Lawson v. SSA
MEMORANDUM OPINION & ORDER re 11 MOTION for Summary Judgment by Commissioner of SSA filed by Commissioner of SSA, 9 MOTION for Summary Judgment by Lorraine Lynne Lawson for remand to the Commissioner filed by Lorraine Lyn ne Lawson: Plaintiffs Motion for Summary Judgment be OVERRULED and the Defendant's Motion for Summary Judgment be SUSTAINED. A judgment in favor of the Defendant will be entered contemporaneously herewith.. Signed by Judge Henry R. Wilhoit, Jr on 4/13/2019.(JMB)cc: COR
illastarn District of Kemucky
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
Civil Action No. 17-91-HRW
APR 13 2018
ROBERT R. CARR
:::i_ERK U.S DISTRICT COURT
LORRAINE LYNNE LAWSON,
MEMORANDUM OPINION AND ORDER
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Plaintiff has brought this action pursuant to 42 U.S.C. §405(g) to challenge a final
decision of the Defendant denying Plaintiff's application for disability insurance benefits. The
Court having reviewed the record in this case and the dispositive motions filed by the parties,
finds that the decision of the Administrative Law Judge is supported by substantial evidence and
should be affirmed.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed her current application for disability insurance benefits in 2013, alleging
disability due to right foot and ankle pain (Tr. 179). This application was denied initially and on
reconsideration. Thereafter, upon request by Plaintiff, an administrative hearing was conducted
by Administrative Law Judge Dennis Hansen (hereinafter "ALJ"), wherein Plaintiff,
accompanied by counsel, testified. At the hearing, William Ellis, a vocational expert (hereinafter
"VE"), also testified.
At the hearing, pursuant to 20 C.F.R. § 416.920, the ALJ performed the following fivestep sequential analysis in order to determine whether the Plaintiff was disabled:
Step 1: If the claimant is performing substantial gainful work, he is not disabled.
Step 2: If the claimant is not performing substantial gainful work, his impairment(s) must
be severe before he can be found to be disabled based upon the requirements in 20 C.F.R.
Step 3: If the claimant is not performing substantial gainful work and has a severe
impairment (or impairments) that has lasted or is expected to last for a continuous period
of at least twelve months, and his impairments (or impairments) meets or medically
equals a listed impairment contained in Appendix 1, Subpart P, Regulation No. 4, the
claimant is disabled without further inquiry.
Step 4: If the claimant's impairment (or impairments) does not prevent him from doing
his past relevant work, he is not disabled.
Step 5: Even if the claimant's impairment or impairments prevent him from performing
his past relevant work, if other work exists in significant numbers in the national
economy that accommodates his residual functional capacity and vocational factors, he is
The ALJ issued a decision finding that Plaintiff was not disabled (Tr. 16-24). Plaintiff
was 49 years old at the time she alleges she became disabled. She has a high school education
(Tr. 179-180). Her past relevant work experience consists of various clerical and retail customer
service jobs. (Tr. 180).
At Step 1 of the sequential analysis, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since the alleged onset date of disability of August 2013 (Tr.18).
The ALJ then determined, at Step 2, that Plaintiff suffers from arthritis of back and knees,
bilateral carpal tunnel syndrome and post-surgery of her right ankle, which he found to be
"severe" within the meaning of the Regulations (Tr. 18-20).
At Step 3, the ALJ found that Plaintiff's impairments did not meet or medically equal any
of the listed impairments (Tr. 20). In doing so, the ALJ specifically considered Listing 1.02 but
concluded that because she was not impeded in her ability to ambulate or perform fine and gross
movements effectively, she was not presumptively disabled. (Tr. 20).
The ALJ further found that Plaintiff could not return to her past relevant work (Tr. 23)
but determined that she has the residual functional capacity ("RFC") to perform light work
(requiring lifting and carrying 20 pounds occasionally and 10 pounds frequently, see 20 C.F.R. §
404.1567(b) that involved standing and walking a total of four hours per eight-hour workday;
frequently stooping, kneeling, crouching, crawling, reaching, handling, fingering, feeling, and
climbing ramps and stairs; occasionally climbing ladders, ropes, and scaffolds; occasionally
being exposed to extreme cold, humidity, wetness, and vibration; never being exposed to
unprotected heights or moving machinery; and never operating a motor vehicle (Tr. 20).
