Clayborn v. SSA

Filing 15

MEMORANDUM OPINION & ORDER: IT IS ORDERED that Defendant's motion for summary judgment be GRANTED and that Plaintiff's motion for summary judgment be DENIED. A separate judgment in conformity herewith shall this date be entered. Signed by Judge Joseph M. Hood on 12/07/2017.(KJA)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
SARAH JANE CLAYBORN,

)
)
Plaintiff,
)
)
V.
)
)
NANCY A. BERRYHILL1, Acting
)
Commissioner of Social Security, )
)
Defendant.
)

Civil No. 6:16-cv-267-JMH

MEMORANDUM OPINION AND ORDER

****

Plaintiff Sarah Jane Clayborn 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, will AFFIRM the Commissioner’s decision, as
it is supported by substantial evidence.
I.
Judicial review of the Commissioner’s decision is limited to
determining whether it is supported by substantial evidence and
was made pursuant to proper legal standards.

Cutlip v. Sec’y of

Health

(6th

&

Human

Servs.,

25

F.3d

284,

286

Cir.

1994).

“Substantial evidence” is defined as “more than a scintilla of

1

 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 for Acting Commissioner Carolyn W. Colvin 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).

1

evidence but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.”
resolve

Id.

conflicts

determinations.

Id.

Courts are not to conduct a de novo review,
in

the

evidence,

or

make

credibility

Rather, we are to affirm the Commissioner’s

decision, provided it is supported by substantial evidence, even
if we might have decided the case differently.

See Her v. Comm’r

of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
The ALJ, in determining disability, conducts a five-step
analysis.

See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474

(6th Cir. 2003).

Step One considers whether the claimant is still

performing substantial gainful activity; Step Two, whether any of
the claimant’s impairments 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 his past relevant
work; and Step Five, whether significant numbers of other jobs
exist in the national economy which the claimant can perform.

As

to the last step, the burden of proof shifts from the claimant to
the Commissioner.

Id.; see also Preslar v. Sec’y of Health & Human

Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
II.
In January 2014, Plaintiff filed a Title II application for
a period of disability and disability insurance benefits alleging
2

disability as of March 30, 2010.

[TR 141].

Plaintiff’s claim was

denied initially and on reconsideration. [TR 71,72].
then requested a hearing on the matter.

Plaintiff

An Administrative Law

Judge (“ALJ”) conducted a hearing [TR 25-59], but thereafter denied
Plaintiff’s claim. [TR 12-18].

The Appeals Council declined

Plaintiff’s request for review [T. 1-3), making the ALJ’s November
23, 2015 decision the final agency decision for purposes of
judicial review. 20 C.F.R. § 422.210(a).

This appeal followed and

the case is ripe for review pursuant to 42 U.S.C. § 405(g).
III.
Facts2
Plaintiff was 21 years old when she allegedly became disabled
on March 30, 2010, and 23 years old on March 31, 2012, the date
that she was last insured for DIB [TR 138, 141]. Plaintiff has a
high school education and past relevant work as a fast food worker,
warehouse worker, and fitting room attendant [TR 53-54, 176).
Plaintiff initially alleged she was unable to work due to irritable
bowel syndrome (IBS) and hearing difficulties [TR 175).
Plaintiff

had

a

history

of

treatment

for

“alternating

diarrhea and constipation” with “abdominal pain” and “intermittent

2

 Plaintiff has restricted her arguments to the issues specifically discussed
below. Plaintiff’s Brief (Pl.’s Br.) at 13. Therefore, the Court will not
provide a recitation of the medical evidence not at issue in the case before
the Court and will only discuss the evidence before the ALJ only with respect
to those issues specifically argued by Plaintiff.

3

blood in the stool” associated with a “diagnosis of irritable bowel
syndrome” [TR 242, 270, 499].
Julie Jackson, M.D., saw Plaintiff in early March 2010, for
abdominal pain [TR 270-271]. Plaintiff described the pain as being
of gradual onset, constant, aching, diffuse, made worse by food,
with nausea at times, and some bleeding in stool.

