Benson v. SSA
MEMORANDUM OPINION AND ORDER: 1. Pla Frances Benson's motion to remand Record No. 12 is DENIED. 2. Pla Frances Benson's motion for summary judgment Record No. 16 is DENIED. 3. Dft Carolyn W. Colvin's motion for summary judgment Record No. 25 is GRANTED. 4. The administrative decision will be AFFIRMED by separate Judgment entered this date. Signed by Judge Danny C. Reeves on 8/11/2014. (RCB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Civil Action No. 7: 13-022-DCR
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This matter is pending for consideration of cross-motions for summary judgment filed
by Plaintiff Frances Benson (“Benson” or “the Claimant”) and Defendant Carolyn W. Colvin,
Acting Commissioner of Social Security (“the Commissioner”). [Record Nos. 16, 25] Benson
contends that the administrative law judge (“ALJ”) erred in finding that she is not entitled to a
period of disability and Disability Insurance Benefits (“DIB”) under the Social Security Act
(“Act”). She seeks reversal of the ALJ’s decision and an award of benefits. She has also filed
a separate motion to remand for consideration of new evidence. [Record No. 12] The
Commissioner asserts that the ALJ’s decision was proper and should be affirmed and that
remand is not warranted. [Record Nos. 24, 25]
For the reasons discussed below, the Court will grant the Commissioner’s motion for
summary judgment. Benson’s motion for summary judgment and her motion to remand will be
On September 8, 2009, Benson applied for a period of disability and DIB under Title II
of the Act. [See Administrative Transcript, pp. 177-83; hereafter “Tr.”] She alleged a disability
beginning August 28, 2008. [Id.] Benson’s applications were denied initially and upon
reconsideration. [Tr., pp. 94-97, 98-101, 105-06] On November 28, 2011, an administrative
hearing was held before ALJ William H. Gitlow in Prestonsburg, Kentucky. [Tr., pp. 19, 36-62]
Benson appeared and testified, represented by attorney William L. Roberts. [Id.] Vocational
expert (“VE”) Anthony T. Michael, Jr. also testified at the hearing. [Id.] In a decision dated
January 25, 2012, ALJ Gitlow found that Benson was not disabled under sections 216(i) and
223(d) of the Act. [Tr., p. 28]
Benson was forty-eight years old at the time of the ALJ’s decision. [Tr., pp. 27, 39, 177]
She has a eleventh grade education and has past relevant work as a cashier and a sandwich
maker. [Tr., pp. 27, 43, 45, 195-96, 199] Her alleged disability stems from anxiety, tendinitis
in her foot, arthritis in her leg, low back and disc problems, difficulty sleeping, and depression.
[Tr., p. 97, 194]
After reviewing the record and the testimony presented during the administrative hearing,
the ALJ concluded that Benson suffered from a combination of severe impairments, including:
“degenerative disc disease of lumbar spine, lung mass, and depression.” [Tr., p. 21] However,
ALJ Gitlow concluded that none of these impairments were of listing level severity. [Tr., p. 22]
Notwithstanding these impairments, the ALJ found that Benson retained the residual functional
capacity (“RFC”) to:
lift and carry 20 pounds occasionally, 10 pounds frequently and has need to
alternate sitting and standing at 30 to 60 minute intervals. She can occasionally
climb, balance, stoop, crouch, kneel, and crawl; cannot climb ladders, ropes, or
scaffolds; must avoid work in temperature extremes; at unprotected heights;
around dangerous moving machinery; in high humidity; and excessive dues,
fumes, or gases.
[Tr., p. 23] Additionally, the ALJ found that:
[Benson] has a moderately limited ability to: understand, remember and carry out
detailed instructions; maintain attention and concentration for extended periods;
complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; and respond appropriately to
changes in the work setting. However, she is able to understand and remember
simple instructions; sustain attention for simple, structured tasks for periods of
two hour segments; adapt to changes if they are gradually introduced and
infrequent; make simple work-related decisions; maintain appropriate appearance
and hygiene; recognize and appropriately respond to hazards; work in the
presence of others; and accept supervision.
