Owens v. SSA
Filing
11
MEMORANDUM OPINION & ORDER: 1) Pla's Motion for S/j 9 is DENIED. 2) Dft's Motion for S/J 10 is GRANTED. Signed by Judge Joseph M. Hood on 10/1/2015. (RKT) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DIVISION OF KENTUCKY
SOUTHERN DIVISION AT PIKEVILLE
JOHN L. OWENS,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.
Case No. 7:14-CV-115-JMH
MEMORANDUM OPINION & ORDER
***
This
matter
is
before
the
Court
upon
cross-motions
for
summary judgment (DE 9, 10) on Plaintiff’s appeal, pursuant to
42
U.S.C.
§
405(g),
of
the
Commissioner’s
denial
of
his
application for disability insurance benefits. The Court, having
reviewed
the
record
and
the
parties’
motions,
will
deny
Plaintiff’s motion and grant Defendant’s motion.
I.
The Administrative Law Judge (“ALJ”), conducts a five-step
analysis to determine disability:
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 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
the past because of a
Secretary considers his
age, education, and past
can do other work. If
disabled.
cannot do any work he did in
severe impairment, then the
residual functional capacity,
work experience to see if he
he cannot, the claimant is
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
claimant
reaches
is
not
the
fifth
disabled,
step
without
the
a
burden
finding
that
the
transfers
to
the
Secretary.” Id.
II.
On
July
26,
2011,
Plaintiff
applied
for
supplemental
security income pursuant to Title XVI of the Social Security Act
(“the Act”) (Tr. 201-08).
Plaintiff was a younger person, i.e.,
an individual under the age of 50, on the date of the ALJ’s
2
decision (Tr. 201). He is illiterate, but able to communicate in
English
(Tr.
219-20),
and
has
past
work
experience
as
a
groundskeeper, sanitation worker, and security guard (Tr. 55-59,
211-17). He alleged disability due to a heart attack and lack of
education (Tr. 219).
Prior to his application date, Plaintiff was hospitalized
for four days in June 2009 following a myocardial infarction.
Muhammad Ahmad, M.D., diagnosed coronary artery disease (acute
left
myocardial
infarction
with
angioplasty
and
stent
placement), hypertension, 40 years of smoking, cholecystectomy,
and left shoulder surgery (Tr. 404-07, 425-26). In July 2009,
Plaintiff underwent a left heart catheterization, angiograms, a
left ventriculogram, and angioplasty with stent placement in the
circumflex artery (Tr. 401-02). In September 2009, an x-ray of
Plaintiff’s neck showed a small right cervical rib, but was
otherwise normal (Tr. 427). Other x-rays of Plaintiff’s spine
showed
mild
spondylosis
following
overdose
scoliosis
and
(degenerative
month,
with
and
deformities
osteoarthritis)
Plaintiff
alcohol
wedge
was
(Tr.
hospitalized
opiates.
A
urine
and
minimal
428-29).
after
drug
a
screen
The
drug
was
positive for barbiturates, cannabinoids, and alcohol (Tr. 568604). In January 2010, Plaintiff told Dr. Ahmad that he had
3
sharp chest pain relieved with nitroglycerine (medication for
chest
pain)
severe
(Tr.
left
741).
An
ventricular
echocardiogram
hypertrophy
showed
(increase
moderate
in
to
volume),
hypokinesis, and dilated inferior vena cava, but otherwise mild
findings
(Tr.
611-16).
A
second
left
heart
catheterization,
angiograms, and left ventriculogram, showed a borderline lesion
of the right coronary artery with inferior hyperkinesia (Tr.
645-46).
On
July
26,
2011,
Plaintiff’s
application
date,
he
presented to Dr. Ahmad, reporting he was doing well cardiacwise. He denied chest pain. He stated he had dyspnea (shortness
of breath) but that it was stable (Tr. 742). Dr. Ahmad found
Plaintiff had normal heart rhythm and no edema (swelling). He
diagnosed
coronary
artery
disease
with
no
active
complaints,
controlled hypertension, dyslipidemia, tobacco abuse, and right
hand pain. He refilled Plaintiff’s medications and advised him
to stop smoking (Tr. 743). In September 2011, Leigh Ann Ford,
Ph.D., examined Plaintiff at the request of the state agency
(Tr. 761-63). Plaintiff reported he last worked in 2009 as a
night watchman, but left this job after four months due to a lay
off. He reported his family physician treated him for depression
and anxiety with medication. He stated he smoked cigarettes and
4
marijuana daily. He noted he was arrested three times on DUI
charges and spent 30 days in jail with his last arrest in 2009.
