Jones v. SSA
Filing
13
MEMORANDUM OPINION AND ORDER: (1) that Commissioner's motion for summary judgment, DE 11 , is GRANTED; and (2) that Plaintiff's motion for summary judgment, DE 10 , is DENIED. Signed by Judge Joseph M. Hood on 9/22/2014. (RCB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
LINDA JONES,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
***
This
Summary
matter
Judgment
Commissioner’s
is
[DE
reasons
to
10,
denial
insurance benefits.1
response
before
the
discussed
of
Civil Action No.
7:14-CV-36-JMH
MEMORANDUM OPINION
AND ORDER
***
the
11]
***
Court
on
her
upon
cross-motions
Plaintiff’s
application
appeal
for
of
for
the
disability
On September 20, 2014, Plaintiff filed a
Commissioner’s
below,
the
motion.
[DE
Commissioner’s
12].
For
the
motion
will
be
granted and Plaintiff’s motion will be denied.
I. Overview of the Process and the Instant Matter
The
Administrative
Law
Judge
(ALJ),
in
determining
disability, must conduct 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.
1
These are not traditional Rule 56 summary judgment motions.
Rather, it is a procedural device by which the parties bring the
administrative record before the Court.
2.
An individual who is 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)).
“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
Secretary.”
The
not
the
burden
transfers
to
the
Id.
ALJ
substantial
disabled,
determined
gainful
that
activity
Mullins
since
June
had
4,
not
2010
engaged
[Tr.
in
22].
Considering step two, the ALJ found that Mullins possessed the
2
severe
impairments
of
cirrhosis
of
the
liver
and
obesity.
During step three of the analysis, the ALJ concluded that none
of Mullins’s impairments or combinations of impairments met the
severity listed in 20 C.F.R. pt. 404, subpt. P, app. 1 [Tr. 23].
At step four, the ALJ determined that Mullins had a residual
functional capacity (RFC) to perform light work as defined by 20
C.F.R. §§ 404.1567(b).
However, Mullins was limited to lifting
and carry twenty pounds occasionally and ten pounds frequently;
standing or walking six hours in an eight-hour workday; sitting
up
to
six
hours
in
an
eight-hour
workday;
only
occasional
climbing of stairs or ramps; never climbing ladders, ropes or
scaffolds; no more than frequent stooping, kneeling, balancing,
or crouching; and occasional crawling.
[Tr. 25].
Based
on
this RFC, the ALJ found that Mullins was able to perform her
past
relevant
work
as
an
apartment
manager.
[Tr.
27].
Accordingly, he concluded, Mullins was not disabled as defined
in the Social Security Act.
Plaintiff argues that the Commissioner’s decision is not
supported
by
substantial
evidence
for
various
reasons.
She
contends that the ALJ erred by giving controlling weight to his
own medical opinion and by relying upon the opinions of nontreating sources, which were not supported by medical evidence.
Additionally,
she
argues
that
the
3
ALJ
erred
in
failing
to
consider Mullins’s dyspnea and chronic fatigue and did not give
good reasons for rejecting the opinions of treating healthcare
providers.
Mullins
Finally, she argues that the ALJ was biased against
based
on
his
alleged
dislike
of
the
individual
who
represented Mullins at her hearing.
II. 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) (citations omitted).
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)
(citations omitted), and whether the ALJ employed the proper
legal standards in reaching his conclusion.
See Landsaw 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
support
as
a
a
reasonable
conclusion."
mind
Cutlip,
omitted).
4
might
25
accept
F.3d
at
as
adequate
286
to
(citations
III. BACKGROUND
Olive Mullins applied for disability insurance benefits on
April 15, 2010, alleging that her disability began on January 4,
2010.
Following the denial of her claim, an Administrative Law
Judge (“ALJ”) held a hearing on May 15, 2012.
[Tr. 33].
The
ALJ denied Mullins’s claim on June 1, 2012.
Denial was affirmed
by the Appeals Council on February 7, 2014.
Ms. Mullins passed
away on December 14, 2012, and she is represented in this claim
by her daughter and administrator of her estate, Linda Jones.
At the time of the ALJ’s decision, Mullins was sixty-four
years
of
employed
performed
tenants,
age.
as
a
[Tr.
42].
manager
mostly
at
office
accepting
rent
From
an
1994
to
apartment
work
such
payments,
as
and
2010,
Mullins
was
where
she
complex,
contacting
handling
potential
complaints.