[Tr., p. 22]
Based on the testimony of VE Michael, the ALJ found that Benson could not perform
past relevant work. [Tr., p. 27] But after considering her age, education, work experience, and
RFC, ALJ Gitlow found that Benson could perform other jobs, such as route clerk, and inspector,
as well as sorter, and assembler. [Tr., pp. 27-28] And, based on his finding that Benson could
perform other work existing in significant numbers in the national economy, the ALJ concluded
that Benson was not disabled. As a result of this assessment, Benson was denied a period of
disability and DIB. [Tr., pp. 28-29]
Under the Social Security Act, a “disability” is defined as “the inability to engage in
‘substantial gainful activity’ because of a medically determinable physical or mental impairment
of at least one year’s expected duration.” Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th
Cir. 2007). A claimant’s Social Security disability determination is made by an ALJ in
accordance with “a five-step ‘sequential evaluation process.’” Combs v. Comm’r of Soc. Sec.,
459 F.3d 640, 642 (6th Cir. 2006) (en banc) (quoting 20 C.F.R. § 404.1520(a)(4)). If the
claimant satisfies the first four steps of the process, the burden shifts to the Commissioner with
respect to the fifth step. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).
First, the claimant must demonstrate that she is not engaged in substantial gainful
employment at the time of the disability application. 20 C.F.R. § 404.1520(b). Second, the
claimant must show that she suffers from a severe impairment or combination of impairments.
20 C.F.R. §§ 404.1520(c). Third, if the claimant is not engaged in substantial gainful
employment and has a severe impairment which is expected to last for at least twelve months and
which meets or equals a listed impairment, she will be considered disabled without regard to age,
education, and work experience. 20 C.F.R. § 404.1520(d). Fourth, if the Commissioner cannot
make a determination of disability based on medical evaluations and current work activity and
the claimant has a severe impairment, the Commissioner will then review the claimant’s RFC
and relevant past work to determine whether she can perform her past work. If she can, she is
not disabled. 20 C.F.R. § 404.1520(f).
Under the fifth step of the analysis, if the claimant’s impairment prevents her from doing
past work, the Commissioner will consider her RFC, age, education, and past work experience
to determine whether she can perform other work. If she cannot perform other work, the
Commissioner will find the claimant disabled. 20 C.F.R. § 404.1520(g). The Commissioner has
the burden of proof only on “‘the fifth step, proving that there is work available in the economy
that the claimant can perform.’” White v. Comm’r of Soc. Sec., 312 F. App’x 779, 785 (6th Cir.
2009) (quoting Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999)).
Judicial review of the denial of a claim for Social Security benefits is limited to
determining whether the ALJ’s findings are supported by substantial evidence and whether the
correct legal standards were applied. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007). The substantial-evidence standard presupposes that there is a zone of choice within
which decision makers can go either way, without interference from the court. McClanahan v.
Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006). Substantial evidence is such relevant
evidence as a reasonable mind might accept as sufficient to support the conclusion. Richardson
v. Perales, 402 U.S. 389, 401 (1971); Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
If supported by substantial evidence, the Commissioner’s decision must be affirmed even
if the Court would decide the case differently and even if the claimant’s position is also
supported by substantial evidence. Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir.
2007); Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007); Longworth v. Comm’r of Soc. Sec.
Admin., 402 F.3d 591, 595 (6th Cir. 2005); Casey v. Sec’y of Health & Human Servs., 987 F.2d
1230, 1233 (6th Cir. 1993). Thus, the Commissioner’s findings are conclusive if they are
supported by substantial evidence. 42 U.S.C. § 405(g).
Additionally, under § 405(g), the Court may remand a case under two separate
circumstances. These remands are referred to as “sentence four” and “sentence six” remands.
In a sentence four remand, the Court has the “power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner
of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
A remand under sentence four must accompany an order affirming, modifying, or reversing the
Commissioner’s decision. See Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991). A sentence six
remand is appropriate “only upon a showing that there is new evidence which is material and that
there is good cause for the failure to incorporate such evidence into the record in a prior
proceeding.” 42 U.S.C. § 405(g). Unlike a sentence four remand, in a sentence six remand, the
Court “does not rule in any way as to the correctness of the administrative determination.”
Melkonyan, 501 U.S. at 98. Instead, remand is the result of new evidence “that was not available
to the claimant at the time of the administrative proceeding and that . . . might have changed the
outcome of the prior proceeding.” Id.
