Sizemore v. SSA

Filing 14

OPINION & ORDER: 1. Plaintiff's motion for summary judgment (DE 11 ) is DENIED; 2. The Commissioner's motion for summary judgment (DE 13 ) is GRANTED; 3. The decision of the Commissioner is AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g) as it was supported by substantial evidence and was decided by proper legal standards; and 4. A judgment consistent with this Opinion & Order will be entered contemporaneously. Signed by Judge Karen K. Caldwell on 09/21/2017.(KJA)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CHARLES GLENN SIZEMORE

CIVIL ACTION NO. 6:16-cv-00216-KKC

Plaintiff,
V.

OPINION AND ORDER

COMMISSIONER OF SOCIAL SECURITY
Defendants.

*** *** ***
This matter is before the Court for consideration of cross-motions for summary judgment
filed by Plaintiff Charles Glenn Sizemore and Defendant Commissioner of Social Security.
(DE 11 & 13.) Sizemore brought this action under Section 405(g) of the Social Security Act,
42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Social Security
Administration (“Commissioner”) denying his claim for Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”), as provided under Titles II and XVI of the Social
Security Act (“the Act”). The Court, having reviewed the record, will affirm the
Commissioner’s decision, as it is supported by substantial evidence and was decided by the
proper legal standards.

I. OVERVIEW OF THE PROCESS
To determine whether a claimant has a compensable disability under the Social Security
Act, the administrative law judge (“ALJ”) applies a five-step sequential process. 20 C.F.R. §
404.1520(a)(1), (4); see also Miller v. Comm’r of Soc. Sec., 81 F.3d 825, 835 n.6 (6th Cir. 2016)
(describing the five-step evaluation process). The five steps, in summary, are:

Step 1: If the claimant is doing substantial gainful activity, the claimant is not
disabled.
Step 2: If the claimant does not have a severe medically determinable physical
or mental impairment—i.e., an impairment that significantly limits his or her
physical or mental ability to do basic work activities—the claimant is not
disabled.
Step 3: If the claimant is not doing substantial gainful activity and is suffering
from a severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and his or her impairment meets or equals a
listed impairment, the claimant is presumed disabled without further inquiry.
Step 4: If the claimant's impairment does not prevent him or her from doing
his or her past relevant work, the claimant is not disabled.
Step 5: If the claimant can make an adjustment to other work, the claimant is
not disabled. If the claimant cannot make an adjustment to other work, the
claimant is disabled.
Sorrell v. Comm’r of Soc. Sec., 656 Fed. App’x. 162, 169 (6th Cir. 2016) (citing Rabbers v.
Comm’r Soc. Sec. Admin., 582 F.3d 647, 652 (6th Cir. 2009)).
If, at any step in the process, the ALJ concludes that the claimant is or is not disabled,
the ALJ can then complete the “determination or decision and [the ALJ] do[es] not go on to
the next step.” 20 C.F.R. § 404.1520(a)(4). In the first four steps of the process the claimant
bears the burden of proof. Sorrell, 656 Fed. App’x. at 169 (quoting Jones v. Comm’r of Soc.
Sec. 336 F.3d 469, 474 (6th Cir. 2003)). If the claim proceeds to step five, however, “the burden
shifts to the Commissioner to identify a significant number of jobs in the economy that
accommodate the claimant's residual functional capacity . . . and vocational profile.” Id.
(internal citations omitted); 20 C.F.R. § 404.1520(g)(1).

