Farley v. SSA
MEMORANDUM OPINION & ORDER: 1) that Plaintiff's Motion for Summary Judgment (DE 10 ) is DENIED; 2) that Defendant's Motion for Summary Judgment (DE 12 ) isGRANTED, and; 3) The Acting Commissioner's final decision is AFFIRMED. Signed by Judge Joseph M. Hood on 10/24/2017.(RBB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
RICKY NELSON FARLEY,
) Action No. 6:16-cv-00225-JMH
) MEMORANDUM OPINION AND ORDER
NANCY A. BERRYHILL1,
Acting Commissioner of
This matter is before the Court on the parties’ cross-Motions
for Summary Judgment (DE 10 and 12) on Plaintiff’s appeal of the
Commissioner’s denial of his application for Supplemental Security
The matter having been fully briefed by the parties is
now ripe for this Court’s review.
Overview of the Process and the Instant Matter
Administrative Law Judge (“ALJ”) uses a five step analysis:
1. An individual who is working and engaging
in substantial gainful activity is not
disabled, regardless of the claimant’s
Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A.
Berryhill should be substituted as the defendant in this suit. No further
action needs to be taken to continue this suit by reason of the last sentence
of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
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
2. An individual who is working but does not
significantly limits his physical or mental
ability to do basic work activities is not
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
Preslar v. Sec’y of Health & Hum. Servs., 14 F.3d 1107, 1110 (6th
Cir. 1994)(citing 20 C.F.R. § 404.1520(1982)).
Plaintiff filed his current application for Supplemental
Security Income (SSI) alleging disability beginning March 30, 2009
It was denied initially and on reconsideration (Tr.
A previous Administrative Law Judge’s (ALJ) decision dated January 26, 2000,
found that Plaintiff was not disabled because he retained a residual
functional capacity (RFC) for light exertion work with additional nonexertional limitations (Tr. 73-81).
110, 131), and by an ALJ after a hearing (Tr. 11-33, 34-68). The
Appeals Council declined Plaintiff’s request for review (Tr. 15), making the ALJ’s June 15, 2015 decision the final agency
decision for purposes of judicial review. 20 C.F.R. § 422.210(a).4
This appeal followed and the case is ripe for review pursuant to
42 U.S.C. § 405(g).
Plaintiff was 49 years old at the time of his most recently
filed application for SSI on January 10, 2013, and 51 years old at
the time of the Commissioner’s June 15, 2015, final decision now
before the Court (Tr. 211). Plaintiff has an eighth-grade education
with past relevant work as a company laborer (coal mining) (Tr.
63, 249). In his current application materials, Plaintiff alleged
impairments (Tr. 248).
specifically discussed below. Therefore, it is unnecessary to
provide a recitation of the medical evidence not at issue in the
case before the Court and discusses the evidence before the ALJ
only with respect to those issues “argued” by Plaintiff.
Plaintiff has received outpatient psychological treatment
through Cumberland River Comprehensive Care (CompCare). In early
All subsequent citations are only to part 416 of the regulations, which
pertain to SSI. There are parallel citations in part 404 pertaining to DIB.
October 2012, Plaintiff reported “no days of poor physical health”
and reported having no chronic medical conditions in the past 12
months (Tr. 765). Plaintiff also reported having no symptoms of
depression, but did report some mentally related symptoms (Tr.
766). Plaintiff reported that during the preceding 12 months, he
tranquilizers, or muscle relaxants that were not prescribed for
him (Tr. 766-767).
In March 2013, William R. Rigby, Ph.D., saw Plaintiff for a
consultative mental examination (Tr. 959-964). Dr. Rigby observed
that Plaintiff was fully alert and oriented x3 with significantly
impaired concentration and attention. Intellectually, Plaintiff
appeared to be functioning at a limited level. Dr. Rigby noted
that it was unknown as to when his psychotic disturbance would
have begun, but that Plaintiff’s psychological conditions were
Plaintiff’s mood was depressed. He assessed Plaintiff with a
moderate impairment in understanding, retaining, and following
persistence to complete tasks in a normal time. Dr. Rigby opined
that Plaintiff had an extreme impairment in maintaining social
interactions with supervisors, friends, and the public; and an
extreme impairment in adapting and responding to the pressures of
normal day-to-day work activity (Tr. 959-964).