The ALJ finally concluded that these jobs exist in significant numbers in the national and
regional economies, as identified by the VE (Tr. 23-24).
Accordingly, the ALJ found Plaintiff not to be disabled at Step 5 of the sequential
The Appeals Council denied Plaintiffs request for review and adopted the ALJ' s decision
as the final decision of the Commissioner . Plaintiff thereafter filed this civil action seeking a
reversal of the Commissioner's decision. Both parties have filed Motions for Summary
Judgment and this matter is ripe for decision.
A. Standard of Review
The essential issue on appeal to this Court is whether the ALJ' s decision is supported by
substantial evidence. "Substantial evidence" is defined as "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion;" it is based on the record as a
whole and must take into account whatever in the record fairly detracts from its weight. Garner
v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). If the Commissioner's decision is supported by
substantial evidence, the reviewing Court must affirm. Kirk v. Secretary of Health and Human
Services, 667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). "The court may
not try the case de novo nor resolve conflicts in evidence, nor decide questions of credibility."
Bradley v. Secretary of Health and Human Services, 862 F.2d 1224, 1228 (6th Cir. 1988).
Finally, this Court must defer to the Commissioner's decision "even if there is substantial
evidence in the record that would have supported an opposite conclusion, so long as substantial
evidence supports the conclusion reached by the ALJ." Key v. Callahan, 109 F.3d 270, 273 (6th
B. Plaintiff's Contentions on Appeal
Plaintiff contends that the ALJ' s finding of no disability is erroneous because: (1) the
ALJ improperly evaluated the opinion of her treating physician, Collin E. Ball, M.D. and (2) the
vocational findings are not based upon substantial evidence. Plaintiff seeks a remand of this
matter for the consideration of additional medical evidence submitted to the Appeals Council
after the ALJ's decision.
C. Analysis of Contentions on Appeal
Plaintiffs first claim of error is that the ALJ improperly evaluated the opinion of her
treating physician, Collin E. Ball, M.D.
When evaluating medical opinions, an ALJ considers numerous factors, including
whether the physician examined the claimant, whether the doctor treated the claimant, the
evidence the doctor presents to support his or her opinion, whether the doctor's opinion is
consistent with the record as a whole, and the doctor's specialty. 20 C.F.R. § 416.927( c).
Generally, a treating physician's opinion is entitled to more weight and an ALJ must give
good reasons for discounting the opinion. 20 C.F.R. §§ 416.902, 416.927(c)(2); See also,
Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013). If the opinion of the
treating physician as to the nature and severity of a claimant's conditions is "well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
other substantial evidence in [the] case record," then it will be accorded controlling weight.
Wilson, 378 F.3d at 544. When the treating physician's opinion is not controlling, the ALJ, in
determining how much weight is appropriate, must consider a host of factors, including the
length, frequency, nature, and extent of the treatment relationship; the supportability and
consistency of the physician's conclusions; the specialization of the physician; and any other
relevant factors. Id.
Although a physician's opinion about what a claimant can still do or the claimant's
restrictions may be relevant evidence, such opinions are not determinative because the ALJ has
the responsibility of assessing the claimant's RFC. 20 C.F.R. §§ 416.912(b)(2), 416.913(b)(6),
416.927(d)(2), 416.945(a)(3), 416.946( c).
The record shows that Plaintiff first saw Dr. Ball in early 2014. At that time, she had
been seeking treatment at Premier Orthopedic and Sports Medicine in London, Kentucky for
problems with her ankle. (Tr. 278). Dr. Ball examined her, reviewed her imaging tests, and
diagnosed "[r[ight ankle pain with failure of conservative treatment; probable loose body; distal,
medial and lateral malleolus with lateral collateral ligament, partial to full tear with complaints of
instability and abnormal talar tilt. Probable osteochondral defect subchondral cyst, right ankle."
In a follow up exam on February 18, 2014, Dr. Ball saw an MRI of the right ankle, and
believed it was "consistent with a subchondral cyst" [a sign of arthritis] in the talar dome. (Tr.
272). He also that there "is a questionable foreign body fragment" within the ankle, which he
thought was an "avulsion fragment." Id.
