Peggs v. SSA
MEMORANDUM OPINION & ORDER: (1) The decision of the Commissioner is found to be supported by substantial evidence and is hereby AFFIRMED; (2) Plaintiffs Motion for Summary Judgment (Doc. # 11 ) is DENIED; (3) Defendants Motion for Summary Judgment (Doc. # 13 ) is GRANTED; and (4) A Judgment in favor of Defendant Commissioner will be entered contemporaneously herewith. Signed by Judge David L. Bunning on 4/19/17.(SYD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 16-243-DLB
DEWEY L. PEGGS
MEMORANDUM OPINION & ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
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Plaintiff 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 and the parties’ dispositive motions, and for the reasons set
forth herein, hereby affirms the decision of the Commissioner.
FACTUAL AND PROCEDURAL BACKGROUND
On September 26, 2013, Plaintiff Dewey Peggs applied for Disability Insurance
Benefits (“DIB”), alleging disability beginning on February 1, 2013.
(Tr. 129, 261).
Specifically, Plaintiff alleged that he is unable to work due to degenerative disc disease,
carpal tunnel, numbness in arms and hands, hip pain, hearing loss, and memory loss.
Plaintiff’s application was denied initially and again on reconsideration. (Tr. 185,
At Plaintiff’s request, an administrative hearing was conducted on August 3,
2015, before Administrative Law Judge (“ALJ”) Diana Erickson. (Tr. 141-173). On
August 28, 2015, ALJ Erickson ruled that Plaintiff was not entitled to disability benefits.
(Tr. 126-140). This decision became final when the Appeals Council denied Plaintiff’s
request for review on September 20, 2016. (Tr. 1-7). Plaintiff filed the instant action on
October 27, 2016.
(Doc. # 2).
The matter has culminated in cross-motions for
summary judgment, which are now ripe for adjudication. (Docs. # 11 and 13).
A. Overview of the Process
Judicial review of the Commissioner’s decision is restricted to determining
whether it is supported by substantial evidence and was made pursuant to proper legal
standards. See Colvin v. Barnhart, 475 F.3d 727, 729 (6th Cir. 2007). “Substantial
evidence” is defined as “more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Cutlip v. Sec’y Health & Human Servs., 25 F.3d
284, 286 (6th Cir. 1994). Courts are not to conduct a de novo review, resolve conflicts
in the evidence, or make credibility determinations. Id. Rather, the court is required to
affirm the Commissioner’s decision, as long as it is supported by substantial evidence,
even if it might have decided the case differently. Her v. Comm’r of Soc. Sec., 203 F.3d
388, 389-90 (6th Cir. 1999). If supported by substantial evidence, the Commissioner’s
findings must be affirmed, even if there is evidence favoring Plaintiff’s side. Listenbee v.
Sec’y of Health & Human Servs., 846 F.2d 345, 349 (6th Cir. 1988). Similarly, an
administrative decision is not subject to reversal merely because substantial evidence
would have supported the opposite conclusion. Smith v. Chater, 99 F.3d 780, 781-82
(6th Cir. 1996).
To determine disability, the ALJ conducts a five-step analysis.
considers whether the claimant can still perform substantial gainful activity; Step Two,
whether any of the claimant’s impairments, alone or in combination, 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 her past relevant work; and Step Five,
whether a significant number of other jobs exist in the national economy that the
claimant can perform. As to the last step, the burden of proof shifts from the claimant to
the Commissioner to identify “jobs in the economy that accommodate [Plaintiff’s]
residual functional capacity.” See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474
(6th Cir. 2003); see also Preslar v. Sec’y of Health & Human Servs., 14 F.3d 1107, 1110
(6th Cir. 1994).
B. The ALJ’s Determination
At Step One, the ALJ found that Plaintiff has not engaged in substantial gainful
activity since her alleged onset date of February 1, 2013. (Tr. 131). At Step Two, the
ALJ determined that Plaintiff has the following severe impairments: degenerative disc
disease and bulging of the lumbar spine. (Tr. 131). At Step Three, the ALJ concluded
that Plaintiff does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix
1. (Tr. 132).