Office work comprised nearly all of Mullins’s shift, but she
testified
that
she
different apartments.
often
went
up
[Tr. 44-45].
and
down
stairs
and
to
She reported that, at the
time she quit working at the apartment complex, the most weight
she was required to lift was five pounds.
[Tr. 47].
In early 2010, Mullins was diagnosed with cirrhosis of the
liver.
[Tr.
321].
Dr.
Castellanos,
a
gastroenterologist,
treated Mullins for her liver conditions, but did not provide an
5
opinion as to Mullins’s impairments.
biopsy
revealed
inflammatory
that
Mullins
changes,
steatohepatitis.
In March 2010, a liver
had
cirrhosis
consistent
[Tr.
479].
with
with
mild
nonalcoholic
Dr. Castellanos thought that
Mullins was a good candidate for a liver transplant and referred
her
to
the
University
of
Kentucky
Transplant
Center.
Dr.
Hundley, the physician at the transplant center, agreed that
Mullins was a good candidate for a transplant.
underwent
a
transplant,
however.
She
Mullins never
reports
that
the
University of Kentucky discontinued her treatment because she
did not have medical insurance.
Mullins
Healthcare
received
by
treatment
Physician’s
years before her death.
at
Assistant
[Tr. 79].
Knott
Kevin
County
Davis
for
Family
the
ten
The administrative record
contains several treatment notes written by Davis, ranging from
early 2009 to April 2012, when Davis performed a “physical for
insurance purposes.”
Treatment notes indicate that Mullins was
seen for various issues over the years, including hypertension,
bronchitis, diabetes, and abdominal pain.
On April 3, 2012,
Davis performed a physical assessment in support of Mullins’s
claim
for
indicated
Social
that
Security
Mullins
benefits.
had
unspecified
change, and subjective swelling.
6
In
the
report,
tenderness,
Davis
weight
He opined that her illnesses
often interfered with her ability to concentrate, as well as her
physical function.
He determined that Mullins could stand or
walk for less than two hours per day and that she could sit for
about two hours.
Further, he opined that she could occasionally
lift less than five pounds, but never more than five pounds.
Additionally, he concluded that her legs should be elevated with
prolonged sitting and that she could never climb, stoop, or
crawl.
On
January
26,
2011,
Mullins
underwent
examination by Dr. William Waltrip.
Mullins
complained
of
lethargy,
secondary to her liver disease.
a
consultative
Dr. Waltrip noted that
which
she
[Tr. 401].
speculated
was
Dr. Waltrip tested
Mullins’s range of motion, which was normal.
He noted that she
did not use any assistive devices and that her gait was normal.
[Tr. 402].
only
Ultimately, Dr. Waltrip determined that Mullins’s
limiting
lethargy.
factor
was
[Tr. 403].
her
claim
of
loss
of
energy
and
He opined that she could walk moderate
distances, and could stand and sit with very little limitation.
He
cautioned,
lifting
heavy
however,
objects,
that
but
Mullins
observed
might
that
she
have
had
difficulty
good
grip
strength and could perform fine and gross manipulations.
On
February
9,
2011,
Dr.
Sudhideb
Mukherjee
reviewed
Mullins’s medical records and provided his assessment.
7
[Tr.
85].
He determined that she could occasionally lift or carry
twenty
pounds
and
frequently
lift
or
carry
ten
pounds.
He
believed that she could stand, walk, or sit about six hours in
an eight-hour workday.
Although he determined that she should
never
ropes,
climb
ladders,
or
scaffolds,
there
was
no
limitation on her ability to climb stairs or to balance, stoop,
kneel, or crouch.
He added that the reason for these “postural
limitations” was Mullins’s back pain.
He also determined that
she had a normal gait and could walk moderate distances.
[Tr.
87].
Mullins described her limitations during her hearing with
the ALJ.
She stated that the issue with her liver was her major
problem and reported daily intermittent stabbing pain in her rib
area as a result of it.
[Tr. 55].
She reported that she could
walk for about two minutes before stopping.
[Tr. 56].
She
stated that her doctors have recommended walking as exercise,
but that she was unable to do it due to problems breathing,
which she believed were caused by cirrhosis.
[Tr. 57].
She
reported that she could stand for five or ten minutes and often
could not bend or stoop due to fluid buildup.
She had had fluid
withdrawn five weeks prior to the hearing and reported that she
was told it would probably have to be done every couple of
months.
She reported that the maximum weight she could pick up
8
off a table was five to six pounds and that she could sit for
thirty minutes without having to change positions.