In a follow-up exam on April 1, 2014 he noted "marked tenderness overlying the
anteromedial, anterolateral ankle. Range of motion testing with inversion reveals some increasing
inversion with ligamentous laxity." (Tr. 270). He prescribed a cortisone injection. Id.
On April 29, 2014, Plaintiff again visited Dr. Ball, who noted that "She has marked
antalgia [limping] to the extremity/limp with a walking cane." (Tr. 269).
On June 17, 2014, Dr. Ball and Plaintiff agreed that she would undergo "arthroscopy
with synovectomy, [and] removal of medial ankle avulsion." In order to relieve the inflamed and
irritated synovial membranes and/or linings of the joint (Tr. 293).
Dr. Ball performed the surgery on June 27, 2014. (Tr. 284-285). He found an "ankle joint
capsule hemorrhage with associated synovium," as well "diffuse arthritic degenerative change
with cartilaginous fibrillation seen." (Tr. 285). He removed the avulsion fracture fragments and
repaired the torn deltoid ligament. Id.
Following the surgery, Plaintiff was remained in a wheelchair, with "strict
nonweightbearing" restrictions until early August 2104. (Tr. 289-290). She continued to use a
cane throughout 2014. (Tr. 378-3790.
Plaintiff continued to see Dr. Ball into 2015. On February 12, 2015, he noted that she
still used her brace and a "walking cane as needed." (Tr. 411).
On April 23, 2015, she was given cortisone injection into the ankle. Dr. Ball's plan for his
patient on that day was as follows:
She was contemplating possible ankle procedure for alleviation o
her chronic right ankle pain/arthrosis. I previously went over the
treatment options with her that at this time I do not feel she is a
candidate for which would be best suited with her weight, small
size and normal activity, which will be ankle replacement. I would
like her to be over the age of 55 before she considers this due to the
life span of the replacement.
At her June 18, 2015 visit, Dr. Ball noted that Plaintiff continued to have degenerative
arthritis in her right ankle with plantar fasciitis and heel spur syndrome, and was treating with
topical NSAIDs (nonsteroidal anti-inflammatory drugs) and using a brace (Tr. 411-16).
In April 2014, Dr. Ball completed a questionnaire in which he opined that, due to
Plaintiffs right ankle problems, she could lift and carry up to 10 pounds and occasionally lift and
carry less than 10 pounds; could stand and walk less than three hours in an eight-hour workday;
sit an unlimited amount of time; should not use her right leg to operate foot controls; could
occasionally balance and climb; and could never stoop, kneel, crouch, crawl, or bend (Tr. 268).
The ALJ discounted Dr. Ball's opinion of dire physical limitation. The ALJ found that
the opinion was conclusory, inconsistent with the record as a whole and unsupported by any
narrative opinion. (Tr. 22).
The Court agrees. The "opinion" is nothing more than a check-the-box-form with no
accompanying narrative which could have provided support for Dr. Ball's extreme assessment.
Further, as the ALJ noted, Dr. Ball's opinion was internally inconsistent: he opined that Plaintiff
could lift and carry 10 pounds frequently, but also that Plaintiff could only lift less than 1O
pounds occasionally. The ALJ suggested that perhaps Dr. Ball did not pay great attention when
authoring his opinion. Plaintiff argues that the ALJ misinterpreted Dr. Ball's opinion in this
respect (and that the "X" intended to exclude those portions of the opinion). Even if this reading
is correct, the opinion could best be described as ambiguous which lends credence to the ALJ' s
decision to discount it.
Finally, the ALJ found that the severe limitations assessed by Dr. Ball were inconsistent
with his own relatively conservative treatment following Plaintiffs right ankle surgery,
consisting of topical NSAIDs, a brace, and steroid injections if needed.
Plaintiff takes issue with the ALJ's notation that a right ankle MRI showed only "minimal
degenerative changes," arguing that the radiologist's reading of the MRI (Tr. 267) is less
persuasive than Dr. Ball's reading of the same MRI the next day (Tr. 272). Again, at most,
Plaintiffs argument suggests ambiguity.
