing.

However, as ALJ Doyle observed, Plaintiff admitted that

she was capable of performing self-care tasks, preparing meals,
and driving.

[TR 30-31].

She also reported that her back hurt

constantly, her feet felt numb, and her hands felt like “a bunch
of needles,” cramping up when she tried to use them.

[Id.].

ALJ

Doyle pointed to several treatment notes indicating that Plaintiff
was satisfied with her current pain management regimen.

[Id.].

He also observed that Plaintiff’s “physical exam findings were
essentially normal, with normal gait, normal strength, normal
range of motion and intact grip and sensation.”
In

short,

ALJ

Doyle

painstakingly

[Id.].

compared

Plaintiff’s

statements against the medical evidence of record, taking care to
detail the content of each evaluation and treatment note.

He then

explained why these records did not fully support Plaintiff’s
assertions,

adversely

impacting

her

credibility.

The

Court

therefore concludes that ALJ Doyle’s assessment of Plaintiff’s
credibility at Step Four is supported by substantial evidence.
IV.
Accordingly, for the reasons stated herein,
13 

IT IS ORDERED as follows:
(1)

Plaintiff Charlene Sumner’s Motion for Summary Judgment

[DE 11] be, and is, hereby DENIED;
(2)

The Commissioner of Social Security’s Motion for Summary

Judgment [DE 13] be, and is, hereby AFFIRMED; and
(3)

A

Judgment

will

issue

contemporaneously

Memorandum Opinion and Order.
This the 26th day of April, 2017.

14 

with

this