Riley v. SSA

Filing 17

MEMORANDUM OPINION & ORDER: For the foregoing reasons, Plaintiffs motion for summary judgment, DE 15 , is hereby DENIED and Defendants motion for summary judgment, DE 16 , is hereby GRANTED. Signed by Judge Joseph M. Hood on 4/12/12.(MJY)cc: COR Modified text on 4/12/2012 (MJY).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
JERRY D. RILEY,

)
)
) Civil Action No. 7:11-CV-71-JMH
)
)
) MEMORANDUM OPINION AND ORDER
)
)
)
)
)

Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
Defendant.
**

**

**

**

**

This matter is before the Court upon cross-motions for summary
judgment on the plaintiff’s appeal of the Commissioner’s denial of
his application for Supplemental Security Income (“SSI”).
16].1

[DE 15,

The Court, having reviewed the record and being otherwise

sufficiently advised, will grant the defendant’s motion and deny
the plaintiff’s motion.
I.

PROCEDURAL AND FACTUAL BACKGROUND
The tortured procedural history of this case was detailed in

the Court’s Memorandum Opinion of January 19, 2012 and, thus, only
a brief recitation is necessary here.

Plaintiff Jerry D. Riley

(“Plaintiff” or “Riley”) filed for SSI benefits on October 17,
1994, alleging an onset of disability of September 28, 1994.
was eventually awarded benefits based on that application.

1

He

Three

These are not traditional Rule 56 motions for summary
judgment. Rather, this is a procedural device by which the parties
bring the administrative record before the Court.

years later, the Social Security Administration (“SSA”) determined
that Riley was no longer disabled.

In 2001, that determination

became the final decision of the Commissioner and Riley did not
seek judicial review.
On March 19, 2003, Riley filed a second application for SSI,
alleging that he became disabled on October 17, 1994, due to the
following problems:

anxiety; low back pain; headaches; arthritis;

“nerves”; and ulcers.
at 435, 840].

[Administrative Record, hereinafter “A.R.”

In January, 2005, Administrative Law Judge (“ALJ”)

William Gitlow issued an unfavorable decision in Plaintiff’s case,
which Plaintiff appealed to the SSA Appeals Council and the United
States District Court for the Eastern District of Kentucky.2
Plaintiff’s case was remanded for rehearing.

ALJ Andrew Chwalibog

took up Plaintiff’s case and issued an adverse ruling on March 23,
2009.

Since that most recent denial of Plaintiff’s application,

Plaintiff has timely pursued and exhausted his administrative
remedies, thus, this matter is ripe for review and properly before
this Court under the Social Security Act, 42 U.S.C. §§ 1383(c)(3),
405(g).
Plaintiff

was

forty-four-years-old

Chwalibog’s most recent decision.

at

the

time

[See AR 426, 578].

of

ALJ

He has a

ninth-grade education and obtained his GED in 1991. [AR 999-1000].

2

On April 12, 2005, while his second application for SSI was
pending, Plaintiff filed a third application, which was
consolidated with the second.
2

He engaged in past work as a truck driver but reports that he quit
in October of 1994 because he could not handle the vibrations and
rattling of the truck.

He added that his “nerves can’t handle the

traffic on the road.”

[AR 840].

Plaintiff reported having been

treated by three different physicians.

[AR 1032-1033].

He

reported that he was seen by a Dr. Ackers once or twice a week for
six months and that he received physical therapy during these
treatments.

He reported having seen Dr. Cherie Dickerson once a

month for approximately two years for his problems with anxiety and
depression. [AR 1032, 1034]. He also reported having been treated
by Dr. Jackie Briggs and that he took Lortab and Klonopin for his
pain and anxiety.

He underwent a brief course of psychiatric

counseling but reported that he “just quit going.”

[AR 1037].

He

admitted that while he had problems with alcohol in the past, he
had not had a drink since the summer of 2003.
ALJ Chwalibog issued his decision on March 23, 2009. He found
that the medical evidence established the following combination of
severe impairments:
spine,

post-traumatic

“degenerative disc disease of the lumbar
stress

arthritis

of

the

right

ankle,

borderline intellectual functioning, an adjustment disorder, and a
panic disorder (20 C.F.R. § 416.920(c)).” [AR 567]. The ALJ found
these impairments to be severe in combination within the meaning of
the regulations, but not severe enough to meet or medically equal
one of the impairments listed in Appendix 1 of 20 C.F.R. Part 404,

3

Subpart P.

[AR 569].

The ALJ found that Plaintiff was not

disabled and that, while he was unable to perform his past work, he
retained the residual functional capacity (“RFC”) to perform a
limited range of light work.
II.

[See AR 571].

OVERVIEW OF THE PROCESS
The ALJ, in determining disability, conducts a five-step

analysis:
1.

An individual who is working and engaging in
substantial gainful activity is not disabled,
regardless of the claimant’s medical condition.

2.

An individual who is not working but does not have
a “severe” impairment which significantly limits
his physical or mental ability to do basic work
activities is not disabled.

3.