In sum, the ALJ' s decision makes clear that he considered the entire record and assessed a
residual functional capacity that was in line with the record as a whole, including Dr. Brown's
opinion, but that Dr. Ball's opinion was unsupported by any narrative explanation, internally
inconsistent, and inconsistent with his own treatment notes and therefore reasonably rejected it.
To the extent that Plaintiff suggests that this evidence is open to another interpretation
that favors her claim, the Court declines to reweigh the evidence in this fashion. If the
Commissioner's decision denying benefits is supported by substantial evidence, as it is here, the
Court must affirm that decision. Longworth v. Commissioner of Social Security, 402 F.3d 591,
595 (6th Cir. 2005). Even if substantial evidence exists to support Plaintiffs claim, the Court
should still affirm the Commissioner's decision because it is supported by substantial evidence.
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001); see also Smith v. Chafer, 99 F.3d 780, 782
(6th Cir. 1996) (even ifthe Court would have decided the matter differently than the ALJ, if
substantial evidence supports the ALJ's decision, it must be affirmed.)
Plaintiffs second claim of error is that the vocational findings are not based upon
substantial evidence. First, she asserts that the jobs cited by the VE are not available in
Kentucky. However, testimony regarding the local job market is not required. The Sixth Circuit,
has rejected such arguments, holding that the relevant inquiry is the number of jobs available in
the national economy and that "[t]he Commissioner is not required to show that job
opportunities exist within the local area." Harmon v. Apfel, 168 F.3d 289, 292 (6th Cir. 1999).
Plaintiff also argues that the Dictionary of Occupational Titles ("DOT") upon which the
VE relied in his testimony is outdated. While this may be true, the current law in this regard
permits a VE to refer to and rely upon the DOT as a source of reliable job information for
determining disability claims and as suitable for administrative notice. See 20 C.F.R. §
404.1566(d); 20 C.F.R. Part 404, Subpart P, App. 2, § 200.00(b). Under the current law, the ALJ
was permitted to rely upon the VE's testimony which cited the DOT.
Finally, Plaintiff maintains that the ALJ's questioning to the vocational expert was
confusing. However, a review of the transcript reveals that in posing the hypothetical question to
the VE, the ALJ tracked the assessed residual functional capacity verbatim and, further, the VE
did not ask for clarification. Rather, the hypothetical posed accurately portray the RFC as
formulated based upon the objective medical evidence, which is all that is required. See Varley
v. Secretary ofHealth and Human Services, 820 F.2d 777 (6th Cir. 1987) As such, the Court
finds that the ALJ's RFC and findings based upon the VE's testimony are supported by
substantial evidence in the record.
Finally, Plaintiff seeks a remand of this matter for the consideration of additional medical
evidence submitted to the Appeals Council after the ALJ's decision. Specifically, Plaintiff
argues that evidence which purports to document a diagnosis of scleroderrna should be
considered in determining whether she is disabled.
Sentence six of 42 U.S.C. §405(g) provides:
The court ... may at any time order additional evidence be taken
before the Commissioner of Social Security, but only upon a
showing that there is new evidence which is material and that there
is good cause for the failure to incorporate such evidence into the
record in a prior proceeding.
42 U.S.C. §405(g).
Therefore, the limited circumstances under which remands are permitted arise when the
party seeking remand shows that: (1) there is new, non-cumulative evidence: (2) the evidence is
"material" - i.e., both relevant and probative, so that there is a reasonable possibility that it would
change the administrative result; and, (3) there is good cause for failure to submit the evidence at
the administrative level. Willis v. Secretary of Health and Human Services, 727 F.2d 551, 554
(6th. Cir. 1984). While it is not, generally, difficult for a party seeking remand to show that
evidence is new, it is, generally, onerous to demonstrate that the new evidence is material.
Here, the evidence Plaintiff claims warrants a sentence six remand post-dates the ALJ's
hearing decision. Therefore, this new evidence does not persuasively relate to the relevant time
period before the Court in this case, is not material and remand is not warranted.
The Court finds that the ALJ' s decision is supported by substantial evidence on the
record. Accordingly, it is HEREBY ORDERED that the Plaintiffs Motion for Summary
Judgment be OVERRULED and the Defendant's Motion for Summary Judgment be
SUSTAINED. A judgment in favor of the Defendant will be entered contemporaneously
Henry R. Wilhoit. Jr.
United States District Judge
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