Duncan v. SSA
MEMORANDUM OPINION & ORDER: (1) The decision of the Commissioner is found to be supported by substantial evidence and is hereby AFFIRMED; (2) Plaintiff's Motion for Summary Judgement (Doc. # 11) is hereby DENIED; (3) Defendant's Motion for Summary Judgement (Doc. # 13) is hereby GRANTED; and (4) A Judgement in favor of Defendant Commissioner will be entered contemporaneously herewith.. Signed by Judge David L. Bunning on 06/12/17.(MRS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 16-260-DLB
REBECCA JEAN DUNCAN
MEMORANDUM OPINION & ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
*** *** *** ***
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, will affirm the Commissioner’s decision.
FACTUAL AND PROCEDURAL BACKGROUND
On December 12, 2013, Plaintiff Rebecca Jean Duncan applied for supplemental
security income (SSI) and disability insurance benefits (DIB), alleging disability beginning
on May 13, 2013. (Tr. 177-89). Plaintiff was fifty-one (51) years old at the time of filing.
(Tr. 177). Plaintiff alleged that she was unable to work after a fall caused a bulging disc
against nerves in her back. (Tr. 232).
Plaintiff’s application was denied initially, and again on reconsideration. (Tr. 11215; 119-25; 126-33). At Plaintiff’s request, an administrative hearing was conducted on
September 18, 2015 before Administrative Law Judge (ALJ) Ben Ballengee. (Tr. 31-63).
On December 23, 2015, ALJ Ballengee ruled that Plaintiff was not entitled to benefits.
(Tr. 11). This decision became the final decision of the Commissioner on October 7,
2016, when the Appeals Council denied Plaintiff’s request for review. (Tr. 1-8).
Plaintiff filed the instant action on November 8, 2016 alleging the ALJ’s conclusions
“are not supported by substantial evidence and are contrary to law and regulation.” (Doc.
# 2). The matter has culminated in cross-motions for summary judgement, which are now
ripe for adjudication. (Docs. # 11 and 13).
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 of 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 must affirm the Commissioner’s decision,
as long as it is supported by substantial evidence, even if the Court 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. Step One 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. The
burden of proof rests with the Plaintiff on Steps One through Four. As to the last step,
the burden of proof shifts 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).
The ALJ’s Determination
At Step One, the ALJ found that Plaintiff has not engaged in substantial gainful
activity since May 13, 2013, the alleged onset date of disability. (Tr. 16). At Step Two,
the ALJ determined that Plaintiff has the following severe impairment: degenerative disc
disease and obesity (in combination). (Tr. 16). The ALJ also determined that Plaintiff
has the following non-severe impairments: hypertension, hyperlipidemia, esophageal
reflux, lymphadenitis, episodic upper respiratory infections, episodic pharyngitis, episodic
sinusitis, left foot injury, left breast mass with normal imaging, chest pain with normal
cardiac testing, neurodermatitis, fatigue, diaphoresis, rib pain, and depression with
anxiety. (Tr. 17-18). 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. 18-19).
At Step Four, the ALJ found that Plaintiff possesses the residual functional capacity
(RFC) to perform work at the light exertional level, as defined in 20 C.F.R. § 404.1567(b)
and 20 CFR § 416.967(b), with the following limitations: “She can occasionally climb
ladders, ropes, and scaffolds. She can frequently stoop and frequently crawl. She should
never be exposed to unprotected heights or moving mechanical parts.
occasionally be exposed to humidity and wetness and extreme cold.” (Tr. 19).
Based upon this RFC and relying on the testimony of a vocational expert (VE), the
ALJ concluded that Plaintiff was unable to perform her past relevant work. (Tr. 24). The
ALJ also acknowledged that Plaintiff was closely approaching advanced age at all times
material to his decision. Id. However, at Step Five, the ALJ concluded that there were
jobs that existed in significant numbers in the national economy that the Plaintiff could
have performed, and that Plaintiff was not under a disability, as defined in the Social
Security Act. (Tr. 24-25).
