Lingar v .SSA

Filing 13

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. # 8 ) is hereby DENIED; (3) Defendant's Motion for Summary Judgment (Doc. # 12 ) is hereby GRANTED; and (4) A Judgment in favor of Defendant Commissioner will be entered contemporaneously herewith. Signed by Judge David L. Bunning on 2/5/2019.(RBB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 18-31-DLB
MARK LINGAR
v.

PLAINTIFF
MEMORANDUM OPINION AND ORDER

NANCY A. BERRYHILL, Acting Commissioner
of the Social Security Administration

DEFENDANT

** ** ** ** **
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 September 24, 2014, Plaintiff Mark Lingar protectively filed for a period of

disability and Disability Insurance Benefits (DIB) under Title II. (Tr. 36). This application
alleged disability beginning on August 24, 2012.1 (Tr. 36). The application was initially
denied, and again on reconsideration. (Tr. 36). At Plaintiff’s request, an administrative
hearing was conducted on October 12, 2016 before Administrative Law Judge (ALJ)
Tommye C. Mangus. (Tr. 36, 56-77). On February 22, 2017 ALJ Mangus ruled that
Plaintiff was not entitled to benefits. (Tr. 33-49). This decision became the final decision

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Plaintiff Lingar had previously filed a disability action under Title II alleging disability beginning
February 1, 2010. That first application was filed on March 14, 2011 and Administrative Law Judge (ALJ)
Donald Rising issued an unfavorable decision on August 23, 2012. The Appeals Council upheld ALJ
Rising’s decision on October 23, 2013, and it became the final decision of the Commissioner.

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of the Commissioner on December 4, 2017 when the Appeals Council denied Plaintiff’s
request for review. (Tr. 1-3).
Plaintiff filed the instant action on February 1, 2018 (Doc. # 1) alleging that the
Commissioner’s decision was not supported by substantial evidence. (Doc. # 8-1 at 1).
The matter has culminated in cross-motions for summary judgment, which are now ripe
for adjudication. (Docs. # 8 and 12).
II.

DISCUSSION
A.

Standard of Review

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 the 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).

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When a claimant files an application for benefits under the same title of the Social
Security Act as a previously-determined application, the principal of res judicata places
limits on the evidence that an ALJ evaluating the second application can review. 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 Servs., 820 F.2d 1391 (4th Cir. 1987)); see also Dennard v.
Sec’y of Health & Human Servs., 907 F.2d 598, 600 (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 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.

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SSAR 98-4(6), 63 Fed. Reg. 29771-01 (Jun. 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 and Human
Servs., 987 F.2d 1230, 1232-33 (6th Cir. 1993)).
B.

