Pennington v. SSA
Filing
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MEMORANDUM OPINION AND ORDER: (1) The decision of the Commissioner is found to be supported by substantial evidence and is hereby AFFIRMED; (2) Plaintiffs Motion for Summary Judgment (Doc. # 11 ) is hereby DENIED; (3) Defendants Motion for Summary Judgment (Doc. # 13 ) is hereby GRANTED; and (4) A Judgment in favor of Defendant Commissioner will be entered contemporaneously herewith.. Signed by Judge David L. Bunning on 8/14/2018. (JMB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 17-273-DLB
JIMMY LEE PENNINGTON
vs.
PLAINTIFF
MEMORANDUM OPINION & ORDER
NANCY A. BERRYHILL, Commissioner
of Social Security Administration
DEFENDANT
* * * * * * * * * * * * * * * *
Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) 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
Plaintiff Jimmy Lee Pennington originally filed an application for disability insurance
benefits (DIB) on January 15, 2013.1 (Tr. 147). In a decision dated August 22, 2014,
Administrative Law Judge (ALJ) Donald A. Rising denied Plaintiff’s application. (Tr. 147156) (the 2014 decision). On August 28, 2015, Plaintiff protectively filed a new application
for benefits, alleging disability beginning on August 14, 2012. (Tr. 12). Specifically,
Plaintiff alleged that he was unable to work due to neck, back, and leg pain, along with
depression and borderline intellectual functioning. (Tr. 149). Plaintiff was forty-seven
years old at the time of filing. (Doc. # 11-1 at 2).
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Plaintiff also asserted a period of disability claim. (Tr. 12).
Plaintiff’s August 28, 2015 application was denied initially, and again on
reconsideration. See (Tr. 206, 211). At Plaintiff’s request, an administrative hearing was
conducted on March 16, 2017, before ALJ Rising. (Tr. 21). At the hearing, Plaintiff,
through counsel, amended his disability onset date to August 28, 2015, the protective
filing date of the second application. (Tr. 12). On May 9, 2017, the ALJ ruled that Plaintiff
was not entitled to benefits. (Tr. 21). This decision became the final decision of the
Commissioner on September 5, 2017, when the Appeals Council denied Plaintiff’s
request for review. (Tr. 1-6).
Plaintiff filed the instant action on October 5, 2017, alleging the ALJ’s decision was
“not supported by substantial evidence,” was “contrary to law,” and “applied incorrect
standards.” (Doc. # 2 at 2). The matter has culminated in cross-motions for summary
judgment, which are now ripe for adjudication. (Docs. # 11 and 13).
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 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 is required to affirm the Commissioner’s
decision, as long as it is supported by substantial evidence, even if it might have decided
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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 can still perform substantial gainful activity; Step Two, whether any
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. As to
the last step, the burden of proof shifts from the claimant 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).
In the context of successive applications, the Sixth Circuit has established that “the
principles of res judicata can be applied against the [SSA] Commissioner.” Drummond v.
Comm’r of Soc. Sec., 126 F.3d 837, 842 (6th Cir. 1997). “When the Commissioner has
made a final decision concerning a claimant’s entitlement to benefits, the Commissioner
is bound by this determination absent changed circumstances.”
Id.
Furthermore,
“[a]bsent evidence of an improvement in a claimant’s condition, a subsequent ALJ is
bound by the findings of a previous ALJ.” Id. (citing Lively v. Sec’y of Health & Human
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Servs., 820 F.2d 1391 (4th Cir. 1987)); see also Dennard v. Sec’y of Health & Human
Servs., 907 F.2d 598 (6th Cir. 1990) (per curiam) (holding that a second ALJ was
precluded from reconsidering whether a plaintiff could perform his past relevant work).
In light of the holding in Drummond, the Commissioner issued an Acquiescence
Ruling directing states within the Sixth Circuit to follow Drummond by applying res judicata
to a prior assessment of a claimant’s residual functional capacity (RFC) as well as other
findings required in the sequential evaluation process for determining disability. This
Ruling explained:
When adjudicating a subsequent disability claim with an unadjudicated
period arising under the same title of the [Social Security] Act as the prior
claim, adjudicators must adopt such a finding from the final decision by an
ALJ or the Appeals Council on the prior claim in determining whether the
claimant is disabled with respect to the unadjudicated period unless there
is new and material evidence relating to such a finding or there has been a
change in the law, regulations or rulings affecting the finding or the method
for arriving at the finding.
