McQueen v. SSA

Filing 17

MEMORANDUM OPINION & ORDER : IT IS ORDERED that Plaintiff's motion for summary judgment (DE 12 ) be, and the same hereby is, DENIED and the Commissioner's motion for summary judgment be, and the same hereby is, GRANTED. A separate judgment in conformity herewith shall this date be entered. Signed by Judge Joseph M. Hood on 7/12/18.(SYD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
JUNELL NICOLE MCQUEEN,

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)
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Plaintiff,
V.
Acting Commissioner of
Social Security,
Defendant.

Civil No. 6:17-CV-236

MEMORANDUM OPINION AND ORDER

****
Junell Nicole McQueen 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 denying her claim
for

disability

insurance

benefits

(DIB).

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

Id.

Courts are not to conduct a de novo review,
1

resolve

conflicts

determinations.

Id.

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

2014,

Plaintiff

filed

an

application

for

disability

insurance benefits (DIB), alleging disability beginning September
2009 (Tr. 282-83). However, because a prior application was denied
by an administrative law judge (ALJ) on September 12, 2012 (Tr.
152-64), which Plaintiff appealed to the district court and lost
2

(Tr. 174), her claims for benefits prior to September 12, 2012 are
barred by res judicata (Tr. 19). Thus, the Court will not consider
the significant portions of Plaintiff’s brief devoted to the time
period prior to September 12, 2012.

Her current application was

denied initially and on reconsideration (Tr. 175, 190).

Plaintiff

then exhausted her administrative remedies before the Commissioner
(Tr. 40-82 (hearing), 19-32 (ALJ decision), 1-4 (Appeals Council’s
denial of review of ALJ decision)).
Plaintiff was 30 years old on September 12, 2012 (the earliest
date she could be found disabled) and 31 years old on December 31,
2013, her date last insured (and the date by which she must
establish disability for purposes of DIB) (Tr. 22, 282). See Social
Security Ruling (SSR) 83-20, 1983 WL 31249, at *1 (in order to
receive DIB benefits a claimant must show that she had insured
status

during

the

same

establishes disability).

time

period

in

which

the

evidence

She completed high school and two years

of college (Tr. 300) and worked in the past as a petty officer in
the United States Navy, a care provider, a legal assistant, a
youthworker, and a transaction processor (Tr. 301). She quit
working in September 2009 (Tr. 299).
Plaintiff claims disability due to back problems, anxiety,
arthritis, hand problems, right leg pain, a fast heart rate
(tachycardia), restless leg syndrome, chronic fatigue syndrome,
and knee pain (Tr. 299).
3

The record shows very little diagnosis or treatment during
the relevant time period.

Plaintiff sought treatment in March

2013 and September 2013 for shortness of breath and was diagnosed
with

bronchitis

treatment

from

(Tr.
the

531-35,

583-607,

Department

of

1116-28).

Veteran’s

She

Affairs

sought

(VA)

in

September 2013 for chest pain and pressure (Tr. 715-20) and for
throat and abdominal pain (Tr. 704-10, 712-13, 730-32).

She also

sought mental health treatment from the VA in mid- to late-2013
and was diagnosed with anxiety (Tr. 637-49, 702-03, 710-12, 72022).
In May 2014, state agency psychologist Dan Vandivier, Ph.D.,
reviewed Plaintiff’s medical records and found that she had some
moderate

mental

work-related

limitations

but

agreed

with

the

September 2012 ALJ’s decision that Plaintiff retained the ability
to understand, remember, and carry out simple and some detailed
instructions in an object-focused environment (Tr. 185-87, see Tr.
158). Another state agency psychologist, Laura Cutler, Ph.D.,
later agreed (Tr. 202-04). Also in May 2014, Donna Sadler, M.D.,
reviewed Plaintiff’s medical records and agreed with the September
2012 ALJ’s decision that Plaintiff could perform a range of light
work with no climbing ladders, ropes, or scaffolds; no more than
frequent
climbing

kneeling,
ramps

stooping,

and

crouching,

stairs,

handling,

crawling,
and

balancing,

fingering;

no

concentrated exposure to temperature extremes and vibration; and
4

a sit/stand option (Tr. 185, see Tr. 158). Another state agency
physician, Jack Reed, M.D., agreed (Tr. 202).
Pertinent to Plaintiff’s arguments on appeal, the VA assigned
Plaintiff a 50% VA disability rating in early 2011 (Tr. 1339-43)
and a 70% VA disability rating at some point later (Tr. 364 (notice
dated January 8, 2016)).

