Arvin v. SSA

Filing 13

MEMORANDUM OPINION AND ORDER: (1) Plaintiff Delisa Ann Arvins Motion for Summary Judgment 10 be, and is, hereby DENIED; (2) The Commissioner of Social Securitys Motion for Summary Judgment 12 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 4/27/2017. (JMB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
DELISA ANN ARVIN,

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

Civil No. 6:16-cv-160-JMH

MEMORANDUM OPINION AND ORDER

****

Plaintiff Delisa Ann Arvin 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.

conflicts

determinations.

Id.

Courts are not to conduct a de novo review,
in

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 July 23, 2013, Plaintiff filed a Title II application for
a period of disability and disability insurance benefits (“DIB”),
alleging

disability

as

of

November
2

30,

2012.

[TR

148-56].

Plaintiff’s claims were denied initially and on reconsideration.
[TR 62-100].
(“ALJ”)

Tommye

On February 13, 2015, Administrative Law Judge
C.

Mangus

Plaintiff’s request.

held

an

administrative

[TR 42-61, 101-02].

hearing

at

ALJ Mangus issued a

written decision, denying Plaintiff’s claim for benefits, on May
29, 2015.

[TR 23-35].

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

[TR 25].

At Step Two, she

concluded that Plaintiff had the following severe impairments:
irritable bowel syndrome (“IBS”), history of gastroduodenitis,
history of duodenal ulcer, dysthymia, and anxiety.

[Id.].

At Step Three, ALJ Mangus determined that Plaintiff did not
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 30-31].

In reaching this conclusion,

ALJ Mangus found that Plaintiff’s mental impairments did not meet
the

requirements

related

of

disorders)

compulsive

Listing

12.04

(depressive,

or

Listing

12.06

disorders)

because

she

(anxiety
had

no

bipolar,

and

and

obsessive-

restrictions

in

activities of daily living and only moderate difficulties with
social functioning and concentration.

[Id.].

Moreover, she had

not experienced extended episodes of decompensation.

3

[Id.].

At Step Four, ALJ Mangus found that Plaintiff had the residual
functional capacity (“RFC”) to perform medium work as defined in
20 C.F.R. § 404.1567(c), provided that the work “does not require
more than occasional stooping from waist.”

[TR 31].

She observed

that “[m]entally, claimant can understand, remember, and carry out
simple instructions and tasks, tolerate occasional public contact,
and adapt to occasional, gradually introduced changes.”

[Id.].

ALJ Mangus then determined that Plaintiff was unable to perform
any past relevant work.

[TR 33].

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

[TR 34-35].

At Step Five, she determined that there

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

[Id.].

ALJ Mangus 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 food preparation
worker (1,800 Kentucky/182,000 nationwide), kitchen helper (2,900
Kentucky/293,000 nationwide), or packer (2,200 Kentucky/172,000
nationwide).

[Id.].

Based on the testimony of the VE, ALJ Mangus

found 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

4

November 30, 2012, the alleged onset date, through the date of the
administrative decision.

[Id.].

On June 20, 2016, the Appeals Council denied Plaintiff’s
request for review of ALJ Mangus’s administrative decision.

[TR

1-4].

[DE

2].

Plaintiff filed the instant action on August 2, 2016.

Consistent with the Court’s Standing Scheduling Order, the

parties have submitted cross motions for summary judgment, which
are now ripe for review.

[DE 10, 12].

Plaintiff argues that ALJ

Mangus’s administrative decision is not supported by substantial
evidence for four reasons. First, she argues that ALJ Mangus erred
at Step Two by failing to find that her hypertension was a severe
impairment.

[DE 10 at 19-12].

Second, she contends that ALJ

Mangus erred in her assessment of her credibility at Step Four.
[Id. at 12-14].

Third, she complains that the ALJ improperly

weighed Dr. William R. Rigby’s opinion at Step Four.

Fourth, she

insists that the ALJ relied on the VE’s answer to an inappropriate
hypothetical at Step Five.2

The Court will address each of these

arguments in turn.

2

  Plaintiff combines the third and fourth issues into one claim of error,
contesting ALJ Mangus’s reliance on a hypothetical that did not incorporate the
limitations suggested by Dr. Rigby. The Court has separated these issues for
ease of analysis. Any concerns not included in Plaintiff’s Motion are deemed
waived. McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997).