Plaintiff also

reported that the pain was worse before and after her menstrual
cycle.

Dr. Jackson provided a diagnosis of abdominal pain [TR270-

271].
Between March 2010 and January 2012, the record reflects that
Plaintiff was occasionally seen by medical providers for regular
preventative care such as a PAP smear, providing contraceptives,
or other conditions unrelated to Plaintiff’s argument to the Court
[TR 375, 384, 386, 391].

These records established that Plaintiff

did not complain of symptoms associated with IBS to medical
providers

during

this

period

of

almost

two

years

duration

subsequent to her alleged disability onset date.
In January 2012, Abdulkader Dahhan, M.D., saw Plaintiff at
the Harlan-ARH Hospital emergency room [TR 282-283, duplicate 312313].

Plaintiff reported abdominal pain, loose stools and blood

in the bowel movement, with three diarrhea stools daily. Plaintiff
reported her symptoms began 2-3 days earlier.

She was admitted to

Harlan-ARH for evaluation of lower gastrointestinal bleeding. [TR
4

283].

Subsequently, Jameel A. Butt, M.D. [TR 285-286, duplicate

321-322] examined Plaintiff on a consultative basis. Dr. Butt
provided an impression of abdominal pain and rectal bleeding [TR
285-286].
In early February 2012,  Plaintiff was seen for an initial
visit by nurse practitioner Suzanne Saylor at Gastroenterology
Associates [TR 356-358]. Plaintiff reported diarrhea beginning at
age 11.

She reported experiencing diarrhea as 3-8 bowl movements

a day, with blood in her stool, and some rectal pain.

Plaintiff

also reported intermittent generalized abdominal pain.
practitioner

Saylor

hematachezia,

and

diagnosed

generalized

Plaintiff

abdominal

pain

with
[TR

Nurse

diarrhea,
356,

358].

However, there were no further reports of increased frequency or
urgency beyond that reported by Plaintiff in her first visit to
nurse practitioner Saylor in early February 2012. An associated
colonoscopy performed in February 2012 showed no evidence of acute
ileitis or colitis [TR 352, 361].
Additional
unremarkable

exams

for

contained

clinical

in

the

findings

record

were

indicative

routinely
of

acute

gastrointestinal dysfunction [TR 370-372, 376-378]. Otherwise,
Plaintiff has received infrequent conservative treatment for her
IBS

associated

symptoms

through

5

prescription

of

the

common

cholesterol lowering drug Cholestyramine, which is also used in
controlling diarrhea [TR 222].
Hearing Testimony
Plaintiff testified that she was married but had no children
[TR 29-30].

She said that she had a driver’s license but did not

drive regularly [TR 30].
education (Tr. 31).

She testified that she had a high school

Plaintiff said that she had insurance through

her husband’s employment [TR 34]. She said that she had not worked
in the last five years and had quit working because of her stomach
pain and frequent trips to the bathroom [TR 35-36].

Plaintiff

testified that she did not receive treatment for her IBS or
diarrhea [TR 37].
37-40].
several

She then described her past work activity [TR

Plaintiff testified that she had not seen a doctor in
years

[TR

43).

She

testified

that

she

could

walk

completely through a grocery store and could lift ten to 15 pounds
[TR 46].

Plaintiff said that she had no difficulty understanding

instructions, making decisions, or getting along with people [TR
48]. She said that she is able to cook for herself and her husband,
perform her own household chores, assist with he mother’s household
chores, and engages in hobbies [TR 49].

Plaintiff testified that

in a seven-day week, she had two or three “good days” and four or
five “bad days” [TR 50].

6

A vocational expert (VE), Julian Nadolsky, testified at the
September

10,

2015

hearing

[TR

52-57].