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background
Charles Sizemore was born in 1963. He is not presently married and has no minor
children. (Administrative Record (AR) 233.) He has an eleventh-grade education and reports
that he has difficulty reading. (AR 53, 276.) Prior to his alleged disability, he worked in
mining as a company laborer. (AR 58.) He alleges that he is unable to work due to pain in his
back and left hip. (AR 42-43.)
Sizemore first applied for disability benefits in March 2000, but his application was
denied. (AR 9.) He filed a second application in January 2001 and was awarded a closed
period of benefits from March 2000 through August 2001. Sizemore then filed a third
application for benefits which was denied by an ALJ decision in April 2011. A fourth
application was filed by Sizemore in November 2011. (AR 9.) In a written decision dated
February 11, 2013, ALJ Christopher Van Dyck denied Sizemore’s application. (AR 99-116.)
Based on his age, education, work experience, and residual functional capacity, ALJ Van
Dyck found at step five that there existed a significant number of jobs in the national economy
that Sizemore could perform. (AR 111.) Accordingly, he entered a finding of not disabled. (AR
112.)
Sizemore submitted his fifth application for Disability Insurance Benefits and Social
Security Income that is now before this Court on November 19, 2013, alleging a disability
onset date of May 30, 2009. (AR 231-32, 240-46.) Those claims were denied initially and on
reconsideration. (AR 117-34.) Sizemore then filed a timely request for a hearing before an
ALJ. (AR 186-88.)
ALJ Ben Ballengee conducted a hearing in Middlesboro, Kentucky on July 24, 2015.
Sizemore, accompanied by his attorney, was present and testified on his own behalf. (AR 7-

31.) Testimony was also heard from an impartial vocational expert, William Ellis. (AR 24, 3240.) At the hearing, the alleged disability onset date was amended to February 12, 2013, the
day after his previous application was denied. (AR 29, 240.) After hearing and reviewing
Sizemore’s claims de novo, the ALJ entered a written decision denying benefits on September
25, 2015. (AR 6-19.)

B. The Administrative Decision
The ALJ applied the traditional five-step sequential analysis promulgated by the
Commissioner, see 20 C.F.R § 404.1520, and found that Sizemore’s claim failed at step five.
At step one, the ALJ found that Sizemore had not engaged in substantial gainful activity
since the alleged onset date. (AR 11.) At step two, the ALJ found that Sizemore had the
following severe impairments: residuals of left hip, back and pelvis injuries. (AR 12.) At step
three, the ALJ found that Sizemore’s impairments or a combination therefore did not meet
or medically equal the severity of a listed impairment in 20 C.F.R. Pt. 404, Subpart P, App.
1.1 Before moving on to step four, the ALJ determined Sizemore’s RFC, finding that Sizemore
retained:
the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except that he requires a sit/stand option 30-45 minutes
and is limited to occasional climbing of ramps/stairs, stooping, crouching, crawling,
and kneeling. The claimant is restricted to no climbing of ladders, ropes or scaffolds
and no balancing, or exposure to dangerous machinery or unprotected heights.
(AR 14.) In making this assessment, the ALJ found that Sizemore’s statements concerning
the intensity, persistence, and limiting effects of his symptoms were not entirely credible.
(AR 14.) The ALJ proceeded to discuss the relevant medical evidence that failed to support
Sizemore’s claims, which included the medical opinions of Dr. Nathan Hill, Jose Echeverria,

1

The SSA modified the listing criteria for mental disorders in January 2017.

and a state agency medical consultant. (AR 14-16.) After considering the medical evidence,
the ALJ stated that he had adopted the same RFC found by ALJ Van Dyck in his 2013
decision, which he was bound by unless there was new and material evidence relating to a
finding or a change in the law. (AR 16.). Moving to step four, the ALJ found that Sizemore
was unable to perform his past relevant work as a company laborer because it exceeded his
exertional capacity. (AR 17.) At step five, considering Sizemore’s age, education, work
experience, and RFC, the ALJ found that there existed a significant number of jobs in the
national economy that Sizemore could perform. (AR 17.) The ALJ stated that a finding of “not
disabled” would be directed by Medical-Vocational Rule 202.10 based on Sizemore’s light
exertional capacity, but that Sizemore had additional impediments. Accordingly, the ALJ
relied on the vocational expert’s testimony that Sizemore could perform the requirements of
occupations such as packer, production worker, and inspector tester. The ALJ noted that the
vocational expert, based on his experience, reduced the number of jobs in those categories by
fifty percent to reflect the sit/stand option not addressed by the Dictionary of Occupational
Titles. Accordingly, the ALJ issued a finding of not disabled from February 12, 2013 through
September 25, 2015, the date of the written decision. (AR 18.)
The ALJ’s decision became the final decision of the Commissioner when the Appeals
Council subsequently denied his request for review on September 8, 2016. (AR 1-3.); see 20
C.F.R. § 422.210(a). Sizemore has exhausted his administrative remedies and filed a timely
appeal in this Court. This case is now ripe for review under 42 U.S.C. § 405(g).