The ALJ’s Determination

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
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. Walters
v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520).
The burden of proof rests with the claimant on Steps One through Four. Jones v. Comm’r
of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). As to the last step, the burden of proof
shifts to the Commissioner to identify “jobs in the economy that accommodate [the
claimant’s] residual functional capacity.” Id. The ALJ’s determination becomes the final
decision of the Commissioner if the Appeals Council denies review, as it did here. See
Thacker v. Berryhill, No. 16-CV-114, 2017 WL 653546, at *1 (E.D. Ky. Feb. 16, 2017);
(Tr. 1-3).
Before ALJ Mangus could consider Plaintiff’s case, she was first required to
consider Plaintiff’s previous application for DIB, which had resulted in an unfavorable
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decision dated August 23, 2012. (Tr. 36). Based on Social Security Regulations and the
doctrine of res judicata, the ALJ determined that the previous unfavorable decision was
final and binding, but that Lingar’s at-issue application presented new material evidence
which “indicate[] additional impairments causing some additional limitation in the
claimant’s residual functional capacity.” (Tr. 36-37). As a result, and as required by Sixth
Circuit precedent, ALJ Mangus considered this new evidence in determining whether
changes to the prior ALJ’s findings and conclusions were necessary. See Drummond,
126 F.3d at 842.
Here, at Step One, ALJ Mangus found that Plaintiff had not engaged in substantial
gainful activity from the alleged onset date of the disability, August 24, 2012, through his
date last insured, September 30, 2015. (Tr. 39). At Step Two, the ALJ determined that,
through the date last insured, the Plaintiff had the following severe impairments: history
of left ankle fracture, lumbar spina degenerative disc disease with radiculopathy, third
grade literacy level, fibromyalgia, cervical spine degenerative disc disease, bilateral
shoulder bursitis, mild bilateral carpal tunnel syndrome, decreased vision, obesity,
depression, and anxiety. (Tr. 39-42). At Step 3, the ALJ concluded that Plaintiff did not
have an impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. (Tr.
42-43).
At Step Four, the ALJ found that Plaintiff possesses the residual functional capacity
(RFC) to perform sedentary work as defined in 20 C.F.R. § 404.1567(a). The ALJ found
that
[T]hrough the date last insured, the claimant had the residual functional
capacity to perform sedentary work . . . except that does not require more
than occasional bending, kneeling, crouching, climbing stairs or ramps,
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pushing or pulling with the left lower extremity, or bilateral overhead
reaching; more than frequent bilateral handling or fingering; or more than
20/50 corrected vision. Mentally, the claimant can understand, remember,
and carry out simple work that does not require more than a 3td [sic] grade
literacy level; more than occasional contact with co-workers, supervisors, or
the public; or in which changes occur no more than occasionally and are
gradually introduced.
(Tr. 43). Based on this RFC, the ALJ concluded that Plaintiff was, through the date last
insured, unable to perform his past relevant work as a sales route driver. (Tr. 47). Thus,
the ALJ proceeded to Step Five where he determined that, through the date last insured,
there were other jobs that existed in significant numbers in the national economy that the
Plaintiff could have performed. (Tr. 48). Accordingly, the ALJ ruled that the Plaintiff was
not under a disability, as defined in the Social Security Act. (Tr. 49).
C.

Analysis

Plaintiff advances six arguments in the memorandum in support of his Motion for
Summary Judgment. (Doc. # 8-1). First, Lingar argues that the ALJ’s conclusion that he
could “use both his upper extremities to reach overhead and frequently handle and finger”
is not supported by substantial evidence. Id. at 1; see also id. at 4-8. Second, Plaintiff
asserts that the ALJ didn’t properly consider “the effect of Lingar’s non-exertional—
mental—impairments on his capacity to tolerate pain.” Id. Third, Lingar argues that the
ALJ’s conclusion regarding Plaintiff’s pain was not supported by substantial evidence. Id.
at 2. Fourth, Plaintiff claims that the ALJ erred by failing “to cite specific medical facts to
support his rejection of the consultative psychological examiner’s findings that Lingar had
moderate to moderately severe limitations in concentration, persistence and pace.” Id. at
2. Fifth, Lingar asserts that the ALJ’s decision was in error because ALJ Mangus did not
properly consider Plaintiff’s impairment of fatigue caused by bradycardia. Id. Finally,
Plaintiff claims that Appeals Council “failed to comply with the requirement that it notify
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Lingar of his substantial right to file a new claim that would have an onset date backdated
to the date of filing his request for review . . . [which] resulted in the inability to claim
benefits for at least a nine-month period.” Id. at 3. The Court will consider each argument
in turn.
1.

The ALJ’s RFC Determination is Supported by Substantial
Evidence.

An RFC 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, 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 he or she finds credible in the RFC assessment. Irvin
v. Soc. 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)). A reviewing court gives “the ALJ’s
determinations of credibility great weight and deference particularly since the ALJ has the
opportunity . . . of observing a witness’s demeanor while testifying.” Jones, 336 F.3d at
476.
a.