The
ALJ
impairments
concluded
of
that
cirrhosis
while
of
the
Mullins
liver
[Tr. 59].
had
and
the
severe
obesity,
her
impairments did not meet or medically equal the severity of one
of the impairments listed in 20 C.F.R. 404, Subpart P, Appendix
1.
[Tr.
23].
He
functional
Mukherjee,
but
occasional
climbing
frequent
occasional
considered,
large
by
consulting
imposed
the
of
stooping,
crawling.
but
in
suggested
capacity
adopted,
did
Assistant Kevin Davis.
additional
stairs
and
kneeling,
In
not
part,
the
physician
limitations
ramps
only
more
than
crouching,
and
no
making
his
determination,
accept,
the
opinion
[Tr. 27].
Dr.
of
and
balancing,
residual
of
the
ALJ
Physician’s
In rejecting Davis’s opinion,
the ALJ noted that the opinion was not supported by the physical
findings he reported in the evaluation—tenderness, subjective
swelling, and weight change.
Id.
The ALJ gave great weight to
the opinions of Dr. Waltrip and Dr. Mukherjee.
Both doctors
determined that, based on Mullins’s early-stage cirrhosis, she
might have lethargy or loss of energy, but she had no other
limiting factor.
9
IV.
ANALYSIS
A.
The
Commissioner’s
Substantial Evidence
Decision
Is
Supported
By
The only treating source that provided an opinion in this
case is Physician’s Assistant Kevin Davis.
regulations
make
clear
that
physician’s
The Social Security
assistants
are
not
“acceptable medical sources,” but, rather, “other sources” whose
opinions must be considered.
20 C.F.R. § 404.1513(d).
The ALJ
decision reveals that the ALJ considered Davis’s opinion, but
gave good reasons for rejecting it.
[Tr. 27].
Davis reported
diagnoses of hypertension, cirrhosis, and diabetes, and noted
objective
findings
of
subjective swelling.
“tenderness,”
weight
change,
and
He went on to conclude that Mullins’s
activity should be extremely limited but, as the ALJ noted, did
not
support
Further,
the
his
recommendations
limitations
evidence of record.
are
not
with
objective
supported
by
the
evidence.
medical
In early 2010, Mullins was hospitalized for
confusion and jaundice, but there is no evidence that these
problems persisted beyond that limited time frame.
Mullins also
complained of shortness of breath secondary to cirrhosis, but
there is no objective evidence supporting her claim of pulmonary
dysfunction.
The ALJ gave great weight to the opinions of non-treating
sources, Dr. Waltrip and Dr. Mukherjee.
10
Dr. Waltrip recorded
Mullins’s vital signs and described her as moderately obese.
[Tr. 401].
He noted that she had no evidence of jaundice and
that her abdomen was obese, but nontender, with no palpable
masses.
Mullins’s
range
of
motion
was
found
to
be
normal
throughout her spine and extremities.
Her gait was normal, and
she did not use an assistive device.
Dr. Waltrip had Mullins
perform “heel-to-walk,” tandem walking, walking on the tips of
her toes, and on her heels—all of which she was able to perform.
She was also able to squat and had no loss of sensation.
Id.
He concluded that Mullins’s claim of lethargy might impact her
function but, based on the objective testing performed during
the examination, that would be her only limiting factor.
Dr. Mukherjee also found that Mullins’s primary limiting
factor was loss of energy.
[Tr. 85].
He noted that she had had
no recurrence of supraventricular tachycardia since March 2010.
He
acknowledged
uterine
that
fibroids,
and
Mullins
a
suffered
history
of
from
low
frequent
back
pain,
urinary
tract
infections, but concluded that those problems did not limit her
ability to function at the time.
Dr. Mukherjee noted that an x-
ray of Mullins’s lumbar spine showed good alignment and that the
disc
spaces
strength
and
and
SI
range
joint
of
were
motion
preserved.
were
within
Finding
normal
that
limits,
her
he
concluded that Mullins could occasionally lift or carry twenty
11
pounds and could frequently lift or carry ten pounds.
He opined
that she could stand or walk six hours in an eight-hour workday
and that she could sit for about six hours, as well.
[Tr. 85].
He also determined that she had an unlimited ability to climb
stairs.
The
weight
ALJ’s
is
decision
supported
by
to
give
these
substantial
opinions
evidence
in
controlling
the
record.
Medical records indicate that Mullins’s hyptertension was stable
and that she was not having any heart problems at the time of
the ALJ’s decision.