Prior Administrative Proceedings
Benson argues that remand is necessary because ALJ Gitlow’s decision is “premised on
a fatally incomplete record and inaccurate past history” which compromises the legal basis of
the Commissioner’s final decision. [Record Nos. 12, 16] Benson contends that she became
disabled on December 31, 1992, due to mental impairments and that the Commissioner has never
proven that her mental impairments ever improved in accordance with the Sixth Circuit’s
holding in Drummond v. Comm’r of Soc. Sec., 126 F.3d 837, 841 (6th Cir. 1997), and
Acquiescence Ruling (“AR”) 98-4(6). As a result, Benson asserts that the Commissioner’s prior
termination of benefits was in error. Additionally, she maintains that the subsequent denials of
her other applications for benefits (including ALJ’s Gitlow’s determination) also repeated this
In Drummond, the claimant’s initial application for Supplemental Security Income was
denied by an ALJ, finding that the claimant retained the RFC to perform “sedentary” work.
Drummond, 126 F.3d at 838. The claimant filed another application for Supplemental Security
Income two years later. Another hearing was held before an ALJ. This time, the ALJ concluded
that the claimant had the RFC to perform “medium” work. Id. at 839. The Sixth Circuit held
that “[a]bsent evidence of an improvement in a claimant’s condition, a subsequent ALJ is bound
by the findings of a previous ALJ.” Id. at 842.
Drummond mandates that, absent evidence that a claimant’s condition has improved,
findings issued by an ALJ as part of a prior disability determination are binding on another ALJ
in a subsequent proceeding. Id. at 841. The Commissioner is required to prove changed
circumstances to escape principles of res judicata. Id. at 842-43 (holding that the Commissioner
does not have “unfettered discretion to reexamine issues previously determined absent new and
additional evidence . . . [j]ust as [a claimant] is barred from relitigating an issue that has been
previously determined, so is the Commissioner”). Therefore, an ALJ adjudicating a subsequent
disability claim arising “under the same title of the Act as the prior claim” must adopt the
original ALJ’s final determination unless “new and material evidence” demonstrates a change
in the claimant’s condition. Perry v. Comm’r of Soc. Sec., 501 F. App’x 425, 427; see also AR
98-4(6), 1998 SSR LEXIS 5, at *9 (“[A]djudicators 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 . . . .”).
As indicated above, Benson has filed numerous applications for benefits. In August
1993, she filed an application for DIB that was granted due to her anxiety and personality
disorder. [See Tr., pp. 69, 83] Benson was found to be eligible for benefits beginning December
31, 1992. [Id.] However, in February 1997, benefits payments stopped because it was
determined that she had medically improved and could work. [Id.] Benson requested a hearing
to contest the cessation of benefits. Her appeal was denied in a January 28, 1999, decision by
ALJ Andrew J. Chwalibog. [Tr., pp. 66-76] Benson’s subsequently sought review with the
United States District Court in West Virginia. [Tr., p. 83]
While the claimant’s civil action was pending, Benson filed applications for DIB and
Supplemental Security Income (“SSI”) on March 22, 2000. [Id.] Those claims were denied by
ALJ James S. Quinlivan following two hearings in December 2000 and June 2001. [Tr., pp. 8393] A review of the claimant’s certified earnings records indicate that, as of July 13, 2011, the
only period of disability entitlement was December 1992 to May 1999. [Tr., pp. 184-85]
Additionally, all of her other claims resulted in a “denial/disallowance.” [Id.] More than eight
years later, Benson filed her current application for DIB, alleging a disability beginning on
August 26, 2008. [Tr. 177-83]
Benson’s sole contention in her motion to remand is that because ALJ Chwalibog and
Quilivan’s unfavorable administrative decisions failed to evaluate her claims under Drummond
and AR 98-4(6), ALJ Gitlow’s 2012 unfavorable decision concerning her 2009 DIB application
is erroneous and should be remanded. [Record No. 12; see also Record No. 16-1, pp. 1-3] This
argument is without merit and untimely.