Use of Upper Extremities

Plaintiff argues that the ALJ did not properly take into account all of Lingar’s
physical impairments when determining in the RFC that he could undertake sedentary
work that does not require “more than occasional . . . bilateral overhead reaching . . . [and]

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more than frequent bilateral handling or fingering.” (Tr. 43); (Doc. # 8-1 at 4-8). Further,
Plaintiff argues that the medical evidence documenting Lingar’s impairments does not
support the ALJ’s conclusion regarding Lingar’s use of his upper extremities. (Doc. # 81 at 4-8). Lingar’s argument is misguided.
In undertaking the RFC determination, the ALJ did consider the physical, upper
extremity limitations noted by Lingar. Specifically, the ALJ found in Step Three that “the
claimant’s shoulder bursitis, fibromyalgia, cervical spine degenerative disc disease, and
mild bilateral carpal tunnel syndrome all more than minimally impact the claimant’s ability
to work, but are not entirely disabling.” (Tr. 40). More specifically, the ALJ noted that
these diagnoses “all caused the undersigned to add additional limitation on the claimant’s
ability to reach, handle, and finger” in addition to the “claimant’s already restrictive
sedentary residual functional capacity.” (Tr. 45). In light of the evidence presented by
Lingar regarding his upper-body impairments, ALJ Mangus adopted an RFC more
restrictive than the one affirmed by the state agency medical consultant. (Tr. 46).
The ALJ’s conclusion that Lingar’s impairments did not completely preclude his
ability to work with his hands and arms and that he could undertake sedentary work with
additional limitations is supported by evidence in the record. See e.g. (Tr. 66-67) (Lingar
testifying that he was prescribed wrist braces, presumably to ease his carpal tunnel
symptoms); (Tr. 1319) (noting on August 31, 2016 that Lingar “denies hand pain . . .
denies hand weakness . . . [and] denies arm pain); (Tr. 1314) (noting the same on June
3, 2016).

Accordingly, a reasonable person could conclude, based on the record

evidence, that Lingar could undertake a job that requires use of his hands and arms albeit
with some limitations.

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While the record includes other evidence that Lingar had some impairments with
regard to his ability to use his upper extremities, see e.g. (Tr. 68) (testifying that his hand
shaking is a result of his anxiety and panic disorder); (Tr. 273) (explaining that his “hands
tremble and draw”); (Tr. 364) (noting that Lingar has spine and shoulder pain); (Tr. 1322)
(noting that Plaintiff suffered from hand weakness as a result of carpal tunnel), the Court
must still uphold the ALJ’s decision as it is supported by substantial evidence. It is not
the job of the court to “re-weigh record evidence.” DeLong v. Comm’r of Soc. Sec., 748
F.3d 723, 726 (6th Cir. 2014). Rather, the Court must determine if there is substantial
evidence to support the ALJ’s decision and uphold that decision even if “substantial
evidence also would have supported a finding other than the one the ALJ made.” Smith,
99 F.3d at 781-82. As the Court has found that substantial evidence supports the ALJ’s
conclusion regarding Lingar’s use of upper extremities, the decision will not be overturned
on these grounds.
b.

