Crace v. SSA

Filing 14

MEMORANDUM OPINION AND ORDER: (1) pla's motion for summary judgment DE # 11 is DENIED; (2) dft's motion for summary judgment DE # 12 is GRANTED; (3) decision of Commissioner is AFFIRMED pursuant to sentence four of 42:405(g); and (4) a judgment consistent with this Opinion & Order will be entered contemporaneously. Signed by Judge Joseph M. Hood on 8/26/2014. (RCB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
TRACIE M. CRACE,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
***

Civil Action No.
7:13-CV-44-JMH
MEMORANDUM OPINION
AND ORDER

***

***

The plaintiff, Tracie M. Crace, 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
denying her claim for Social Security benefits.
having

reviewed

the

record,

will

affirm

the

The Court,
Commissioner’s

decision, as it is supported by substantial evidence and was
decided by proper legal standards.
I.

OVERVIEW OF THE PROCESS
In

determining

disability

under

provide

five-step

a

the

whether

a

Social
sequential

claimant

Security

Act,

evaluation

administrative law judge must follow.

has

a

compensable

the

regulations

process

which

the

20 C.F.R. § 404.1520(a)-

(e); see Walters v. Commissioner of Social Security, 127 F.3d
525, 529 (6th Cir. 1997).
follows:

The five steps, in summary, are as

(1)

(2)

If the claimant is not doing substantial gainful
activity, her impairment must be severe before
she can be found disabled.

(3)

If the claimant is not doing substantial gainful
activity
and
is
suffering
from
a
severe
impairment that has lasted or is expected to last
for a continuous period of at least twelve
months, and her impairment meets or equals a
listed impairment, the claimant is presumed
disabled without further inquiry.

(4)

If the claimant’s impairment does not prevent her
from doing past relevant work, she is not
disabled.

(5)

Id.

If
the
claimant
is
currently
engaged
substantial
gainful
activity,
she
is
disabled.

in
not

Even if the claimant’s impairment does prevent
her from doing her past relevant work, if other
work
exists
in
the
national
economy
that
accommodates her residual functional capacity and
vocational
factors
(age,
education,
skills,
etc.), she is not disabled.

The burden of proof is on the claimant throughout the first

four steps of this process to prove that she is disabled.
v.

Yuckert,

administrative

482
law

U.S.
judge

137,

146,

reaches

n.
the

5

(1987).

fifth

step

Bowen

If
without

the
a

finding that the claimant is disabled, then the burden shifts to
the Commissioner to consider her residual functional capacity,
age, education, and past work experience to determine if she
could perform other work.

If not, she would be deemed disabled.

20 C.F.R. § 404.1520(f).

Importantly, the Commissioner only has

the burden of proof on “the fifth step, proving that there is

work available in the economy that the claimant can perform.”
Her v. Commissioner of Social Security, 203 F.3d 388, 391 (6th
Cir. 1999).
The

decision

of

the

substantial evidence.

Commissioner

must

be

supported

by

Varley v. Secretary of Health and Human

Servs., 820 F.2d 777, 779 (6th Cir. 1987).

Once the decision of

the Commissioner is final, an appeal may be taken to the United
States District Court pursuant to 42 U.S.C. § 405(g).
review

of

the

Commissioner’s

decision

is

Judicial

restricted

to

determining whether it is supported by substantial evidence and
was made pursuant to the proper legal standards.

See Cutlip v.

Secretary of Health and Human Services, 25 F.3d 284, 286 (6th
Cir. 1994).

“Substantial evidence” is defined as “more than a

mere 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.”

Id.

In

reviewing

the

decision of the Commissioner, courts are not to conduct a de
novo

review,

resolve

conflicts

credibility determinations.

in

See id.

the

evidence,

or

make

Rather, the Court must

affirm the Commissioner’s decision so long as it is supported by
substantial evidence, even if the Court might have decided the
case differently.

See Her, 203 F.3d at 389-90.

However, the

court must review the record as a whole, and must take into

account whatever in the record fairly detracts from its weight.
Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
II.

THE ADMINISTRATIVE PROCESS
Crace filed her claim for Supplemental Security Income on

June 15, 2010 [TR 152-55].
and

unable

to

work

on

She claims that she became disabled

April

9,

2005

due

to

osteoporosis,

migraine headaches, bone spurs, pinched nerves, herniated discs,
and deteriorating disc disease [TR 165].

Crace completed tenth

grade with past relevant work as a fast food worker, a motel
housekeeper, and a food server.[TR 8, 34, 56].

On the date of

her application, Crace was thirty-seven years old [TR 152].
Her claim was denied initially and upon reconsideration [TR
86-89, 97-99]. Crace subsequently requested a hearing before an
Administrative Law Judge (“ALJ”), and a hearing was held on
January 19, 2012 [TR 28-62].
testimony

from

Baldwin.