He
stated
visited
he
with
managed
family
self-care
but
that
tasks
daily
and
was
unable
to
he
occasionally
perform
most
household chores.
Dr. Ford found Plaintiff was oriented and had normal memory
capacities and speech; cooperative attitude; appropriate thought
content; logical and goal-directed organization of thought; good
reality testing; low-average intelligence; and fair judgment;
although he was unable to spell the word “world” backwards,
avoided eye contact, and had somewhat variable attention and
concentration;
pessimistic
tense
mood;
facial
somewhat
expressions;
below
average
flat
fund
of
affect;
knowledge;
capacity for abstraction limited to concrete interpretation of
language; gaps in insight; overwhelmed coping skills; and skill
deficits in the areas of activities of daily living and physical
abilities
(Tr.
762-63).
Dr.
Ford
diagnosed
substance
abuse
disorder and depressive disorder. She stated Plaintiff had no
limitations on his ability to understand, remember, and carry
out instructions toward performance of simple, repetitive tasks;
slight limitations on responding appropriately to supervision,
co-workers, and work pressures; and moderate limitations on his
5
ability
to
tolerate
stress
and
pressures
of
day-to-day
employment and sustain attention and concentration (Tr. 763).
In
October
2011,
Lea
Perritt,
Ph.D.,
a
state
agency
psychologist, reviewed the evidence and found Plaintiff could
handle
simple
instructions
and
procedures
requiring
brief
learning periods, sustain attention on simple tasks requiring
little independent judgment and minimal variations, interact as
needed with supervisors and peers toward task completion with no
more than occasional public contact, and adapt adequately to
situational changes and conditions (Tr. 88-103).
In November 2011, Plaintiff complained of low back and leg
pain
to
Dr.
Azeb
(Tr.
803),
who
found
Plaintiff
had
intact
sensation; normal reflexes; full muscle strength in his arms and
legs; full range of motion and no tenderness in his neck, hips,
and knees, but severe muscle spasms, tenderness, and limited
range
of
motion
in
his
low
back
and
positive
straight
leg
raising tests (test used to determine nerve root irritation) on
the left (Tr. 804-05). Dr. Azeb diagnosed hypertension, obesity,
chronic mechanical low back pain, low back radiculopathy, and
paraspinal
muscle
spasms.
He
told
exercise, and stop smoking (Tr. 805).
6
Plaintiff
to
lose
weight,
In
January
physician,
2012,
reviewed
Timothy
the
Gregg,
evidence
and
M.D.,
a
found
state
agency
Plaintiff
had
abilities consistent with a range of light work (Tr. 106-22).
Laura Cutler, Ph.D., a state agency psychologist, reviewed the
evidence
carry
and
out
found
simple
Plaintiff
one-
and
could
understand,
two-step
remember,
instructions;
and
sustain
attention for extended periods of two hour segments for simple
tasks;
tolerate
coworkers
and
supervisors
with
occasional
contact with the public; and adapt to routine changes as needed
(Tr. 106-22).
In March 2012, Plaintiff presented to Tara Newsome, M.D.,
with complaints of anxiety and headaches. Plaintiff reported he
smoked one-and-a-half packs of cigarettes per day. Dr. Newsome
found Plaintiff did not appear anxious or withdrawn and had
appropriate dress, speech, and affect (Tr. 796-97). Dr. Newsome
diagnosed
headache
and
tobacco-use
disorder.
She
prescribed
medications and told Plaintiff to stop smoking (Tr. 798). Two
months later, Plaintiff complained to Dr. Newsome of depression
(Tr. 792). Dr. Newsome found Plaintiff was alert, active, well
groomed, appropriately dressed, and in no acute distress. She
diagnosed
severe
major
depression,
7
benign
hypertension,
and
coronary atherosclerosis and prescribed medications (Tr. 79495).