After

determining

Plaintiff’s past relevant work, the ALJ asked the VE to assume a
hypothetical individual of Plaintiff’s age, education and work
experience,

with

limitations

the

same

as

determined by the ALJ to be those of Plaintiff.

those

ultimately

The VE testified

that such an individual could perform Plaintiff’s past relevant
work as a fast food worker, warehouse worker, and fitting room
attendant [TR 53-54].
ALJ’s Decision
After a careful review of the record, the ALJ found that
Plaintiff last met the insured status requirements for DIB on March
31, 2012 [TR 14; Finding No. 1].

The ALJ then found that Plaintiff

had the severe impairment of IBS [TR 14; Finding No. 3], but that
Plaintiff’s impairments did not meet or equal the severity of a
listed impairment [TR 15; Finding No. 4]. The ALJ found that
Plaintiff had the residual functional capacity (RFC) to perform
light exertion work [TR 15-18; Finding No. 5], and that her
complaints of disabling limitations were not entirely credible [TR
16].

Finally, the ALJ found that Plaintiff retained the RFC to

perform her past relevant work as a fast food worker, warehouse
worker, and fitting room attendant at the light level of exertion

7

[TR 18; Finding No. 6].

Thus, the ALJ found that Plaintiff was

not disabled under the Act [TR 18; Finding No. 7].
IV.
Although Plaintiff generally argues that the ALJ’s decision
was not supported by substantial evidence, she raises only one
specific challenge to the ALJ’s consideration of her disability
claim: she argues that the ALJ did not consider the effects of her
subjective complaints in assessing her RFC.
(Pl.’s Br.) at 2, 7-12.

Plaintiff’s Brief

The Court will only address this issue.

See 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.”).
Plaintiff’s initial argument—which purports to challenge the
ALJ’s treatment of lay testimony and application of the so-called
“two- prong test”—are essentially challenges to the ALJ’s finding
that her statements as to the intensity, persistence, and limiting
effects of her symptoms were not supported by the record.
Br. at 7-8.

Pl.’s

The ALJ’s analysis of Plaintiff’s symptomatic or

subjective complaints is entitled to particular deference from
this Court.
(6th

Cir.

See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476
2003)

determinations

(“Upon

of

review,

credibility

we

are

great

to

accord

weight

and

the

ALJ’s

deference

particularly since the ALJ has the opportunity, which we do not,
8

of observing a witness’s demeanor while testifying”).

In the

instant case, the ALJ extensively reviewed Plaintiff’s record and
justifiably concluded that her RFC finding was supported by the
medical record including relevant examination findings, imaging
studies, scoping, and lab work; her conservative treatment; as
well as Plaintiff’s daily activities [TR 18].
A claimant’s RFC is assessed by the ALJ between steps three
and four and is “the most [a claimant] can still do despite [her]
impairments.”

20 C.F.R. §§ 404.1520(a)(4), 404.1545(a)(1)&(5).

An ALJ is required to “assess a claimant’s RFC based on all of the
relevant medical and other evidence.”

20 C.F.R. § 404.1545(a)(3);

SSR 96-5p, 1996 WL 374183, at *2, 4-5 (stating that some issues,
such as RFC, are not medical issues regarding the nature and
severity

of

an

individual’s

impairment(s)

but

instead

administrative findings that are dispositive of a case, and thus
are reserved to the Commissioner).
In this case, Plaintiff relies on her own subjective reports
about her symptoms to establish her alleged disability, which,
contrary to Plaintiff’s argument, the ALJ reasonably discounted
for the reasons noted above. [TR 15-18; Finding No. 5].
at 7-12.

Pl.’s Br.

Substantial evidence supports the ALJ’s finding that the

record did not include objective findings that would support
Plaintiff’s argument that she was subject to disabling symptoms.

9

Symptoms are subjective complaints about a claimant’s condition,
and cannot be the basis for a finding of disability.