Plaintiff advances three arguments in her Motion for Summary Judgment. (Doc. #
11-1). First, Plaintiff claims that the ALJ erred in assessing her credibility and discounting
her subjective complaints. Id. at 4-7. Second, Plaintiff argues that the ALJ erred in
weighing the medical opinion testimony. Id at 7-9. Specifically, Plaintiff contends that the
ALJ should have given controlling weight to the opinions of her treating sources, Dr. Kiefer
and Dr. Golden, and that the ALJ should not have given great weight to the opinions of
non-examining sources, Dr. Conger and Dr. Perritt. Id. Third, Plaintiff generally alleges
that the ALJ’s decision “is not supported by substantial evidence because the ALJ’s
decision is not based on the entire record.” Id. at 1. These arguments will be addressed
The ALJ did not err in assessing 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. SSR 16-3p, 2016 WL 1119029, at *2 (Mar. 16, 2016). 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 and
persistence of those symptoms to determine the extent to which the symptoms limit the
individuals’ ability to perform work-related activities.” Id.
When the Plaintiff’s complaints regarding the intensity and persistence of his or
her symptoms are unsupported by objective medical evidence, the ALJ must make a
credibility determination “based on a consideration of the entire case record,” including
laboratory findings, information from treating physicians, Plaintiff’s complaints of
symptoms, and other relevant evidence. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234,
247 (6th Cir. 2007) (quoting SSR 96-7p, 1996 WL 374186, at *4 (July 2, 1996). After
making a credibility determination, the ALJ must explain that decision with enough
specificity and clarity “so the individual and any subsequent reviewer can assess how the
adjudicator evaluated the individual’s symptoms.” SSR 16-3p, 2016 WL 1119029, at *9.
“[B]lanket assertions that the claimant is not believable will not pass muster, nor will
explanations as to credibility which are not consistent with the entire record and the weight
of the relevant evidence.” Rogers, 486 F.3d at 248. Once the ALJ has made the
credibility determination, the reviewing court must give great weight and deference to that
Plaintiff complains that the ALJ discounted the severity of her impairments and
erroneously doubted her credibility. (Doc. # 11-1). However, the record contradicts these
At Step Four, the ALJ found that Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms,” but that
Plaintiff’s “statements concerning the intensity, persistence, and limiting effects of these
symptoms [were] not entirely credible.” (Tr. 20). The ALJ further explained that Plaintiff’s
testimony regarding her symptoms and limitations was inconsistent with the medical
Treatment notes document continued subjective complaints of pain, waxing
and waning, in excess of objective findings. Treatment notes consistently
document a normal gait and station as well as essentially normal range of
motion. The claimant testified that she was still getting used to the spinal
cord stimulator, but treatment notes document significant improvement in
pain and related symptoms with the trial and permanent installation of the
spinal cord stimulator. There is no persuasive evidence to support the
claimant’s testimony that she experiences pain at a level of eight or nine on
a scale of one to ten, or that she is unable to bend, stoop, squat or reach or
that she has problems with dropping things when using the right arm and
(Tr. 21). Further, the ALJ found that although Plaintiff reports to take medication for her
conditions, “there is no indication of regular need for medication or dosage changes.” (Tr.
22). The ALJ also noted there was “no documented evidence of nonextertional pain
seriously interfering with or diminishing the claimant’s memory or ability to concentrate.”
Additionally, the ALJ determined Plaintiff’s subjective complaints were inconsistent
with her activities of daily living. Plaintiff “reported that she is able to perform basic
hygiene and grooming, prepare simple meals, perform household chores, manage
finances, shop, and drive a car.” Id. Based on these discrepancies between Plaintiff’s
testimony and the record as a whole, the ALJ reasonably concluded that Plaintiff was less
than credible and that Plaintiff’s limitations “are best characterized as moderate.” (Tr. 21).