If an individual is not working and has a severe
impairment which “meets the duration requirement
and is listed in appendix 1 or is equal to a listed
impairment(s),” then he is disabled regardless of
other factors.

4.

If a decision cannot be reached based on current
work activity and medical facts alone, and the
claimant has a severe impairment, then the
Secretary
reviews
the
claimant’s
residual
functional capacity and the physical and mental
demands of the claimant’s previous work. If the
claimant is able to continue to do this previous
work, then he is not disabled.

5.

If the claimant cannot do any work he did in the
past because of a severe impairment, then the
Secretary
considers
his
residual
functional
capacity, age, education, and past work experience
to see if he can do other work. If he cannot, the
claimant is disabled.

Preslar v. Sec’y of Health & Human Servs., 14 F.3d 1107, 1110 (6th
Cir. 1994)(citing 20 C.F.R. § 404.1520 (1982)).
4

“The burden of

proof is on the claimant throughout the first four steps of this
process to prove that he is disabled.”

Id.

“If the analysis

reaches the fifth step without a finding that the claimant is not
disabled, the burden transfers to the Secretary.”

Id.

III. STANDARD OF REVIEW
In reviewing the ALJ’s decision to deny disability benefits,
the Court may not try the case de novo, nor resolve conflicts in
the evidence, nor decide questions of credibility. Cutlip v. Sec’y
of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
Instead, judicial review of the ALJ’s decision is limited to an
inquiry

into

whether

the

ALJ’s

findings

were

supported

by

substantial evidence, 42 U.S.C. § 405(g), Foster v. Halter, 279
F.3d 348, 353 (6th Cir. 2001), and whether the ALJ employed the
proper legal standards in reaching her conclusion. See Landshaw v.
Sec’y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986).
“Substantial evidence is 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, 25 F.3d at 286.
IV.

ANALYSIS
A.

Because Plaintiff has failed to provide a sufficient
basis for the Court to alter or amend its previous ruling
regarding the completeness of the administrative record,
his construed motion to reconsider will be denied.

Plaintiff asks the Court to reconsider its previous ruling,

5

which denied Plaintiff’s motion to remand his claim to the Social
Security Administration based on an incomplete administrative
record.

[See DE 12].

The Federal Rules of Civil Procedure do not

provide for motions to reconsider.

Accordingly, the portion of

Plaintiff’s memorandum that asks the Court to reconsider its prior
decision will be construed as a motion to alter or amend a judgment
under Federal Rule of Civil Procedure 59(e).
600 F.2d 60, 62 (6th Cir. 1979).

See Smith v. Hudson,

Such motions are granted only

where “there is a clear error of law, newly discovered evidence, an
intervening change in controlling law, or to prevent manifest
injustice.”
521,

523

Tritent Intern. Corp. v. Kentucky, 395 F. Supp. 2d

(E.D.

Ky.

2005)(citing

GenCorp,

Inc.

Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)).

v.

Am.

Int’l

Plaintiff fails

to assert any of these grounds as a basis for his request that the
Court reconsider its prior ruling.

Rather, he repeats his prior

arguments, which, at best, could suggest that reversal of the
Court’s

ruling

Plaintiff’s

is

necessary

position,

to

however,

prevent
is

manifest

unavailing.

injustice.
The

bulk

of

Plaintiff’s argument is focused on missing documents that were part
of

his

1994

application

for

disability

benefits.

Although

Plaintiff was granted benefits based on his 1994 application, he
was later determined to be no longer disabled and benefits were
discontinued.
success,

he

While he appealed to the Appeals Council without
did

not

seek

judicial
6

review

and,

thus,

the

Commissioner’s

decision

became

final.

Accordingly,

that

application and its contents are not before this Court and the
Court will not remand Plaintiff’s case based on missing documents
from Plaintiff’s earlier application, which have little relevance
to deciding Plaintiff’s current claim.
B.

Because Plaintiff has failed to demonstrate that improper
legal standards were employed with respect to the issue
of bias, Plaintiff’s motion for summary judgment on this
ground will be denied.

Stuart Gitlow, M.D. rendered an expert opinion regarding
Plaintiff’s mental health through the use interrogatories, which he
answered on March 24, 2007, after having reviewed portions of the
administrative record.

Plaintiff argues that ALJ Chwalibog’s

reliance on Dr. Gitlow’s medical opinion was improper because Dr.
Gitlow is the half-brother of William Gitlow, the ALJ who denied
Plaintiff’s

application

for

benefits

on

March

25,

2005.

Plaintiff’s argument fails because a careful review of the record,
including

ALJ

Chwalibog’s

opinion

and

Dr.

testimony, reveals no evidence of actual bias.

Gitlow’s

hearing

See Schweiker v.

McClure, 456 U.S. 188, 195-97 (1982).
On August 29, 2008, after Plaintiff had voiced his concerns
regarding the use of Dr. Gitlow’s opinion, a hearing was held,
during which Dr. Gitlow testified.