In June 2012, Plaintiff presented to Suzanne Ford, D.O.,
for medication refills (Tr. 789). He reported smoking one-and-ahalf packs of cigarettes per day and that his mood and energy
had improved, though he complained of difficulty sleeping and
leg pain. Dr. S. Ford found Plaintiff was alert, active, well
groomed, appropriately dressed, and in no acute distress and had
clear lungs with no wheezes, rales, or rhonchi and regular heart
rate and rhythm. She diagnosed tobacco use disorder (Tr. 790).
She
prescribed
medication
and
instructed
Plaintiff
to
stop
smoking (Tr. 791). The following August, Plaintiff complained to
Dr. S. Ford of restless legs (Tr. 787), who diagnosed benign
hypertension,
major
coronary
depression,
atherosclerosis,
prescribed
headaches,
medications,
and
and
advised
severe
him
to
quit smoking (Tr. 788). In September 2012, Dr. S. Ford found
Plaintiff had appropriate dress, speech, and affect and did not
appear
anxious
or
withdrawn,
diagnosed
anxiety
state,
and
prescribed medications (Tr. 784-85).
The following month, Dr. S. Ford diagnosed Plaintiff with
restless leg syndrome (Tr. 782). In December 2012, Plaintiff
complained to Dr. Azeb of chronic low back pain. 3Plaintiff told
8
Dr.
S.
Ford
he
continued
to
smoke
one-and-half
packs
of
cigarettes per day at subsequent monthly visits from August to
October 2012 (Tr. 781, 784, 787).4 Dr. S. Ford made the same or
similar findings in August and October 2012 (Tr. 781, 787).
Plaintiff had full strength in his arms and legs and a
normal gait, but low back tenderness and a positive straight leg
raising test on the left. He diagnosed lumbago, muscle spasms,
radicular pain, facet syndrome, and degenerative disc disease
(Tr. 801).
In February 2013, Dr. Azeb stated Plaintiff could
sit and walk for one hour and stand for two hours each at one
time and sit, stand, and walk for less than one hour each in an
eight-hour
workday;
occasionally
reach,
push/pull,
use
foot
controls, climb ladders or scaffolds, and be exposed to extreme
heat or cold; and never lift or carry anything weighing up to 10
pounds,
climb
stairs
or
ramps,
operate
a
motor
vehicle,
be
exposed to moving mechanical parts or vibrations, travel without
companion assistance, walk a block at a reasonable pace on rough
or uneven surfaces, hear and understand simple oral instructions
and communicate simple information, read very small print, or
view a computer screen (Tr. 806-11).
In August 2011, Plaintiff reported he experienced a lack of
energy,
extreme
fatigue
and
sleepiness,
9
shortness
of
breath,
chest
pain,
depressive
thoughts,
and
difficulty
relating
to
others (Tr. 229-32). Regarding his functional limitations, he
alleged his impairments negatively affected his memory as well
as his ability to lift, squat, bend, stand, reach, sit, kneel,
talk, climb stairs, concentrate, complete tasks, understand and
follow instructions, and get along with others (Tr. 238). He
noted he needed reminders to take medications and was unable to
pay
bills
or
handle
bank
accounts
(Tr.
235-36).
Plaintiff
reported he did not have difficulty with his personal care (Tr.
234), mowed the grass (Tr. 235), and went outside a lot (Tr.
236), but did not prepare his own meals (Tr. 235). He stated he
accompanied his wife when she went shopping (Tr. 236), watched
television every day (Tr. 237), and helped care for his son with
his wife (Tr. 234).
During an administrative hearing in this matter (Tr. 2669), Plaintiff, who was represented by an attorney, testified he
could not stand being out in a crowd (Tr. 29, 47, 51). He stated
he took medications to relieve his symptoms (Tr. 30-31). He
testified he had three stents placed in 2009 (Tr. 29, 32, 35).
He testified he could walk the length of about half a football
field before becoming short of breath and experiencing back pain
and that shortness of breath impaired his ability to walk and
10
climb stairs (Tr. 32-33, 35-36, 39). He stated his doctor told
him not to lift over 10 pounds and he had problems lifting
things overhead (Tr. 38). He stated he could stand for up to 20
minutes before needing to change positions due to back pain and
experienced “stabbing and burning” pain running down his legs to
his
toes,
which
go
numb
(Tr.