Beginning with ALJ Chwalibog’s 1999 decision, the appropriate time to raise alleged
legal errors with the decision was at the time she appealed that decision to the Appeals Council
and then to the district court. See 20 C.F.R. §§ 404.967, 404.968, 404.981. Moreover, even if
the claimant had timely raised her concerns of the ALJ’s application of Drummond, ALJ
Chwalibog considered new and material evidence regarding her impairments dated from after
her December 31, 1992 favorable decision. [Tr., pp. 70-74, 75] The ALJ included a finding that
explicitly stated that medical evidence established that there has been improvement in her
condition since December 31, 1992. [Tr., p. 75] Therefore, Benson’s contention concerning her
1999 denial decision is also misplaced. Cf. Castrovinci v. Astrue, No. 1:10CV2650, 2012 WL
928736, at *6-7 (N.D. Ohio Mar. 19, 2012) (affirming an ALJ’s decision where Drummond was
not explicitly referred to, but the language of the decision indicated that consideration was given
to the prior ALJ’s decision and RFC in addition to medical evidence post-dating the prior
decision in evaluating the claimant’s impairments).
Likewise, Benson’s argument concerning ALJ Quinlivan’s decision is without merit.
Again, the claimant’s attempt to attack ALJ Quinlivan’s decision for an alleged failure to
properly apply Drummond and AR 98-4(6) more than ten years after the decision was issued
should have been raised in an appeal of that decision. See 20 C.F.R. §§ 404.967, 404.968,
404.981, 416.1467, 416.1468, 416.481. Benson’s failure to appeal ALJ Quinlivan’s decision
rendered it final. Additionally, ALJ Quinlivan found that Benson had a RFC that was more
restrictive than ALJ Chawlibog’s RFC determination. [Compare Tr., p. 74-75, with Tr., p. 92]
See Whitaker v. Astrue, No. 08-120-HRW, 2009 U.S. Dist. LEXIS 64956, at *8 (E.D. Ky. July
27, 2009) (“The Court is somewhat perplexed by Plaintiff's contention as the ALJ in this case
found a more restrictive RFC than that of the 2005 decision. In other words, the instant decision
is more favorable to the Plaintiff than the prior decision.”). More specifically, ALJ Quinlivan
imposed both non-exertional limitations resulting from Benson’s mental impairments, as well
as limiting her to work at the light exertional level. [Tr., p. 92] In reaching this determination,
the ALJ’s decision indicates that new and material evidence from after ALJ Chwalibog’s January
28, 1999 decision was considered.1 [Tr., pp. 85, 87-90]
Finally, Benson’s contention that the Commissioner is required to retain the 1993
determination that she is disabled because the record based on her 2009 application for DIB does
not contain all of the evidence concerning each of her prior claims is without merit. As an initial
matter, the claimant has failed to identify any authority under which the decision to terminate
her benefits based upon a finding that over a six-year period she had medically improved should
be disregarded, especially when the cessation of benefits was upheld on appeal. Moreover, in
light of Benson’s prior unfavorable decision and absent new and material evidence of changed
medical circumstances, principle of res judicata would only apply concerning the claimant’s
preceding RFC assessment.
Benson cursorily raises a number of additional arguments concerning her prior administrative
decisions. For instance, she contends that: (i) ALJ Chwalibog’s written decision is undated and fails to
identify “what sort of representation the claimant had at the hearing; and (ii) ALJ Quinlivan’s decision is
undated and unsigned. [Record No. 12, p. 2] The time to raise these issues has long passed and her failure
to timely do so has resulted in waiver of these claims. Moreover, Benson provides no support indicating that
even if these issues were timely raised that they would warrant the relief she seeks.