In his credibility determination, the ALJ referred to the lack of a specific medical
event on the alleged onset date of disability as further evidence that Plaintiff’s testimony
is not supported by objective evidence. (Tr. 22). Plaintiff claims that the ALJ’s finding
regarding the alleged onset date of disability “is clearly erroneous and not supported by
the record.” (Doc. # 11-1 at 6-7). The record refutes Plaintiff’s allegation. There is no
evidence in the record that a medical event occurred on the alleged onset date of
disability, May 13, 2013. The record indicates that Plaintiff’s employment was terminated
on that date, but gives no indication that a specific medical event occurred on that date.
(Tr. 232). The ALJ did not clearly err by noting the lack of a specific medical event on the
alleged onset date of disability. 1
Furthermore, the ALJ acknowledged evidence that supported Plaintiff’s claim of
credibility, primarily her work history. (Tr. 22). The ALJ is required to consider Plaintiff’s
work history when weighing Plaintiff’s credibility. 20 C.F.R. § 404.1529; 20 C.F.R. §
The Court notes that earlier in the hearing decision, the ALJ erroneously stated that no
specific medical event occurred either on April 25, 2013 or May 13, 2013. (Tr. 20). The record
provides multiple references to Plaintiff receiving medical care on April 25, 2013 after being
injured by a fall at work. (Tr. 357, 359, 488-97). But, this error is harmless and does not discount
the rest of the ALJ’s credibility determination. The Court will not reverse a decision for a factual
error if “there remains substantial evidence supporting the ALJ’s conclusions on credibility and
the error does not negate the validity of the ALJ’s ultimate credibility conclusion.” Ulman v.
Comm’r of Soc. Sec., 693 F.3d 709, 714 (6th Cir. 2012) (quoting Carmickle v. Comm’r of Soc.
Sec., 533 F.3d 1155, 1162 (9th Cir. 2008)). The ALJ’s assertion that no specific medical event
occurred on April 25, 2013 is stated only once in the decision and is not directly relied on to
question Plaintiff’s credibility. (Tr. 20). Because the ALJ’s credibility determination is supported
by substantial evidence as previously described, this single factual error is harmless and does
not warrant reversal.
416.929. Plaintiff reported consistent work history from December 1994 up until the
alleged date of disability, May 13, 2013. (Tr. 217-25). While Plaintiff’s consistent work
history weighs in her favor, work history is only one factor which the ALJ must consider.
20 C.F.R. §§ 404.1529; 416.929. In this case, the ALJ found “that the preponderance of
the medical evidence of record outweighs the claimant’s consistent work history.” (Tr.
22). Therefore, the ALJ concluded that Plaintiff’s statements regarding the intensity,
frequency, and limiting effects of her symptoms were not entirely credible.
reviewed the ALJ’s credibility assessment, which carefully detailed the inconsistencies
between Plaintiff’s daily activities, subjective complaints of pain, and the objective medical
evidence, the Court finds no error.
The ALJ did not err in weighing the medical opinion 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 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 [claimant].” Id.; see also Abney v. Astrue, Civ. No.
5:07-394-KKC, 2008 WL 2074011, at *11 (E.D. Ky. May 13, 2008). 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
provided medical or other opinion evidence in the case without examining the claimant.
Plaintiff takes issue with the ALJ’s alleged failure to accord controlling weight to
the medical opinion testimony of Dr. Kiefer and Dr. Golden, both treating sources, and
the ALJ’s designation of great weight to the medical opinion testimony of Dr. Conger and
Dr. Perritt, both non-examining sources. (Doc. # 11-1). The Court will address the ALJ’s
assessment of the medical opinion evidence of the treating sources and non-examining
sources in turn.