In June 2015—two and a half years after

the date by which Plaintiff had to establish disability—a VA nurse
wrote that Plaintiff’s anxiety, post-traumatic stress disorder
(PTSD), chronic fatigue syndrome, headaches, degenerative disc
disease,
syndrome,

asthma,
and

hypothyroidism,

palpitations

gastric

limited

her

ulcer,
ability

restless
to

leg

perform

activities of daily living and maintain employment (Tr. 867).
After review of the record, the ALJ determined that, during
the relevant time period from September 2012 through December 2013,
Plaintiff had degenerative disc disease of the lumbar spine with
mid disc protrusion, history of bilateral patellofemoral syndrome
with tendonitis (knee pain), a history of hypoplastic thumb postsurgery, anxiety, and pain disorder (Tr. 22). The ALJ found that,
despite these impairments, Plaintiff could lift and carry 20 pounds
occasionally and 10 pounds frequently; could stand and walk six
hours out of an eight-hour workday and sit six hours; could
frequently kneel, stoop, crouch, crawl, balance, climb ramps and
stairs, and handle and finger; could never climb ladders, ropes,
or scaffolds; should avoid concentrated exposure to temperature
5

extremes and vibration; required a sit/stand option every hour;
and was limited to performing simple and some detailed instructions
in an object-focused environment (Tr. 25). The ALJ went on to find
based on vocational expert testimony (see Tr. 73-76) that Plaintiff
could perform her past work as a mailroom clerk as it was generally
performed as well as three other representative jobs existing in
significant numbers in the national economy (Tr. 31). Thus, the
ALJ found that Plaintiff was not disabled under the Social Security
Act (Act) (Tr. 31-32).
III.
(1)

VA Disability Determination

Plaintiff argues that she was more limited than the ALJ found
because of her 70% VA disability rating.
VA disability ratings are based on VA criteria for disability,
Deloge v. Comm’r of Soc. Sec. Admin., 540 F. App’x 517, 519 (6th
Cir.

2013)

distinct

(unpublished)

criteria

determination

would

to

(“The

assess

not

VA

relies

disability,

have

controlled

on

independent

however,
whether

and

and

its

Deloge

was

eligible for Social Security disability benefits.”), whereas the
Act’s

criteria

for

disability

do

not

contemplate

degrees

of

disability or allow for an award of benefits based on partial
disability. See Clark v. Sullivan, 891 F.2d 175, 177 (7th Cir.
1989).

6

Here, the ALJ considered Plaintiff’s 70% disability rating
(see Tr. 364), but found that it was not persuasive evidence that
Plaintiff

was

disabled

under

the

Act’s

standards

or

even

inconsistent with a finding that she was not disabled under the
Act (Tr. 28-29).
utilized

by

different”

the
and

The ALJ noted that the determination process
VA

and

the

Commissioner

were

that

the

VA

determination

did

“fundamentally
not

include

a

“function-by-function assessment of an individual’s capabilities”
as the ALJ was required to make in the form of a residual functional
capacity assessment (Tr. 29).

Additionally, the ALJ noted that

the VA rating was not binding on the Commissioner’s determination
(Tr. 29).
throughout
medical

See 20 C.F.R. § 404.1504.
the

records

residual
and

functional

examination

As the ALJ discussed

capacity

findings

assessment,

failed

to

the

support

Plaintiff’s claims regarding the severity of her impairments (Tr.
25-29).

For these reasons, the ALJ found that the 70% VA rating

was “not probative” and did not shed light on Plaintiff’s workrelated functioning (Tr. 29). It was reasonable for the ALJ to
consider, but not rely on, the VA disability rating as evidence of
Plaintiff’s disability under the Act’s standards. See Ritchie v.
Comm’r

of

Soc.

Sec.,

540

F.

App’x

508,

510

(6th

Cir.

2013)(unpublished) (“We have held that a disability rating from
the [VA] is entitled to consideration, but we have not specified
the weight such a determination should carry when determining
7

social security disability eligibility.”); see also Fisher v.
Shalala, 41 F.3d 1261, 1262 (8th Cir. 1994) (“There is no support
for Fisher’s contention that his sixty-percent service-connected
disability rating equates with an inability to engage in any
substantial gainful activity under social security standards.”).
Plaintiff conceded in her brief that the VA’s determination is
“persuasive,

but

Administration.”

not

binding

(Pl.’s Br. 23).

on

the

Social

Security

For the reasons stated herein,

the ALJ did not find it determinative of the Plaintiff’s workrelated functionality for social security disability purposes.
(2)

Medical Opinions

Plaintiff further claims that “the overwhelming weight of
treating and examining physician opinions prove” her disability,
but she does not cite to any such opinions.

(Pl.’s Br. 24-26).

Plaintiff cites applicable case law, but does not cite any facts
in her specific case to which the cited law would apply.

Indeed,

the only acceptable medical source opinions of record are authored
by state agency doctors and are in line with the ALJ’s residual
functional capacity assessment (compare Tr. 25 with Tr. 185-87,
202-04 (citing Tr. 158)). See 20 C.F.R. § 404.1527(d)(2)(i)(state
agency

medical

consultants

“are

highly

qualified

physicians,

psychologists, and other medical specialists who are also experts
in Social Security disability evaluation”). The only other medical
source opinion is from a nurse practitioner (a non-acceptable
8

medical source) and is from two and a half years after the date by
which

Plaintiff

had

to

establish

disability

(see

Tr.

867).

Plaintiff does not mention this opinion in her argument and has
thus waived any arguments pertaining to it. 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.”).

