Griffin v. SSA
Filing
24
MEMORANDUM OPINION & ORDER: (1) That the Commissioner's Motion for Summary Judgment [DE 19 is GRANTED; (2) That Plaintiff's Motion for Summary Judgment [DE 17 is DENIED; and (3) That Plaintiff's Motion [DE 21 , requesting additional relief with respect to the record in this matter is DENIED. Signed by Judge Joseph M. Hood on 4/6/18.(MRS)cc: COR, Pro Se Filer, Modified text on 4/6/2018 (MRS).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
BRENT E. GRIFFIN,
Plaintiff,
v.
NANCY J. BERRYHILL, Acting
Commissioner of Social
Security,
Defendant.
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)
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)
)
)
)
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Civil Case No.
16-cv-215-JMH
MEMORANDUM OPINION & ORDER
***
This matter is before the Court on the parties’ crossMotions for Summary Judgment (DE 17, 19, 21) on Plaintiff’s
appeal, pro se, of the Commissioner’s denial of an application
for disability insurance benefits.1
The matter having been fully
briefed by the parties is now ripe for this Court’s review.
I.
In May 2013, Plaintiff filed his current application for
Supplemental
Security
Income
(“SSI”),
beginning August 19, 2008 (Tr. 152-63).2
alleging
disability
His application was
denied at the initial levels of review and, after a de novo
hearing, the ALJ issued an unfavorable decision on October 14,
1
These are not traditional Rule 56 motions for summary judgment. Rather,
it is a procedural device by which the parties bring the administrative
record before the Court.
2
This is Plaintiff’s fourth application for SSI.
His three previous
applications (Tr. at 38-89) were denied. The relevant time period for this
application is from May 13, 2013, the date of the application at bar, through
October 14, 2015. 20 C.F.R. § 416.335.
2015.
(Tr. at 20-36.) The Appeals Council declined Plaintiff’s
request for review (Tr. 6-9), making the ALJ’s decision the
final agency decision for purposes of judicial review. 20 C.F.R.
§§ 416.1481, 422.210(a). This appeal followed.
II.
Plaintiff has presented no summation of the record evidence
in his pleadings and has not objected to that presented by the
United States.
that
the
The Court has reviewed the record and concludes
United
States’
summary
accurately
represents
the
material and will adopt it in large part in this memorandum
opinion and order.
Plaintiff
decision
(Tr.
vocational
was
43
141).
training
years
He
in
old
on
a
high
has
welding
(Tr.
the
date
school
of
the
ALJ’s
with
Plaintiff’s
232).
education
past
relevant work was as a truck driver (Tr. 232, 701). Plaintiff
alleged
he
was
disabled
due
to
extreme
anger,
fainting,
dizziness, leg swelling, depression, chest pain, back pain, a
cardiac condition, and kidney disease (Tr. 231).
Plaintiff had treatment for various conditions including
kidney disease, heart disease, back pain, and mood disorder (Tr.
246, 251-78, 281-99, 381-88, 450-94, 523-29, 530-44, 587-617).
In March 2012, an x-ray documented early degenerative changes in
Plaintiff’s
spinal
low
back
but
no
stenosis
(Tr.
243).
disc
herniations
Cardiologist
2
or
Ashwani
changes
Anand,
of
M.D.,
treated Plaintiff with medication management and regular follow
up visits (Tr. 244-50, 279-97). He regularly found Plaintiff had
normal heart rate and rhythm with no clicks, murmurs, or rubs;
normal respiratory effort with no increased work of breathing or
signs of respiratory distress and clear lungs; normal muscle
strength, gait, and range of motion; and normal mood and affect
(Tr. 246, 282, 285, 289, 295).
Sayed K. Hasni, M.D., treated Plaintiff for kidney disease
also with medications and routine follow up (Tr. 381-88, 587617). Treatment notes showed Plaintiff generally denied having
any anxiety, mood changes, difficulty breathing or shortness of
breath, numbness, or weakness (Tr. 589, 593, 597, 601, 605, 609,
611,
621).
Examinations
consistently
showed
he
was
alert,
oriented to time and place, and not in acute distress and had
either
1+
or
2+
pitting
edema
but
otherwise
normal
cardiovascular, vascular, and neurological findings, along with
normal gait (Tr. 589-90, 593-94, 597-98, 601- 02, 605-06, 60910, 612).
In connection with his current application for benefits,
Plaintiff
underwent
physical
and
psychological
consultative
examinations in July and August 2013, respectively. Robert L.
Nold, M.D., found Plaintiff had limitation of neck and shoulder
motion, a fine tremor in both hands, and discoloration of his
lower legs, but normal muscle bulk and tone and full (5/5) grip
3
strength (Tr. 300). Plaintiff had decreased (3/5) strength in
his legs, but he had a normal gait and did not use a cane or
have
a
limp
(Tr.