Pain

Plaintiff also argues that the ALJ did not consider Lingar’s “non-exertional mental
impairments” like depression and anxiety, when determining the extent of his pain and
his ability to tolerate it. (Doc. # 8-1 at 8-9). Additionally, he alleges that the ALJ’s
determination of credibility is not supported by substantial evidence because Lingar’s
“complaints [of pain] are consistent with the medical findings” and “the ALJ points to no
valid reasons to disbelieve the intensity, persistence and limiting effects of his
impairments.” Id. at 9-10.
In determining an RFC, the ALJ must evaluate the claimant’s complaints of pain,
and, in doing so, the ALJ may consider the credibility of the claimant. Vance v. Comm’r
of Soc. Sec., 260 F. App’x 801, 806 (6th Cir. 2008). “[A]n ALJ’s assessment of credibility
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must be supported by substantial evidence” and an ALJ’s assessment of credibility is “to
be accorded great weight and deference.” Walter v. Comm’r of Soc. Sec., 127 F.3d 525,
531 (6th Cir. 1997); see also Jones, 336 F.3d at 474. Without more, a claimant’s own
subjective complaints of pain will not establish that an individual is disabled. Amir v.
Comm’r of Soc. Sec., 705 F. App’x 443, 449 (6th Cir. 2017). The ALJ undertakes a twoprong assessment when evaluating a claimant’s complaints of pain—first the ALJ
determines if there is objective evidence of an underlying condition which could cause
pain, and then the ALJ determines if “objective medical evidence confirms the severity of
the alleged pain arising from the condition, or . . . the objectively established medical
condition is of such severity that it can reasonably be expected to produce the disabling
pain.” Vance, 260 F. App’x at 806 (citing Duncan v. Sec. of Health & Human Servs., 801
F.2d 847, 853 (6th Cir. 1986)).
ALJ Mangus, in undertaking this assessment, concluded that “the claimant’s
medically determinable impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant’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.” (Tr. 44). This conclusion is supported by substantial
evidence.
Here, the ALJ considered Lingar’s testimony regarding the pain he suffers in
conjunction with other record evidence. While Lingar suffers from pain that limits his
ability to function, as well as mental impairments that may further limit his ability to
manage pain, Plaintiff’s own admissions about his abilities suggest that his pain is not
completely debilitating. For example, Lingar, both in his oral testimony and in the function
reports he completed, notes that, despite his pain, he can undertake basic activities like
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driving, preparing meals, shopping, and caring for his son, among other things. (Tr. 62,
243, 247-250, 268, 270).

The participation in such household activities may be

considered by the ALJ “in evaluating complaints of disabling pain or other symptoms.”
Bogle v. Sullivan, 998 F.2d 342, 348 (6th Cir. 1993); see also Van Winkle v. Comm’r of
Soc. Sec., 29 F. App’x 353, 357-58 (6th Cir. 2002).
Further, evidence in the record suggests that Plaintiff’s pain, as well as his mental
health symptoms which may make the pain more difficult to manage, is mitigated through
medication and medical devices.

See (Tr. 65-66) (testifying that his prescribed

medication helps ease his pain some, and also helps ease and anxiety and depression);
see also (Tr. 241-42, 276-77, 409) (indicating that medication and a brace helps minimize
pain). Medication and measures used to relieve pain are also appropriately considered
in an evaluation of a claimant’s pain. Van Winkle, 29 F. App’x at 357. Additionally,
medical records indicate that some of Lingar’s pain is only moderate. See (Tr. 361)
(indicating only moderate shoulder and back pain on March 4, 2014); (Tr. 363) (noting on
January 28, 2014 that “the pain is doing worse” but is still only listed as moderate).
Based on these admissions and evidence, a reasonable person could conclude
that Lingar’s pain is not so debilitating that he should be deemed disabled; thus ALJ
Mangus’ determination regarding claimant’s pain is supported by substantial evidence.
Cutlip, 25 F.3d at 286. While there is evidence in the record that suggests Lingar may
suffer from debilitating pain, see e.g. (Tr. 381) (indicating that his “pain [is] up to 9/10 at
times”), evidence favoring the Plaintiff’s claim does not require the Court to reverse the
ALJ’s decision. Listenbee, 846 F2d at 349. Rather, as it is the job of a reviewing Court
to uphold the decision of the ALJ so long as it is supported by substantial evidence even
if the Court would have come to a different conclusion, the Court here must reaffirm the
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ALJ’s conclusion. Her, 203 F.3d at 389-90.
c.

Concentration

Lingar argues that there is inconsistent evidence regarding his ability to
concentrate and that the ALJ’s finding of a moderate impairment, rather than a moderately
severe impairment, is not supported by substantial evidence. (Doc. # 8-1 at 11). Plaintiff’s
argument is, again, meritless.