During the most recent administrative proceedings, state
agency psychologist Cal VanderPlate, Ph.D., reviewed the record
and opined that Plaintiff had the ability to understand, remember,
and carry out simple one and two step instructions; maintain
concentration, persistence and pace for two-hour periods; perform
activities within a schedule; maintain regular attendance; be
punctual and complete a normal workday and workweek; make simple
work-related decisions; work in coordination with others without
being distracted by them; relate adequately to the public, coworkers
instructions; respond appropriately to criticism from supervisors;
respond appropriately to changes in the work setting; and be aware
of normal hazards (Tr. 105). Dr. VanderPlate noted Dr. Rigby’s
March 2013 consultative evaluation and that he did not concur with
Plaintiff’s current treating source noted mood was euthymic with
no psychotic symptoms; history did not support the presence of any
delusions to Dr. Rigby was not considered legitimate psychological
malingering. Dr. VanderPlate found Plaintiff’s report of symptoms
and limitations not credible. Thus, Dr. VanderPlate gave Dr.
Rigby’s evaluation “no weight” (Tr. 97, 119).
hearing that he had worked as a roof bolter in the coalmining
industry and described the work activities associated with that
occupation (Tr. 43-44, 56). He said that he last worked on a
regular basis in 2009 (Tr. 57). He said he had an eighth-grade
education but had attended special education classes (Tr. 60).
Plaintiff testified that he does not have a driver’s license
because it was suspended for a DUI about six years prior to the
hearing (Tr. 44). Plaintiff said that his worst problem was his
nerves, anxiety and depression; but that prescription medication
testified that he does not do anything but lay around the house
all the time (Tr. 45). He said that he sees a counselor at Comp
Care once a month and sees his doctor every three months (Tr. 46).
Plaintiff said that he probably needed glasses but that none had
been prescribed. He also said that he experienced “ringing” in his
ears but that his hearing had not been checked (Tr. 50). Plaintiff
also claimed that he heard voices during the day and saw things at
night (Tr. 52). Plaintiff testified that he did some light cooking
(microwave) and washed his own clothes (Tr. 54).
A vocational expert (VE), William Ellis, testified at the
December 2014 administrative hearing (Tr. 63-67). The VE testified
that Plaintiff’s past work as a company laborer in the coal
industry was very heavy exertion as performed, heavy exertion with
an SVP of two as classified by the DOT (Tr. 63). The ALJ asked the
VE a hypothetical question as to an individual of Plaintiff’s
vocational profile who could do light exertion work with additional
non-exertional limitations (Tr. 64-65). The VE testified that the
individual could do the representative light exertion positions of
food prep worker, dishwasher, and inspector/tester (Tr. 65). The
VE indicated that his testimony did not intentionally deviate from
the Dictionary of Occupational Titles (DOT) (Tr. 66). The ALJ and
Plaintiff’s counsel then asked the VE if the individual had other
limitations that were not part of the ALJ’s ultimate RFC finding,
would it affect the individual’s ability to maintain employment.
The VE testified that those limitations would preclude employment
On June 15, 2015, after a careful review of the record, the
ALJ found that Plaintiff had the severe impairments of degenerative
changes of the lumbar spine; lung disease; history of substance
vision; with additional non-severe impairments of hepatitis B and
C (Tr. 13-14; Finding No. 2). The ALJ found that Plaintiff’s
impairments, singly or in combination, did not meet or equal the
severity of a listed impairment (Tr. 14-15; Finding No. 3). The
ALJ found that Plaintiff’s complaints of disabling limitations
were not entirely credible (Tr. 16).
Further, the ALJ found that Plaintiff retained the RFC to
perform light exertion work that did not require sitting in excess
of one hour uninterrupted; standing in excess of 30 minutes
kneeling, balancing or pushing/pulling with the upper extremities;
any exposure to whole body vibration or pulmonary irritants, such
as dust fumes, smoke, chemicals, or noxious gases; loud noise
exposure; or more than 20/50 corrected vision. The ALJ found that
in relation to Plaintiff’s mental limitations resulting from his
history of substance abuse, anxiety and depression; he retained
instructions and tasks; tolerate occasional, casual contact with
coworkers, supervisors and the public; and adapt to occasional,
gradually introduced instructions (Tr. 15-26; Finding No. 4). The
representative light exertion occupations as identified by the VE
(Tr. 26-27; Finding No. 9).
conclusions set forth in the prior January 2000 hearing decision
although adding hearing and vision limitations and modifying her
RFC assessment to include more vocationally relevant terms (Tr.
26). Thus, the ALJ found that Plaintiff was not disabled from
January 10, 2013, his most recent SSI application filing date,
through June 15, 2015, the date of the Commissioner’s final
decision now before the Court (Tr. 27; Finding No. 10).