A treating source’s opinion is entitled to controlling weight if it is “‘well supported
by medically acceptable clinical and laboratory diagnostic techniques’ and ‘not
inconsistent with the other substantial evidence in the case record.’” Wilson v. Comm’r
of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (quoting 20 C.F.R. § 404.1527(d)(2)). If
a treating source’s opinion is not entitled to controlling weight, the ALJ must consider the
following factors in order to determine how much weight to give the opinion: (1) the length
of the treatment relationship and the frequency of the examination; (2) the nature and
extent of the treatment relationship; (3) the supportability of the opinion; (4) the
consistency of the opinion with the record as a whole; and (5) the specialization of the
treating source. Id. The ALJ must provide “good reasons” for giving less than controlling
weight to a treating source’s opinion. 20 C.F.R. § 404.1527(c)(2). Specifically, a decision
denying benefits “must contain specific reasons for the weight given to the treating
source’s medical opinion, supported by the evidence in the case record, and must be
sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator
gave to the treating source’s medical opinion and the reasons for that weight.” SSR 962p, 1996 WL 374188, at *5 (July 2, 1996).
The “treating physician rule” only applies to medical opinions. While a medical
expert may opine “on issues such as whether [claimant’s] impairment(s) meets or equals
the requirements of any impairment(s) in the Listing of Impairments,” as well as claimant’s
residual functional capacity or the application of vocational factors, such opinions are not
entitled to controlling weight. See 20 C.F.R. § 404.1527(d)(2) (stating that “the final
responsibility for deciding these issues is reserved to the Commissioner”). “Although the
ALJ may not entirely ignore such an opinion, his decision need only explain the
consideration given to the treating source’s opinion.” Turner v. Comm’r of Soc. Sec., 381
F. App’x 488, 493 (6th Cir. 2010) (internal citations omitted).
The Plaintiff argues that the ALJ erred by failing to give Dr. Kiefer’s and Dr.
Golden’s opinions, as treating sources, controlling weight. (Doc. #11-1). Plaintiff further
alleges that had the ALJ given Dr. Kiefer’s and Dr. Golden’s opinions controlling weight
and included the limitations they found in the RFC, there would be no jobs in the economy
that Plaintiff could perform. (Doc. # 11-1). Despite Plaintiff’s claims, the ALJ thoroughly
and appropriately considered the opinions of Dr. Kiefer and Dr. Golden.
The ALJ gave only partial weight to the August 27, 2013 opinion evidence of Dr.
Kiefer, Plaintiff’s neurosurgeon. (Tr. 22). On that date, Dr. Kiefer authorized Plaintiff to
return to work provided that she not lift more than fifteen pounds and refrain from repetitive
bending, twisting, lifting, and uninterrupted sitting or standing for 20 minutes or longer
without a change of position. (Tr. 329). The ALJ explained that the August 27, 2013
evidence should be given only partial weight because:
Dr. Kiefer later found no nerve root compromise on December 3, 2013. At
that time, Dr. Kiefer stated that the claimant had reached maximum medical
improvement and that treatment would be symptomatic and without surgical
solution. Dr. Kiefer’s lifting restriction to a maximum of 15 pounds was
rendered at a time when he believed there was possibility of nerve root
(Tr. 22). Furthermore, the ALJ noted that the limitations Dr. Kiefer suggested were very
similar to the light exertional level in the RFC. Id. The RFC states that Plaintiff was
capable of doing light exertional level work as defined by 20 C.F.R. § 404.1567 (b) “except
that she can occasionally climb ladders, ropes, and scaffolds. She can frequently stoop
and frequently crawl. She should never be exposed to unprotected heights or moving
She can occasionally be exposed to humidity and wetness and
extreme cold.” (Tr. 19). The ALJ explained that Dr. Kiefer’s August 27, 2013 opinion
deserved only partial weight because it was not consistent with or supported by later
medical findings, including Dr. Kiefer’s own. (Tr. 22). The ALJ detailed his reasons for
giving partial weight to Dr. Kiefer’s August 27, 2013 evidence in accordance with 20
C.F.R. § 404.1527(c) and sufficiently considered and incorporated the Plaintiff’s
limitations established by Dr. Kiefer into the RFC. Thus, the Court finds no error in this
portion of the ALJ’s analysis.