20 C.F.R. §

404.1529(a) (“statements about your pain or other symptoms will
not alone establish that you are disabled”).
It is fundamental that an ALJ can base her decision that a
claimant’s symptoms are not as limiting as she alleges based on
inconsistencies between those claims and the rest of the record.
See 20 C.F.R. § 416.929(c)(4) (“We will consider whether there are
any inconsistencies in the evidence and the extent to which there
are any conflicts between your statements and the rest of the
evidence,

including

your

history,

the

signs

and

laboratory

findings, and statements by your treating and nontreating source
or other persons about how your symptoms affect you.”).
Security

Ruling

(SSR)

96-7p3

explains

the

Social

significance

of

inconsistency between a claimant’s statements and the rest of the
record:

“One

strong

indication

of

the

credibility

of

an

individual’s statements is their consistency, both internally and
with other information in the case record.” 1996 WL 374186, at *5.
Further, a claimant’s allegations are less believable if her
allegations are not supported by the objective medical evidence or
her medical treatment history.

Id. at 6-8.

34SSR

96-7p was recently superseded by SSR 16-3p and took effect on March 28,
2016. 2016 WL 1237954 (Mar. 24, 2016). Because SSR 16-3p was not in effect at
the time of the ALJ’s decision here, the Court will utilize SSR 96-7p.    

10

In

this

case,

the

medical

evidence

supported

the

ALJ’s

conclusion that Plaintiff’s allegations regarding the severity of
her symptoms were not fully believable, as inter alia, Plaintiff’s
treatment

records

showed

insufficient

objective

findings

to

support her claims of disabling pain and other symptoms including
symptoms associated with her severe impairment of IBS [TR 16-17;
270-271, 282-283, 352, 356-358, 361, 370-372, 375-378, 384, 386,
391].

See Curler v. Comm’r of Soc. Sec., 561 F.App’x 464, 475

(6th Cir. 2014)(unpublished) (testimony describing pain contrasted
starkly with medical evidence showing no significant abnormalities
in her cervical spine).

Moreover, the Commissioner would point

out that the ALJ specifically indicated that her reasonable RFC
finding was also supported by the nature and extent of treatment
provided as related to Plaintiff’s alleged disabling impairments;
her inconsistent and unpersuasive description of symptoms and
limitations; as well as her significant activities of daily living
[TR 15-18; Finding No. 5].

See SSR 96-7p, 1996 WL 374186, at *5

(stating an ALJ must evaluate medical and nonmedical information
in the record and then draw appropriate inferences and conclusions
about the credibility of a claimant’s statements); see also Walters
v.

Comm’r

ofSoc.

Sec.,

127

F.3d

at

531

(6th

Cir.

1997)

(“Discounting credibility to a certain degree is appropriate where
an ALJ finds contradictions among the medical reports, claimant’s
testimony, and other evidence.”); Moon v. Sullivan, 923 F.2d 1175,
11

1179, 1183 (6th Cir. 1990) (ALJ reasonably relied on reviewing
source opinions).
Also misplaced is Plaintiff’s argument about the “two-prong
test” to evaluate a claimant’s assertions of disabling pain. Pl.’s
Br. at 7.

Although she cites Felisky v. Bowen, 35 F.3d 1027(6th

Cir. 1994), the so-called “two-prong test” derives from 20 C.F.R.
§ 404.1529.

While the Court in Felisky held that it was error to

rely on lack of objective evidence alone to discount a claimant’s
claims about the severity of her pain, 35 F.3d at 1038, that is
not what the ALJ did here.
justifiably
findings,

found

that

Plaintiff’s

in

Rather, as noted above, the ALJ
addition

course

to

of

the

objective

treatment,

medical

inconsistent

statements, and her significant activities of daily living, all
further supported the ALJ’s finding that Plaintiff’s symptoms were
not as severe as she alleged [TR 15-18;

187, 193, 199, 270-271,

282-283, 352, 356-358, 361, 370-372, 375-378, 384, 386, 391).

