Brown v. SSA

Filing 14

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. # 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. Signed by Judge David L. Bunning on 12/11/2018.(KJA)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 18-47-DLB
JAMES EDWARD BROWN
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 June 17, 2015, Plaintiff James Edward Brown protectively filed for a period of

disability and Disability Insurance Benefits (DIB) under Title II, and on January 28, 2016,
similarly filed for Supplemental Security Income (SSI) under Title XVI. (Tr. 11, 208-25).
Each application alleged disability beginning on May 2, 2015, when Plaintiff was fortyfour (44) years old. (Tr. 18, 208-25). Both applications were initially denied, and again
on reconsideration. (Tr. 130, 140-54). At Plaintiff’s request, an administrative hearing
was conducted on April 20, 2017 before Administrative Law Judge (ALJ) Dennis Hansen.
(Tr. 55-83). On June 19, 2017, ALJ Hansen ruled that Plaintiff was not entitled to benefits.
(Tr. 11-20). This decision became the final decision of the Commissioner on January 16,

1

2018, when the Appeals Council denied Plaintiff’s request for review. (Tr. 1-7).
Plaintiff filed the instant action on February 20, 2018 alleging that the ALJ’s
decision was not supported by substantial evidence, contrary to law, and applied the
incorrect standards. (Doc. # 2). The matter has culminated in cross-motions for summary
judgment, which are now ripe for adjudication. (Docs. # 11 and 13).
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 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).

2

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. 1-7).
Here, at Step One, the ALJ found that Plaintiff has not engaged in substantial
gainful activity since May 2, 2015, the alleged onset date of the disability. (Tr. 13). At
Step Two, the ALJ determined that the Plaintiff has the following severe impairments:
history of cardiovascular accident (CVA), hypertension with history of heart disease,
kidney disease with history of kidney stones, gout, obesity, anxiety, and depression. (Tr.
13). The ALJ determined that Plaintiff’s alleged sinusitis, diabetes, hyperlipidemia, and
vitamin D deficiency were non-severe impairments because they did not cause “more
than minimal work related limitations.” (Tr. 13). At Step Three, the ALJ concluded that

3

Plaintiff does not have an impairment or combination of impairments that meet or
medically equal the severity of one of the listed impairments in 20 C.F.R. § 404, Subpart
P, Appendix 1. (Tr. 13-15).
At Step Four, the ALJ found that Plaintiff possesses the residual functional capacity
(RFC) to perform work at the light exertional level as defined in 20 C.F.R. §§ 404.1567(b),
416.967(b), with the following modifications and limitations:
[C]laimant can occasionally climb ramps and stairs; and can occasionally
stoop, kneel, crouch, and crawl. He can occasionally be exposed to
extreme cold, extreme heat, humidity, and wetness. The claimant can
never climb ladders, ropes or scaffolds; and can never be exposed to
unprotected heights or dangerous moving machinery, and can never
operate a motor vehicle at work. He can understand and remember simple
instructions; and can sustain attention and concentration to complete simple
tasks with regular breaks every two hours. The claimant can interact as
needed with supervisors and coworkers and occasionally interact with the
public. He can adapt to routine work conditions and occasional work place
changes.
(Tr. 15). Based on this RFC and relying on the testimony of a vocational expert (VE), the
ALJ concluded that Plaintiff was unable to perform his past relevant work as an apartment
maintenance worker and auto mechanic. (Tr. 18). Thus, the ALJ proceeded to Step Five
where he determined, informed by testimony of the VE, that there were other jobs that
exist in significant numbers in the national economy that the Plaintiff could perform. (Tr.
18-19). Accordingly, the ALJ ruled that the Plaintiff was not under a disability, as defined
in the Social Security Act. (Tr. 19).
C.

Analysis

Plaintiff advances two arguments in the memorandum in support of his Motion for
Summary Judgment. (Doc. # 11-1). First, Plaintiff claims that the “determination that [he]
is not disabled is not supported by substantial evidence.” Id. at 10-12. Second, Plaintiff

4

argues that the ALJ “failed to properly evaluate [his] subjective complaints of pain.” Id. at
12-14. 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)).
Plaintiff asserts that the ALJ’s determination was not supported by substantial
evidence because “[w]hen the record in this case is considered in its entirety, the
combined effects of Mr. Brown’s physical and mental impairments, reflect that he could
not perform a wide range of even sedentary work on a regular and sustained basis.” (Doc.
#11-1 at 10-11). More specifically, Plaintiff claims the ALJ erred by failing to properly
address all of Brown’s ailments and limitations in the decision. Id. at 11-12.
First, the Plaintiff argues that the ALJ failed to address his “chronic kidney disease”
and categorize his “panic disorder with agoraphobia or depressive disorder” as severe.
This argument is meritless. “The ALJ is not required to describe the claimant’s limitations