The ALJ gave little weight to the August 27, 2015 medical source statement given
by Dr. Golden, Plaintiff’s primary care provider.
In the August 27, 2015
statement, Dr. Golden assigns several physical and mental limitations to Plaintiff,
including: inability to lift or carry over 10 pounds, bend, squat, climb, sit for more than two
hours total in an eight- hour workday, stand for more than one hour total in an eight-hour
workday, walk for more than one hour in an eight-hour workday, and deal with highly
stressful environments. (Tr. 485-87). The ALJ explained he gave the August 27, 2015
statement little weight because:
The limitations cited in this report are inconsistent with the objective
evidence of record including Dr. Golden’s own treatment notes. It also does
not help the credibility of this report by Dr. Golden that it is the product of a
pre-printed form questionnaire, submitted to him by the claimant’s attorney,
which includes a number of leading questions and similar inducements.
(Tr. 22). While Dr. Golden at times reported that Plaintiff suffered from depressive
symptoms and ongoing complaints of pain, his treatment notes consistently state that
Plaintiff’s gait, balance, and coordination remained within normal limits. (Tr. 372, 459,
471). The ALJ explained why he refused to give Dr. Golden’s August 27, 2015 medical
statement controlling weight, citing factors required by 20 C.F.R. §§ 404.1527(c) 416.927(c), including inconsistencies between Dr. Golden’s August 27, 2015 statement
and his own treatment notes, lack of support in the overall record, and the source and
formatting of the statement. (Tr. 22). The ALJ satisfied the “treating physician” rule and
its “good reasons” requirement. Accordingly, the ALJ engaged in the proper analysis and
reached a conclusion that is supported by substantial evidence. The Court finds no error
in the ALJ’s treatment of Dr. Golden’s opinion.
Plaintiff also argues that the opinions of non-examining State agency psychologists
Dr. Conger, Ph.D., and Dr. Perritt, Ph.D., should be given less weight than treating
sources and that “[f]or the ALJ to rely on non-examining physicians, when the examining
physicians found restrictions that would be disabling, is clearly error.” (Doc. # 11-1 at 9).
The ALJ uses the same five factors for weighing the opinions of non-examining sources
as he does for discounting treating sources’ opinions. 20 C.F.R. § 404.1527(c). While
treating sources are generally given more deference than non-examining sources, “[i]n
appropriate circumstances, opinions from State agency medical and psychological
consultants and other program physicians and psychologists may be entitled to greater
weight than the opinions of treating or examining sources.” SSR 96-6p, 1996 WL 374180,
at *3 (July 2, 1996). Despite Plaintiff’s claims, the ALJ provided substantial evidence for
giving less weight to several treating sources’ opinions, as discussed above, and provided
sufficient reasoning for giving great weight to the opinion evidence of non-examining
If the ALJ is to give the non-examining sources more weight than treating sources,
“the record must give some indication that the ALJ subjected [the non-examining
source’s] opinion to scrutiny.” Kepke v. Comm’r of Soc. Sec., 636 F. App’x 625, 632 (6th
Cir. 2016). Although the ALJ did not explicitly state his reasons for assigning great weight
to the opinions of Dr. Conger and Dr. Perritt, there is evidence he subjected their opinions
to some scrutiny because the ALJ disagreed with portions of their assessment
(specifically, Plaintiff’s depression). (Tr. 18). Instead, the ALJ chose to rely on the
opinions of Plaintiff’s treating source, Dr. Golden, to conclude that Plaintiff’s depression
was a non-severe medically diagnosed impairment. Id. Even if the ALJ could have more
clearly stated his reasons for giving Dr. Conger’s and Dr. Perritt’s opinions great weight,
the lack of explicit reasoning “is not fatal because their opinions are consistent with other
record evidence [and] the inconsistent treating source opinions were properly
discredited.” Kepke, 636 F. App’x at 633. Dr. Conger’s and Dr. Perritt’s opinions are
based on a review of medical opinion evidence from several of Plaintiff’s treating sources
and are consistent with the opinions of her treating physicians, particularly Dr. Kiefer and
Dr. Vascello. (Tr. 66-85; 87-111; 331; 337-60). Because the ALJ demonstrated that he
scrutinized the opinion evidence of Dr. Conger and Dr. Perritt and their opinions are
consistent with other parts of the record, the ALJ’s decision to give Dr. Conger’s and Dr.
