Halcomb v. SSA

Filing 15

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 Judgment (Doc. # 12 ) is hereby DENIED;(3) Defendant's Motion for Summary Judgment (Doc. # 14 ) is hereby GRANTED; and (4) A Judgment in favor of Defendant Commissioner will be entered contemporaneously herewith. Signed by Judge David L. Bunning on 01/11/2018.(KJA)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 17-36-DLB
CARL EUGENE HALCOMB
vs.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security
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DEFENDANT
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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, will affirm the Commissioner’s decision.
I.

FACTUAL AND PROCEDURAL BACKGROUND
On January 22, 2014, Plaintiff Carl Eugene Halcomb applied for disability

insurance benefits (DIB) and supplemental security income (SSI), alleging disability
beginning on December 6, 2012. (Tr. 198-202; 203-212). Plaintiff’s application was
denied initially, and again on reconsideration.

(Tr. 84-101; 106-125).

At Plaintiff’s

request, an administrative hearing was conducted on November 12, 2015, before
Administrative Law Judge (ALJ) Peter Jung. (Tr. 55-82). On December 15, 2015, ALJ
Jung ruled that Plaintiff was not entitled to benefits. (Tr. 38-49). This decision became
the final decision of the Commissioner on December 13, 2016, when the Appeals Council
denied Plaintiff’s request for review. (Tr. 1-7).

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Plaintiff filed the instant action on February 16, 2017, alleging the ALJ’s decision
was not supported by substantial evidence, contrary to law, and applied the incorrect
standards.

(Doc. # 3).

The matter has culminated in cross-motions for summary

judgment, which are now ripe for adjudication. (Docs. # 12 and 14).
II.

DISCUSSION
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 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 has engaged in substantial gainful activity; Step Two, whether any

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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 his 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 claimant 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).
B.

The ALJ’s Determination

At Step One, the ALJ found that the Plaintiff has not engaged in substantial gainful
activity since December 6, 2012, the alleged onset date of disability. (Tr. 40). At Step
Two, the ALJ determined that the Plaintiff has the following severe impairments: gouty
arthritis; lumbar impairment with pain; and osteoarthritis of the knees, left shoulder, and
left elbow. Id. The ALJ determined that the Plaintiff’s alleged anxiety and depression
were non-severe impairments because they did not cause “more than minimal limitation
in [his] ability to perform basic mental work activities.” Id. At Step Three, the ALJ
concluded that Plaintiff does not have an impairment or combination of impairments that
meet or medically equal one of the listed impairments in 20 C.F.R. § 404, Subpart P,
Appendix 1. (Tr. 41).
At Step Four, the ALJ found that the 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), with the following, additional limitations:

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[L]ifting and carrying ten pounds frequently and twenty pounds occasionally;
pushing/pulling limited to less than [twenty] pounds with left upper extremity;
stand and walk six hours in an eight hour workday, and sit six hours in an
eight hour workday; occasionally climb ramps and stairs, but never climb
ropes, ladders or scaffolds, and occasionally balance, stoop, kneel, crouch,
and crawl; frequently reach overhead, laterally, or in front with his left upper
extremity; avoid frequent exposure to extreme cold, wetness, vibration,
dust, odors, fumes, poor ventilation, or gases; avoid all exposure to heights,
machinery and hazards.
(Tr. 41-42). Based on this RFC and relying on the testimony of a vocational expert (VE),
the ALJ concluded that Plaintiff was unable to perform his past relevant work as a heavyequipment operator and plant operator. (Tr. 47). Thus, the ALJ proceeded to Step Five,
where he determined that there were other jobs that existed in significant numbers in the
national economy that the Plaintiff could perform. (Tr. 48-49). Accordingly, the ALJ ruled
that Plaintiff was not under a disability, as defined in the Social Security Act. (Tr. 49).
C.

Analysis

Plaintiff advances two arguments in his Motion for Summary Judgment. (Doc. #
12). First, Plaintiff claims that the ALJ erred in weighing the medical opinion testimony.
Id. at 10-13. Second, Plaintiff argues that the determination that [he] is not disabled is
not supported by substantial evidence. Id. at 13-14. The Court will consider each
argument in turn.
1.