Lingar is correct that there is inconsistent evidence

regarding his ability to concentrate. See e.g. (Tr. 104) (finding a mild deficiency regarding
concentration); (Tr. 130, 133-34) (finding moderate limitations as to Plaintiff’s ability to
concentrate); (Tr. 228) (noting that Lingar appears to have no difficulty regarding
concentration), (Tr. 721 noting that “[h]e seemed to have a moderate to moderately
severe deficiency in his ability to maintain sustained concentration and persistence in the
completion of tasks in a normal amount of time”). However, in determining a claimant’s
RFC, the ALJ must consider the record as a whole.
An ALJ’s conclusion must be upheld by a court if a reasonable person could have
reached the same conclusion.

Cutlip, 25 F.3d at 286.

Based on the conflicting

evidence—some indicating a more severe impairment, some indicating a moderate
impairment, and some indicating a minor impairment—a reasonable person could draw
the conclusion that Lingar’s ability to concentrate is moderately impaired. It is not a court’s
job to re-weigh evidence and determine what conclusion the Court would reach. DeLong,
748 F.3d at 726. As a reasonable person could have reached the same conclusion based
on the record evidence, the Court must uphold the ALJ’s determination.
d.

Fatigue

Finally, Plaintiff asserts that the ALJ does not address Lingar’s fatigue resulting
from bradycardia. Thus, he argues that the finding that Lingar can work a normal 40-hour
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work week is not supported by substantial evidence. Again, Plaintiff’s assertion is in error.
Here, the ALJ did not determine Lingar’s bradycardia and resulting symptoms to
be a severe impairment in Step Two; rather, the ALJ found that the condition did “not
more than minimally impact the claimant’s ability to work.” (Tr. 41). The record indicates
that in August 2016 Lingar had a pacemaker implanted “due to his continued
symptomatology with dizziness and excessive fatigue” as a result of symptomatic
bradycardia. (Tr. 1121-22). No further medial records, however, appear to have been
submitted regarding his fatigue and bradycardia, and “[h]is cardiologist did not indicate
any serious restrictions following the surgery.” (Tr. 41). Further, Lingar indicated that the
pacemaker was working but admitted that he “still stay[s] tired.” (Tr. 66). Nothing from
Lingar’s testimony, however, suggests a continued level of excessive fatigue. Further, a
reasonable person would presume that the pacemaker procedure, undertaken to reduce
his fatigue symptoms, would have done just that. Thus, ALJ Mangus’ conclusion that the
bradycardia and resulting fatigue is not severe due to recent medical interventions to
manage it is supported by substantial evidence.
2.

Appeals Council Error

Finally, Plaintiff appears to argue that the failure of the Appeals Council to notify
Lingar of his “right to file a new claim that would have an onset date backdated to the date
of filing his request for review” is reversible error. (Doc. # 8-1 at 3-4). While Lingar is
correct that 20 C.F.R. § 404.970(c) requires that the Appeals Council include this notice
in its decision, he cites no applicable law suggesting that this type of failure to notify
amounts to reversible error.2 (Doc. # 8-1 at 3-4).

The only case cited by Plaintiff, Wilson v. Comm’r of Soc. Sec., discusses remanding cases when
the Commissioner, through the ALJ, has “failed to articulate ‘good reasons’ for not crediting the opinion of

2

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Additionally, Plaintiff clearly was aware of his right to file a new application based
on new medical evidence because the application at issue in this case is just that—a
second application including new medical evidence.
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, 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. # 8) is hereby DENIED;

(3)

Defendant’s Motion for Summary Judgment (Doc. # 12) is hereby

GRANTED; and
(4)

A Judgment in favor of Defendant Commissioner will be entered

contemporaneously herewith.
This 5th day of February, 2019.

a treating source” as required by the regulations; the court in Wilson recognizes that procedural requirement
as a substantial right. 378 F.3d 541. Such an analytical error is materially different from a failure to include
proper language of notice as required by procedural regulations. While Lingar labels the requirement to
notify a substantial right, he points to no cases which support his assertion.    
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