Despite her complaints of low back pain,
the x-ray of her lumbar spine was unremarkable.
Dr. Waltrip’s
examination revealed normal range of motion, strength, and gait.
While she did experience an episode of confusion in early 2010,
the record indicates that this was due to high blood ammonia
levels, caused by her cirrhosis, which was undiagnosed until
that time.
episode
[Tr. 301].
of
There is no evidence of any subsequent
confusion.
Plaintiff
contends
that
the
ALJ
arbitrarily chose portions of the record upon which to rely, but
does
not
identify
which
portions
he
failed
to
consider.
Contrary to Plaintiff’s assertion, on page seven of the ALJ’s
decision,
he
acknowledged
Mullins’s
complaints
of
dyspnea.
Plaintiff has failed to identify any objective medical evidence
of record, however, that the ALJ should have considered with
12
respect
to
dyspnea.
The
her
Court
notes
oxygen
that
Dr.
Waltrip
was
ninety-eight
examined
Mullins,
percent.
Plaintiff also argues that the ALJ did not consider
Mullins’s “chronic fatigue.”
identified
fatigue
or
saturation
when
Both Dr. Waltrip and Dr. Mukherjee
lethargy
as
Mullins’s
primary
limiting
factor, and the ALJ opinion reflects that this was taken into
consideration.
Plaintiff argues that the ALJ gave controlling weight to
his own medical opinion, contrary to Gayheart v. Commissioner of
Social Security, 710 F.3d 365 (6th Cir. 2013).
Plaintiff
argues
that
the
ALJ
erred
in
Specifically,
determining
Mullins’s liver disease was in its early stages.
the
terminology
used,
however,
it
is
clear
that
Regardless of
from
the
ALJ’s
analysis that Mullins’s liver disease did not meet or medically
equal the severity required for chronic liver disease under 20
C.F.R. Part 404, Subpart P, Appendix 1.
The Court was unable to
locate in the record, and Plaintiff has not pointed out, any
evidence of: hemorrhaging from esophageal, gastric, or ectopic
varices or from hypertensive gastrophy; ascites or hydrothorax
present on two evaluations at least sixty days apart within a
six-month period; spontaneous bacterial peritonitis; hepatorenal
syndrome;
hepatopulmonary
syndrome;
hepatic
encephalopathy
present on at least two evaluations; or end stage liver disease.
13
Plaintiff
relies
University
of
candidate
for
heavily
upon
Kentucky
liver
the
believed
fact
that
transplant.
that
doctors
Mullins
Plaintiff
was
at
a
the
good
provides
no
authority, however, to establish that this meant that Mullins
had end stage liver disease.
Accordingly, there is no evidence
that the ALJ formulated his own medical opinion with respect to
Mullins’s cirrhosis.
B.
Plaintiff Has Not Established Bias
Finally, Plaintiff suggests that the ALJ was biased when
deciding
Mullins’s
claim
based
on
his
Mullins’s non-attorney representative.
“apparent
dislike”
of
The Court has reviewed
the hearing transcript in this matter and finds no evidence of
impropriety
on
representative
the
to
ALJ’s
make
an
part.
The
opening
ALJ
statement
allowed
and
the
asked
for
clarification when he did not understand the purpose of what the
representative was saying.
[Tr. 38].
At another point, after
the representative interjected during the ALJ’s examination of
Mullins, the ALJ suggested that she not interrupt and told her
that
she
Mullins.
that
would
have
her
own
uninterrupted
time
to
examine
The Court is required to start with the presumption
administrative
adjudicators
are
unbiased—it
is
the
Plaintiff’s burden to provide “convincing evidence that a risk
of
actual
bias
or
prejudgment
14
is
present.”
Navistar
Int’l
Transp.
Corp.
v.
EPA,
941
F.2d
1339,
1360
These comments do not constitute such evidence.
(6th
Cir.
1991).
See Karnofel v.
Comm’r of Soc. Sec., 518 F. App’x 455, 456 (6th Cir. 2013)
(citing Navistar, 941 F.2d at 1360) (“[A]ny alleged prejudice on
the part of the decisionmaker must be evidence from the record
and cannot be based on speculation or inference.”).
V.
CONCLUSION
Accordingly, IT IS ORDERED:
(1)
that the Commissioner’s motion for summary judgment,
[DE 11], is GRANTED; and
(2)
that Plaintiff’s motion for summary judgment, [DE 10],
is DENIED.
This the 22nd day of September, 2014.
15
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