SSAR 98-4(6), 63 Fed. Reg. 29,771-01, 1998 WL 274052 (June 1, 1998). Accordingly,
a prior ALJ’s RFC determination must not be altered unless new and material evidence
is presented showing that the plaintiff’s condition has significantly changed.
See
Drummond, 126 F.3d at 842. The plaintiff bears the burden of showing that his condition
has worsened to the point that he is no longer able to perform substantial gainful activity.
Priest v. Soc. Sec. Admin., 3 F. App’x 275, 276 (6th Cir. 2001) (citing Casey v. Sec’y of
Health & Human Servs., 987 F.2d 1230, 1232-33 (6th Cir. 1993)).
B.
The ALJ’s Determination
The ALJ, applying Drummond, 126 F.3d 837, and the five-step sequential
evaluation process, concluded that Plaintiff was not disabled, as the record contained no
new or material evidence that justified altering the prior 2014 decisional findings. (Tr. 12).
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At Step One, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since August 28, 2015, the amended disability onset date. Id. at 14. At Step Two, the
ALJ determined that Plaintiff had the following severe impairments: degenerative disc
disease, obesity, and borderline intellectual functioning. Id. at 15. The ALJ determined
that Plaintiff’s chronic obstructive pulmonary disease (COPD) and depression were nonsevere impairments. Id. At Step Three, the ALJ concluded that Plaintiff did 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. Id. at 16.
At Step Four, the ALJ found that Plaintiff possessed the RFC to perform light work,
as defined in 20 C.F.R. § 404.1567(b), with the following limitations:
[H]e can lift no greater than fifteen pounds; perform no more than occasional
overhead lifting; sit no greater than ninety minutes continuously without ten
to fifteen minutes to stand and walk; and no sustained cervical posturing at
extremes; no more than frequent climbing of ladders, ropes, and scaffolds;
no exposure to vibration; and is limited to work requiring only simple
instructions/tasks accommodating ninth grade literacy.
(Tr. 17). Based upon 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 roof
bolter. Id. at 20. Therefore, the ALJ proceeded to Step Five, where he determined that
there were other jobs that exist in significant numbers in the national economy that the
Plaintiff could perform. Id. at 20-21. Specifically, the ALJ determined that the Plaintiff
could perform the following occupations: inspector/tester/sorter, machine operator, or
hand packer. Id. at 21. Accordingly, the ALJ concluded that Plaintiff was not under a
disability, as defined in the Social Security Act, from the date of Plaintiff’s application
through the date of the decision. Id.
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C.
Analysis
Plaintiff advances three arguments in his Motion for Summary Judgment. (Doc. #
11). First, Plaintiff advances a general argument that the ALJ’s RFC determination was
not supported by substantial evidence. Id. at 2. Second, Plaintiff argues that the ALJ
failed to properly apply the standard of review for successive applications. Id. (citing
Drummond, 126 F.3d 837). Finally, Plaintiff appears to argue that the ALJ erred in
assessing Plaintiff’s credibility with respect to his subjective complaints of pain. Id. The
Court will consider each argument in turn.
1.
The ALJ’s RFC findings are supported by substantial evidence.
Plaintiff’s first argument asserts that the ALJ’s RFC determination was not
supported by substantial evidence.
The RFC determination is “an administrative
assessment of the extent to which an individual’s medically determinable impairment(s),
including any related symptoms, such as pain, 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, 1996 WL 374184, at *2 (July 2, 1996). At its core, 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 required to incorporate only those limitations that he or she finds
credible into the RFC assessment. Irvin v. Social Sec. Admin., 573 F. App’x 498, 502
(6th Cir. 2014) (citing Casey, 987 F.2d at 1235).
The Plaintiff argues that the ALJ’s “selective inclusion of only portions of the
pertinent evidence which cast the claimant in an unfavorable light was improper” and
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effectively circumvented evidence that showed that Plaintiff’s medical problems have
become “more severe.” (Doc. # 11-1 at 16, 18). 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 U.S.C. § 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.,
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 and considered the
record as a whole. Plaintiff alleges that in making the RFC determination, the ALJ failed
to address the October 11, 2015 Radiology Report of Dr. Matthew Vuskovich, which
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showed parenchymal abnormalities consistent with pneumoconiosis. See (Doc. # 11-1
at 18; Tr. 667). Dr. Vuskovich’s Radiology Report also showed no pleural abnormalities
consistent with pneumoconiosis, no costophrenic angle obliteration, no diffuse pleural
thickening, nor any other abnormalities. (Tr. 667). Plaintiff’s reliance on this single
document does not vitiate the ALJ’s thorough review of all relevant medical evidence.