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.; Abney v. Astrue, No. 5:07-cv-394-

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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, while a non-examining source has provided medical or
other opinion evidence in the case without examining the claimant. Id.
Plaintiff takes issue with the ALJ’s decision to give little weight to the testimony of
Doctor Robert Hoskins and Physical Therapist William Andrews, both non-treating
sources. (Doc. # 12 at 10-13). Relatedly, Plaintiff claims that it was error for the ALJ to
accord greater weight to the State Agency Medical Consultants, who are non-examining
sources. Id.
a.

Non-Treating Sources

Unlike testimony from a treating source, the medical opinion evidence from a nontreating source is usually not entitled to controlling weight. 20 C.F.R. § 404.1527(c)(2).
When determining how much weight to accord a non-treating physician’s opinion, the ALJ
is guided by five factors: (1) the length of the treatment relationship and the frequency of
the examination; (2) the nature and extent of the treatment relationship; (3) supportability
of the opinion; (4) consistency of the opinion with the record as a whole; and (5) the
specialization of the treating source. 20 C.F.R. § 404.1527(d)(2); Davenport v. Astrue,
No. 3:06-cv-402, 2008 WL 641131 at *6 (S.D. Ohio Mar. 4, 2008). The ALJ reserves the
right to evaluate the claimant’s RFC and to apply vocational factors.

20 C.F.R. §

404.1527(d)(2). However, the ALJ must give his reasons for the weight he assigns each
medical opinion. SSR 96-5p, 1996 WL 362206 (July 2, 1996).

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i.

Doctor Robert Hoskins

Doctor Hoskins, a non-treating source, conducted a consultative physical
examination of Plaintiff on April 27, 2015. (Tr. 544-546). Doctor Hoskins “observed a
trace of rhonchi in the lungs, swelling of the PIP joints, and some loss of grip strength.”
(Tr. 44; Tr. 545). Additionally, there was “swelling in the right great toe, thirty degrees of
hallux valgus on the right foot, crepitus in the knees, a slight decrease in abduction of the
right shoulder, and difficulty with extension of the left shoulder.” Id. Doctor Hoskins also
completed a “Medical Assessment of Ability to Do Work-Related Activities” and proposed
a number of work-related limitations.

(Tr. 545-546; 547-550).

Specifically, Doctor

Hoskins suggested severe limitations in lifting and carrying, ambulation, standing,
reaching and handling, and pushing and pulling. Id. To support such limitations, Doctor
Hoskins stated:
The patient’s medical findings that support this assessment is that he is
uncomfortable in the chair in the office. He sat for roughly 40 minutes and
changed positions intermittently. It is also supported due to the history of
chronic lumbago, along with disc bulging and bone spurring in the lumbar
spine.
(Tr. 545). Doctor Hoskins also opined that Plaintiff should not climb, balance in situations
where a fall would be particular dangerous, and could rarely stoop, crouch, kneel, or
crawl. (Tr. 546). With respect to Plaintiff’s mental ability, Doctor Hoskins found that
Plaintiff “had difficulty remembering” and “might be a slow learner” and opined that
Plaintiff’s “depressive illness will likely limit his ability to learn new tasks, complete tasks,
limit productivity and several issues may lead to unexplained absenteeism.” Id.
The ALJ gave Doctor Hoskins’s opinion evidence little weight. (Tr. 47). The ALJ
determined that Doctor Hoskins’s opinions contained “much more limited physical

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abilities” than the objective medical evidence supported and conflicted with the record
evidence as a whole. Id. Specifically, the ALJ explained that Doctor Hoskins’s opinions
conflicted “with evidence in treatment notes describing a very good level of activities of
daily living as well as the limited medical signs and findings in the treatment notes showing
much less wrong with claimant, and indications that [Plaintiff’s] pain is controllable with
prescription pain medication.” Id. Similarly, the ALJ gave little weight to Doctor Hoskins’s
opinions regarding Plaintiff’s mental limitations “in light of little or no evidence of treatment
for mental and emotional impairments, the mental status examinations in treatment notes
showing intact memory, judgment and insight and normal mood and affect, and [Plaintiff’s]
good level of activities of daily living, all of which suggest that [Plaintiff] has no severe
mental and emotional impairments.” Id.
Because the ALJ detailed his reasons for giving Doctor Hoskins’s opinions little
weight in accordance with 20 C.F.R. § 404.1527(c), the Court finds no error in the ALJ’s
treatment of Doctor Hoskins’s medical opinions.
ii.

