Gates v. SSA
MEMORANDUM OPINION & ORDER: (1) Plaintiff Christopher Gates's Motion for Summary Judgment [DE 13 ] be, and is, hereby DENIED; (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. Signed by Judge Joseph M. Hood on 08/04/2017.(KJA)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, )
Civil No. 6:17-cv-19-JMH
MEMORANDUM OPINION AND ORDER
Plaintiff Christopher Gates 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.
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
“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
Courts are not to conduct a de novo review,
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
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.
to the last step, the burden of proof shifts from the claimant to
Id.; see also Preslar v. Sec’y of Health & Human
Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
On September 26, 2006, Plaintiff filed a Title II application
for a period of disability and disability insurance benefits and
a Title XVI application for supplemental security income (“SSI”),
alleging disability as of March 6, 2006.
[TR 238-40, 242-49].
Plaintiff’s claims were denied initially and on reconsideration.
Plaintiff then requested a hearing on the matter.
An Administrative Law Judge (“ALJ”) reviewed the
evidence of record and issued a fully favorable written decision
without holding a hearing.
Attorney Eric C. Conn
represented Plaintiff throughout this disability determination
The Office of the Inspector General later notified the Social
Security Administration (“SSA”) that there was reason to believe
that fraud was involved in certain cases submitted to the SSA by
Eric C. Conn, which included faulty evidence submitted by Bradley
Adkins, Ph. D., Srinivas Ammisetty, M.D., Frederic Huffnagle,
M.D., and/or David P. Herr, D.O., between January 2007 and May
Because Plaintiff was represented by Eric C.
Conn during the aforementioned time period, and because his case
included evidence obtained from one or more of the aforementioned
medical providers, the SSA had to redetermine his eligibility for
In redetermining Plaintiff’s claim for benefits, the Appeals
Council (“AC”) was obliged to disregard all evidence obtained from
the aforementioned medical providers.
17, 2015, the AC found that the ALJ’s decision was not supported
by the remaining evidence.
It then remanded the case to
ALJ John M. Dowling for a new hearing and further redetermination
On March 22, 2016, ALJ Dowling held a video hearing.
Plaintiff, now represented by attorney Michael Taylor,
expert Julie Bose.
Consistent with the AC’s instructions,
ALJ Dowling disregarded evidence obtained from the aforementioned
medical providers and “determine[d] whether the beneficiary was
entitled to and eligible for benefits on April 4, 2007, the date
SSA initially allowed the claim.”
At Step One of the disability determination analysis, ALJ
Dowling found that Plaintiff had not engaged in substantial gainful
activity between the alleged onset date and April 4, 2007.
At Step Two, he concluded that Plaintiff had the following
severe impairments: cervical degenerative disc disease, status
post ACDF at C5-C6, cervical congenital fusion at C6-C7, and
At Step Three, ALJ Dowling determined that Plaintiff did not
have an impairment or combination of impairments listed in, or
medically equal to, an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1.
In reaching this conclusion, ALJ
Dowling found that “Listing 1.04 is not met because the record
does not demonstrate compromise of a nerve root or the spinal cord
with additional findings of nerve root compression, evidence of
He also noted that, “[c]oncerning
Listing 11.14 for peripheral neuropathies, the record fails to
demonstrate any significant and persistent disorganization of
motor function in two extremities that have resulted in sustained
disturbance of gross and dexterous movements or gait and station
in spite of prescribed treatment.”
At Step Four, ALJ Dowling found that Plaintiff had the
residual functional capacity (“RFC”) to perform light work as
defined in 20 C.F.R. § 404.1567(b) and § 416.967(b), except that
Plaintiff “could not climb ladders, ropes or scaffolds.”
“He could occasionally stoop, kneel, crouch, and crawl” and “could
occasionally reach overhead bilaterally.”
needed to avoid concentrated exposure to extreme cold and excessive
vibration” and “all exposure to unprotected heights and hazardous
ALJ Dowling then concluded that Plaintiff was
capable of performing past relevant work as a purchasing agent,
shipping clerk, and truck parts counterman.
Nevertheless, ALJ Dowling proceeded to the final step of the
sequential evaluation and determined that there were a significant
number of other jobs in the national economy that Plaintiff could
ALJ Dowling based this conclusion on testimony
from a vocational expert (“VE”), in response to a hypothetical
question assuming an individual of Plaintiff’s age, education,
work experience, and RFC.