Here, ALJ Gitlow based his determination on sufficient evidence of changed
circumstances. Benson cannot be heard that the ALJ Gitlow was required to adopt a 1993
determination that she was unable to perform any work and was disabled when her earnings
reports reflect that she worked from between the time of ALJ Quinlivan and Gitlow’s decision
(from 2002 through 2008). [Tr., pp. 185-88, 195-96, 203] Further, to the extent Benson claims
that her disability should have been found to have “continued,” she fails to acknowledge that her
prior period of disability ceased in May 1999. [See Tr., p. 184.] In short, Benson’s argument that
ALJ Gitlow is bound by a 1993 determination of disability under the principle of res judicata
is without merit. Remand is not required.2
Weight of Medical Opinions
In her motion for summary judgment, Benson contends that the ALJ impermissibly
credited the medical opinions of non-examing state agency examiners Drs. William C. Cain and
Frak Ferrel. Additionally, she asserts that the ALJ did not provide “good reasons” for
“rejecting” the opinion of her treating physician. [Record No. 16-1, pp. 3-4] Both arguments
Benson’s argument that a sentence six remand is necessary because the current administrative record
does not include a copy of the 1993 decision as well as the entirety of that record is equally unavailing. “It
is well established that the party seeking remand bears the burden of showing that a remand is proper under
Section 405.” Oliver v. Sec. of Health & Human Serv., 804 F.2d 964, 966 (6th Cir. 1986). A sentence six
remand is appropriate only when the claimant presents new and material evidence that, for good cause, was
not made part of the record earlier. 42 U.S.C. § 405(g). Benson has failed to meet this burden. Benson’s
attorney indicates that he made “inquiries” into the location of the claimant’s 1993 claims file but was told
that it “is in storage somewhere.” [Record No. 12, p. 2] This is not a sufficient explanation and is not
adequately demonstrative of good cause. Further, not only does the claimant not have possession of the 1993
claims file (or indicate that possession is imminent), she only speculates about the materiality of those files.
[Record No. 12, pp. 2-3] Thus, Benson has failed to present any new, material evidence to be considered on
remand, as required for a sentence six remand under § 405(g).
A treating source’s medical opinion will be given controlling weight if it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence” in the claimant’s record.
§§ 404.1527(c)(2); see also Walker v. Sec’y of H.H.S., 980 F.2d 1066, 1070 (6th Cir. 1992); SSR
96-2p, 1996 WL 374188 (Even if a treating source’s medical opinion is well-supported,
controlling weight may not be given to the opinion unless it also is “not inconsistent” with the
other substantial evidence in the case record). However, if the treating source’s opinion is not
entitled to controlling weight, this does not necessarily mean that the opinion should be
completely rejected. Rather, the ALJ must determine what weight to give the opinion by
considering the following factors: (1) the length of the treatment relationship and the frequency
of examination; (2) the nature and extent of the treatment relationship; (3) the supportability of
the opinion; (4) the consistency of the opinion with regard to the record as a whole; (5) whether
the treating source is a specialist in the area of his or her opinion; and (6) any other factors which
tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2)-(6).
Additionally, the ALJ must always give “good reasons” for accepting or rejecting a
medical opinion. 20 C.F.R. § 404.1527(c)(2). However, as this Court has acknowledged on
numerous occasions, an “ALJ ‘is not bound by conclusory statements of doctors, particularly
Benson does not identify the treating physician she references in her motion. This failure constitutes
a waiver of the argument. See Hollon ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 491 (6th Cir.
2006). Notwithstanding the claimant’s failure to properly develop this issue, the Court has reviewed the
entirety of the record and it appears that Dr. Benjamin C. Pinner is the only treating source opinion. [Tr., pp.
434-38] The Court, therefore, presumes Benson is referring to Dr. Pinner when arguing that ALJ Gitlow did
not provide good reasons for discounting his opinion.
where they are unsupported by detailed objective criteria and documentation.” Kornecky v.
Comm’r of Soc. Sec., 167 F. App’x 496, 509 (6th Cir. 2006) (per curiam) (quoting Buxton v.
Halter, 246 F.3d 762, 773 (6th Cir. 2001)); see also White v. Comm’r of Soc. Sec., 572 F.3d 272,
286 (6th Cir. 2009) (“Conclusory statements from physicians are properly discounted by
ALJs.”). Notwithstanding the deference given to the medical opinion of the treating physician,
the ultimate decision on disability rests with the ALJ. Walker v. Sec’y of H.H.S., 980 F.2d 1066,
1070 (6th Cir. 1992) Moreover, the regulations provide that a physician’s opinion regarding
whether a claimant is disabled or unable to work will be given no “special significance.” 20
C.F.R. § 404.1527(d)(3).
On June 30, 2010, Dr. Pinner completed a medical source statement prepared by
Benson’s attorney. [Tr., pp. 434-38] Pinner stated that the claimant suffered from lower back
pain, leg pain, and that clinical findings and objective signs indicate tenderness over her back
and hips. [Tr., p. 434] He found that Benson could lift and carry fifty pounds rarely, twenty
pounds occasionally, and ten pounds frequently. [Tr., p. 436] Additionally, she could sit for
more than two hours at a time for at a time for at least six hours in an eight-hour day and was
able to stand for forty-five minutes at a time for about two hours in an eight-hour day. [Tr., pp.