Perritt’s opinions great weight was reasonable and is supported by substantial evidence.2
Thus, the ALJ did not err in weighing the medical opinion testimony.
The ALJ did not err in assessing the totality of the record.
Finally, Plaintiff generally complains that the ALJ failed to account for the entirety
of the record when making his decision. Plaintiff claims that the ALJ’s evaluation “left out
almost all evidence that supported [Plaintiff].” (Doc. # 11-1, p. 5). Specifically, Plaintiff
claims that the ALJ did not properly evaluate her mental health issues and avoided
consideration of the medical evidence and limitations given by Dr. Kiefer and Dr. Golden.
(Doc. # 11-1). An examination of the ALJ’s decision disproves both claims.
While the substantial evidence standard of review is “quite deferential to the finding
of the Commissioner,” the ALJ must still make all determinations “based upon the record
in its entirety.” Rogers, 486 F.3d at 249. Assessing the record as a whole “helps to
ensure that the focus in evaluating an application does not unduly concentrate on one
single aspect of the claimant’s history, if that one aspect does not reasonably portray the
reality of the claimant’s circumstances.” Id. If the ALJ examined the record as a whole
and the ALJ’s decision is supported by substantial evidence, then this Court must affirm
the ALJ’s decision, even if the Court might have decided the case differently. Listenbee,
846 F.2d at 349.
Although Plaintiff did not directly challenge the weight given to the findings and opinions
of State agency physician Dr. Brown, MD., the Court also finds that the ALJ did not err in assigning
Dr. Brown’s opinions great weight. Tr. 23. The ALJ gave a sufficient explanation to support his
decision that Dr. Brown’s opinions deserved great weight. Id. The ALJ explained that Dr. Brown’s
opinions were “consistent with the evidence as a whole including the findings of treating
neurosurgeon Dr. Kiefer and pain management specialist Dr. Vascello who noted [improvement]
in pain and reported symptoms with treatment especially spinal cord implantation.” Id.
Plaintiff first alleges that the ALJ “did not properly evaluate [her] mental health
issues” and that her depression should have been listed as a severe impairment. (Doc.
# 11-1 at 4). However, the ALJ provided ample discussion of Plaintiff’s mental health.
(Tr. 17-18). The ALJ acknowledged that Dr. Golden’s treatment notes documented a
diagnosis of depression with anxiety, that Plaintiff herself had reported suffering from
depression caused by her pain, and that Plaintiff testified that the reason she has not
sought mental health treatment was due to insurance issues. (Tr. 17). Then, the ALJ
gave several reasons for nevertheless categorizing Plaintiff’s depression as non-severe.
Id. The ALJ explained that Plaintiff never “attempted to obtain low cost medications,
samples, or assistance from drug companies.” Id. Further, the ALJ explained that Dr.
Golden’s treatment notes do not document or support his conclusion that Plaintiff
“experienced depression with anxiety that inhibited the ability to deal with highly stressful
environments.” Id. Finally the ALJ described that:
There is no evidence that the claimant has sought, received, or been
referred for more specialized care from a psychiatrist, psychologist, or
psychotherapist. She has never received mental health counseling or
therapy or been psychiatrically hospitalized. Treating sources have
consistently noted that the claimant has presented fully oriented with intact
memory, intact attention, intact language, and intact cognition.