The VE testified that such an
individual could find work as a call out operator (47,100 national)
or document preparer (29,400 national).
concluded that Plaintiff was not under a “disability,” as defined
by the Social Security Act, from March 6, 2006, through April 4,
2007, the date of the prior decision.
On December 2, 2016, the AC denied Plaintiff’s request for
Plaintiff filed the instant action on January 31, 2017.
Consistent with the Court’s Standing Scheduling Order, the parties
have submitted cross motions for summary judgment, which are now
ripe for review.
[DE 13, 14].
three arguments on appeal.
Plaintiff essentially advances
First, he contends that the ALJ erred
in finding that his Chiari malformation, obesity, and depression
were non-severe impairments. Second, he takes issue with the ALJ’s
consideration of treating source opinions rendered by Drs. Brooks,
Khan, El-Naggar, and Dixit.
Third, Plaintiff insists that the ALJ
erred in assessing his credibility.
The Court will address each
of these arguments in turn.1
Although Plaintiff occasionally notes that the redetermination process
was not his fault, he does not raise the constitutional arguments that
took center stage in many of the other cases related to Eric C. Conn’s
fraud scheme. See, e.g., Perkins v. Colvin, 224 F. Supp. 3d 575 (E.D.
Ky. 2016); Carter v. Colvin, 220 F. Supp. 3d 789 (E.D. Ky. 2016); Hicks
v. Colvin, 214 F. Supp. 3d 627 (E.D. Ky. 2016). For the reader’s
Severity of Impairments2
At Step Two of the disability determination process, the ALJ
must consider the medical severity of the claimant's impairments.
20 C.F.R. § 404.1520(a)(4)(ii); Soc. Sec. Rul. 96-3p, 1996 WL
374181 at *1 (July 2, 1996). An impairment is severe if it
“significantly limits an individual's physical or mental ability
to perform basic work activities,” which include the following:
lifting, pushing, pulling, reaching, carrying, or handling; (2)
capacities for hearing, seeing and speaking; (3) understanding,
carrying out and remembering simple instructions; (4) use of
judgment; (5) responding appropriately to supervision, co-workers
and usual work situations; and (6) dealing with changes in a
routine work setting. See 20 C.F.R. § 404.1521(b); 20 C.F.R. §
The Sixth Circuit has interpreted “the step two severity
regulation as a ‘de minimis hurdle’ in the disability determination
process,” intended to screen out totally frivolous claims.
edification, Conn plead guilty to the fraud scheme, but absconded prior
This argument is imbedded in Plaintiff’s discussion of ALJ Dowling’s
credibility assessment. The Court has chosen to address it as a separate
v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988) (citations omitted).
Thus, the severity of the impairment is “liberally construed in
(explaining further that “an impairment can be considered not
severe only if it is a slight abnormality that minimally affects
work ability regardless of age, education, and experience”).
If the ALJ finds that at least one of the claimant's alleged
impairments is severe in nature, the claim survives the step two
consider both severe and non-severe impairments in the remaining
steps of the disability determination analysis, any impairment
altogether. 20 C.F.R. § 404.1545(a)(2); 20 C.F.R. § 416.925(a)(2).
Thus, an ALJ’s failure to find that an impairment is severe does
not constitute reversible error.
See also Maziarz v. Sec'y Health
& Human Serv., 837 F.2d 240, 244 (6th Cir. 1987) (“Since the
Secretary properly could consider claimant's cervical condition in
functional capacity to allow her to perform substantial gainful
activity, the Secretary's failure to find that claimant's cervical
condition constituted a severe impairment could not constitute
Plaintiff complains that ALJ Dowling erred in finding that
his Chiari malformation, obesity, and depression were non-severe.
As for the first condition, Plaintiff relies on a June 1, 2006,
Degenerative osteoarthritis 2. Thoracic outlet syndrome 3. Rule
out Arnold Ciari Malformation 4. Carpal tunnel syndrome.”
However, Plaintiff does not explain how treatment notes
positing the existence of his condition demonstrates that ALJ
Dowling erred in evaluating its severity.
ALJ Dowling observed
that “the beneficiary’s longitudinal medical evidence during the
period at issue does not include a diagnosis or symptoms related
to a Chiari malformation.”
He also noted that Plaintiff
was not diagnosed until 2014 and that Dr. El-Naggar described his
condition as stable and unlikely to result in seizures.
significant symptoms or functional limitations during the period
Plaintiff similarly fails to explain how ALJ Dowling erred in
assessing his obesity and depression.