See

Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007)
(credibility determinations are particularly within the province
of the ALJ and are “to be given great weight.”) (quoting Walters
v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997); see
also Schmiedebusch v. Comm’r of Soc. Sec., 536 F.App’x 637, 649
(6th Cir. 2013) (unpublished) (a reviewing court must “accord an
ALJ’s credibility determinations great weight and deference, and
‘are limited to evaluating whether . . . the ALJ’s explanations
12

for partially discrediting [a claimant’s testimony] are reasonable
and supported by substantial evidence in the record.’”) (quoting
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003).
Significantly, the ALJ reasonably pointed out that the record
illuminated a range of physical and daily activities such as:
attending to her own personal care and hygiene; preparing her own
meals; shopping in large retail stores; “go[ing] to the movies and
local festivals” for entertainment on “good” days; and performing
her own household chores, such as washing dishes, vacuuming, and
“general cleaning”, as well as driving to her mother’s residence
to visit [TR 187, 193, 199].
Moreover, Plaintiff has not adequately explained how the ALJ
violated the “two-prong test,” nor has she sufficiently discussed
how the factors of 20 C.F.R. 404.1529(c) support her credibility.
See Kennedy, 87 F. App’x at 466.

In any event, Felisky does not

require the ALJ to expressly apply all of those factors in her
decision.

Bowman v. Chater, No. 96-3990, 1997 WL 764419, at *5

(6th Cir. Nov. 26, 1997) (unpublished). Because the ALJ’s analysis
of Plaintiff’s subjective complaints was supported by substantial
evidence, her decision should be affirmed.
As noted above, the ALJ discussed relevant medical evidence,
including the findings from Plaintiff’s treating or examining
medical sources, in reasonably determining that Plaintiff retained

13

the RFC to perform the reduced physical activities associated with
light exertion work [TR 17].

Richardson v. Perales, 402 U.S. 389,

399 (1971) (“We . . . are presented with the not uncommon situation
of conflicting medical evidence.
to resolve that conflict.”)
supported

the

ALJ’s

The trier of fact has the duty

Therefore, the medical evidence

reasonable

conclusions

that

Plaintiff’s

statements concerning the intensity, persistence and limiting
effects of her symptoms were not entirely credible; and that
Plaintiff retained the RFC to perform work activity at the light
exertion level, at all times through her date last insured for DIB
in the decision now before the Court (Tr. 17).
While Plaintiff may have had limitations that negatively
affected her 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.

Instead,

Plaintiff had to show that her impairments caused functional
limitations

so

severe

that

she

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).
must last 12 months.

The disability, not just the impairment,

Walton, 535 U.S. at 220.

Contrary to Plaintiff’s argument, the ALJ provided a thorough
discussion of Plaintiff’s alleged impairments and specifically

14

found that IBS constituted a severe impairment and that Plaintiff’s
alleged impairments of hearing loss and obesity did not rise to
the level of severe impairments [TR 14-18: Finding Nos. 3.5].
The ALJ noted that records reflect a history of treatment for
“alternating diarrhea and constipation” with “abdominal pain” and
“intermittent blood in the stool” associated with a diagnosis of
IBS (Tr. 17).

However, of significant importance in the case

before the Court, the ALJ reasonably pointed out that there was
“no

indication

allegations

of

made

reported
during

frequency

[Plaintiff’s]

or

urgency

testimony,

to

match

which

are

contradicted by the considerable body of exam findings, testing,
and correspondingly conservative treatment.” [TR 17; Tr. 270- 271,
282-283, 352, 356-358, 361, 370-372, 375-378, 384, 386, 391].
In sum, the evidence simply does not support Plaintiff’s
claims

of

completely

disabling

limitations

from

her

alleged

disability onset date of March 30, 2010, through March 31, 2012,
the date she was last insured for DIB [TR 14; Finding No. 1].
20

C.F.R.