301).
Dr.
Nold
opined
that
Plaintiff
was
limited to lifting 20 to 25 pounds occasionally and five to 10
pounds frequently. He thought Plaintiff could stand for an hour
at a time and for four hours in an eight-hour workday, and that
kneeling may be somewhat difficult (Tr. 302).
Crystal Sahner, Psy.D., found Plaintiff performed poorly on
the mental status examination. He did not know the date and the
year and his performance on the concentration tasks was so poor
he had to be asked to concentrate harder (Tr. 312). Plaintiff
relied
on
his
information,
indicated
wife
to
although
what
she
provide
at
was
times,
saying
more
of
the
was
not
and
intervened
Plaintiff
history
and
correct.
Plaintiff
presented as mildly agitated and indicated he had very angry
thoughts.
He
had
an
adequate
fund
of
information
and
demonstrated normal abstract thinking and intact reality testing
(Tr.
313).
Dr.
Sahner
noted
that
Plaintiff’s
effort
was
inconsistent during the examination as there were times when he
responded quickly and did not appear to put too much effort into
the response and other times when his response appeared to be
adequate
and
genuine
(Tr.
314).
Dr.
Sahner
assessed
mood
disorder and polysubstance dependence in remission and assigned
a GAF score of 50 to 51. She opined that Plaintiff had adequate
4
ability
to
towards
understand,
the
performance
remember,
of
and
simple
carry
out
repetitive
instructions
tasks,
although
there should not be a long delay between the onset of the task
and the instruction (Tr. 314). Dr. Sahner thought Plaintiff’s
ability to interact appropriately with others in a workplace
setting was markedly affected due to irritability, impulsivity,
and
personality
issues
and
his
ability
tolerate
stress
and
pressure of employment was markedly affected due to difficulties
with mood and impulse control. She indicated that Plaintiff’s
ability
to
sustain
attention
and
concentration
towards
the
performance of simple repetitive tasks was moderately affected
(Tr. 315).
State
agency
medical
consultants
reviewed
Plaintiff’s
medical records and provided opinions about Plaintiff’s mental
and physical limitations. In September 2013, Lea Perritt, Ph.D.,
opined
that
infrequent
Plaintiff
changes
in
was
limited
routine
and
to
simple
work
that
tasks
with
involves
only
occasional interaction with others. She also thought Plaintiff
should not work in a fast-paced environment (Tr. 378). Allen
Dawson,
M.D.,
limitations
also
reviewed
consistent
with
Plaintiff’s
a
range
records
of
light
and
assessed
work
with
additional postural and environmental restrictions (Tr. 367-73).
In December 2013, psychologist Ed Ross, Ph.D., concluded that
Plaintiff was restricted to simple tasks with infrequent changes
5
to
routine
accommodates
and
no
exposure
occasional
to
contact
fast
paced
with
environments
others
(Tr.
497).
with
P.
Saranga M.D., assessed limitations consistent with a range of
light
work
with
additional
postural
and
environmental
limitations (Tr. 515-21).
At the hearing held on July 1, 2015, Plaintiff testified
that he stopped working as a truck driver because he passed out
at the wheel and caused an accident (Tr. 681). He said that he
had extreme chest pain everyday along with numbness in his arms,
and swelling in his legs. Plaintiff indicated that nitroglycerin
eased his pain for a couple of hours (Tr. 685). He estimated
that he could sit for 20 minutes at a time and stand for 20
minutes at a time (Tr. 687). Plaintiff thought he could lift no
more than five to 10 pounds (Tr. 689). He testified that he
showered only every three to four days because it caused his
feet
to
swell
and
become
discolored
(Tr.
692).
Plaintiff
indicated that his wife did all the housework and cleaning. He
reported that he had to lie down several times a day, three to
four days a week because of fatigue and lightheadedness (Tr.
694-95).
Vocational expert Julian M. Nadolsky, Ed.D., testified in
response to a series of hypothetical questions, one of which
concerned an individual of Plaintiff’s vocational profile who
could do light work with additional environmental, postural, and
6
mental
limitations
individual
could
accessories
(Tr.
do
706).
assembler,
expert
unskilled
the
The
light
stamp
pad
testified
jobs
finisher,
of
that
the
electrical
folding
machine
feeder, and small products assembler (Tr. 707-08).
After a careful review of the record, the ALJ found that
Plaintiff had severe mental and physical impairments, but that
his complaints of disabling limitations were not consistent with
the record as a whole (Tr. 31-32). The ALJ found Plaintiff had
the
residual
functional
capacity
to
do
light
unskilled
work
within the following parameters: no climbing ladders, ropes, or
scaffolds; no more than occasional bending, stooping, kneeling,
crouching,
crawling,
concentrated
machinery
or
exposure
and
to
climbing
vibration;
unprotected
heights;
ramps
no
and
exposure
simple
stairs;
to
tasks
no
dangerous
in
a
job
environment characterized by infrequent changes, no fast paced
production work, and no more than occasional interaction with
others
(Tr.