The ALJ’s decision noted that Plaintiff “reported that he experiences shortness of breath
only at night,” and, despite having a diagnosis of COPD, “treatment records show normal
lung examinations” and “clinically, his lungs were clear.” (Tr. 15). The Court’s role in
reviewing the determination of the ALJ is not to re-weigh the evidence, and while the ALJ
weighed the evidence contrary to how the Plaintiff preferred, the ALJ did not fail to analyze
the evidence in the record. See 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.
Plaintiff also asserts that in making the RFC determination, the ALJ failed to
“establish that the claimant suffered from psychiatric impairments which are well
documented throughout the records based on records from Cumberland River
Comprehensive Care Center,” particularly the observations of its outpatient therapist
Janet Nantz, LPCC. (Doc. # 11-1 at 17). The record shows, however, that the ALJ took
this evidence into account, noting that “[m]entally, the claimant has a history of
evaluation/treatment at the Comprehensive Care Center for situational depression.” (Tr.
15). In fact, the ALJ thoroughly considered the observations of Janet Nantz, LPCC:
On March 13, 2017, therapist, Janet Nantz, LPCC, penned a letter on
claimant’s behalf in which she stated in essence that the claimant was being
seen for depression with an initial diagnosis of Adjustment Disorder with
Depressed Mood which was later changed to Recurrent, Severe Major
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Depression. She stated over the past years of treatment claimant had
benefitted from care but that there had been barriers affecting progress
including feelings of worthlessness because he cannot work/provide for his
family or do many simple household chores. Second, she stated claimant
was having a difficult time finding a purpose for his life without employment
but that he had been counseled regarding this issue as to activities to fill his
time. She went on to mention the issues outlined herein along with other
worries typical to the general population. She noted he had worked hard to
keep his regular appointments and to work toward meeting treatment goals,
but had struggled at times due to the severity of his symptoms, having
limited support available, and due to family stressors but that he had been
compliant with medications.
(Tr. 15).
Nonetheless, the ALJ’s detailed analysis pointed to substantial evidence that
Plaintiff’s RFC remained at the previously adjudicated level since the prior hearing
decision dated August 22, 2014. See (Tr. 147). In reaching his determination that there
was no new and material evidence to justify altering the prior decision, the ALJ discussed
and evaluated relevant medical evidence, including observations obtained from Plaintiff’s
treating or examining medical sources since August 22, 2014. For example, the ALJ
noted that, while “[o]n August 28, 2015, an Axis I diagnosis of major depression was
provided,” Plaintiff’s “mental status examination was completely normal.”
(Tr. 15).
Further, Plaintiff “reported being active socially with family and diagnosis/treatment did
not change.
In fact, he reported some diminished symptoms of depression with
medication.” Id.
The ALJ further found that LPCC Nantz’s letter conflicted with other evidence in
the record:
In terms of mental functioning claimant instituted treatment around mid2015 when he presented as depressed and irritable but with clear and
coherent thought, normal perception and cognition. He related having
depression and anxiety for a couple years, but worse just in the preceding
month with the threat of his daughter going to jail, and he and his wife were
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now caring for their two-year-old grandson. [ ]. He reported in October and
November 2015 he filled his time visiting his father, playing with his
grandson and watching TV. He was cooperative, alert and attentive. [ ].
Thereafter, despite the disingenuous letter of LPCC Nantz that she had
been seeing claimant since 2013 [ ], no treatment was received during 2016
and claimant only reinstituted treatment in February 2017 [ ], the month
preceding the disability hearing.
(Tr. 19). Based upon the ALJ’s review of the record, therefore, the ALJ found that the
new evidence relied upon by Plaintiff to assert that circumstances had changed since the
denial of his first application was not credible. See Irvin, 573 F. App’x at 502 (stating that
the ALJ is required to incorporate only those limitations that he or she finds credible into
the RFC assessment).
It is not the Court’s role to re-weigh the credibility of LPCC Nantz or to perform a
de novo review of the evidence. See Bass, 499 F.3d at 509 (“When deciding under 42
U.S.C. § 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”).
