Napier v. SSA

Filing 22

MEMORANDUM OPINION & ORDER: Accordingly, it is HEREBY ORDERED that the Plaintiffs Motion for Summary Judgment be OVERRULED and the Defendant's Motion for Summary Judgment be SUSTAINED. A judgment in favor of the Defendant will be entered contemporaneously herewith. Signed by Judge Henry R. Wilhoit, Jr on 2/14/18.(MRS)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
at LONDON
Civil Action No. 16-230-HRW
DAVID W. NAPIER,
v.

PLAINTIFF,
MEMORANDUM OPINION AND ORDER

NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL SECURITY,

DEFENDANT.

Plaintiff has brought this action pursuant to 42 U.S.C. §405(g) to challenge a final
decision of the Defendant denying Plaintiffs application for disability insurance benefits . The
Court having reviewed the record in this case and the dispositive motions filed by the parties, and
being otherwise sufficiently advised, for the reasons set forth herein, finds that the decision of the
Administrative Law Judge is supported by substantial evidence and should be affirmed.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff has filed various applications for disability insurance benefits, alleging
disability due to back pain, gout, arthritis and "nerves" (Tr. 690).

Before the Court is a

decision by Administrative Law Judge Roger Reynolds ("ALJ Reynolds") dated November 20,
2012. That decision was rendered upon remand from Senior District Court Judge G. Wix
Unthank for reconsideration of medical evidence. On remand, ALJ Reynolds adjudicated the
period of February 14, 2006, through March 28, 2008. Notably, this period fell after the period
adjudicated by ALJ Charles Arnold ("ALJ Arnold"), August 5, 2004, through February 13, 2006
(Tr. 585-92), and before the period adjudicated by ALJ Don Paris ("ALJ Paris"), March 29,
2008, through May 14, 2010 (see Tr. 636 n.4). ALJs Arnold and Paris both found that Plaintiff

was not disabled, and both ALJs' decisions are final (see Tr. 635-36). Here, on remand, ALJ
Reynolds likewise found that Plaintiff was not disabled (Tr. 635-41). Prior to his decision, ALJ
Reynolds convened a hearing, during which Plaintiff, accompanied by counsel, testified. At the
hearing, Linda Taber, a vocational expert ( "VE"), also testified.
At the hearing, pursuant to 20 C.F.R. § 416.920, the ALJ performed the following fivestep sequential analysis in order to determine whether the Plaintiff was disabled:
Step 1: If the claimant is performing substantial gainful work, he is not disabled.
Step 2: If the claimant is not performing substantial gainful work, his impairment(s) must
be severe before he can be found to be disabled based upon the requirements in 20 C.F.R.
§ 416.920(b).
Step 3: If the claimant is not performing substantial gainful work and has a severe
impairment (or impairments) that has lasted or is expected to last for a continuous period
of at least twelve months, and his impairments (or impairments) meets or medically
equals a listed impairment contained in Appendix 1, Subpart P, Regulation No. 4, the
claimant is disabled without further inquiry.
Step 4: If the claimant's impairment (or impairments) does not prevent him from doing
his past relevant work, he is not disabled.
Step 5: Even ifthe claimant's impairment or impairments prevent him from performing
his past relevant work, if other work exists in significant numbers in the national
economy that accommodates his residual functional capacity and vocational factors, he is
not disabled.

Plaintiff was 52 years old in March 2008, the end of the relevant period of adjudication.
He has a 9th grade education (Tr. 79). His past relevant work experience consists of work as a
bulldozer operator (Tr. 640).
At Step 1 of the sequential analysis, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since the alleged onset date of disability, August 5, 2004, through the

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period at issue and, by extension, his date last insured, September 30, 2009 (Tr. 638).
The ALJ then determined, at Step 2, that, during the period at issue, Plaintiff suffered
from chronic low back pain secondary to degenerative disc disease of the lumbar spine with
compression fractures of the LI and L3 vertebrae, morbid obesity and adjustment disorder with
depressive features, which he found to be "severe" within the meaning of the Regulations (Tr.
638).
At Step 3, the ALJ found that Plaintiffs impairments did not meet or medically equal any
of the listed impairments (Tr. 638-639).
The ALJ further found that Plaintiff could not return to his past relevant work (Tr. 640)
but determined that he has the residual functional capacity ("RFC") to perform light work as
defined in 20 CFR 404.1567(b) except no climbing of ropes, ladders, or scaffolds; occasional
climbing of stairs or ramps; no balancing; occasional stooping, kneeling, crouching, or crawling;
and no exposure to concentrated vibration or industrial hazards. He required entry level work
with simple repetitive procedures; no frequent changes in work routines; no requirement for
detailed or complex problem solving, independent planning or the setting of goals; should work
in an object-oriented environment with only occasional and casual contact with the general
public (Tr. 639).
The ALJ finally concluded that these jobs exist in significant numbers in the national and
regional economies, as identified by the VE (Tr. 641).
Accordingly, the ALJ found Plaintiff not to be disabled at Step 5 of the sequential
evaluation process.