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., 693 F.3d
709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506,
509 (6th Cir. 2007).
“The ALJ’s findings are conclusive as long
as they are supported by substantial evidence.” 42 U.S.C. § 405(g);
Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (citations
Substantial evidence “means such relevant evidence as
a reasonable mind might accept.” Foster, 279 F.3d at 353.
Plaintiff bears the ultimate burden of proving disability.
See 42 U.S.C. § 423(d)(5); Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987); Richardson v. Heckler, 750 F.2d 506, 509 (6th Cir. 1984).
The regulations require Plaintiff to offer the evidence he believes
404.1513(e), 404.1516 (2016);5 Barnhart v. Thomas, 540 U.S. 20
Plaintiff failed to meet his burden.
All citations to the Code of Federal Regulations are to the 2016 version.
As an initial matter, beyond an undeveloped argument that the
ALJ’s June 15, 2015 decision was not supported by substantial
essentially undeveloped challenges to the ALJ’s consideration of
difficult to discern, from the Court’s review of Plaintiff’s brief,
it would appear that Plaintiff challenges the ALJ’s June 2015
decision by claiming that the ALJ should have found that his
alleged impairments were of listing level severity, that the ALJ
erred in her RFC assessment, and that the VE responded to a
hypothetical question that did not include all of Plaintiff’s
alleged limitations. Pl.’s Br. at 7-10. However, the Commissioner
asserts that Plaintiff has waived argument as to any issues not
raised or argued with specificity in his brief. See United States
v. Elder, 90 F.3d at 1118 (6th Cir. 1996); see also Hollon v.
Comm’r of Soc. Sec., 447 F.3d 477, 491 (6th Cir. 2006) (“[W]e limit
our consideration to the particular points that Hollon appears to
raise in her brief on appeal.”)
In his brief to the Court, other than relatively common cites to cases defining
substantial evidence, establishing Plaintiff’s burden of proof at step two, and
the use of VE testimony, Plaintiff does not provide the Court any other relevant
case, rule, or regulation cites in support of his rather sparse and undeveloped
arguments. Pl.’s Br. at 7-10. As such, the Commissioner asserts that Plaintiff
has waived all arguments, as the issues set forth by Plaintiff are presented in
a perfunctory manner and, in essence, are unaccompanied by any real effort at
developed argumentation. See United States v. Elder, 90 F.3d 1110, 1118 (6th
Cir. 1996) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.” (internal quotation
Plaintiff provides no argument for not applying Drummond and
Dennard in the case before the Court. Pl.’s Br. at 2. Moreover,
Plaintiff does not provide any developed arguments to contest the
ALJ’s step three, RFC, and step five findings of the familiar five
assertions but does not proceed to support his assertions with any
submits that the evidence apparently relied upon by Plaintiff in
support of his essentially undeveloped arguments as to the severity
significant number of jobs existing in the national economy that
he could perform, did not result in the ALJ committing error in
her June 2015 decision. Pl.’s Br. at 7-10.
In the June 2015 ALJ’s decision now before the Court, the ALJ
justifiably determined that the precedents established in Drummond
v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997)
and Dennard v. Secretary of Health and Human Services, 907 F.2d
598 (6th Cir. 1990), dictate that the RFC finding in the previous
ALJ’s denial decision was controlling unless there was new and
material evidence or a showing of “changed circumstances” relating
to a determination of the present claim. The ALJ reasonably noted
that she had not found any evidence of significant physical or
mental deterioration since the prior hearing decision in January
2000 (Tr. 11), and that she adopted the prior ALJ’s conclusions as
to Plaintiff’s “overall residual function,” although added hearing
assessment to include more vocationally relevant terms (Tr. 11).
Because the Court’s holding in Drummond conflicts with agency
regulations, which indicate that res judicata does not apply for
an unadjudicated period, the Commissioner issued Acquiescence
Ruling (AR) 98-4(6), 1998 WL 283902 (S.S.A.). This AR implemented
Circuit jurisdictions to adopt findings from the final decision by
an ALJ on a prior claim unless there is new and material evidence
related to a finding. See AR 98-4(6). Consequently, an ALJ can
make a determination as to whether she is bound by the prior ALJ’s
decision by evaluating the evidence since that prior ALJ’s decision
and explaining what that evidence shows. That is exactly what the
ALJ did in the case before the Court (Tr. 11, 13-27).