5

III.
A. Severe and Non-Severe Impairments
At Step Two of the disability determination process, the ALJ
must consider the medical severity of the claimant's impairments.
20 C.F.R. § 404.1520(a)(4)(ii); Soc. Sec. Rul. 96-3p, 1996 WL
374181 at *1 (July 2, 1996). An impairment is severe if it
“significantly limits an individual's physical or mental ability
to perform basic work activities,” which include the following:
(1)

physical

functions

such

as

walking,

standing,

sitting,

lifting, pushing, pulling, reaching, carrying, or handling; (2)
capacities for hearing, seeing and speaking; (3) understanding,
carrying out and remembering simple instructions; (4) use of
judgment; (5) responding appropriately to supervision, co-workers
and usual work situations; and (6) dealing with changes in a
routine work setting. See 20 C.F.R. § 404.1521(b).
The Sixth Circuit has interpreted “the step two severity
regulation as a ‘de minimis hurdle’ in the disability determination
process,” intended to screen out totally frivolous claims.

Higgs

v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988) (citations omitted).
Thus, the severity of the impairment is “liberally construed in
favor

of

the

claimant”

at

this

step

in

the

analysis.

Id.

(explaining further that “an impairment can be considered not

6

severe only if it is a slight abnormality that minimally affects
work ability regardless of age, education, and experience”).
If the ALJ finds that at least one of the claimant's alleged
impairments is severe in nature, the claim survives the step two
screening

process.

20

C.F.R.

§

404.1520(a)(4).

Because

the

regulations instruct the ALJ to consider both severe and nonsevere

impairments

in

the

remaining

steps

of

the

disability

determination analysis, any impairment erroneously labeled as
“non-severe”

will

404.1545(a)(2).

not

be

ignored

altogether.

20

C.F.R.

§

Thus, an ALJ’s failure to find that an impairment

is severe does not constitute reversible error.

See also Maziarz

v. Sec'y Health & Human Serv., 837 F.2d 240, 244 (6th Cir. 1987)
(“Since the Secretary properly could consider claimant's cervical
condition in determining whether claimant retained sufficient
residual functional capacity to allow her to perform substantial
gainful activity, the Secretary's failure to find that claimant's
cervical

condition

constituted

a

severe

impairment

could

not

constitute reversible error.”).
Plaintiff complains that ALJ Mangus erred in finding that her
hypertension was non-severe, pointing to several treatment notes
that included high blood pressure readings.
However,

ALJ

occurred

when

medication.

Mangus

observed

Plaintiff

[TR 28].

was

that
not

taking

high
her

readings

often

anti-hypertensive

By contrast, “[p]rimary care notes show
7

these

[DE 10-1 at 10-11].

hypertension is controlled when she takes her medication.”

[Id.].

She further noted that Plaintiff “has not required any emergency
room treatment for … hypertension”3 and that the State agency
characterized her hypertension as non-severe.

[TR 25, 28].

Even

construing Plaintiff’s claim liberally, as is required at this
stage of the disability determination analysis, the Court finds
that there is substantial evidence in the record to support ALJ
Mangus’s conclusions.
In the alternative, even if ALJ Mangus erred in concluding
that Plaintiff’s hypertension was a non-severe impairment, the
error is harmless.
a

host

of

ALJ Mangus found that Plaintiff suffered from

severe

impairments,

duodenal

IBS,

ulcer,

history

dysthymia,

of

gastroduodenitis,

history

anxiety.

As a result, ALJ Mangus was obliged to continue

[TR 25].

of

including

and

her analysis, considering both severe and non-severe impairments
in the remaining steps of the disability determination analysis.
Reversal is therefore inappropriate on this ground.
B. Plaintiff’s Credibility
To determine Plaintiff’s ability to perform past relevant
work, the ALJ is responsible for “evaluating the medical evidence
and the claimant’s testimony to form an assessment of [his]

3

 Plaintiff’s medical records do indicate that she received emergency treatment
for abdominal pain, constipation, and rectal bleeding after the onset date.
[TR 27]. Hypertension was not at issue during those visits. [Id.].

8

residual functional capacity.”

Webb v. Comm’r of Soc. Sec., 368

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

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. § 404.1545(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. § 404.1545(a)(3).

When evaluating a claimant’s symptoms, the ALJ must follow a
two-step process.
(July 2, 1996).