Where, as here, the ALJ’s decision is supported by substantial evidence, the Court must
affirm the decision. Listenbee, 846 F.2d at 349. Accordingly, the Court finds no error in
the scope of the ALJ’s analysis.
2.
The ALJ’s RFC determination did not violate Drummond or
Dennard.
Plaintiff’s second argument asserts that the ALJ’s RFC determination violated the
standards set forth in Drummond and Dennard by failing to impose the same, and in
Plaintiff’s belief, more stringent, limitations that the previous 2014 determination imposed.
Specifically, Plaintiff asserts that the 2014 decision had “much more severe restrictions”
because it found that Plaintiff “could only sit for 90 minutes.” (Doc. # 11-1 at 19). Plaintiff
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also asserts that the 2014 decision “also would require any work with no more than a
ninth grade literacy level” with limitations in the area of following simple job instructions,
interacting appropriately with the public, supervisors and co-workers and responding
appropriately to usual work situations and changes in routine. Id. Plaintiff argues that
“[t]hese restrictions were not addressed in the ALJ’s [subsequent] decision” and therefore
remand is required under Dennard, 907 F.2d 598 and Drummond, 126 F.3d 837. (Doc.
# 11-1 at 19).
Plaintiff’s position is factually incorrect. While the ALJ’s May 9, 2017 decision did
not mirror the precise language of the 2014 decision verbatim, the ALJ imposed the same
RFC restrictions. Specifically, the ALJ’s May 9, 2017 decision found that Plaintiff can “sit
no greater than 90 minutes” and that the Plaintiff “is limited to work requiring only simple
instructions/tasks accommodating ninth grade literacy.” (Tr. 17). Although the RFC
findings differ in sentence structure and overall length, there is no appreciable difference
in the underlying extent of limitations found in the May 9, 2017 decision. Compare (Tr.
17) with (Tr. 152-53). The ALJ specifically noted in the May 9, 2017 decision that there
were “no new and material evidence that justifies altering the prior 2014 decisional
findings” which includes the ALJ’s RFC determination and his Step Five finding that
Plaintiff retained the capacity to perform light work. See (Tr. 12). The ALJ’s May 9, 2017
decision maintained the same limitations previously imposed in the 2014 decision; the
Sixth Circuit precedent cited by Plaintiff requires no more. See Drummond, 126 F.3d 837
(“[a]bsent evidence of an improvement in a claimant’s condition, a subsequent ALJ is
bound by the findings of a previous ALJ”); Dennard, 907 F.2d 598 (holding that an ALJ
was precluded from reconsidering whether a plaintiff could perform his past relevant
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work). Accordingly, the ALJ properly considered Sixth Circuit precedent and the ALJ’s
decision complies with Drummond and Dennard.
3. The ALJ did not err in assessing Plaintiff’s credibility.
Finally, Plaintiff argues that the ALJ failed to properly evaluate the Plaintiff’s
subjective complaints of pain in rejecting Plaintiff’s argument that he now suffers from
more severe impairments.
(Doc. # 11-1 at 21).
Although relevant to the RFC
assessment, a claimant’s description of his or her symptoms is not enough, on its own,
to establish the existence of physical or mental impairments or disability. 20 C.F.R. §
404.1529(a). When evaluating a claimant’s symptoms, the ALJ must determine whether
there is an underlying medically determinable impairment that could be reasonably
expected to produce the alleged symptoms. Id. Once that is established, the ALJ must
evaluate the intensity, persistence, and limiting effects of the individual’s symptoms to
determine the extent to which the symptoms limit the individual’s ability to do basic work
activities. Id. § 404.1529(c).
When a claimant’s complaints regarding the intensity and persistence of his
symptoms are unsupported by objective medical evidence, the ALJ must make a
credibility determination “based on a consideration of the entire case record,” including
lab findings, information from treating physicians, Plaintiff’s complaints of symptoms, and
other relevant evidence. Rogers, 486 F.3d at 247 (quoting SSR 96-7p, 1996 WL 374186,
at *4 (July 2, 1996)). After making a credibility determination, the ALJ must explain that
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.” 20 C.F.R. § 404.1529; SSR 96-7p, 1996 WL 374186, at *2. “Blanket
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assertions that the claimant is not believable will not pass muster, nor will explanation as
to the credibility which are not consistent with the entire record and the weight of the
relevant evidence.” Rogers, 486 F.3d at 248. Once the ALJ has made the credibility
determination, the reviewing court must give great weight and deference to that
conclusion. Id.