30).
The
ALJ
acknowledged
the
previous
ALJ’s
decision in 2013 and found that the medical evidence since then
showed that Plaintiff had greater restrictions (Tr. 30-31). The
ALJ relied on the vocational expert’s testimony to find that
Plaintiff could perform the unskilled light jobs of electrical
accessories
assembler,
stamp
pad
finisher,
folding
machine
feeder, and small products assembler (Tr. 36). Thus, the ALJ
7
determined Plaintiff was not disabled through the date of the
decision (Tr. 36).
In connection with his request for review of the ALJ’s
decision, Plaintiff submitted to the Appeals Council additional
treatment records from Dr. Hasni (Tr. 620-23, 630-31), and Dr.
Anand (Tr. 641-55). He also submitted medical source statements
from both doctors from 2010, in which they opined Plaintiff had
disabling limitations (Tr. 632-42, 656-60).3 These medical source
statements were considered by previous ALJs in their decisions
denying Plaintiff’s claims (Tr. 54, 60-61 70, 76).
III.
In
determining
whether
an
individual
is
disabled,
an
Administrative Law Judge (“ALJ”) uses a five step analysis:
1. An individual who is working and engaging
in substantial gainful activity is not
3
The Court sees no reason to engage with Griffin’s concerns about documents
missing from the administrative record. Assuming he refers to the documents
that he attaches to his brief [DE 17-1 at 8-12], they are part of the
Administrative Record in this case, even if these late-breaking items cannot
be considered because they cannot be considered except in connection with a
sentence six remand, which Plaintiff has not requested. (Tr. 636-40;)see
Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 685 (6th Cir. 1992)
(“Where a party presents new evidence on appeal, this court can remand for
further consideration of the evidence only where the party seeking remand
shows that the new evidence is material.” (citation omitted)). To the extent
that Plaintiff has attached records to his brief that were not already in the
record (Doc. 17-1, pages 4-7, 13-16) and has also submitted an additional
pleading [DE 21], to which he attaches medical records dated in 2017 [DE 21-1
at 1-18], these records are not part of the administrative record and cannot
be considered except in connection with a sentence six remand, which
Plaintiff has not requested. See Wyatt, 974 F.2d at 685 (“Where a party
presents new evidence on appeal, this court can remand for further
consideration of the evidence only where the party seeking remand shows that
the new evidence is material.” (citation omitted)). His request for relief in
that docket entry [DE 21] will be denied.
8
disabled, regardless
medical condition.
of
the
claimant’s
2. An individual who is working but does not
have
a
“severe”
impairment
which
significantly
limits
his
physical
or
mental ability to do basic work activities
is not disabled.
3. If an individual is not working and has a
severe
impairment
which
“meets
the
duration requirement and is listed in
appendix
1
or
equal
to
a
listed
impairment(s)”,
then
he
is
disabled
regardless of other factors.
4. If a decision cannot be reached based on
current work activity and medical facts
alone, and the claimant has a severe
impairment, then the Secretary reviews the
claimant’s residual functional capacity
and the physical and mental demands of the
claimant’s previous work. If the claimant
is able to continue to do this previous
work, then he is not disabled.
5. If the claimant cannot do any work he did
in
the
past
because
of
a
severe
impairment, then the Secretary considers
his residual functional capacity, age,
education, and past work experience to see
if he can do other work. If he cannot, the
claimant is disabled.
Preslar v. Sec’y of Health & Hum. Servs., 14 F.3d 1107, 1110
(6th Cir. 1994) (citing 20 C.F.R. § 404.1520 (1982)).
IV.
When reviewing a decision made by the ALJ, the Court may
not “‘try the case de novo, resolve conflicts in evidence, or
decide questions of credibility.’” Ulman v. Comm’r of Soc. Sec.,
9
693 F.3d 709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499
F.3d
506,
conclusive
509
(6th
Cir.
as
long
as
2007)).
they
are
“The
ALJ’s
supported
findings
by
are
substantial
evidence.” 42 U.S.C. § 405(g); Foster v. Halter, 279 F.3d 348,
353 (6th Cir. 2001) (citations omitted).
“‘means
such
relevant
evidence
as
a
Substantial evidence
reasonable
mind
might
accept.’” Foster, 279 F.3d at 353 (quoting Kirk v. Sec’y of
Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1991)).
V.