40-42).
He
testified
walking,
standing, squatting, kneeling, and rainy or cold weather caused
back pain (Tr. 43-45).
He obtains relief from the intensity of
his back and leg pain using Neurontin and by sitting in a tub of
hot water or using a heating pad.
Plaintiff also testified that
his blood pressure fluctuations caused him to suffer headaches
of a one hour duration on at least two to three occasions each
week and that the headaches, coupled with chest pain, caused him
to suffer from nausea two to three times a week (Tr. 39-40).
Plaintiff testified that he has suffered from memory loss, has
difficulty concentrating, and has mood swings as a result of his
heart attack and other medical problems (Tr. 46-48).
The
ALJ
asked
David
Burnhill,
a
vocational
expert,
to
assume a hypothetical individual of Plaintiff’s age, education,
and work experience, who could:
. . . perform less than the full range of
light work wherein he can lift and carry,
push and pull pounds frequently and 20
pounds
occasionally.
This
hypothetical
11
individual can sit, stand and walk six hours
each out of an eight-hour workday as
necessary. This hypothetical individual can
occasionally reach overhead with the left
upper extremity . . . . This hypothetical
individual is also right-hand dominant. This
hypothetical
individual
must
avoid
concentrated exposure to extreme cold and
extreme heat. The[] hypothetical individual
can understand, remember and carry out
simple, routine, repetitive tasks. He is
limited to making no more than simple, workrelated
decisions.
He
can
occasionally
interact with the public and he can tolerate
occasional
changes
in
a
routine
work
setting.
(Tr. 60-61). The vocational expert testified that, while this
individual could not perform his past relevant work, he could
perform other work, including the jobs of night cleaner (Tr.
61), bagger (Tr. 61-62), floor worker, table worker, plastic
design applier (Tr. 62), and assembler (Tr. 62-63).
In reaching her decision, the ALJ followed the five-step
sequential evaluation set forth in the agency’s regulations for
determining
416.920(a)(4).
disability
(Tr.
9-21).
See
20
C.F.R.
§
She found Plaintiff had the residual functional
capacity for a range of light work as defined in 20 C.F.R. §
416.967(b) with limitations as set forth in her hypothetical
question to the vocational expert discussed above (Tr. 14-19).
At step four, the ALJ found Plaintiff could not perform his past
12
relevant work (Tr. 19); however, at step five, relying on the
vocational
perform
expert’s
other
work
testimony,
existing
the
in
ALJ
found
Plaintiff
significant
numbers
in
could
the
national economy, including the jobs cited by the vocational
expert discussed above (Tr. 19-21).
Therefore, the ALJ found
Plaintiff was not disabled (Tr. 21).
After the ALJ issued an unfavorable decision on April 8,
2013
(Tr.
6-21),
Plaintiff
requested
review
of
the
ALJ’s
decision by the agency’s Appeals Council (Tr. 5). The Council
denied
Plaintiff’s
request,
making
the
ALJ’s
decision
the
Commissioner’s final decisions for purposes of judicial review.
Plaintiff now seeks judicial review of the Commissioner’s final
decision pursuant to 42 U.S.C. § 405(g).
III.
Pursuant to 42 U.S.C. § 405(g), this Court reviews this
administrative decision to determine “whether the Commissioner’s
decision
is
supported
by
substantial
pursuant to proper legal standards.”
evidence
and
was
made
Ealy v. Comm’r of Soc.
Sec., 594 F.3d 504, 512 (6th Cir. 2010) (citing Rogers v. Comm’r
of
Soc.
quotation
Sec.,
486
marks
F.3d
234,
omitted).
241
(6th
“Substantial
Cir.
2007))
evidence”
(internal
is
“such
relevant evidence as a reasonable mind might accept as adequate
13
to support a conclusion.” Id. (quoting Lindsley v. Comm’r of
Soc.
Sec.,
quotation
560
marks
F.3d
601,
omitted).