435-36] The claimant would need to walk every sixty minutes for five minutes. [Tr., p. 436]
However, she would need to rest for five minutes every hour. [Id.]
Dr. Pinner also assessed that Benson would need to elevate her legs above her heart
twenty percent of the time when sitting for prolong periods of time. [Id.] He found that the
claimant could occasionally twist, stoop, crouch, and climb stairs but could rarely climb ladders.
[Tr., p. 437] Dr. Pinner concluded that Benson was unable to sustain any full-time employment
without interference from her symptoms because she suffered from pain on a daily basis. [Id.]
Despite this conclusion, Dr. Pinner also noted that Benson was a malinger and often exaggerated
her symptoms, that emotional factors contributed to her symptoms and limitations, and that she
was unmotivated. [Tr., pp. 435, 437]
Contrary to Benson’s argument, ALJ Gitlow properly afforded Dr. Pinner’s opinion
“minimal weight” and provided good reasons for reaching this conclusion. [Tr., p. 26] He noted
that objective medical evidence and diagnostic testing did not support Dr. Pinner’s assessment.
Electromyogram/Nerve Conduction Studies (“EMG/NCS”) showed intact neurological signs and
were normal. [Tr., p. 456] Additionally, Dr. Pinner’s own treatment notes, as well the treatment
notes of orthopedic surgeon Dr. Jonh T. Perrott, reflect that Benson’s MRI only showed very
mild to moderate results. [Tr., pp. 351, 377, 385-86, 425]
The ALJ highlighted that Dr. Pinner’s conclusion that Benson must be able to elevate her
legs over her heart for twenty percent of the time was not supported by any of the objective,
clinical evidence of record. See Kornecky, 167 F. App’x at 509. Indeed, the objective medical
evidence never displayed anything more than intermittent trace edema and Dr. Pinner had never
previously recommended this restriction in treating this ailment. Rather, the treatment notes
reflect that Benson’s lower extremity edema was treated with medication and compression hose.
[Tr., pp. 26, 320-21, 330, 496, 501] See Myatt v. Comm'r of Soc. Sec., 251 F. App’x. 332, 335
(6th Cir. 2007) (noting that modest treatment record of claimant’s ailments belied claim of
Further, ALJ Gitlow noted the internal inconsistencies of Dr. Pinner’s assessment. [Tr.,
p. 26] More specifically, Dr. Pinner concluded that the claimant could sit for more than two
hours at a time, but also stated that she needed to walk every sixty minutes. [Tr., pp. 26, 435-36]
The ALJ also took issue with Dr. Pinner’s heavy reliance on Benson’s subjective complaints,
while also explicitly acknowledging that she was a malingerer who exaggerated her symptoms.
[Tr., pp. 26, 434-435, 437] And Dr. Pinner was not the only examining doctor to note Benson’s
malingering. [Tr., pp. 425, 435, 427]
Notwithstanding Benson’s assertion that ALJ Gitlow’s erred in not adopting Dr. Pinner’s
RFC assessment, she fails to recognize that the ALJ’s RFC is substantially consistent with that
of Dr. Pinner’s. The ALJ found that Benson could lift and carry twenty pounds occasionally and
ten pounds frequently, as well as only occasionally climb stairs, stoop, and crouch and never
climb ladders. [Compare Tr., p. 23, with Tr., pp. 436-37.] He also concluded that the claimant
would need to alternate between sitting and standing at thirty to sixty minute intervals. This is
consistent with Dr. Pinner’s assessment that Benson could not stand for more than forty-five
minutes before needing to sit down or move around. [Compare Tr., p. 23, with Tr., p. 435.]
In short, ALJ Gitlow properly assigned minimal weight to Dr. Pinner’s opinion. Dr.
Pinner’s assessment was not supported by and was inconsistent with the objective medical
evidence in the record as well as with his own treatment notes. See Warner v. Comm’r of Soc.
Sec., 375 F.3d 387, 390 (6th Cir. 2004) (“Treating physicians’ opinions are only given
[substantial or controlling] deference when supported by objective medical evidence.”). As
outlined above, the ALJ provided good reasons for discounting the opinion of Dr. Pinner and
ALJ Gitlow’s determination is supported by substantial evidence. See Smith v. Comm’r of Soc.