See Soc. Sec. Rul. 96-7p, 1996 WL 374186 at *4
First, he or she must consider whether there is

“a medically determinable physical or mental impairment that could
reasonably be expected to produce” the claimant’s pain or other
symptoms.

Id.

impairment

is

Once the existence of a medically determinable
established,

“the

intensity,

persistence,

and

functionally limiting effects of the symptoms must be evaluated to
determine the extent to which the symptoms affect the individual’s
ability to do basic work activities.”
If

a

claimant’s

complaints

Id.

regarding

the

intensity

and

persistence of his or her symptoms are unsupported by objective
medical evidence, the ALJ must make a credibility determination
9

“based on a consideration of the entire case record.”

Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007) (quoting
SSR 96-7p).

“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.

That being said, reviewing courts must give great weight and
deference to the ALJ’s credibility determination.

Id.

Plaintiff complains that ALJ Mangus’s decision to discount
her credibility was not supported by substantial evidence.

In

support of this proposition, she cites to several aspects of the
record that allegedly support her statements about the severity
and persistence of her symptoms.

However, as explained supra,

this Court is not to conduct a de novo review of the ALJ’s decision
or reweigh the evidence.
not

matter

position.

whether

there

Cutlip, 25 F.3d at 286.
is

evidence

support

Plaintiff’s

This Court’s role is limited to determining whether ALJ
10

to

Thus, it does

Mangus’s
evidence.

credibility

assessment

was

supported

by

substantial

Her, 203 F.3d at 389-90.

The administrative decision includes the following assessment
of Plaintiff’s credibility:
In terms of the claimant’s alleged problems [with]
concentration and completing tasks, getting along with
others, being so nervous she can barely write a check
sometimes, or spells where she forgets where she has
driven, being in crowds, stopping driving for fear of
wrecking, and her stomach hurting every day, she is not
fully credible. Though claimant did not allege memory
problems herself, most of her testimony was about
perceived memory problems.
In fact, claimant had
reported she could pay attention “how long needed” and
f[ollow] written and spoken instructions without
limitations. Claimant also indicated she could handle
changes, but was “not good” at handling stress and does
not like being around people sometimes, she identified
no fears, even though later she claim[ed] she was afraid
to drive. The medical record and claimant’s testimony
leave no doubt her work stressed her out and caused most
of the issues she has. She reported that she does not
think her “nerves will let me” [work] and when “I’m in
crowds my stomach starts and then I’m sick for days.”
Before she stopped working, she was having issues with
recurrent gastritis, ulcers, and irritable bowel. Even
so, there is no evidence to support that she has to use
the bathroom 20 times a day due to IBS and her kidneys
as she reported in Exhibit 6E, p.2, even at that time.
Despite her testimony to the contrary, it would appear
that her problems have improved since she stopped
working because she hasn’t been hospitalized and has
sought little treatment for stomach or intestinal
problems other than obtaining regular, maintenance
medication
refills
and
a
little
treatment
for
hemorrhoids.
In terms of her alleged stomach and head pain and whole
body pain, brought on by stress, reli[e]ved by being in
a quiet room, that prevent her from working and attending
social events, cause her to feel tired and sick all the
time and not feeling like cooking or doing daily chores,
11

she is partially credible. She still does some cooking
not done by her mother or mother-in-law, does chores
when needed, just not daily, shops for food every week
or two for 30 minutes to one hour, but does not have the
desire to shop for other things. While she may not be
able to work “from daylight to dark doing something”
like she used to, she is still able to perform most
essential tasks including driving, cooking, pay bills,
cleaning,
laundry
and
mowing
within
reasonable
limitations.
…
The claimant’s credibility is also reduced by evidence
of substance abuse, although claimant has denied it to
every practitioner. I simply am not convinced claimant
could have false positives on two different occasions,
especially for amphetamines and barbiturates.
It is
reasonable that these substances exacerbated both her
stomach problems and her anxiety; Dr. Samih told her
these substances could worsen her blood pressure.
[TR 32-33].
Here, ALJ Mangus catalogued Plaintiff’s statements at the
hearing.

She then noted that several aspects of the record

directly contradicted Plaintiff’s testimony, highlighting these
discrepancies by comparing each statement against a corresponding
treatment note, function report, or test score. She then explained
why these inconsistencies led her to believe that Plaintiff was
not fully credible.