Crace

After

and

the

At the hearing, the ALJ heard
vocational

considering

all

expert

the

(“VE”),

evidence

in

Gina
the

administrative record, including the testimony of Crace and the
VE, the ALJ issued a decision finding Crace not disabled on
March 7, 2012 [TR 11-20].
In reaching his decision, the ALJ began his analysis at
step

one

substantial

by

determining
gainful

that

activity

application date [TR 13].

Crace
since

has

not

engaged

in

June

15,

2010,

the

At step two, the ALJ found that Crace

suffers from the following severe impairments: degenerative disc
disease of the spine and migraine headaches [TR 13].

Continuing

on to the third step, the ALJ determined that these impairments
or combination of impairments are not associated with clinical
signs and findings that meet or equal in severity any of the
listed impairments [TR 15].
app’x 1.

See 20 C.F.R. pt. 404, subpt. p,

Next, the ALJ determined Crace’s residual functional

capacity, or RFC.

An RFC is the assessment of a claimant’s

maximum remaining capacity to perform work-related activities
despite

the

claimant’s

physical

and

disability.

416.945(a)(1).

mental
20

limitations
C.F.R.

§

caused

by

the

404.1545(a)(1),

In this case, the ALJ found that Crace has the

following RFC:
lift/carry 20 pounds occasionally and 10 pounds
frequently; frequently kneel; occasionally stoop,
crouch, and climb ramps and stairs; never able to
climb ladders, ropes, and scaffolds; and must avoid
concentrated exposure to vibration.
[TR 15].
The

fourth

step

requires

the

ALJ

to

determine

whether,

based on her RFC, the claimant can return to her past relevant
work.

In this case, the ALJ, relying on the testimony of the

VE, determined that Crace is unable to perform her past relevant
work [TR 18].

The ALJ then turned to the fifth and final step

of the sequential evaluation analysis.

At this step, the ALJ

questioned the VE as to whether an individual with Crace’s RFC

and vocational factors could perform other jobs that exist in
significant numbers in the national economy.

The VE identified

the

office

jobs

of

house

surveillance

sitter,

system

night

monitor,

cleaner,

grader/sorter,

messenger,

and

product

inspector as jobs that the hypothetical individual with Crace’s
RFC and vocational factors could perform, and opined that these
jobs exist in significant numbers in the national economy [TR5758].

Relying

on

this

testimony,

the

ALJ

found

Crace

not

disabled.
Crace subsequently requested review by the Appeals Council
[TR 6].
April

The Appeals Council denied her request for review on

19,

2013

[TR

1-3].

Thus,

Crace

has

exhausted

her

administrative remedies, and she has filed a timely action in
this Court.

This case is now ripe for review under 42 U.S.C. §

405(g).
III. ANALYSIS
Crace asserts several errors on appeal.

The Court turns

first to her argument that the ALJ’s findings are not based on
substantial evidence because he failed to include osteoporosis
as a severe impairment at step two of the sequential evaluation
analysis. This argument fails because the ALJ did not find Crace
not disabled at step two.

Rather, the ALJ concluded that Crace

had other severe impairments and continued on with his analysis
[TR 21].

The fact that the ALJ found other severe impairments

but did not include osteoporosis is irrelevant because a failure
to

find

that

a

particular

impairment

was

severe

is

not

reversible error if other severe impairments are found and the
sequential

evaluation

process

continues.

See

Maziarz

v.

Secretary of Health and Human Services, 837 F.2d 240, 244 (6th
Cir. 1987); McGlothin v. Commissioner of Social Security, 2008
WL 4772077, at *6 (6th Cir. Oct. 31, 2008)(noting it became
“legally irrelevant” that an ALJ determined some impairments not
severe

because

the

ALJ

found

the

claimant

had

some

severe

impairments and proceeded to complete the remaining steps of the
sequential evaluation process).
Crace

also

argues

that

the

ALJ’s

erred

by

failing

to

include her mental impairment as a severe impairment at step two
of the sequential evaluation analysis.

However, a review of the

ALJ’s order reveals that he carefully analyzed Crace’s alleged
mental impairments in accordance with the regulations.

When

evaluating the severity of a mental impairment, the ALJ must
evaluate

the

claimant’s

“symptoms,

signs,

and

laboratory

findings” to determine whether the claimant has a “medically
determinable mental impairment(s).”

20 C.F.R. 416.920a(b)(1).

Because Crace’s treating physicians noted that she suffers from
anxiety and prescribed her medication [TR 268-73] and because
the consulting psychologist, Megan Green, Psy.D., diagnosed her
with

adjustment

disorder

[TR

350-53],

the

ALJ

applied

the

special

technique

outlined

in

20

C.F.R.