III.

STANDARD OF REVIEW

Under the Social Security Act, the Court conducts a limited review of the Commissioner’s
decision. 42 U.S.C. § 405(g). The Court may only evaluate whether the ALJ applied the

correct legal standard and made factual findings that are supported by substantial evidence
in the record. Id.; see also Rabbers, 582 F.3d at 651. Substantial evidence means “more than
a scintilla of evidence but less than a preponderance” and includes “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). In assessing the ALJ’s decision,
the Court cannot “try the case de novo, nor resolve conflicts in the evidence, nor decide
questions of credibility.” Id.; see also Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). If
the Commissioner’s decision is supported by substantial evidence, this Court must affirm
that decision even if there is substantial evidence in the record that supports an opposite
conclusion. See Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007) (quoting Longworth v.
Comm’r of Soc. Sec. Admin., 402 F.3d 591, 595 (6th Cir. 2005)).

IV.

ANALYSIS

Sizemore makes three arguments challenging the ALJ’s conclusions and findings. First,
he alleges that the ALJ erred in applying res judicata as to the RFC determination of ALJ
Van Dyck in his 2013 opinion denying Sizemore benefits. Second, he alleges that the ALJ
incorrectly found his chronic obstructive pulmonary disease (COPD) diagnosis was not a
severe limitation. And third, Sizemore makes a general argument that the ALJ’s decision
was not supported by substantial evidence. These arguments are addressed in turn.
A. First Assignment of Error: Whether the ALJ Erred in Applying Res Judicata Arising
from Prior ALJ Decision
Sizemore first argues that the ALJ erred in applying res judicata to the RFC found by
ALJ Van Dyck in his 2013 decision denying Sizemore benefits. He claims that res judicata

does not apply because there was a change in circumstances: Sizemore turned fifty
approximately one month after the amended onset date for his alleged disability. (DE 11-9.)
The Sixth Circuit has held that administrative res judicata applies to the final
decision of an ALJ in a disability claim. See Drummond v. Comm’r of Soc. Sec., 126 F.3d 837,
842 (6th Cir. 1997) (holding “that the principles of res judicata can be applied against the
Commissioner.”); Dennard v. Sec. of Health and Human Servs, 907 F.2d 598, 600 (6th Cir.
1990) (concluding that the ALJs erred by reconsidering prior the ALJ’s RFC finding); see also
20 C.F.R. § 404.957(c)(1) (permitting an ALJ to refuse to consider an issue where “[t]he
doctrine of res judicata applies in that [the Commissioner has] made a previous
determination or decision under this subpart about [the claimant’s] rights on the same facts
and on the same issue or issues, and this previous determination or decision has become final
by either administrative or judicial action.”). Accordingly, an ALJ may not reconsider any
issue made in a previous decision unless there has been a change in circumstances, such as
“new and material evidence relating to [] a finding or . . . a change in the law, regulations or
rulings affecting the finding or the method for arriving at the finding.” AR 98-4(6) (S.S.A.),
1998 WL 283902 (June 1, 1998); see Drummond, 126 F.3d at 842 (“When the Commissioner
has made a final decision concerning a claimant's entitlement to benefits, the Commissioner
is bound by this determination absent changed circumstances.”).
The ALJ properly determined that res judicata applied to prior RFC. All new evidence
that was developed between the ALJ Van Dyk’s February 2013 decision and the decision at
issue was considered by ALJ Ballengee. In his decision, ALJ Ballengee discussed Dr. Nathan
Hill’s December 2013 consultative evaluation and Dr. Jose Echeverria’s March 2014
examination and found that the doctors’ opinions were inconsistent with Sizemore’s
allegations of pain. (AR 14-16.) Because the ALJ considered whether new evidence had arisen