5

using the exact language of those medical sources so long as substantial evidence
demonstrates that the ALJ adequately portrayed the claimant’s limitations in the RFC.”
Harris v. Comm’r of Soc. Sec., No. 2:17-cv-131, 2017 WL 5507618, at *2 (S.D. Ohio Nov.
17, 2017). See also Smith-Johnson v. Comm’r of Soc. Sec, 579 F. App’x 426, 436 (6th
Cir. 2014); Colbert v. Comm’r of Soc. Sec., No. 2:17-cv-876, 2018 WL 2191393, at *3
(S.D. Ohio May 14, 2018). In other words, an ALJ can accurately describe a claimant’s
condition using different words or phrases than those used by the claimant. Harris, 2017
WL 5507618, at *2. Here, the ALJ clearly stated that Brown had a number of severe
impairments including “kidney disease with history of kidney stones” and “anxiety and
depression.” (Tr. 13). While ALJ Hansen did not use identical terms in describing Brown’s
conditions, the Court finds that Brown’s impairments are adequately portrayed by the ALJ
and, therefore, the ALJ did not err.
Plaintiff also argues that the ALJ, in concluding that Brown could interact with his
supervisors and coworkers as needed, committed reversible error by failing to recognize
Dr. William Rigby’s conclusion that Brown has a “moderate impairment in his ability to
maintain social interactions with supervisors, friends, and the public.” (Doc. # 11-1 at 1112). This assertion is similarly without merit. ALJ Hansen clearly considered the mental
evaluation conducted by Dr. Rigby and acknowledged that Dr. Rigby, as well as two State
agency evaluators, found that Brown had “no more than moderate mental limitations.”
(Tr. 17-18). In fact, the ALJ noted that he gave “significant weight to the opinion of Dr.
Rigby.” (Tr. 18).
While Dr. Rigby’s consultative evaluation did not go into detail about how this
“moderate impairment” would limit Brown’s work, the evaluations by State agency

6

doctors, Dr. Jane Brake and Dr. Alex Guerrero, both did. (Tr. 96, 126-27, 601-04). Each
recognize that, despite these moderate limitations, Brown can “[i]nteract frequently as
needed with supervisors and peers sufficiently for task completion and involving
interaction with the public on an occasional basis” and “respond appropriately to changes
in a routine work setting.” (Tr. 96, 126-27). This evidence is consistent with Dr. Rigby’s
opinion and the ALJ’s determination that Brown can “interact as needed with supervisors
and coworkers and occasionally interact with the public.”

(Tr. 15).

Therefore, the

suggestion that the ALJ did not give credit to Dr. Rigby’s assessment is incorrect.
Finally, Plaintiff suggests that ALJ Hansen did not take into consideration the
physical limitations Brown faced after his stroke. (Doc. # 11-1 at 12). This criticism is,
again, misguided. (Tr. 16-17). ALJ Hansen considered Brown’s testimony about his own
physical limitations as well as the medical evidence in the record. (Tr. 16-18). The
argument that the ALJ did not consider physical limitations is countered by statements in
the ALJ’s decision where, for example, the ALJ acknowledged that medical records from
treating physicians revealed that Brown had problems with “fine movement and writing
with the hand” and “right side residual weakness and a limping gait.” (Tr. 17). ALJ
Hansen also considered the standing, sitting, and lifting limitations that Brown noted in
his testimony, and that the non-evaluating State agency physicians (Dr. P. Saranga and
Dr. Subhideb Mukherjee) included in their evaluations. (Tr. 16-17). Had ALJ Hansen not
taken Brown’s physical limitations into consideration, the RFC determination would not
have included limitations on physical activities such as stooping, crouching, crawling, and
climbing, among other things. (Tr. 15). Thus, Brown’s argument that ALJ failed to
consider his physical limits carries no weight.

7

Considering collectively the arguments that the ALJ ignored evidence, the Court
finds the Plaintiff appearing to argue that the ALJ improperly credited the opinions and
evidence of medical doctors over his and his mother’s testimony and evidence regarding
his physical and mental limitations. The ALJ’s determination, however, was proper. The
ALJ is required to consider all of the evidence in the record and rely on that which the ALJ
finds credible to determine the RFC. Irvin, 573 F. App’x at 502; 20 C.F.R. § 404.1545(e).
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.
In social security disability cases, medical evidence may come from treating
sources, non-treating sources, and non-examining sources. 20 C.F.R. § 404.1527. A
treating source is the claimant’s “own acceptable medical source who provides [claimant],
or has provided [claimant], with medical treatment or evaluation and who has, or has had,
an ongoing treatment relationship with [claimant].” Id. See also Abney v. Astrue, No.
5:07-cv-394-KKC, 2008 WL 2074011, at *11 (E.D. Ky. May 13, 2008). A non-treating
source is an acceptable medical source who has examined the claimant but does not
have an ongoing treatment relationship with him, while a non-examining source has
provided medical or other opinion evidence in the case without examining the claimant.
Abney, 2008 WL 2074011, at *11 (citing 20 C.F.R. § 404.1527). Evidence may also come
from testimony of the claimant and opinions of the claimant’s family members. See, e.g.,
Logan v. Colvin, No. 5:13-cv-210-DCR, 2014 WL 5486318, at *5-6 (E.D. Ky. Oct. 29,
2014) (examining the ALJ’s weighing of the claimant’s testimony and lay opinions from
the claimant’s family).