§

916.920a.

This

regulation requires the ALJ to “rate the degree of functional
limitation
“four

resulting

broad

social

from

functional

functioning;

the

impairment(s)”

areas”:

[a]ctivities

concentration,

episodes of decompensation.”

Id.

with
of

respect

daily

persistence,

or

to

living;

pace;

and

The degree of limitation in

the first three functional areas is rated using a five-point
scale: none, mild, moderate, marked, and extreme.

20 C.F.R. §

416.920a(c)(4).

the

The

degree

of

limitation

in

fourth

functional area (episodes of decompensation) is rated using the
following four-point scale: none, on or two, three, four or
more.

Id.

If the ALJ rates the first three functional areas as

“none” or “mild” and the fourth as “none,” the impairment is
generally not considered severe and the claimant is conclusively
not disabled.

20 C.F.R. § 416.920a(d)(1).

See also Rabbers v.

Commissioner of Social Security, 582 F.3d 647, 652-53 (6th Cir.
2009).

Otherwise, the impairment is considered severe and the

ALJ will proceed to step three.
In

this

limitation
Crace’s

in

the

testimony

substantial
testified

case,

the

she

determined

functional

area

regarding

her

evidence

that

ALJ

in
takes

support
her

of

daily

daily
of

that

living

activities

this

medication

Crace

finding.
and

cares

has
[TR

no
14].

provieds
Crace
for

her

disabled daughter, including feeding her and reading to her.

She stated that she takes short walks, washes dishes, and told
the consulting psychologist that she sometimes dusts, helps with
dishes, and puts laundry into the washer [TR 24, 48, 51, 351].
The

ALJ

found

mild

functioning [TR 14].

limitation

in

the

area

of

social

While Crace testified that she does not

want to leave her house and that she quit going to church, she
reported that she shops and spends time with her family [TR 41,
52, 200, 350-51].

Even though Crace did not report any problems

in the area of concentration, persistence or pace, the ALJ also
found mild limitation in these areas.
evidence
areas,

supporting
and

her

a

more

testimony

Crace has not pointed to

restrictive
provides

limitation

substantial

in

these

evidence

in

support of the ALJ’s finding.
Finally, as the ALJ noted, the record has failed to reveal
any

episodes

of

duration [TR 14].
mandate

a

finding

decompensation

which

have

been

of

extended

Based on these findings, the regulations
that

Crace’s

medically

determinable

mental

impairments are nonsevere. 20 C.F.R. § 416.920a(d)(1).

Thus,

the ALJ did not err at step two of the sequential evaluation
process.
Next,

Crace

argues

that

the

ALJ

failed

to

discuss,

at

anytime in his analysis, the psychological evaluation by Leigh
Ann Ford, Ph.D.

Dr. Ford examined Crace in January 2012 and

noted that her memory was normal, her facial expressions were

sad, and her mood was depressed [TR 366].

Furthermore, her

speech was normal and goal directed, and her judgment was good
[TR 366].

However, Dr. Ford diagnosed a depressive disorder,

not otherwise specified, and a generalized anxiety disorder, not
otherwise specified [TR 368].

While she opined that Crace could

obtain employment, she stated that it would be difficult for her
to sustain full-time employment due to her emotional impairments
[TR 368].

In a medical source statement, Dr. Ford opined that

Crace was seriously limited in her ability to deal with the
public, interact with supervisors, and demonstrate reliability
[TR 369-70].

Although the ALJ was made aware of Dr. Ford’s

assessment

at

the

hearing,

assessment

in

his

decision.

hypothetical

question

from

the

ALJ

did

However,

the

ALJ

that

not

in

discuss

response

included

Dr.

to

the
a

Ford’s

limitations, the VE testified that such a person would not be
able to work [TR 59-60].
The

ALJ

assessment.

did

not

err

in

The

regulations

failing
provide

to
that

every medical opinion” that it receives.

discuss
the

Dr.

ALJ

“evaluate

20 C.F.R. 404.1527(c).

However, every medical opinion is not treated equally.
regulations
medical

describe

opinions:

(1)

three

classifications

nonexamining

sources; and (3) treating sources.

Ford’s

sources;

The

for

acceptable

(2)

nontreating

A nonexamining source is “a

physician, psychologist, or other acceptable medical source who

has not examined [the plaintiff] but provides a medical or other
opinion

in

416.902.

[the

plaintiff’s]

case.”

20

C.F.R.

404.1502,

A nontreating source is described as “a physician,

psychologist,

or

other

acceptable

medical

source

who

has

examined [the plaintiff] but does not have, or did not have, an
ongoing
Finally,

treatment
the

relationship

regulations

define

with

[the

plaintiff].”

a

treating

source

as

Id.
“[the

plaintiff’s] own physician, psychologist, or other acceptable
medical source who provides [the plaintiff], or has provided
[the plaintiff], with medical treatment or evaluation and who
has, or has had, an ongoing treatment relationship with [the
plaintiff].”