When medical reports or laboratory findings demonstrate that the claimant has
“medically determinable impairment(s) that could reasonably be expected to produce [his
or her] symptoms, such as pain, [the ALJ] must then evaluate the intensity and
persistence of [the claimant’s] symptoms” in order to determine how these symptoms limit
the claimant’s capacity for work.
20 C.F.R. § 404.1529(c)(1).
Before making this
determination, the ALJ must consider all available evidence, including objective medical
evidence, claimant’s own statements about symptoms, opinions from treating and
examining physicians, and any other relevant evidence in the case record. 20 C.F.R. §
404.1529(c)(1)-(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.
Plaintiff argues that the ALJ’s May 9, 2017 RFC determination “failed to properly
assess” evidence of “additional medical problems which are resulting in additional levels
of pain.” (Doc. # 11-1 at 21). While he asserts that there is “new information that is based
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upon the objective medical findings from the medical records,” the only “new” evidence
that Plaintiff cites in support of this argument is “his own testimony regarding his pain
level” as well as “the consultative exam and the letter from Ms. Nantz.” Id. at 22.
The ALJ’s analysis demonstrates that he did consider the medical evidence
provided by Ms. Nantz, as well as Plaintiff’s subjective complaints of pain. See (Tr. 1820). At Step Four, the ALJ found that the Plaintiff’s “medically determinable impairments
could reasonably be expected to cause some of the alleged symptoms.”
(Tr. 18).
However, the ALJ determined that Plaintiff’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.” Id. The ALJ’s determination was
expressly informed by objective medical evidence; for instance, he explained in detail the
records subsequent to the 2014 decision, including treatment entries from Kentucky Pain
Physicians, Kentucky Pain Clinic, Tri-State Clinic, and the letter of LPCC Nantz. Id. at
18-19.
In particular, the ALJ noted Tri-State Clinic records for August and September
2015, showing that Plaintiff “stated that he felt good, TNS unit helped and he was doing
physical therapy at a friend’s home.”
Id. at 19.
Additionally, “[o]ver the course of
treatment, claimant reported low pain levels of 1-3 on the analog scale and reported
improvement in overall functioning.” Id. The ALJ further found that LPCC Nantz’s letter
appeared “disingenuous” when she claimed to have been seeing Plaintiff since 2013, but
records indicated he received no treatment during 2016 and he only reinstated treatment
in February 2017, the month preceding the disability hearing. Id. As a result, the ALJ
concluded that Plaintiff’s statements regarding the intensity, persistence, and limiting
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effects of his symptoms were not entirely credible:
Based on the foregoing, the undersigned concludes that the claimant’s
allegations are not consistent with the evidence of record; and that the
medical record presents no discrete evidence of material change in medical
condition. While claimant does have evidence of degenerative changes of
the cervical and lumbar spine, he is appropriately and effectively medicated
and obtains further relief with the use of a back brace and TENS unit.
Further, he admitted to his physical therapist that back pain “comes and
goes” rather than being constant as he has alleged. His level of daily
activities and socialization does not reflect that of a totally disabled
individual inasmuch as he is able to perform self-care, drive, and help care
for a toddler. For the most part, his subjective levels of pain are 3-5/10. To
the extent the third party report from Ola Mae Yates, on first hand
observations of what the claimant actually does from day to day, the opinion
is given some weight, but to the extent the reporter opines on what the
claimant is capable of doing, the report is given no weight as the reporter is
not trained to make assessments of functional ability [ ]. So as for the
opinion evidence, great weight is given the prior decisional functional finding
[ ] especially as the State agency nonexamining medical consultant opined
that it was also reflective of claimant’s current functional capacity.
The Court’s role is not to re-weigh the evidence. See Smith, 99 F.3d at 782.
Where, as here, 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. Having
reviewed the ALJ’s credibility assessment, which carefully detailed the inconsistencies
between Plaintiff’s subjective complaints, his approach to treatment, and the objective
medical evidence, the Court finds no error.
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,
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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. # 11) is hereby DENIED;
(3)
Defendant’s Motion for Summary Judgment (Doc. # 13) is hereby
GRANTED; and
(4)
A Judgment in favor of Defendant Commissioner will be entered
contemporaneously herewith.
This 14th day of August, 2018.
L:\DATA\SocialSecurity\MOOs\London\17-273 Pennington MOO.docx
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