At Step Four, the ALJ found that Plaintiff possesses the residual functional
capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b), but that he
“can never climb ladders, ropes, or scaffolds; can frequently climb stairs, balance,
stoop, kneel, crouch and crawl; and should avoid concentrated exposure to noise and
vibration.” (Tr. 132).
Based upon this RFC, the ALJ concluded that Plaintiff was not
able to perform past relevant work. (Tr. 135). Accordingly, the ALJ proceeded to Step
Five, and found that considering Plaintiff’s age, education, work experience, and RFC,
jobs existed in significant numbers in the national economy that Plaintiff could perform.
(Tr. 135-36). Therefore, the ALJ concluded that Plaintiff was not under a disability, as
defined in the Social Security Act, from the alleged onset date through the date of the
decision. (Tr. 136).
Plaintiff alleges three errors in the hearing decision and asks this Court to
reverse the disability determination. Specifically, Plaintiff argues that the ALJ erred in
failing to give greater weight to Dr. Dye’s medical source statement, that the ALJ erred
in failing to give great consideration to Plaintiff’s own testimony and erroneously
attempted to erode his credibility, and that the ALJ’s determination is not supported by
substantial evidence. (Doc. # 11-1 at 8-13).
1. The ALJ gave proper weight to Dr. Dye’s testimony
In social security disability cases, medical evidence may come from treating
sources, non-treating sources, and non-examining sources. 20 C.F.R. § 404.1527. A
treating source is the claimant’s “own physician, psychologist, or other acceptable
medical source who provides [claimant], or has provided [claimant], with medical
treatment or evaluation and who has, or has had, an ongoing treatment relationship with
Id.; see also Abney v. Astrue, Civ. A. No. 5:07-394-KKC, 2008 WL
2074011, at *11 (E.D.K.Y. May 13, 2008) (stating that one meeting is insufficient to
establish an ongoing treatment relationship). 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 but provided medical or other opinion evidence in the case. Id. In deciding
how much weight to give the opinion of a non-treating source, the ALJ must consider
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. 20 C.F.R. §
In January 7, 2014, Dr. Gregory Dye performed an examination on Plaintiff for
the purpose of getting “disability papers filled out.” (Tr. 134; 471-79). After examining
Plaintiff, Dr. Dye found that Plaintiff could not stand or walk for more than 2 hours total,
and could not sit for more than 4 hours total in a day. (Tr. 134; 473-74). Dr. Dye also
found that Plaintiff’s “lumbar spine has tenderness, mildly reduced ROM.” (Tr. 478). Dr.
Dye concluded that Plaintiff “cannot perform gainful employment any longer.” (Tr. 475).
Plaintiff claims that the ALJ erroneously gave little weight to the opinion of
Dr. Dye, whom Plaintiff refers to as his “treating physician.” (Doc. # 11-1 at 8). Plaintiff
claims that the ALJ was wrong to “give more weight to the opinion of the state agency
medial [sic] consultant,” and that the ALJ incorrectly found that Dr. Dye’s opinion was
inconsistent with the record. Id. at 10. The record belies these assertions.
First, contrary to Plaintiff’s characterization, Dr. Dye was not a “treating
physician.” Plaintiff saw Dr. Dye only once, for the purpose of “getting disability papers
filled out.” (Tr. 134) (internal quotations and citations omitted). Accordingly, because
Plaintiff did not have an ongoing treatment relationship with Dr. Dye, Dr. Dye was a nontreating source. See 20 C.F.R. § 404.1527(a)(2).
Next, Plaintiff argues that Dr. Dye’s opinion should have been given more weight
than the opinions of doctors who did not physically evaluate Plaintiff. (Doc. # 11-1 at
Generally, more weight is given to the medical opinion of a source who has
examined a claimant than to the opinion of a source who has not examined the
claimant. 20 C.F.R. § 404.1527(c). However, the ALJ must also consider the other
factors described above, such as whether the source presents relevant evidence to
support the medical opinion, and whether the opinion is consistent with the record as a
Here, the ALJ properly considered the factors outlined in the regulations to
determine how to weigh Dr. Dye’s opinion. First, the ALJ afforded less weight to Dr.