and found none, substantial evidence supported his decision to apply res judicata to the prior
ALJ decision. See Perry ex rel. G.D. v. Comm’r of Soc. Sec., 501 Fed. App’x 425, 427 (6th Cir.
2012) (holding that the ALJ’s decision to apply res judicta was supported by substantial
evidence where “he considered the new reports [and] found none of [the] new evidence to be
material.”).
Sizemore argues that the fact that he turned fifty one month after the amended onset
date constituted changed circumstances. (DE 11-9.) This argument is misguided because it
also requires finding Sizemore was only capable of sedentary work rather light work.
Sizemore has provided no evidence for why the ALJ erred in assessing his exertional capacity.
Sizemore attempts to argue that vocational experts testimony that reducing the number of
available jobs by fifty percent to account for the sit/stand requirement is arbitrary because
“the VE did not explain how he came up with that percentage.” Instead, he suggests, the ALJ
should have found him only able to perform sedentary work. (DE 11-10). This argument has
no merit. The reduction was not arbitrary, but based on his expertise and experience
observing and analyzing jobs. (AR 18.) Accordingly, the ALJ’s decision to apply res judicata
was supported by substantial evidence.
B. Second Assignment of Error: Whether the ALJ Erred in Failing to Consider
Sizemore’s COPD Diagnosis
Sizemore’s second argument is that his COPD should have been considered a severe
impairment at step two in the ALJ’s sequential process. (DE 11-11.) This argument fails. The
ALJ’s finding that Sizemore’s breathing conditions is non-severe was supported by
substantial evidence. At step two, the ALJ discussed Dr. Echeverria’s diagnosis of COPD, but
found it inconsistent with other evidence on the record. Notably, Sizemore continued to
smoke despite being urge to stop for several years, suggesting that his symptoms were less
severe than he claimed. Moreover, Sizemore was never prescribed any medication for his

COPD. (AR 12.) Disregarding a doctor’s advice and lack of medication were both valid reasons
for the ALJ to discount Dr. Echeverria’s opinion. See Blaim v. Comm’r of Soc. Sec., 595 F.
App’x 496, 499 (6th Cir. 2014) (finding claimant’s “persistant noncompliance with his
medication and his persistent disregard of his doctor’s advice [evidence] that his conditions
were not as severe as he made them out to be.”); Kimbrough v. Sec’y of Health and Human
Serv., 801 F.2d 794, 797 (6th Cir. 1986) (“[M]ild medication taken by claimant do not bear
out the severity of claimant's pain.”). Accordingly, the ALJ’s finding that Sizemore’s
breathing condition is non-severe was supported by substantial evidence.
C. Third Assignment of Error: The ALJ’s Decision Is Not Supported by Substantial
Evidence
Sizemore’s final argument is that the ALJ’s decision is not supported by substantial
evidence. He states that the “objective medical evidence unequivocally documents that the
Plaintiff suffers from residuals fo [sic] left hip, back, and pelvis injuries, left knee pain, left
hand pain, COPD, depression, and anxiety.” (DE 11-13.) This broad argument is merely a
request to have the Court reweigh the evidence, which is beyond the scope of its review in
social security cases. See Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012)
(“Moreover, ‘[w]hen deciding under 42 U.S.C. § 405(g) whether substantial evidence supports
the ALJ's decision, we do not try the case de novo, resolve conflicts in evidence, or decide
questions of credibility.’”) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir.2007)). The
ALJ provided substantial evidence supporting his conclusions and findings at each step of
his decision. Accordingly, Sizemore’s final argument fails.

V. CONCLUSION
For the reasons set forth above, the Court herby ORDERS as follows:

1. Plaintiff’s motion for summary judgment (DE 11) is DENIED;
2. The Commissioner’s motion for summary judgment (DE 13) is GRANTED;
3. The decision of the Commissioner is AFFIRMED pursuant to sentence four of 42
U.S.C. § 405(g) as it was supported by substantial evidence and was decided by proper
legal standards; and

4. A judgment consistent with this Opinion & Order will be entered contemporaneously.

Dated September 21, 2017.