Sec., 482 F.3d 873, 877 (6th Cir. 2007) (the ALJ’s decision not to give treating source’s opinions
controlling weight because the opinions were “inconsistent with the overall evidence of record”
was “a factual determination within [the ALJ’s] discretion”).
Non-Examining Medical Sources
Benson’s argument that the ALJ erred by affording non-examining state agency medical
sources Dr. Cain and Dr. Ferrell “controlling weight” is also without merit. As an initial matter,
ALJ Gitlow did not give these sources controlling weight. Instead, he provided the opinions
“great weight.” [Tr., p. 26] See Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir.
2013) (noting that opinions from non-examining source are never assessed for “controlling
weight”). Nonetheless, it is proper to consider the opinions of state agency medical consultants.
See 20 C.F.R. § 404.1527(e). And because state agency consultants are considered experts in
the Social Security disability programs, their opinions may be entitled to great weight if they are
supported by the evidence of the record. See 20 C.F.R. § 404.1527(e)(2), (f)(2); SSR 96-6p,
1996 WL 374180 (July 2, 1996); see also Hibbard v. Astrue, 537 F. Supp. 2d 867 (E.D. Ky.
2008). Contrary to Benson’s argument, it is not a per se error to give more weight to the opinion
of a non-examining physician than that given to an examining or treating physician’s opinion.
See, e.g., Brooks v. Comm’r of Soc. Sec., 531 F. App’x. 636, 642 (6th Cir. 2013) (observing that,
in appropriate circumstances, opinions from state agency medical consultants may be entitled
to greater weight than the opinions of treating or examining sources).
On April 28, 2010, Dr. Cain reviewed the claimant’s medical records, including Dr.
Pinner’s treatment and clinical notes. He concluded that Benson could: (i) lift and carry twenty
pounds occasionally and ten pounds frequently; (ii) stand and walk and sit for about six hours
in an eight-hour workday; and (iii) occasionally climb stairs/ramps, balance, stoop, kneel,
crouch, and crawl, but never climb ladders, ropes, or scaffolds. [Tr., pp. 417, pp. 417-18, 423]
He also found that the claimant should avoid moderate exposure to fumes, odors, dusts, and other
hazards, including heights and machinery. [Tr., p. 420] Following Dr. Cain’s review, Dr. Ferrell
reviewed Benson’s medical records and, on October 4, 2010, and reached the same conclusions,
save for an additional limitation of avoidance of “concentrated exposure” to extreme heat,
humidity, and hazards. [Tr., p. 514]
ALJ Gitlow assessed Drs. Cain and Ferrell’s opinions and found them consistent with the
weight of the record as a whole and the objective medical evidence.
See 20 C.F.R.
Again, as outlined above, other evidence supported these opinions.
Additionally, the ALJ properly discounted Benson’s credibility, noting, in part, that both her
examining orthopedic surgeon and treating physician independently concluded that she was
malingerer and exaggerated her pain.
See, e.g., 42 U.S.C. § 423(d)(5)(A); 20 C.F.R.
§ 404.1529(a); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997); Buxton v.
Halter, 246 F.3d 762, 773 (6th Cir. 2001) (“Subjective complaints of pain or other symptoms
shall not alone be conclusive evidence of disability.”). He also noted that she was receiving
narcotic medication from two doctors for the same period of time. Thus, the ALJ did not err in
providing Dr. Cain and Dr. Ferrell’s opinions great weight. Their assessments provide
substantial evidence in support of the ALJ’s determination. See Helm v. Comm’r of Soc. Sec.,
405 F. App’x. 997, 1002 (6th Cir. 2011) (ALJ was not required to give relatively less weight to
state agency physician opinions simply because they are contrary to treating physician opinion).
Consideration of Impairments
Finally, Benson asserts that the ALJ failed to consider her physical and mental
impairments in combination, without regard to whether any such impairments would be of
sufficient severity to render her disabled. [Record No. 16-1, pp. 3-4] She continues that “[w]hen
the severity of [her] physical and mental [impairments] was considered by the Vocational Expert,
then a finding of continued disability should have been forthcoming.” [Id.] It appears that she
is attempting to reference the hypothetical RFC posed to the VE by her attorney at the
administrative hearing which appears to be based on Dr. Brad Adkin’s October 2011 assessment
of the claimant. [See Tr., pp. 60-61.] Dr. Adkins is a psychologist that evaluated Benson at the
request of her attorney.4 [Tr., pp. 545-54]
A hypothetical question posed to a VE “need only reference all of a claimant’s
limitations, without reference to the claimant’s medical conditions.” Webb v. Comm’r of Soc.