Even so, the ALJ recognized the nurse

practitioner’s opinion and afforded it some weight, but properly
found it did not outweigh the medical opinions of the state agency
physicians. (Tr. 27). As Plaintiff has presented no real evidence
to this argument, the Court finds the ALJ did not err in his
assessment or weighing of the medical opinions in the record.
(3)

Work History and Vocational Expert Testimony

Plaintiff next claims that the lay witness testimony—in the
form of her earnings records—proves she is “totally disabled” and
bolsters the believability of her claims that she is disabled
(Pl.’s Br. 26-27). While it is true that ALJs should consider a
claimant’s prior work record, see 20 C.F.R. § 404.1529(c)(3), the
ALJ did so here (Tr. 26).
the

record

did

not

But the ALJ also reasonably found that

support

Plaintiff’s

claims

of

disabling

limitations because evidence from the relevant time period showed
that (1) she was short of breath from fumes from painting a cabin
for two days (Tr. 26, see Tr. 596); (2) she was helping care for
her terminally ill aunt (Tr. 26, see Tr. 645); and (3) she was
9

enjoying getting out and hunting (Tr. 26, see Tr. 702). The ALJ
reasonably

found

this

evidence

inconsistent

with

Plaintiff’s

claims of disabling limitations. 20 C.F.R. § 404.1529(c)(3)(i)
(stating an ALJ must consider a claimant’s activities); Buxton v.
Halter, 246 F.3d 762, 775 (6th Cir. 2001) (“Buxton’s own accounts
of her activities and limitations were also conflicting. For
instance, she shops for herself, does light cleaning, cooks for
herself,

drives

herself

places

(including

numerous

doctors’

visits), and exercises daily (thirty minutes of walking without
post-exertional collapse), but cannot work.”).

And as noted, the

ALJ found that the medical showed largely normal examinations
during the relevant time period and undermined Plaintiff’s claims
regarding the severity of her impairments (Tr. 27-28). See 20
C.F.R. § 404.1529(c)(4) (stating an ALJ must consider whether there
are conflicts between a claimant’s statements and the signs and
laboratory findings); Gronda v. Sec’y of Health & Human Servs.,
856 F.2d 36, 39 (6th Cir. 1988) (Commissioner properly compared a
claimant’s “subjective allegations of pain” with “his underlying
condition”).

These findings were reasonable, sufficient, and

supported by the record, notwithstanding Plaintiff’s work history.
Finally,

Plaintiff

argues

that

the

“[v]ocational

[e]xpert’s

testimony proves that [she] is totally disabled” (Pl.’s Br. 29)
but, again, does not argue how or why or even reference or cite
the vocational expert’s testimony.
10

The ALJ posed a hypothetical

question

to

the

vocational

expert

setting

forth

Plaintiff’s

limitations, and the vocational expert testified that such an
individual could perform Plaintiff’s past work as a mailroom clerk
as it was generally performed as well as three other jobs existing
in significant numbers in the national economy (Tr. 75-76). The
ALJ reasonably relied on this testimony in finding Plaintiff not
disabled (Tr. 29-31).

Nothing more was required. See Smith v.

Halter, 307 F.3d 377, 378 (6th Cir. 2001) (“A vocational expert’s
testimony

concerning

the

availability

of

suitable

work

may

constitute substantial evidence where the testimony is elicited in
response to a hypothetical question that accurately sets forth the
plaintiff’s physical and mental impairments.”).

To the extent the

Plaintiff argues that the vocational expert testified that there
were no jobs in the economy which Plaintiff could do based on
Plaintiff’s counsel’s hypothetical, the ALJ addressed that point,
finding the “medical records do not support those hypotheticals”
offered by Plaintiff’s counsel, and, therefore, gave the responses
to those hypotheticals “little weight.”
(4)

(Tr. 31)

Plaintiff’s Reports of Pain

Finally, Plaintiff argues that the ALJ erred in failing to
apply the Sixth Circuit’s pain standard (Pl.’s Br. 27-29). But
again, she cites only to case law and not any evidence to support
her

claims

that

her

pain

was

actually

disabling.

The

ALJ

considered Plaintiff’s claims regarding the severity of her pain,
11

the limited treatment notes of record stemming from the relevant
time

period,

and

the

medical

source

opinions

of

record

and

reasonably found Plaintiff’s claims to be unsupported, and instead
found that she could perform a reduced range of light work (Tr.
25-28).

The ALJ noted Plaintiff’s reports of pain and limitations

were inconsistent with evidence in the record that Plaintiff was
able to go hunting and stain a cabin for two straight days.
26).

(Tr.

“So long as the ALJ’s decision adequately explains and

justifies its determination as a whole, it satisfies the necessary
requirements to survive [judicial] review.”

Norris v. Comm’r of

Soc. Sec., 461 F. App’x 433, 440 (6th Cir. 2012)
IV.
The Court having found no legal error on the part of the ALJ
and that his decision is supported by substantial evidence, the
Acting Commissioner’s final decision is AFFIRMED.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for summary judgment
(DE 12) be, and the same hereby is, DENIED and the Commissioner’s
motion for summary judgment be, and the same hereby is, GRANTED.
A separate judgment in conformity herewith shall this date be
entered.
This the 12th day of July, 2018.

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