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Plaintiff filed exceptions with the agency's Appeals Council, which declined to assume
jurisdiction, rendering ALJ Reynolds' second decision the final decision of the Commissioner for
purposes of judicial review for the period between February 14, 2006, and March 28, 2008 (Tr.
593-95).
Plaintiff thereafter filed this civil action seeking a reversal of the Commissioner's
decision. Both parties have filed Motions for Summary Judgment and this matter is ripe for
decision.

II. ANALYSIS
A.

Standard of Review

The essential issue on appeal to this Court is whether the ALJ' s decision is supported by
substantial evidence. "Substantial evidence" is defined as "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion;" it is based on the record as a
whole and must take into account whatever in the record fairly detracts from its weight. Garner

v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). If the Commissioner's decision is supported by
substantial evidence, the reviewing Court must affirm. Kirk v. Secretary of Health and Human

Services, 667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). "The court may
not try the case de nova nor resolve conflicts in evidence, nor decide questions of credibility."

Bradley v. Secretary of Health and Human Services, 862 F.2d 1224, 1228 (6 1h Cir. 1988).
Finally, this Court must defer to the Commissioner's decision "even if there is substantial
evidence in the record that would have supported an opposite conclusion, so long as substantial
evidence supports the conclusion reached by the ALJ." Key v. Callahan, 109 F.3d 270, 273 (6th
Cir.1997).

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B.

Plaintifrs Contentions on Appeal

Plaintiff contends that the ALJ's finding of no disability is erroneous because: (1) ALJ
Reynolds did not follow the remand Order and (2) ALJ Reynolds did not properly consider
Plaintiffs obesity.
C.

Analysis of Contentions on Appeal

Plaintiffs first claim of error is that ALJ Reynolds did not follow the remand Order.
Judge Unthank remanded ALJ Reynolds' prior decision because he questioned the ALJ' s reliance
on the opinion of State agency medical consultant Dr. Saranga rather than the opinions of treating
physicians Drs. Chaney and Lingreen (Tr. 651-53).
"In order to determine whether the ALJ acted properly in disagreeing with a medical

source, we must first determine the medical source's classification," Ealy v. Comm 'r of Soc. Sec.,
594 F.3d 504, 514 (6th Cir.2010), as "not all medical sources need be treated equally," Smith v.

Comm'r ofSoc. Sec., 482 F.3d 873, 875 (6th Cir.2007). The Social Security regulations classify
"acceptable medical sources into three types: nonexamining sources, nontreating (but examining)
sources, and treating sources." Id. at 875. Generally, more weight is given to the medical
"opinion of a source who has examined [the claimant] than to the opinion of a source who has
not examined [the claimant]." 20 C.F.R. § 404.1527(c)(l); see also Norris v. Comm'r of Soc.

Sec., 461 Fed.Appx. 433, 439 (6th Cir.2012) (noting that a nonexamining source's opinion is
given less deference than an examining (but not treating) source's opinion, which is given less
deference than a treating source). But "[i]n appropriate circumstances, opinions from State
agency medical and psychological consultants ... may be entitled to greater weight than the
opinions of treating or examining sources." SSR 96-6p, 1996 WL 374180, at *3. One such

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instance is where the "[ s]tate agency medical or psychological consultant's opinion is based on a
review of a complete case record that includes a medical report from a specialist in the
individual's particular impairment which provides more detailed and comprehensive information
than what was available to the individual's treating source." Id. "The more a medical source
presents relevant evidence to support an opinion, particularly medical signs and laboratory
findings, the more weight [the ALJ] will give that opinion." 20 C.F.R. § 404.1527(c)(3).
Generally, more weight is given to opinions that are "more consistent ... with the record as a
whole," id.§ 404.1527(c)(4), and opinions of "a specialist about medical issues related to his or
her area of specialty." Id.§ 404.1527(c)(5).