The ALJ pointed out that
Plaintiff’s “Body Mass Index of 32.4 did not cause complications
to his neck symptoms.”
He also cited to evidence in the
record suggesting that Plaintiff suffered only mild limitations
from depression and noted that Plaintiff “did not assert any
depressive symptoms during the hearing.”
Finally, Plaintiff takes issue with ALJ Dowling’s failure to
discuss his carpal tunnel syndrome.
However, as the Commissioner
mentioned in the medical records is not tantamount to a failure to
consider such evidence.
Boseley v. Comm’r of Soc. Sec., 397 F.
App’x 195, 199 (6th Cir. 2010) (“Neither the ALJ nor the Council
is required to discuss each piece of data in its opinion, so long
as they consider the evidence as a whole and reach a reasoned
Moreover, the record reflects that Plaintiff’s
carpal tunnel was mild and present only on Plaintiff’s right side.
[TR 659, 589, 598].
Even construing Plaintiff’s claim liberally,
as is required at this stage of the disability determination
analysis, the Court finds that there is substantial evidence in
Plaintiff’s obesity, depression, Chiari malformation and carpal
In the alternative, even if ALJ Dowling erred in finding that
Plaintiff’s obesity, depression, and Chiari malformation were nonsevere impairments, the error is harmless.
The same is true of
his implicit conclusion that Plaintiff’s carpal tunnel syndrome
ALJ Dowling found that Plaintiff suffered from a
host of severe impairments, including cervical degenerative disc
disease, status post ACDF at C5-C6, cervical congenital fusion at
C6-C7, and hypertension.
As a result, ALJ Dowling was
obliged to continue his analysis, considering both severe and nonsevere
Reversal is therefore inappropriate on
Treating Source Opinions
To determine a plaintiff’s ability to perform past relevant
work, an ALJ is responsible for “evaluating the medical evidence
and the claimant’s testimony to form an assessment of [his]
residual functional capacity.”
Webb v. Comm’r of Soc. Sec., 368
F.3d 629, 633 (6th Cir. 2004) (internal quotations omitted).
RFC is an assessment of how the claimant’s “impairments, and any
related symptoms, such as pain, … cause physical and mental
limitations that affect what [he or she] can do in a work setting.”
20 C.F.R. § 404.1545(a)(1); 20 C.F.R. § 416.945(a)(1).
assessment is “based on all of the relevant medical and other
evidence” in the case record, including “statements about what
[the claimant] can still do that have been provided by medical
sources,” as well as descriptions of the claimant’s limitations
that have been provided by the claimant and his or her family
20 C.F.R. § 404.1545(a)(3); 20 C.F.R. § 416.945(a)(3).
Medical sources may be classified as treating sources, nontreating
404.1527(c); 20 C.F.R. § 416.927(c).
A treating source is a
“physician, psychologist, or other acceptable medical source who
… has, or has had, an ongoing treatment relationship” with the
controlling weight if the “opinion on the issue(s) of the nature
and severity of [the claimant's] impairment(s) is well-supported
techniques and is not inconsistent with other substantial evidence
in [his or her] case record.”
If the opinion is not entitled to controlling weight, the ALJ
must decide how much weight to give it by considering the length,
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.3
Although the ALJ will consider opinions from medical sources
requirements of an impairment in the Listing of Impairments, the
claimant’s RFC, the application of vocational factors, and the
determination of disability, opinions on such issues are not
Plaintiff describes Drs. Brooks, Khan, El-Naggar, and Dixit as treating
physicians. Although ALJ Dowling did not explicitly label them as such,
the Commissioner does not contest this characterization, and the Court
sees no reason to question it.
20 C.F.R. § 404.1527(d); 20 C.F.R. § 416.927(d).
In this case, ALJ Dowling offered the following analysis of
treatment notes and opinions rendered by William Brooks, M.D. and
Alam Khan, M.D.:
On June 1, 2006, William Brooks, M.D., noted that the
beneficiary complained of pain in his cervical spine
radiating into his upper extremities. Dr. Brooks noted
that neither epidural steroid injections nor physical
therapy had improved his pain. Dr. Brooks found that
the beneficiary had decreased range of motion of his
neck secondary to strength, but he retained good
(Exhibit 6F, 8-9).
A subsequent cervical myelogram
showed the presence of degenerative spur formation at
C5-6 on the right side.