Thus, the Court concludes that ALJ Mangus’s

assessment of Plaintiff’s credibility is supported by substantial
evidence.
C. Dr. William R. Rigby’s Opinion
As explained in the previous section, the ALJ must assess a
claimant’s RFC by considering testimony and evaluating medical
12

evidence.

Webb,

368

F.3d

at

633.

Medical

sources

may

be

classified as treating sources, non-treating sources, and nonexamining sources. 20 C.F.R. § 404.1527(c).

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.”

Id.

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.
Id.
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).
13

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. § 404.1527(c).

In this case, ALJ Mangus offered the following assessment
of Dr. William R. Rigby’s opinion:
Mentally I accord little weight to consultative examiner
Dr. Rigby’s marked limitations in social interactions
with supervisors, friends, and the public because I find
this level of limitation is not supported by the
treatment evidence.
Though claimant alleged and
testified she did not want to go out or be around others
and has daily crying spells, treating notes do not
support this and show good GAF scores in the fall of
2014. It appears Dr. Raza has simply maintained her on
psychotropic medications and there has been no emergency
room or hospitalization for psychological symptoms. At
the hearing, the claimant mostly focused on her memory
problems, describing that she was so stressed out by her
job that she developed anxiety and depression, which
appears to be true.
It appears all her stress has
decreased since she stopped the high-stress job of
managing several restaurants. The claimant interacted
easily and appropriately with me at the hearing and there
is no evidence of any difficulty interacting with others
in the record.
The overall weight of the evidence,
including Dr. Rigby’s assessment of no impairment in the
ability to perform simple tasks and moderate limitations
in ability to adapt and respond to normal pressures of
day to day work supports the State agency residual
functional capacity. Mentally, claimant can understand,
remember, and carry out simple instructions and tasks,
tolerate occasional public contact, and adapt to
occasional, gradually introduced changes.
[TR 33].

14

This

analysis

demonstrates

that

ALJ

Mangus

carefully

considered a wide variety of medical records and treatment notes.
In evaluating Dr. Rigby’s opinion, she appropriately classified
him as a non-treating source, discussed his finding that Plaintiff
had marked limitations in interacting with other people, and noted
that some of Plaintiff’s testimony supported his conclusions.

She

then pointed out several pieces of evidence that were inconsistent
with Dr. Rigby’s opinion, including other aspects of Plaintiff’s
testimony, treatment notes, test scores, and medication history.
Finally, she compared Dr. Rigby’s opinion and its supporting
evidence

against

all

inconsistent

evidence

in

the

record,

ultimately determining that it was entitled to little weight.
Because ALJ Mangus explained her reasoning in detail, providing
painstaking citations to the record and summations of the evidence,
the Court finds that this aspect of her analysis was supported by
substantial evidence.
D. The VE’s Testimony
In posing a hypothetical question to a vocational expert, an
ALJ must accurately describe Plaintiff's functional limitations.
Varley v. Sec'y of Health and Human Servs., 820 F.2d 777, 779.
(6th Cir. 1987). However, the ALJ need only incorporate those
limitations he finds to be credible. Casey v. Sec'y of Health &
Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993).

15

At the administrative hearing, ALJ Mangus asked the VE to
assume someone with Plaintiff’s age, education, work experience,
and RFC, then asked whether jobs exist in the national economy for
such

an

individual.

[TR

58-61].

The

VE

affirmative, giving representative occupations.
that

information,

ALJ

Mangus

concluded

replied
[Id.].

that

there

in

the

Based on
were

a

significant number of jobs in the national economy that Plaintiff
could perform, and thus, she was not disabled.

[Id.].

Because

ALJ Mangus’s RFC assessment was supported by substantial evidence,
and because ALJ Mangus incorporated those limitations that she
found credible into the hypothetical question posed to the VE, the
Court concludes that her reliance on the VE’s answer to the
hypothetical is also supported by substantial evidence.
IV.
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
(1)

Plaintiff Delisa Ann Arvin’s Motion for Summary Judgment

[DE 10] be, and is, hereby DENIED;
(2)

The Commissioner of Social Security’s Motion for Summary

Judgment [DE 12] be, and is, hereby AFFIRMED; and
(3)

A

Judgment

will

issue

Memorandum Opinion and Order.
16

contemporaneously

with

this

This the 27th day of April, 2017.

17