604
In
(6th
Cir.
other
words,
2009))
as
(internal
long
as
an
administrative decision is supported by “substantial evidence,”
this Court must affirm, regardless of whether there is evidence
in the record to “support a different conclusion.” Lindsley, 560
F.3d at 604-05 (citing Felisky v. Bowen, 35 F.3d 1027, 1035 (6th
Cir. 1994)) (internal quotation marks omitted) (“administrative
findings are not subject to reversal merely because substantial
evidence
exists
conclusion”).
resolve
in
the
record
to
support
a
different
A reviewing court may not try the case de novo,
conflicts
in
the
evidence,
or
decide
questions
of
credibility. See Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713
(6th Cir. 2012).
IV.
Plaintiff argues that the ALJ’s decision is not supported
by substantial evidence of record because the ALJ improperly
discounted
the
severity
of
his
impairments
and
substituted,
instead, her impression of the Plaintiff’s disability over the
medical evidence of record.
Specifically, he argues that the
ALJ erred by failing to give greater weight to the opinion of
his treating physician, Dr. Ashraf Azeb, with respect to his
14
residual functional capacity and gave greater weight, instead,
to a consulting, examining physician’s opinion.
Dr. Azeb opined that the Plaintiff can never lift or carry
more than ten (10) pounds due to his physical conditions, only
sit for one (1) hour without interruption and for less than one
(1) hour total in an eight (8) hour workday, only stand for two
(2) hours without interruption and for less than one (1) hour
total in an eight (8) hour workday, only walk for one (1) hour
without interruption and for less than one (1) hour total in an
eight (8) hour workday, only occasionally reach overhead and
push or pull with his right hand, which is his dominant hand,
only occasionally operate foot controls with his feet, never
climb stairs and ramps or balance, and only occasionally climb
ladders
or
Plaintiff
scaffolds.
is
unable
(Tr.
to
806-09).
hear
Dr.
and
Azeb
felt
understand
that
simple
the
oral
instructions and to communicate simple information and that he
would
be
unable
tread
screen. (Tr. 809).
Plaintiff
had
the
very
small
print
or
view
a
computer
By contrast, the ALJ concluded that the
residual
functional
capacity
to
perform
a
range of light work except that he could “occasionally reach
overhead with the left non-dominant upper extremity; must avoid
concentrated exposure to extreme cold and heat; can understand,
15
remember, and carry out simple, routine repetitive tasks; can
make simple work-related decisions; can occasionally interact
with
the
public;
and
can
routine work setting.”
tolerate
occasional
changes
in
a
(Tr. 14).
In reaching this conclusion, the ALJ gave “little weight to
[Dr. Azeb’s] opinion . . .
because it is not supported by
either the claimant’s own subjective reports or Dr. Azeb’s own
exam performed in 2012.”
She cited, as well, Dr. Azeb’s brief
treatment relationship with the Plaintiff, lasting only a few
months, as eroding his credibility.
mixed
weight
consultant
to
Lea
the
opinions
Perritt,
of
Ph.D.,
(Tr. 19.)
state
great
agency
weight
to
She afforded
psychological
state
agency
psychological consultant, Laura Cutler, Ph.D., and mixed weight
to the opinion of state agency medical consultant, Dr. Timothy
Gregg,
in
reaching
a
decision
about
Plaintiff’s
residual
functional capacity.
Residual
assessment
of
functional
the
extent
capacity
to
which
“is
an
an
administrative
individual’s
medically
determinable impairment(s), including any related symptoms, such
as
pain,
may
cause
physical
or
mental
limitations
that
may
affect his or her ability to do work related physical or mental
activities.”
Social
Security
Ruling
16
(“SSR”)
96-8p,
1996
WL
374184, at *2. It is the most a person can do, despite his
limitations. See id. At the hearing level of the administrative
process,
the
claimant’s
ALJ
bears
residual
the
responsibility
functional
capacity.
of
See
assessing
a
C.F.R.
§§
20
416.945, 416.946(c); Warner v. Comm’r of Soc. Sec., 375 F.3d
387, 390 (6th Cir. 2004) (“The determination of disability is
ultimately the prerogative of the Commissioner, not the treating
physician.” (quotation and brackets omitted)). In making this
finding, the ALJ must decide what weight, if any, to accord the
medical opinions of record.