Id. The mere existence of evidence that supports Plaintiff’s claim is not enough to reverse
the ALJ’s decision, which is supported by substantial evidence drawn from the entire
record. Smith, 99 F.3d at 781-82. Because the ALJ thoroughly considered the record
when determining that Plaintiff’s depression was non-severe and supported his
determination with substantial evidence, the Court finds no error.3
Moreover, the severity inquiry at Step Two is “a ‘de minimis hurdle’ in the disability
determination process,” meant to screen out totally frivolous claims. Higgs v. Bowen, 880 F.2d
860, 862 (6th Cir. 1988) (internal citations omitted); Griffeth v. Comm’r of Soc. Sec., 217 F. App’x
Plaintiff’s complaint that the ALJ failed to properly assess the evidence of Dr. Kiefer
and Dr. Golden is similarly misguided. Throughout the decision, the ALJ considered the
evidence of Dr. Kiefer and Dr. Golden. The ALJ provided an extensive summary of
Plaintiff’s evaluations by both Dr. Kiefer and Dr. Golden when the ALJ determined
Plaintiff’s RFC. (Tr. 19-22). The ALJ documented many meetings Plaintiff had with Dr.
Kiefer and Dr. Golden, including meetings where the doctors reported Plaintiff’s condition
worsened and meetings when the doctors reported Plaintiff’s condition improved. Id.
That the ALJ chose to give only partial weight and little weight to portions of Dr. Kiefer’s
and Dr. Golden’s opinions does not support a conclusion that the ALJ avoided
consideration of Dr. Kiefer’s and Dr. Golden’s testimony. Rather, it shows that the ALJ
specifically examined the opinions of Dr. Kiefer and Dr. Golden, as previously described
in Part II(C)(2)(a). Even if there is evidence that supports Plaintiff’s position, the ALJ’s
decision will be upheld as long as it is supported by substantial evidence. Her, 203 F.3d
at 389-90. Here, the ALJ has considered the record as a whole and his decision is
supported by substantial evidence. The Court finds no error in the scope of the ALJ’s
425, 428 (6th Cir. 2007). If the ALJ finds at least one of the claimant’s alleged impairments is
severe in nature, the claim survives the Step Two screening process. 20 C.F.R. §404.1520(a)(4).
Because the Regulations instruct the ALJ to consider both severe and non-severe impairments
in the remaining steps of the disability determination analysis, any impairment erroneously labeled
as “non-severe” will not be ignored altogether. 20 C.F.R. § 404.1545(a)(2). For this reason, the
Sixth Circuit has consistently held that an ALJ does not commit reversible error when he or she
decides that some of claimant’s impairments are not severe, but finds that other impairments are
severe and proceeds with his or her analysis. See, e.g., Maziarz v. Sec’y Health & Human Serv.,
837 F.2d 240, 244 (6th Cir. 1987). Here, having determined that Plaintiff suffered from severe
impairments, the ALJ had to consider both severe and non-severe impairments, including
Plaintiff’s mental limitations, in completing the disability determination analysis. (Tr. 22-23). Thus,
even assuming there was an error at Step Two of the analysis, it would be harmless.
For the reasons stated herein, the Court concludes that the ALJ’s finding that
Plaintiff was not disabled for purposes of the Social Security Act was supported by
Accordingly, for the reasons stated herein, 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 Judgement (Doc. # 11) is hereby DENIED;
Defendant’s Motion for Summary Judgement (Doc. # 13) is hereby
A Judgement in favor of Defendant Commissioner will be entered
This 12th of June, 2017.
K:\DATA\SocialSecurity\MOOs\London\16-260 Duncan MOO.docx
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