Dr. Brooks prescribed the
beneficiary Lortab, Soma, and Naprosyn, along with
scheduling the beneficiary for surgery.
On June 30, 2006, the beneficiary underwent an
anterior cervical discectomy, interbody fusion at C5-6
(Exhibit 6F, 3).
On July 20, 2006, Dr. Brooks noted that the beneficiary
was quite pleased with the resolution of his upper
Dr. Brooks added that the
beneficiary’s x-ray looked excellent (Exhibit 7F, 5).
Later, on August 31, 2006, Dr. Brooks noted that the
beneficiary complained of numbness in both arms and the
back of his neck. However, a neurological examination
by Dr. Brooks produced entirely normal findings. Dr.
Brooks added that the beneficiary’s reflexes, sensation,
and strength were good and intact (Exhibit 7F, 3). A
subsequent cervical MRI on September 7, 2006, showed
some bony encroachment and narrowing at C5-6 and C6-7,
but the spinal canal was fairly well maintained (Exhibit
Later, on September 14, 2006, Alam Khan, M.D., examined
the beneficiary and noted that he complained of residual
problems after neck surgery.
He added that the
beneficiary has a history of hypertension.
found the beneficiary to have intact sensation, normal
muscle strength in his upper and lower extremities,
normal gait, and normal reflexes (Exhibit 9F, 16-18).
Subsequently, on January 15, 2007, the beneficiary did
not complain of neck pain to Douglas Irwin, M.D., and
Dr. Irwin noted that the beneficiary had good control of
his hypertension with medications (Exhibit 15F, 2). The
beneficiary did not seek significant treatment after
this visit during the relevant period.
Plaintiff complains that ALJ Dowling failed to consider
Dr. Brooks’s notes from August 31, 2006 and Dr. Khan’s notes from
April 26, 2006, as well as Dr. El-Naggar’s notes from March 6,
2006, and Dr. Dixit’s notes from September 23, 2006.
Contrary to Plaintiff’s suggestion, the above-cited passage
illustrates that ALJ Dowling considered Dr. Brooks’s notes from
August 31, 2006, which indicated that Plaintiff’s complaints of
pain were not consistent with examination findings.
for Dr. Khan, he opined that Plaintiff “should be considered at
Similarly, Dr. Rahul Dixit stated that Plaintiff “has improved
after his surgery but I am afraid not to the extent that he can be
specifically discuss these opinions, this does not necessarily
lead to the conclusion that he failed to consider them.
he was not required to afford these opinions any particular weight
because they pertained to issues reserved for the Commissioner.
The same is true of Dr. Amr El-Naggar’s suggestion that
Plaintiff should not lift more than 20 pounds.
opinion pertains to Plaintiff’s RFC, which is an issue reserved
for the Commissioner.
However, it appears that ALJ Dowling
ultimately incorporated Dr. El-Naggar’s suggested limitation into
Plaintiff’s RFC, so Plaintiff’s assertion that ALJ Dowling failed
to consider this treatment note is not well-taken.
In sum, the record indicates that ALJ Dowling gave due
consideration to all of the evidence in the record, including the
treatment notes specifically identified by Plaintiff, and weighed
those notes in accordance with the applicable regulations. Whether
this Court would have weighed the evidence as he did is immaterial.
Her, 203 F.3d at 389-90.
This aspect of his decision must be
As explained in the preceding section, the ALJ is responsible
“evaluating the medical evidence and the claimant’s testimony to
form an assessment of [his] residual functional capacity” and
determine his ability to do past relevant work.
633 (internal quotations omitted).
Webb, 368 F.3d at
The RFC is an assessment of
how the claimant’s “impairments, and any related symptoms, such as
pain, … cause physical and mental limitations that affect what [he
or she] can do in a work setting.”
20 C.F.R. § 404.1545(a)(1); 20
C.F.R. § 416.945(a)(1).
When evaluating a claimant’s symptoms, the ALJ must follow a
(July 2, 1996).
See Soc. Sec. Rul. 96-7p, 1996 WL 374186 at *4
First, he or she must consider whether there is
“a medically determinable physical or mental impairment that could
reasonably be expected to produce” the claimant’s pain or other
Once the existence of a medically determinable
functionally limiting effects of the symptoms must be evaluated to
determine the extent to which the symptoms affect the individual’s
ability to do basic work activities.”
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.”
Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007) (quoting
“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.”