Physical Therapist William Andrews

Physical Therapist William Andrews, a non-treating source, conducted a functional
capacity examination of Plaintiff on February 11, 2015. (Tr. 541-543). Mr. Andrews
observed that the Plaintiff “demonstrated signs of physical distress relative to both the
lower back and the left upper extremity” during testing. (Tr. 542). Mr. Andrews also noted
a number of range of motion and strength deficits, including Plaintiff’s inability “to grab or
grasp even very light objects for the purpose of either material manipulation or body
positioning,” “difficulty with reaching out to the side,” inability “to reach behind his body,”
inability “to perform most material handling” when “reaching below knee height” and

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“reaching above forehead height or anywhere out to the left side of his body.” Id. Mr.
Andrews also noted that the Plaintiff experienced pain “during most testing procedures,”
which “remained at most times above level 6/10, which would additionally limit both
monetary work ability, as well as the ability to sustain work over any significant portion of
a normal work shift.” (Tr. 543).
The ALJ accorded Mr. Andrews’s opinion evidence little weight. (Tr. 47). As with
Doctor Hoskins’s opinions, the ALJ determined that Mr. Andrews’s opinions contained
“much more limited physical abilities” than the objective medical evidence supported and
conflicted with the record evidence as a whole. Id. Specifically, the ALJ explained that
Mr. Andrews’s opinions conflicted “with evidence in treatment notes describing a very
good level of activities of daily living as well as the limited medical signs and findings in
the treatment notes showing much less wrong with claimant, and indications that
[Plaintiff’s] pain is controllable with prescription pain medication.” Id.
Because the ALJ considered the appropriate factors and detailed his reasons for
giving Mr. Andrews’s opinions little weight in accordance with 20 C.F.R. § 404.1527(c),
the Court finds no error in the ALJ’s treatment of Mr. Andrews’s medical opinions.
b.

Non-Examining Sources

Despite the Plaintiff’s argument to the contrary, the ALJ did not err by according
greater weight to the State Agency Medical Consultants, Doctor Jack Reed and
Psychiatrist Jessy Sadovnik. Generally, the Commissioner will “give more weight to the
opinion of a source who has examined [the Plaintiff] than to the opinion of a source who
has not examined him.” Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010).
However, “[i]n appropriate circumstances, opinions from State agency medical …

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consultants … may be entitled to greater weight than the opinions of treating or examining
sources.” SSR 96-6p, 1996 WL 374180, *3 (July 2, 1996); See Norris v. Comm’r of Soc.
Sec., 461 F. App’x 433, 439 (6th Cir. 2012) (“So long as the ALJ’s decision adequately
explains and justifies its determination as a whole, it satisfies the necessary requirements
to survive this court’s review. Accordingly, we conclude that the ALJ did not err in
assigning greater weight to the opinions of the nonexamining consultants.”); Durrette v.
Comm'r of Soc. Sec., No. 94-3734, 1995 WL 478723, at *3-4 (6th Cir. 1995) (concluding
that it was proper for the ALJ to give greater weight to the reviewing doctors’ opinions
because the treating physician’s opinion was conclusory, not supported by objective
evidence, and controverted by other medical opinion testimony).
Here, the ALJ accorded great weight to the opinions of Doctor Jack Reed and
Psychiatrist Jessy Sadovnik, the State Agency Medical Consultants. (Tr. 47). In doing
so, the ALJ explained that those opinions were “consistent with the overall evidence in
the record.” Specifically, the ALJ detailed the consistencies between the State Agency
Medical Consultants’ opinions and the objective medical evidence, which demonstrated
that Plaintiff was “doing well with medication” and his current pain-management regimen,
and was supported by his activities of daily living, which included yard work.

Id.

Therefore, the “ALJ’s decision to place more weight on the conclusions of [the State
Agency Medical Consultants] than those of [the non-treating examining sources] is
supported by substantial evidence.” Ealy, 594 F.3d at 515.
2.

The ALJ’s RFC findings are supported by substantial evidence.