“Medical
opinions”
are
defined
as
“statements
from
physicians and psychologists or other acceptable medical sources
that reflect judgments about the nature and severity of your
impairment(s),
including
your
symptoms,
diagnosis,
and
prognosis, what you can still do despite impairment(s), and your
physical
and
mental
restrictions.”
Id.
§
416.927(a)(2).
Some
“medical opinions” are entitled to “controlling weight.” See id.
§
416.927(c)(2).
To
be
eligible
for
controlling
weight,
the
opinion must be a medical opinion and must also (1) come from a
treating
source,
i.e.,
an
acceptable
medical
source
“who
provides you, or has provided you with medical treatment or
evaluation
and
who
has,
or
has
17
had,
an
ongoing
treatment
relationship with you,” id. § 416.902; (2) be “well-supported by
medically
acceptable
techniques”;
and
(3)
clinical
be
“not
and
laboratory
inconsistent”
diagnostic
with
the
other
substantial evidence in the case record. SSR 96-2p, 1996 WL
374188, at *2. If no opinion is entitled to controlling weight,
the agency considers several factors in deciding how much weight
to give an opinion, including the nature of the medical source’s
relationship
with
the
claimant,
supportability,
consistency,
specialization, and any other factors that tend to support or
contradict the opinion. See 20 C.F.R. §§ 416.927(c)(1)-(6).
The
ALJ
inconsistent
exam
concluded
with
conducted
that
Plaintiff’s
by
Dr.
Azeb
Dr.
own
in
Azeb’s
subjective
2012.
(Tr.
opinions
reports
19).
and
Rather
were
the
than
offering support from the record to demonstrate why his opinions
were
consistent
with
the
rest
of
the
record,
Plaintiff’s
argument can be summed up as “Plaintiff is clearly disabled by
his physical impairments as addressed in the medical records.”
Plaintiff does not bother to direct the Court to any particular
aspect of that record in support of his position and to counter
the conclusion reached by the ALJ, beyond asking the Court to
conclude that the ALJ’s decision was, simply, wrong.
18
This is not enough to persuade the Court to reverse the
decision of the ALJ.
Rather, the Court understands the ALJ’s
decision in the context of the evidence that she cited and which
the Commissioner has drawn to the Court’s attention.
Plaintiff
reported in August 2011 that he helped care for his son, did not
have difficulty with his personal care (Tr. 234), mowed the
grass (Tr. 235), went outside a lot, went shopping with his wife
(Tr.
236),
and
watched
television
(Tr.
237).
Plaintiff
told
Leigh Ann Ford, Ph.D., in September 2011 that he managed his
self-care tasks daily and occasionally visited with family (Tr.
762-63).
that
In his own records, Dr. Azeb noted, in November 2011,
Plaintiff
had
intact
sensation;
normal
reflexes;
full
muscle strength in his arms and legs; full range of motion and
no tenderness in his neck, hips, and knees, although he had
muscle spasms, tenderness, and limited range of motion in his
low back and positive straight leg raising tests on the left
(Tr. 804-05). In December 2012, Dr. Azeb found Plaintiff had
full strength in his arms and legs and a normal gait, although
he had low back tenderness and a positive straight leg raising
test on the left (Tr. 801), findings he repeated in January 2013
(Tr.
800).
None
of
this
is
19
in
keeping
with
Dr.
Azeb’s
conclusions
regarding
Plaintiff’s
limitations
reached
on
February 18, 2013.
The
Plaintiff
has
provided
the
Court
citations
to
the
record for a panoply of self-reported pains and symptoms, but
they
are
either
accounted
for
in
the
residual
functional
capacity conclusion of the ALJ (e.g., avoiding exposure to heat
and
cold)
or
simply
out
of
keeping
with
the
medical
and
anecdotal evidence of record, such that the ALJ appropriately
discounted them.
The ALJ appropriately considered the record as
a whole when evaluating Dr. Azeb’s opinion and concluding that
it was unsupported by the evidence.