Pertaining to the ALJ’s step three finding in her June 2015
decision, Plaintiff merely argues, “[t]here is sufficient evidence
of record to show a combination of impairments that meets or
Plaintiff does not proceed to indicate what that evidence might
be, why it is sufficient, or even what listed impairment he
believes he met or equaled. Pl.’s Br. at 8. See Murphy v. Sec’y of
Health & Human Servs., 801 F.2d 182, 185 (6th Cir. 1987) (it is
the claimant’s burden to prove the severity of her impairments);
see also Bledsoe v. Barnhart, 165 F. App’x 408, 411 (6th Cir. 2006)
(unpublished) (holding that an ALJ is not obligated to “spell out
every consideration that went into the step three determination”).
As to the ALJ’s justifiable RFC finding, Plaintiff argues
that he has shown “objective medical evidence of a condition
causing pain along with other symptoms and that said condition is
reasonably expected to cause pain or other symptoms of disabling
severity” but, again, does not identify what condition he is
referring to in his argument to the Court or why his pain or other
symptoms are of “disabling severity.” Pl.’s Br. at 10.
Finally, as to the ALJ’s step five finding that a significant
number of jobs remained in the national economy that Plaintiff
retained the capacity to perform, Plaintiff argues that he “is
going to the doctor every one to three months, and this clearly
raises the bar to that of a disabled individual. His ongoing
benefits.” and that the ALJ had “overestimated [his] ability to
perform work activities,” but does not proceed to explain how the
Further, Plaintiff references a hypothetical question that
his then-counsel propounded to the VE at the December 2014 hearing
that included the following “if they had to miss work to go to the
doctor or counseling or regular check-ups or over – since we go
about three months, that would be three doctors – three misses in
a month. Would these jobs allow for that? (Tr. 66). Pl.’s Br. at
In response, the Commissioner submits that, at best, his
counsel’s question is unclear and ambiguous. Further, Plaintiff
testified that he sees a counselor at Comp Care once a month and
sees his doctor every three months (Tr. 46). The Commissioner
asserts that based upon Plaintiff’s testimony, the amount of times
Plaintiff might miss work on a monthly basis for treatment is once,
except for every third month, when he might miss work twice. See
Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235 (6th
hypothetical questions to a vocational expert and is required to
incorporate only those limitations accepted as credible by the
finder of fact.”) (citing Hardaway); see also Howard v. Comm’r of
Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002) (a vocational expert’s
answer to a hypothetical question constitutes substantial evidence
so long as the question accurately portrays the claimant’s physical
and mental impairments).
The real question before this Court is whether the ALJ’s June
2015 RFC finding was reasonable. A claimant’s RFC is assessed by
the ALJ between steps three and four and is “the most [a claimant]
416.920(a)(4), 416.945(a)(1) & (5). In the case before the Court,
Plaintiff’s RFC that included a thorough twelve-page analysis of
the total evidence of record as well as consideration of the Sixth
Circuit controlling law in Drummond and Dennard (Tr. 15-26; Finding
representative light exertion work, the ALJ reasonably considered
all of Plaintiff’s impairments, both severe and non-severe and
provided specific reasoning for her RFC finding (Tr. 14-27; Finding
Nos. 3, 4, 9). Further, the ALJ discussed opinion evidence that
supported her findings as to Plaintiff’s RFC, the existence of a
significant number of jobs in the national economy, and her
ultimate decision that Plaintiff was not disabled (Tr. 26-27).
Moreover, the ALJ carefully considered the entire record in
evaluating the evidence relevant to her RFC finding (Tr. 13, 15;
Finding No. 4). The ALJ’s reasonable analysis of the record
medical records from Plaintiff’s treating and examining sources;
and the opinions of state agency medical consultants.
agency medical and psychological consultants . . . are highly
qualified physicians and psychologists who are also experts in
416.927(e)(2)(i), the decision to give more weight to a state
agency doctor over treating and examining doctors is, indeed,
permissible. Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 409
(6th Cir. 2009).
Because the ALJ’s RFC finding as to extent of Plaintiff’s
work-related limitations was supported by substantial evidence,
the Court will affirm the ALJ’s decision. 68 Fed. Reg. 51,153,
51,155 (Aug. 26, 2003) (comments to final rule) (recognizing a
capacity); Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854-55 (6th
As discussed, Plaintiff’s arguments about the ALJ’s
consideration of the severity of Plaintiff’s impairments and her
RFC determination are essentially undeveloped and do not withstand
scrutiny. Further, Plaintiff’s argument regarding VE testimony is
based upon Plaintiff’s incorrect determination of how many days he
might miss work due to medical treatment. Pl.’s Br. at 9. At his
December 2014 hearing, Plaintiff said that he sees a counselor at
CompCare once a month and sees his doctor every three months (Tr.