Dye’s opinion because it was not supported by objective medical evidence. Dr. Dye
“opin[ed] that the claimant is unable to complete an 8-hour workday due to pain,” yet “on
examination, Dr. Dye observed only lumbar tenderness and mildly reduced range of
motion. Medical imaging of the back showed only mild degenerative changes.” (Tr.
134). The ALJ also noted that Dr. Dye’s opinion was “inconsistent with the rest of the
record evidence, including the other medical evidence and claimant’s daily activities.”
Id. Accordingly, the ALJ concluded that Dr. Dye’s opinions were entitled to less weight.
Id. Because the ALJ explained how much weight she gave to the opinion of Dr. Dye, a
non-treating source, and because she detailed her reasons for doing so in accordance
with 20 C.F.R. § 404.1527(c), the Court finds no error in this portion of the ALJ’s
2. The ALJ did not err in discounting Plaintiff’s credibility
Although relevant to the RFC assessment, a claimant’s description of his or her
symptoms is not enough, on its own, to establish the existence of physical or mental
impairments or disability. Soc. Sec. Rul. 96-7p, 1996 WL 374186, at *2 (July 2, 1996).
When evaluating a claimant’s symptoms, the ALJ must determine whether there is an
underlying medically determinable impairment that could be reasonably expected to
produce the alleged symptoms. Id. Once that is established, the ALJ must “evaluate
the intensity, persistence, and limiting effects of the individual’s symptoms to determine
the extent to which the symptoms limit the individuals’ ability to do basic work activities.”
When a claimant’s complaints regarding the intensity and persistence of his
symptoms are unsupported by objective medical evidence, the ALJ must make a
credibility determination “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 Soc. Sec. Rul. 96-7p,
1996 WL 374186, at *4 (July 2, 1996)). “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. Consistency between the claimant’s complaints and the
case record supports claimant’s credibility while “inconsistency, although not necessarily
defeating, should have the opposite effect.” Id.
Plaintiff asserts that the ALJ wrongfully discounted his credibility based on
Plaintiff’s references to working after his alleged disability onset date. (Doc. # 11-1 at
12). According to Plaintiff, it was wrong for the ALJ to find that Plaintiff’s varied work did
not count as substantial gainful activity, yet find that Plaintiff’s statements about working
discredited his testimony regarding activities of daily living. Id. at 12-13. However,
“even if the work [a claimant] ha[s] done was not substantial gainful activity, it may show
that [the claimant is] able to do more work than [they] actually did.”
20 C.F.R. §
Therefore, even though the ALJ found that Plaintiff did not engage in
substantial gainful activity past his alleged onset date, it was still proper for the ALJ to
consider any work Plaintiff performed, albeit insubstantial, when evaluating the
frequency and intensity of Plaintiff’s symptoms.
The ALJ’s credibility determination, which properly included consideration of
Plaintiff’s references to working, is supported by substantial evidence.
carefully reviewed the entire record to determine that “claimant’s statements concerning
the intensity, persistence, and limiting effects of [his] symptoms are not entirely
credible.” (Tr. 133). First, the ALJ found that the objective medical evidence showed
that Plaintiff’s back pain was “significantly less limiting than he alleged.” Id. Specifically,
the ALJ noted that an MRI from May 2012 revealed “only mild degenerative changes”
and that a second MRI in July 2014 revealed similar changes, “as it showed just mild
diffuse disc bulging.” Id.
Additionally, the ALJ discredited Plaintiff’s description of his symptoms because
the record contained “numerous references to the claimant performing work since the
alleged disability onset date.” Id. The ALJ detailed Plaintiff’s treatment records as
[I]n April 2013, the claimant told his primary care provider that he was
working odd jobs every day when he could get them, and was continuing
to seek full-time employment. In July 2013, he was still working odd jobs
and looking for full-time employment. In October 2013, the claimant was
unhappy about a decrease in his medication, but understood it was
necessary, and reported that with medications “he can get out and work in
order to make a living for his family.” In November 2013, he reported that
he was “doing well” and that the “medications allow him to perform his
ADL’s and continue employment when he can find it.”