Sec., 368 F.3d 629, 633 (6th Cir. 2004) (citing Foster v. Halter, 279 F.3d 348, 356 (6th Cir.
2001)); see also Blacha v. Sec'y of Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990)
(“If the hypothetical question has support in the record, it need not reflect the claimant’s
unsubstantiated complaints.”). The VE’s testimony relies, in part, on the ALJ’s assessment of
what a claimant can or cannot do. See Webb, 368 F.3d at 632-33 (citations omitted).
Additionally, the ALJ is permitted to rely on the VE’s answer to a hypothetical question only
to the extent the assumptions included in the hypothetical are supported by substantial evidence.
Varley, 820 F.2d at 779. The VE’s answers to these questions are substantial evidence “only if
Benson has not explicitly challenged the weight provided to Dr. Adkins’ opinion and, therefore, has
waived any such argument. Regardless, the ALJ did not err in declining to adopt Dr. Adkins’ opinion.
the question accurately portrays [the claimant’s] individual physical and mental impairments.”
Here, the ALJ’s hypothetical questions captured all of the limitations he included in his
assessment of Benson’s RFC, as well as Benson’s occupational capability. Specifically,
concerning Dr. Adkins’ opinion, ALJ Gitlow provided Dr. Adkins’ assessment little weight,
finding it to be inconsistent with the overall evidence of record. [See Tr., pp. 26-27] The ALJ
noted that Dr. Adkins’ opinion was inconsistent with Dr. Pinner’s assessment of normal mental
status and the state agency mental assessment, as well as Benson’s lack of a history of
counseling or mental health treatment prior to Dr. Adkins’ assessment. [Tr., pp. 26-27, 479, 488,
496, 506] The ALJ also indicated that, despite beginning mental treatment at Mountain
Comprehensive Care Center in October 2011, this treatment only began one moth prior to the
administrative hearing. [Tr., pp. 26-27, 558-68] The ALJ also noted that such a mental
assessment was inconsistent with the claimant’s work history.
As indicated above, a claimant must demonstrate that she was unable to engage in any
substantial gainful activity by reason fo a medically determinable physical or mental impairment
that could have been expected to result in death or had lasted (or expected to last) for a
continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). It is the claimant’s
burden to provide relevant medical and other evidence she believes will prove her alleged
disability as a result of physical or mental impairments. See 20 C.F.R. § 404.1512(a), (c).
Benson did not meet this burden. The ALJ noted that there was no indication that her
deterioration of mental capacity in October 2011 would last for a twelve month period. [Tr., p.
26] And, based on the objective medical evidence in the record, the ALJ did not err in
concluding that these impairments did not significantly interfere with her ability to work. Thus,
ALJ Gitlow properly declined to adopt Dr. Adkins’ assessment of Benson’s mental capacity and
he did not err in declining relying on the RFC hypothetical posed by Benson’s attorney to the
VE at the administrative hearing. See Foster, 279 F.3d at 356 (finding that the ALJ did not err
in “declining to include limitations” in hypothetical question to the VE that were “neither
explained nor supported by medical or clinical findings”). Substantial evidence supports the
Benson has not established that she is disabled as defined by the relevant provisions of
the Social Security Act. After reviewing the record, the Court does not find any of Benson’s
arguments persuasive. The ALJ did not err in evaluating the evidence of Benson’s impairments
and his decision is supported by substantial evidence. Additionally, Benson’s contention that
remand is warranted is equally unpersuasive. Accordingly, it is hereby
ORDERED as follows:
Plaintiff Frances Benson’s motion to remand [Record No. 12] is DENIED.
Plaintiff Frances Benson’s motion for summary judgment [Record No. 16] is
Defendant Carolyn W. Colvin’s motion for summary judgment [Record No. 25]
The administrative decision will be AFFIRMED by separate Judgment entered
This 11th day of August, 2014.
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