The Sixth Circuit has previously upheld an ALJ decision

8

discounting the evidence of a claimant’s family member “on the basis that it conflicted
with other substantial evidence in the record.” Gustafson v. Comm’r of Soc. Sec., 550 F.
App’x 288, 289 (6th Cir. 2014). Similarly, “[a]n ALJ is not required to accept the Claimant’s
testimony as fully credible.” Logan, 2014 WL 5486318, at * 5 (citing Jones, 336 F.3d at
476).
Here, the ALJ considered the Plaintiff’s testimony, medical records, opinions from
five doctors, a report written by Plaintiff’s mother, and Plaintiff’s own testimony in coming
to the conclusion that Plaintiff could engage in light work with certain additional
modifications and limitations. (Tr. 16-18). This conclusion is supported by substantial
evidence in the form of opinions of the State agency doctors (Dr. Brake, Dr. Guerrero, Dr.
Saranga, and Dr. Mukherjee) and the opinion of consultative examiner, Dr. Rigby, which
all indicated an ability to work with some limitations. (Tr. 91-97, 122-28, 601-05).
Additionally, evidence from examining and treating physicians suggested improvements
in Brown’s heath since his stroke and a lack of abnormal muscular strength, which further
supports the conclusion that he could work.

See, e.g., (Tr. 16) (noting Claimant’s

improved ejection fraction and finding “[t]here was no evidence of abnormal strength or
tone in the head, neck, spine, chest, pelvis, or extremities”). As the testimony of Brown
and opinion of his mother were inconsistent with the medical findings, the ALJ did not err
by discounting this evidence, and giving more weight to the opinions of medical
professionals. See supra.
“While the ALJ weighed the evidence contrary to how the Plaintiff preferred, the
ALJ did not fail[] to mention or analyze the evidence in the record” as alleged by Plaintiff.
Halcomb v. Berryhill, No. 6:17-cv-36-DLB, 2018 WL 386159, at *6 (E.D. Ky Jan. 11, 2018)

9

(quoting Minor v. Comm’r of Soc. Sec., 513 F. App’x 417, 436 (6th Cir. 2013)) (internal
quotations omitted). Further, the ALJ based his RFC conclusion on substantial evidence.
As it is the job of a reviewing Court to determine if there is substantial evidence to support
the ALJ’s conclusion and not to “re-weigh record evidence,” the Court must uphold the
decision of ALJ Hansen. DeLong v. Comm’r of Soc. Sec, 748 F.3d 723, 726 (6th Cir.
2014).
2.

The ALJ properly evaluated Plaintiff’s subjective complaints of
pain.

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
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
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 two-prong 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)).

10

This second argument presented by Plaintiff overlaps with his first; Plaintiff claims
that “the ALJ has failed to properly assess the entirety of the medical evidence including
all the[] additional medical problems which are resulting in additional levels of pain for Mr.
Brown.” (Doc. # 11-1 at 14). Again, Plaintiff seems to disagree with the ALJ favoring the
opinions of doctors over Brown’s own testimony about his pain in determining that Brown
is not disabled and can work with some limitations. The Court finds, however, that the
ALJ properly evaluated Brown’s complaints of pain and the RFC determination was
supported by substantial evidence.
ALJ Hansen, in undertaking the two-prong assessment of Brown’s pain concluded
“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. 17).

The ALJ

considered Brown’s testimony regarding the pain he suffers in conjunction with medical
records and opinions. Medical records indicated, for example, that Brown suffered from
painful conditions like gout and kidney stones, but the ALJ also recognized that “notes
indicated poor compliance with allopurinol and a reluctance to take sodium citrate to
address these issues.” (Tr. 17). Medical opinions also indicated that Brown could
undertake light work with a number of limitations in order to account for his physical and
mental conditions and ailments. (Tr. 17). See also Part II.C.1 supra. Further, medical
records from treating physicians indicated that Brown was suffering from little to no pain.
See, e.g., (Tr. 508, 911, 915) (indicating pain levels ranging from zero to three). The ALJ
has not erred by giving greater weight to medical records and opinions regarding the

11

symptoms of Brown’s ailments, and the limitations caused by those ailments, over the
testimony of Brown himself. See Part II.C.1 supra.
Moreover, while not specifically discussing each complaint of pain, the ALJ did
account for the pain Brown testified to by incorporating limitations on stooping, kneeling,
crouching, crawling, and climbing into the RFC. (Tr. 15). The ALJ also accounted for
Brown’s mental problems by incorporating regular breaks and limitations on his
interactions with the public. (Tr. 15). Thus, the ALJ appears to have given some weight
to Brown’s complaints of pain in determining Brown’s RFC. This Court must defer to the
ALJ’s credibility assessment and weighing of the evidence and find that ALJ Hansen
properly considered Brown’s subjective complaints of pain. Cutlip, 475 F.3d at 729.
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. # 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.

12

This 11th day of December, 2018.

K:\DATA\SocialSecurity\MOOs\London\18-47 Brown MOO.docx

13