A RFC is “an administrative assessment of the extent to which an individual’s
medically determinable impairment(s), including any related symptoms, such as pain,

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may cause physical or mental limitations or restrictions that may affect his or her capacity
to do work-related physical and mental activities.” SSR 96-8p, 61 Fed. Reg. 34474,
34475 (July 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)).
The Plaintiff generally complains that the ALJ’s RFC determination is not
supported by substantial evidence. (Doc. # 12 at 13-15). In support of this vague
complaint, the Plaintiff advances two arguments. Each argument will be address in turn.
First, the Plaintiff argues that the ALJ’s “selective inclusion of only portions of the
pertinent evidence which cast [him] in an unfavorable light was improper.” Id. at 13. This
argument amounts to an allegation that the ALJ cherry-picked evidence to support his
RFC finding. Such an “allegation is seldom successful,” however, “because crediting it
would require a court to re-weigh record evidence.” DeLong v. Comm’r of Soc. Sec., 748
F.3d 723, 726 (6th Cir. 2014). That is not the role of this Court. “When deciding under
42 USC § 405(g) whether substantial evidence supports the ALJ’s decision, [courts] do
not try the case de novo, resolve conflicts in evidence, or decide questions of credibility.”
Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
Despite the “quite deferential” standard of review, the ALJ must still make all
determinations “based upon the record in its entirety.” Rogers v. Comm’r of Soc. Sec.,

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486 F.3d 234, 249 (6th Cir. 2007). When constructing a claimant’s RFC, the ALJ must
take into account all relevant medical and other evidence. 20 C.F.R. § 404.945(3).
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.”
Rogers, 486 F.3d at 249. 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.
Here, the ALJ took all relevant medical evidence into account.

The ALJ

methodically examined the entirety of the record when assessing Plaintiff’s RFC. (Tr. 4147). The ALJ explained the guidelines for evaluating Plaintiff’s symptoms and then
detailed his reasoning for concluding that Plaintiff’s subjective complaints were “not
entirely credible.” (Tr. 42). The ALJ detailed Plaintiff’s medical history and evaluated all
objective medical evidence and explained his reasoning for weighing the medical opinion
testimony of each source. (Tr. 42-47). The ALJ also considered Plaintiff’s work history
and his reported activities of daily living. Id.
The Plaintiff points to no helpful evidence that the ALJ ignored. While the ALJ
weighed the evidence contrary to how the Plaintiff preferred, the ALJ did not “fail[ ] to
mention” or “analyze” the “evidence in the record.” Minor v. Comm’r of Soc. Sec., 513 F.
App’x 417, 436 (6th Cir. 2013). Thus, the ALJ did not engage in any type of improper
cherry-picking. Instead, he properly considered the record as a whole. Accordingly, the
Court finds no error in the scope of the ALJ’s analysis.

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Second, the Plaintiff claims that “it was improper for the [ALJ] to ignore the
claimant’s physical restrictions and his marked mental limitations.” (Doc. # 12 at 14).
Relatedly, the Plaintiff claims that “based on [his] physical and psychological conditions,
[he] should have been found disabled.” Id. Of course, it does not matter if substantial
evidence does support his disability, so long as it also supports a finding of “not disabled.”
Her, 203 F.3d at 389-90 (holding that “[e]ven if the evidence could also support another
conclusion, the decision of the Administrative Law Judge must stand if the evidence could
reasonably support the decision reached”) (citing Key v. Callahan, 109 F.3d 270, 273 (6th
Cir. 1997)); see also Listenbee, 846 F.2d at 349. As a result, it does not matter if Plaintiff,
or even this Court, believes substantial evidence supports a different disability
determination. All that is required of the ALJ is that he render a decision that is supported
by substantial evidence. The ALJ has done so here.
At Step Four of the analysis, the ALJ carefully reviewed the record and found that
the Plaintiff was capable of doing light work with the additional limitations specified. (Tr.
41-42). The ALJ incorporated supported physical limitations, detailed why other physical
and mental limitations were not incorporated, considered the objective medical evidence,
and properly discounted Plaintiff’s subjective symptoms to the extent that they lacked
credibility. (Tr. 42-47). Because the ALJ incorporated the limitations that he found
credible in the RFC and properly weighed the medical opinion testimony, there is no error.
Therefore, substantial evidence supports the ALJ’s determination that Plaintiff was not
disabled.

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III.

CONCLUSION
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
substantial evidence.
Accordingly, for the reasons stated herein, IT IS ORDERED as follows:
(1)

The decision of the Commissioner is found to be supported by substantial

evidence and is hereby AFFIRMED;
(2)

Plaintiff’s Motion for Summary Judgment (Doc. # 12) is hereby DENIED;

(3)

Defendant’s Motion for Summary Judgment (Doc. # 14) is hereby

GRANTED; and
(4)

A Judgment in favor of Defendant Commissioner will be entered

contemporaneously herewith.
This 11th day of January, 2018.

K:\DATA\SocialSecurity\MOOs\London\17-36 Halcomb MOO.docx

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