The Court understands Plaintiff’s argument to be that the
ALJ simply failed to assess the evidence properly and erred in
determining that he was not entitled to benefits.
the
mere
presence
of
medical
impairments
is
Of course,
insufficient
to
establish disability under the Act. Rather, a claimant must show
that he had limitations which were severe enough to prevent him
from
engaging
in
substantial
gainful
activity
and
which
persisted or were expected to persist for 12 or more continuous
months. 20 C.F.R. § 416.909; Barnhart v. Walton, 535 U.S. 212,
218-19
(2002).
The
claimant
bears
the
burden
to
prove
disability. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
The ALJ discussed the unremarkable examination findings in
finding Plaintiff could perform a range of light work. Dr. Hasni
consistently found Plaintiff was alert, oriented to time and
place, and not in acute distress and had either 1+ or 2+ pitting
10
edema
but
otherwise
normal
cardiovascular,
vascular,
and
neurological findings, along with normal gait (Tr. 525, 589-90,
593-94,
597-98,
601-
02,
605-06,
609-10,
612).
Dr.
Anand
regularly found Plaintiff had normal heart rate and rhythm with
no clicks, murmurs, or rubs; normal respiratory effort with no
increased work of breathing or signs of respiratory distress and
clear lungs; normal muscle strength, gait, and range of motion;
and normal mood and affect (Tr. 246, 282, 285, 289, 295). When
Plaintiff went to the emergency room in November 2013, he had no
motor
or
sensory
deficit,
normal
reflexes,
normal
range
of
motion in his extremities, normal heart rate and rhythm, and
normal breath sounds with no respiratory distress (Tr. 480).
Against this backdrop, the ALJ evaluated the opinions from
Dr. Nold and Dr. Sahner (Tr. 34). Notably, Drs. Nold and Sahner
were examining doctors and opinions of examining sources are not
entitled to controlling weight. Ealy v. Comm’r of Soc. Sec., 594
F.3d 504, 514 (6th Cir. 2010). Given that Plaintiff’s treating
physicians
regularly
found
he
had
normal
gait
and
muscle
strength, the ALJ reasonably rejected Dr. Nold’s conclusion that
Plaintiff was limited to standing and walking only four hours a
day (Tr. 34, see Tr. 302). See 20 C.F.R. §§ 416.927(c)(3), (4)
(ALJ must consider support for opinion and consistency with the
record as a whole); Walters v. Comm’r of Soc. Sec., 127 F.3d
525, 529-30 (6th Cir. 1997) (An ALJ may discount a doctor’s
11
opinion
when
the
doctor’s
findings
are
not
supported
by
objective medical evidence or are inconsistent with the record
as a whole). Similarly, the ALJ found that Dr. Sahner’s opinion
that
Plaintiff
had
marked
difficulties
with
respect
to
interacting with others and tolerating stress (Tr. 34, see Tr.
315), were inconsistent with the treating doctor’s findings that
Plaintiff was alert, oriented, and cooperative with normal mood
and affect (Tr. 246, 250, 282, 285, 289, 295,524, 601, 612).
Plaintiff himself denied having mood changes and anxiety (Tr.
524,
589,
593,
597,
601,
605,
609,
611).
See
20
C.F.R.
§
416.927(c)(4) (stating an ALJ must consider whether an opinion
is consistent with the record as a whole); Norris v. Comm’r of
Soc. Sec., 461 F. App’x 433, 439 (6th Cir. 2012) (unpublished)
(“Any record opinion, even that of a treating source, may be
rejected
by
the
ALJ
when
the
source’s
opinion
is
not
well
supported by medical diagnostics or is inconsistent with the
record.”).
Sahner’s
The
ALJ
also
examination
exaggerating
his
thought
results
difficulties,
that
inconsistencies
indicated
which
that
further
in
Plaintiff
led
the
ALJ
Dr.
was
to
doubt Dr. Sahner’s opinion (Tr. 34, see Tr. 314). See 20 C.F.R.
§ 416.927(c)(4) (stating an ALJ must consider whether an opinion
is consistent with the record as a whole).
Whether the Court agrees with the decision of the ALJ is of
no consequence.
There is substantial evidence to support the
12
decision, and the Court affirms it. See Longworth v. Comm’r of
Soc. Sec., 402 F.3d 591, 595 (6th Cir. Apr. 4, 2005). Plaintiff
has not articulated what substantial evidence exists to support
his claim, but, even if he had, the Court would still affirm the
Commissioner’s decision because it is supported by substantial
evidence. See Buxton v. Halter, 246 F.3d 762, 772 (6th Cir.
2001); see also 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).
Accordingly, IT IS ORDERED:
(1)
That the Commissioner’s Motion for Summary Judgment
[DE 19] is GRANTED;
(2)
That Plaintiff’s Motion for Summary Judgment [DE 17]
is DENIED; and
(3)
That Plaintiff’s Motion [DE 21], requesting additional
relief with respect to the record in this matter is DENIED.
This the 6th day of April, 2018.
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