46). The Commissioner submits that the ALJ reasonably considered
the total record including all relevant objective medical evidence
and Plaintiff’s subjective complaints in the making of her RFC
determination, and in determining that Plaintiff retained the
capacity to perform the representative light exertion work as
identified by the VE.
While Plaintiff may have continued to have limitations that
negatively affected his ability to work, the mere existence of
impairments such as those alleged by Plaintiff is insufficient to
establish disability under the stringent standards of the Act.
functional limitations so severe that he was unable to engage in
any substantial gainful activity for a continuous period of at
least 12 months. See Barnhart v. Walton, 535 U.S. 212, 220 (2002);
42 U.S.C. § 423(d)(1)(A). The disability, not just the impairment,
must last 12 months. Walton, 535 U.S. at 220. Here, the evidence
simply does not support Plaintiff’s claims of completely disabling
limitations through the date of the ALJ’s June 15, 2015 decision
now before the Court. See 20 C.F.R. § 416.929(c)(4) (stating an
ALJ must consider inconsistencies in the evidence); see also
Walters v. Comm’r of Soc. Sec., 127 F.3d at 532.
Again, in her June 2015 decision, the ALJ carefully and
reasonably considered the total record in her step three analysis,
RFC determination, and in determining that a significant number of
occupations exist in the national economy that Plaintiff retains
the capacity to perform (Tr. 13, 15-27; Finding Nos. 3, 4, 9).
Further, the ALJ justifiably determined that Plaintiff retained
the RFC to perform light exertion work with additional nonexertional limitations7 as found in the previous January 2000 ALJ’s
As noted above, the ALJ reasonably found that there was no evidence of
significant physical or mental deterioration since the prior hearing decision
of January 26, 2000. However, the ALJ justifiably modified the RFC finding to
include more vocationally relevant terms and address vision and hearing
impairments (Tr. 11).
decision (Tr. 26; Tr. 73-81); and, thus, Plaintiff was not disabled
under the Act (Tr. 27; Finding No. 10).
Moreover, state agency medical consultant, Dr. VanderPlate,
provided an opinion as to the extent of Plaintiff’s work-related
mental abilities including that Plaintiff had the ability to
understand, remember, and carry out simple one and two step
instructions; maintain concentration, persistence and pace for
two-hour periods; complete a normal workday and workweek; make
simple work-related decisions; work in coordination with others
without being distracted by them; relate adequately to the public,
co-workers and supervisors; respond appropriately to criticism
from supervisors and to changes in the work setting (Tr. 105). Dr.
VanderPlate noted Dr. Rigby’s March 2013 consultative evaluation
and provided a number of persuasive reasons for his conclusion to
VanderPlate found Plaintiff’s report of symptoms and limitations
not credible (Tr. 97, 119).
In her June 2015 decision, the ALJ gave Dr. Rigby’s opinion
careful consideration and overall accorded it “minimal weight.”
(Tr. 23-26). Further, the ALJ justifiably accorded “no weight” to
preponderance of the substantial record and specifically, the
records submitted by treating sources at CompCare (Tr. 26; Tr.
765-767). Further, the ALJ reasonably adopted the state agency
mental assessments that she deemed overall consistent with the
record as a whole as well as the prior decision (Tr. 26). The
decision to give more weight to a state agency doctor over treating
and examining doctors is, indeed, permissible. Blakley v. Comm'r
Richardson v. Perales, 402 U.S. at 399 (“We . . . are presented
with the not uncommon situation of conflicting medical evidence.
The trier of fact has the duty to resolve that conflict.”).
As a review of the ALJ’s decision and associated List of
Exhibits clearly shows (Tr. 11-33), the ALJ carefully considered
the entire record before her including all relevant findings and
opinions from treating or examining sources and state agency
medical consultants, her reasonable treatment of these medical
Plaintiff’s request for remand. In sum, the ALJ’s findings that
Plaintiff retained the RFC for light exertion work including the
representative occupations as testified to by the VE was supported
by substantial evidence.
The record reflects that the Acting Commissioner’s final
decision that Plaintiff has failed to demonstrate that he would be
unable to perform work activity at the light level of exertion,
It shall be affirmed.
For all of the reasons set forth above, IT IS ORDERED:
that Plaintiff’s Motion for Summary Judgment (DE 10) is
that Defendant’s Motion for Summary Judgment (DE 12) is
The Acting Commissioner’s final decision is AFFIRMED.
This the 24th day of October, 2017.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?