§

404.1529(c)(4)

(stating

an

ALJ

must

See

consider

inconsistencies in the evidence).
To the extent that Plaintiff suggests that the evidence before
the Court is open to another interpretation that favors her claim,
the Court declines Plaintiff’s invitation to reweigh the evidence.
When, as here, the Commissioner’s decision denying benefits is

15

supported by substantial evidence, the Court must affirm that
decision.
2005).

Longworth v. Commissioner, 402 F.3d 591, 595 (6th Cir.

Even if substantial evidence exists to support Plaintiff’s

claim, the Court should still affirm the Commissioner’s decision
because

it

is

also

demonstrated above.

supported

by

substantial

evidence,

as

See Buxton v. Halter, 246 F.3d 762, 772 (6th

Cir. 2001); see also Smith v. Chater, 99 F.3d 780, 782 (6th Cir.
1996) (even if the Court would have decided the matter differently
than the ALJ, if substantial evidence supports the ALJ’s decision,
it must be affirmed).
As noted above, the ALJ made her reasonable RFC finding after
careful consideration of the entire record; this would include
that evidence of record associated with Plaintiff’s claims of
disabling symptoms [TR 15-16; Finding No. 5].

Because the ALJ’s

RFC finding as to extent of Plaintiff’s work-related limitations
was supported by substantial evidence, the Court should affirm the
ALJ’s decision. Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854-55
(6th Cir. 2010) (“Even if this Court might have reached a contrary
conclusion of fact, the Commissioner’s decision must be affirmed
so long as it is supported by substantial evidence.”).
Finally, the VE responded to a hypothetical question that
included all of the limitations found in the ALJ’s ultimate
justifiable RFC finding, in testifying that such an individual

16

could

perform

Plaintiff’s

past

work

as

a

fast

food

worker,

warehouse worker, and fitting/dressing room attendant, as relevant
to the ALJ’s step four finding [TR 54]. 20 C.F.R. § 404.1560(b)(2)
(stating that a vocational expert may offer relevant evidence
concerning the demands of the claimant’s past relevant work (as
generally and actually performed), and may testify in response to
a hypothetical question about whether a person with the claimant’s
limitations can meet the demands of the claimant’s past relevant
work); 68 Fed. Reg. 51153, 51160 (Aug. 26, 2003) (comments to final
rule) (“VE testimony is not a requirement at step 4, but . . . VE
testimony may be obtained at step 4 to provide evidence to help us
determine whether or not an individual can do his or her past
relevant work.”).
question

that

The VE’s response to the ALJ’s hypothetical
included

Plaintiff’s

credible

limitations

constitutes substantial evidence in support of the ALJ’s finding
that as of her date last insured, the then 23 year-old Plaintiff
retained the capacity to perform her past relevant work as a fast
food

worker,

attendant.

warehouse

worker,

and

fitting/dressing

room

See Casey v. Sec’y of Health & Human Servs., 987 F.2d

1230, 1235 (6th Cir. 1993) (“It is well established that an ALJ
may pose hypothetical questions to a vocational expert and is
required to incorporate only those limitations accepted credible
by the finder of fact.).

17

V.
The Court having found no legal error on the part of the ALJ
and that her decision is supported by substantial evidence, the
Acting Commissioner’s final decision is AFFIRMED.
Accordingly,
IT IS ORDERED that Defendant’s motion for summary judgment be
GRANTED and that Plaintiff’s motion for summary judgment be DENIED.
A separate judgment in conformity herewith shall this date be
entered.
This the 7th day of December, 2017.

18

IT IS ORDERED as follows:
(1)

Plaintiff

Christopher

Gates’s

Judgment [DE 13] be, and is, hereby DENIED;
19

Motion

for

Summary

(2)

The Commissioner of Social Security’s Motion for Summary

Judgment [DE 14] be, and is, hereby GRANTED; and
(3)

A Judgment shall be entered contemporaneously herewith.

This the 4th day of August, 2017.

20