In January 2014, the claimant saw a different treatment provider, Greg
Dye, M.D., on a one-time basis for the purpose of getting “disability papers
filled out.” He inconsistently told Dr. Dye that he had done no work for the
past three years, which undermines the claimant’s overall credibility.
In September 2013, the claimant told his regular pain clinician that the
pain medication was “working well” and that he had a new job doing
carpentry work. In July 2015, the claimant complained to his pain clinician
of coldness in his feet, but said that he had not had a chance to see his
primary care provider about this because he had been “too busy working.”
(Tr. 133-34) (internal citations omitted).
As illustrated above, the ALJ conducted a detailed review of the medical
evidence in the record, highlighting inconsistencies between medical evidence,
Plaintiff’s statements in treatment records, and Plaintiff’s testimony. Because the ALJ
conducted a thorough credibility assessment, properly weighed inconsistencies in the
record, and provided substantial evidence to support her decision, the Court does not
find error with the ALJ’s credibility determination.
3. The ALJ’s determination was supported by substantial evidence
An RFC is “an administrative assessment of the extent to which an individual’s
medically determinable impairment(s), including any related symptoms, such as pain,
may cause physical or mental limitations or restrictions that may affect his or her
capacity to do work-related physical and mental activities.” Soc. Sec. Rul. 96-8p, 61
Fed. Reg. 34474-01 (Jul. 2, 1996). Stated another way, the RFC is “what an individual
can still do despite his or her limitations.” Id. “In assessing the total limiting effects of
[the claimant’s] impairment(s) and any related symptoms, [the ALJ] will consider all of
the medical and nonmedical evidence” in the record. 20 C.F.R. § 404.1545(e). The
ALJ is only required to incorporate those limitations that she finds credible in the RFC
assessment. Irvin v. Social Sec. Admin., 573 F. App’x 498, 502 (6th Cir. 2014) (citing
Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993)).
Plaintiff broadly asserts that “there is not substantial evidence to support the
denial of his application for social security benefits.” (Doc. # 11-1 at 14). He claims that
the “objective medical evidence unequivocally documents” that he suffers from a variety
of impairments. Id. But it does not matter that Plaintiff believes substantial evidence
supports a different disability determination. The Court must affirm the ALJ’s decision
as long as it is supported by substantial evidence.
At Step Four of the analysis, the ALJ carefully reviewed the entire record and
found that Plaintiff was capable of performing light work with the limitations specified.
She thoughtfully considered the evidence surrounding Plaintiff’s alleged
symptoms, and found that Plaintiff’s impairments could reasonably be expected to
cause those symptoms. (Tr. 133). However, the ALJ went on to find that Plaintiff’s
statements “concerning the intensity, persistence, and limiting effects of these
symptoms are not entirely credible.”
As explained above, the ALJ carefully
reviewed Plaintiff’s subjective complaints, the objective medical evidence, and treatment
And, despite finding that “consistent reports of work surely reflect that the
claimant’s pain is not as limiting as he alleged,” the ALJ “fairly accounted for [Plaintiff’s]
lower back pain” by limiting Plaintiff to light exertional work with additional limitations.
(Tr. 134). Because the ALJ engaged in a thorough analysis and properly weighed all of
the evidence from the entire record, substantial evidence supports her decision.
Accordingly, the Court must affirm the decision.
For the reasons stated herein, the Court concludes that the ALJ’s finding that
Plaintiff was not disabled is supported by substantial evidence. Accordingly,
IT IS ORDERED as follows:
The decision of the Commissioner is found to be supported by substantial
evidence and is hereby AFFIRMED;
Plaintiff’s Motion for Summary Judgment (Doc. # 11) is DENIED;
Defendant’s Motion for Summary Judgment (Doc. # 13) is GRANTED; and
A Judgment in favor of Defendant Commissioner will be entered
This 19th day of April, 2017.
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