The ALJ must then explain his or her decision with enough
specificity “to make clear to the individual and to any subsequent
reviewers the weight the adjudicator gave to the individual’s
statements and the reasons for the weight.”
Id. at 248.
assertions that the claimant is not believable will not suffice,
nor will credibility explanations “which are not consistent with
the entire record and the weight of the relevant evidence.”
That being said, reviewing courts must give great weight and
deference to the ALJ’s credibility determination.
ALJ Dowling provided the following assessment of Plaintiff’s
As stated above, the undersigned has determined that the
beneficiary had the following severe impairments:
cervical degenerative disc disease, status post ACDF at
C5-C6, cervical congenital fusion at C6-C7, and
hypertension. The beneficiary asserted that he could no
longer work due to constant pain in his neck and arms.
He further testified that he experienced numbness, which
was found to be caused by a pinched nerve. He stated
that he required a cervical fusion, but after a few
months his pain came back. He asserted that his surgeon
told him that his neck was a mess and he would not
beneficiary testified that his blood pressure problems
can cause decreased leg and arm functioning. He alleged
that his physical problems limited his abilities to
lift, squat, bend, stand, reach, walk, sit, kneel, and
stair climb (Exhibits 6E, 7E).
In terms of his activities of daily living, the
beneficiary stated that he lived with his wife and young
son, who he did not care for despite his wife working.
Yet, he admitted in his function report that he did try
to help with caring for his child (Exhibit 7E). He was
able to drive. He reported that he could slowly perform
all his personal care activities. He could also perform
light housework and yard work.
He shopped in stores
After careful consideration of the evidence, the
undersigned finds that the beneficiary’s medically
determinable impairments could reasonably be expected to
have caused the alleged symptoms; however, the
beneficiary’s statements concerning the intensity,
persistence and limiting effects of these symptoms are
not entirely consistent with the medical evidence and
other evidence in the record for the reasons explained
in this decision.
Turning to the medical evidence, the objective findings
in this case fail to provide strong support for the
bene3ficiary’s allegations of disabling symptoms and
limitations and they do not support the existence of
limitations greater than those reported in the above
residual functional capacity.
After reviewing the notes from Dr. Brooks and Dr. Khan, ALJ
Dowling further explained:
Overall, the examination findings detailed above
demonstrate that the beneficiary’s condition stabilized
and improved after surgery, resulting in improved
strength, sensation, and reflexes despite complaints of
Still, the undersigned restricts the
beneficiary to working at the light exertional level
despite the improvement.
Additionally, due to his
reports of arm numbness, the beneficiary should only
occasionally reach overhead as this could exacerbate his
condition. Similarly, in order to avoid aggravating his
impairments, the beneficiary should avoid concentrated
exposure to extreme cold and excessive vibration, as
well as performing more than frequent stooping,
kneeling, crouching, and crawling.
beneficiary must avoid exposure to unprotected heights
and the use of hazardous machinery due to his history of
hypertension. The undersigned notes that this residual
functional capacity is consistent with the beneficiary’s
ability to help care for his child and performing light
chores and yard work.
Thus, as discussed above, the objective medical evidence
does not provide a basis for finding limitations greater
than those determined in this decision. In addition,
consideration of the factors described in 20 CFR
404.1529(c)(3) & 416.929(c)(3) also leads to a
conclusion that the beneficiary’s subjective allegations
are not consistent with the evidence of record, and that
the residual functional capacity finding in this case is
Plaintiff complains that ALJ Dowling’s decision to discount
his credibility was not supported by substantial evidence.
making this argument, he observes that several treatment notes
discuss his complaints of severe pain.
As explained supra, it is
not the task of this Court to conduct a de novo review of the ALJ’s
decision or reweigh the evidence.
Cutlip, 25 F.3d at 286.
it does not matter whether there is evidence to support Plaintiff’s
This Court’s role is limited to determining whether ALJ
Her, 203 F.3d at 389-90.
The record indicates that ALJ
Dowling acknowledged these notes, but went on to explain that the
objective medical evidence and the medical opinion evidence in the
record were inconsistent with the extent and severity of his
Because this aspect of ALJ Dowling’s decision is
substantial evidence, affirmance is warranted.
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
Judgment [DE 13] be, and is, hereby DENIED;
The Commissioner of Social Security’s Motion for Summary
Judgment [DE 14] be, and is, hereby GRANTED; and
A Judgment shall be entered contemporaneously herewith.
This the 4th day of August, 2017.
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