In response to the remand Order, ALJ Reynolds discussed the opinion of consultative
physician Dr. Burchett's. He examined Plaintiff in June 2008, immediately after the period of
adjudication. Dr. Burchett observed that Plaintiff walked without a significant limp and was
comfortable in the sitting and supine positions (Tr. 832). Plaintiff had normal curvature of the
lower spine, displayed no tenderness in the lower spine, and had a negative (normal) straight leg
raise (Tr. 833). He could stand on one leg at a time without difficulty, walk on his heels and toes,
and perform tandem gait (Tr. 833). Finally, Dr. Burchett observed normal range of motion in
Plaintiffs spine, with no evidence of compressive neuropathy in his lower extremities (Tr. 833,
836).
The ALJ found that Dr. Burchett's examination findings called into question the extreme
opinions of Drs. Chaney and Lingreen (Tr. 639). Both doctors had opined in late 2007 that
Plaintiff could lift no more than 10 pounds; could sit, stand, and/or walk no more than two hours
each in a workday; needed to change position every 30 minutes; and would miss work more than

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three times per month (Tr. 543-45, 552-54).
The ALJ found that Dr. Burchett's overwhelmingly normal examination findings in June
2008 were inconsistent with such extreme opinions and that Plaintiff had functional limitations
consistent with a range of light work (Tr. 639; see Tr. 359-66). The Court finds no error in this
regard, as the ALJ properly articulated his reasons for discounting the opinion of a treating
source, to-wit, inconsistency with other, credible evidence in the record. See§ 404.1527(c)(5).
Moreover, the ALJ's consideration of the medical evidence is consistent with the remand Order.
ALJ Reynolds also made note of Plaintiffs appearance at the October 2012
administrative hearing as further belying his claim of severe limitation (Tr. 640). The ALJ noted
that Plaintiff "was not in any obvious pain or discomfort during the course of the hearing" (Tr.
640). Thus, some three years after the period under adjudication, Plaintiffs conduct did not
demonstrate the level of impairment suggested by either his claims or his doctors' opinions. See
Social Security Ruling (SSR) 96-7p, 1996 WL 374186, at *5 ("In instances where the individual
attends an administrative hearing conducted by the adjudicator, the adjudicator may also consider
his or her own recorded observations of the individual as part of the overall evaluation of the
credibility of the individual's statements.").
As for any alleged violation of Drummond v. Commissioner of Social Security, 126 F.3d
837 (6 1h Cir. 1997) wherein the Sixth Circuit held that the Commissioner is bound by a prior final
determination concerning a claimant's entitlement to benefits absent a change in circumstances.
Yet, such is not the case here. ALJ Reynolds announced a more restrictive RFC than that ALJ
Arnold. In other words, the instant decision is more favorable to the Plaintiff than the prior
decision. Therefore, the Court finds no violation of Drummond.

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Finally, Plaintiff s's suggestion that the absence of Judge Paris' decision in the record
runs afoul due process is without merit. There is no indication that ALJ Reynolds relied upon
that prior decision in any way and, importantly, ALJ Paris' decision refers to an entirely different
period of adjudication and is, thus, irrelevant. Further, Plaintiff does not point to any prejudice
resulting from the omission. He does not aver that ALJ Reynolds mischaracterized ALJ Paris'
decision or otherwise erred in his discussion of ALJ Paris' findings. If any error occurred, it was
harmless and not an appropriate basis for reversal or remand.
Plaintiffs second claim of error is that ALJ Reynolds did not properly consider Plaintiffs
obesity. However, contrary to Plaintiffs assertion, The ALJ found that one of Plaintiffs
"severe" impairments was morbid obesity (Tr. 638). Although the ALJ did not specifically cite
obesity further within the RFC assessment, he did consider Dr. Burchett's normal examination
findings, made when Plaintiff weighed 258 pounds (see Tr. 831, and showed that Plaintiffs
obesity did not impact his ability to sit, stand, walk, lift, carry, or perform the other requirements
of light work beyond those limitations the ALJ found (Tr. 639).
Furthermore, Plaintiff has not pointed to any evidence demonstrating that his obesity
limited him more than found by the ALJ. As such, his argument fails.

III. CONCLUSION
The Court finds that the ALJ's decision is supported by substantial evidence on the
record. Accordingly, it is HEREBY ORDERED that the Plaintiffs Motion for Summary
Judgment be OVERRULED and the Defendant's Motion for Summary Judgment be

SUSTAINED. A judgment in favor of the Defendant will be entered contemporaneously
herewith.

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