Id.

An “ongoing treatment relationship” is a

relationship with an “acceptable medical source when the medical
evidence establishes that [the plaintiff] see[s], or [has] seen,
the source with a frequency consistent with accepted medical
practice for the type of treatment and/or evaluation required
for [the plaintiff’s] medical condition(s).”

Id.

An ALJ is required to give “controlling weight” to the
medical opinion of a treating source, as compared to the medical
opinion of a non-treating source, if the opinion of the treating
source is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record.
§ 416,927.

20 C.F.R.

See also Tilley v. Commissioner of Social Security,

394 Fed.Appx. 216, 222 (6th Cir. 2010); Hensley v. Astrue, 573
F.3d 263, 266 (6th Cir. 2009).

The ALJ must provide “good

reasons” for the resulting weight given to the treating source.
Soc.Sec.Rul. 96-2p.

The “treating source rule” and the “good

reasons” rule, however, do not apply in this case because Dr.
Ford

was

not

Crace’s

treating

physician.

See

Smith

v.

Commissioner of Social Security, 482 F.3d 873, 876 (6th Cir.
2007)(the SSA only requires ALJs to give reasons for rejecting
opinions of treating sources).

As a one-time examiner, Dr.

Ford’s opinion is not entitled to any special deference.

See

Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994)(consultative
examiners’ opinions are not entitled to any “special degree of
deference”).
Additionally,
mental RFC finding.

substantial

evidence

supports

the

ALJ’s

In formulating Crace’s mental RFC, the ALJ

relied on treatment notes from her primary care physicians at
Burchett

Family

Practice,

where

Crace

received

conservative

treament for depression and anxiety [TR 268-73, 345-48, 371-88].
The ALJ noted that Crace did not receive treatment from any
mental health specialist [TR 13].

Failure to seek mental health

treatment from a specialist undermines her claim of a severe
mental impairment.

See 20 C.F.R. § 416.929(c)(3)(v); Atterberry

v. Secretary of Health and Human Servs., 871 F.2d 567, 571-72
(6th

Cir.

1988)(claimant’s

allegations

of

a

severe

mental

impairment undermined where she did not receive treatment from a
psychologist or psychiatrist).
Furthermore, the ALJ relied on the consultative examination
of

Megan

depressed,

Green,
and

Psy.D.,

did

not

who

sleep

noted
[TR

that

13,

Crace

352].

cried,

Crace

was

reported

having meaningful relationships outside her family and that she
spent most of her time caring for her disabled adult daughter
[TR

35-51].

She

reported

that

she

had

no

mental

health

treatment beyond her primary care physician and no psychiatric
hospitalizations [TR 351].

She also reported no history of

occupational impairment associated with mental health concerns
[TR

353].

Dr.

Green

noted

that

she

was

fully

oriented,

cooperative, friendly, had a depressed mood, appropriate affect,
and intact concentration [TR 13-14, 351].

She diagnosed Crace

with adjustment disorder with depressed mood and noted that her
prognosis was fair [TR 352].
on

her

ability

instructions,

and

appropriately

to

to

She did not place any restrictions

understand,

opined

that

supervision

and

remember
she

would

probably

and

carry

likely
be

out

respond

capable

of

sustaining adequate concentration, persistence or pace [TR 352].
Dr. Green’s opinion, in conjunction with the medical records
from Crace’s treating physicians and her lack of mental health
treatment, provides substantial evidence for the ALJ’s mental

RFC finding.

Accordingly, Crace’s claim based on this alleged

error fails.
In sum, Crace has failed to meet her burden of proving that
her condition caused more disabling limitations than those found
by the ALJ.

The ALJ properly considered the relevant evidence

and properly analyzed all the evidence in accordance with the
sequential evaluation process.

As set out above, substantial

evidence supports the ALJ’s findings and his conclusion that
Crace is not disabled within the meaning of the Social Security
Act.
IV.

CONCLUSION
For the reasons set forth above, the Court, being fully and

sufficiently advised, hereby ORDERS as follows:
(1)

the plaintiff’s motion for summary judgment [DE #11]
is DENIED;

(2)

the defendant’s motion for summary judgment [DE #12]
is GRANTED;

(3)

the decision
to sentence
supported by
proper legal

(4)

a judgment consistent with this Opinion & Order will
be entered contemporaneously.

of the Commissioner is AFFIRMED pursuant
four of 42 U.S.C. § 405(g) as it was
substantial evidence and was decided by
standards; and

This the 26th day of August, 2014.