Plaintiff had the opportunity

to cross-examine Dr. Gitlow, who testified that, prior to that
day’s

hearing,

he

had

no

knowledge

of

his

half-brother’s

involvement in Plaintiff’s case. [AR 1027]. Further, Dr. Gitlow’s
7

answers to the interrogatories were rendered two years after ALJ
Gitlow’s unfavorable decision in Plaintiff’s case.

Dr. Gitlow

testified that he had no discussion with anyone in ALJ Chwalibog’s
office prior to answering the interrogatories in question.

Id.

Mindful of Plaintiff’s concern regarding bias, ALJ Chwalibog gave
little

weight

to

Dr.

Gitlow’s

hearing

testimony

Plaintiff’s mental health and substance abuse history.

regarding
He did,

however, give great weight to the interrogatory responses, since he
was satisfied that there had been no potential for bias when Dr.
Gitlow answered the questions.

Contrary to Plaintiff’s argument

that there was no explanation for utilizing the opinion of Dr.
Gitlow, who lived in Rhode Island, ALJ Chwalibog’s opinion states
that Dr. Gitlow was the only medical expert with a specialty in
substance addiction on the agency’s roster for the Huntington
Hearing Office.

And while Plaintiff urges that 20 C.F.R. §

416.919q has been violated, this regulation actually relates to
conflicts of interest between consultants and their practices.
Here, there is no allegation of a conflict that had anything to do
with Dr. Gitlow’s medical practice.
Ultimately, an ALJ is in the best position to evaluate the
credibility of witnesses.

See Walters v. Comm’r of Soc. Sec., 127

F.3d 525, 531 (6th Cir. 1997).

Based on the foregoing, ALJ

Chwalibog’s credibility determination with respect to Dr. Gitlow is
supported by substantial evidence and, therefore, will not be

8

disturbed. See id. (ALJ’s credibility determination is entitled to
“great weight and deference.”); Smith v. Halter, 307 F.3d 377, 379
(6th Cir. 2001)(ALJ’s credibility assessment will not be disturbed
“absent compelling reason.”).
C.

Because Plaintiff has failed to demonstrate that Defendant
violated the rule of Drummond v. Commissioner of Social
Security, his motion for summary judgment on this ground will
be denied.
In Drummond, 126 F.3d 837 (6th Cir. 1997), the Sixth Circuit

Court of Appeals held that, absent evidence of improvement of a
claimant’s condition, a subsequent ALJ is bound by the residual
functional capacity (“RFC”) determination of a previous ALJ. Here,
Plaintiff argues that ALJ Chwalibog erred by assigning him a light
exertional RFC when, in 1996, his RFC had been determined to be
sedentary.

Plaintiff fails to recognize that his RFC was revised

in 1999, when the Commissioner determined that he was no longer
disabled and his SSI benefits were discontinued.

At that time,

Plaintiff was found to have the RFC to perform light unskilled
work.

[AR 394].

In the most recent opinion, issued by ALJ

Chwalibog on March 23, 2009, Plaintiff was also found to have an
RFC for light unskilled work. Accordingly, to the extent Plaintiff
argues that his RFC was modified without significant evidence of
improvement in his condition, Drummond does not apply.
Additionally, Plaintiff argues that Drummond was violated when
ALJ Chwalibog opined, in a June 2007 opinion, that Plaintiff could

9

lift/carry twenty to twenty-five pounds while the 2001 decision
that he was no longer disabled stated that he could lift/carry a
maximum of twenty pounds.

ALJ Chwalibog’s most recent opinion

reflects, however, that the vocational expert was asked to assume
an individual who was limited to occasionally lifting a maximum of
twenty pounds.

[AR 577].

Because the ALJ opinion purporting that

Plaintiff could lift twenty-five pounds was reversed, that finding
is not before the Court.

The ALJ decision that is before the Court

complies with Drummond without question, as the maximum lifting
capability corresponds with that of the 2001 decision.
As a final matter, the Court notes that Plaintiff’s counsel
failed to include, in Plaintiff’s motion for summary judgment or
his supporting memorandum, a numbered list of his legal arguments.
By failing to include such a list, counsel is in violation of the
Court’s Standing Scheduling Order for Social Security cases.
General Order 09-13 (Nov. 6, 2009) at DE 9.

See

The only other motion

to have been submitted by Plaintiff’s counsel that was before the
undersigned,

since

the

enactment

deficient in the same manner.

of

the

General

Order,

was

See Banks v. Astrue, Civil Action

No. 10-cv-370-JMH, 2011 WL 3608027 (E.D. Ky. Aug. 16, 2011). While
a failure to comply with this requirement may constitute grounds
for

a

denial

of

Plaintiff’s

motion,

the

Court

nonetheless

considered the arguments that were evident upon the face of
Plaintiff’s motion. Counsel is directed to comply with the General

10

Order from here on in, however, as the Court may not be so generous
with respect to future filings.
V.

CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary

judgment, [DE 15], is hereby DENIED and Defendant’s motion for
summary judgment, [DE 16], is hereby GRANTED.
This the 12th day of April, 2012.

11