See id. § 416.927(c)(4)
(stating an ALJ must consider whether an opinion is consistent
with the record as a whole); SSR 96-2p, 1996 WL 374188, at *3
(“a treating source’s medical opinion on what an individual can
still do despite his or her impairment(s) will not be entitled
to controlling weight if substantial, nonmedical evidence shows
that the individual’s actual activities are greater than those
provided in the treating source’s opinion).
An ALJ can discount
the opinion of a physician when, as in this case, the doctor’s
opinions are not supported by his own findings. 20 C.F.R. §
416.927(c)(3)
(“The
more
a
medical
source
presents
relevant
evidence to support an opinion, particularly medical signs and
20
laboratory
findings,
the
more
weight
we
will
give
that
opinion.”); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529-30
(6th Cir. 1997) (An ALJ may discount a doctor’s opinion when the
doctor’s
findings
are
not
supported
by
objective
medical
evidence or are inconsistent with the record as a whole).
The
strength of Dr. Azeb’s opinion is further weakened, as the ALJ
notes, when there is no particularly remarkable basis for a
longitudinal assessment of Plaintiff’s capacity for work by Dr.
Azeb, who saw Plaintiff in November 2011 (Tr. 803-05) and then
did not see him again until December 2012 (Tr. 801) and January
2013 (Tr. 800). See 20 C.F.R. § 416.927(c)(2)(i) (stating an ALJ
should consider whether a treating source has seen a claimant “a
number of times and long enough to have obtained a longitudinal
picture” of the claimant’s impairment); Gayheart v. Comm’r of
Soc. Sec., 710 F.3d 365, 378 (6th Cir. 2013) (holding that the
little weight that the ALJ gave to an opinion of a psychological
therapist was sufficiently supported, where the therapist saw
claimant
for
only
five
months).
Ultimately,
this
Court
concludes that the ALJ reasonably assigned only little weight to
Dr. Azeb’s opinions.
Neither did the ALJ err in how she considered Plaintiff’s
subjective complaints while evaluating his residual functional
21
capacity. First, an adjudicator must consider whether there is
an
underlying
medically
determinable
physical
or
mental
impairment(s) that could reasonably be expected to produce the
claimant’s pain or other symptoms. Second, once an underlying
impairment(s) that could reasonably be expected to produce the
individual’s
adjudicator
pain
must
or
other
evaluate
symptoms
the
has
intensity,
been
shown,
the
persistence,
and
limiting effects of the individual’s symptoms to determine the
extent to which the symptoms limit the claimant’s ability to do
basic work activities. See 20 C.F.R. § 416.929(c)(4) (“we will
evaluate your statements in relation to the objective medical
evidence”); Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 543 (6th
Cir. 2007) (“[T]he record is replete with medical evidence that
Cruse’s symptoms were not as severe as she suggested.”); SSR 967p, 1996 WL 374186, at *2. In so doing, adjudicators consider
factors such as the objective medical evidence; the claimant’s
activities; the type, dosage, effectiveness, and side effects of
any medication the claimant takes or has taken to alleviate his
symptoms;
and
any
other
factors
concerning
the
claimant’s
functional limitations and restrictions due to his symptoms. See
id.
22
The
Commissioner
has
adequately
summarized
the
information as follows:
The
ALJ
concluded
that
Plaintiff’s
subjective complaints were not consistent
with the objective medical evidence (Tr.
16).
See, as discussed above, (Tr. 800-01,
803-05 (compiling Dr. Azeb’s findings); Tr.
743 (Dr. Ahmad’s July 2011 finding that
Plaintiff had a normal heart rate and rhythm
and no edema); Tr. 762-63 (Dr. L. Ford’s
September 2011 finding that , Dr. L. Ford
found Plaintiff was oriented and had normal
memory capacities and speech; cooperative
attitude;
appropriate
thought
content;
logical and goal-directed organization of
thought; good reality testing; low average
intelligence; and fair judgment, although he
could not spell the word “world” backwards,
avoided
eye
contact,
and
had
somewhat
variable attention and concentration; tense
facial expressions; flat affect; pessimistic
mood;
somewhat
below
average
fund
of
knowledge; capacity for abstraction limited
to concrete interpretation of language; gaps
in insight; overwhelmed coping skills; and
skill deficits in activities of daily living
and physical abilities. In March 2012, Dr.
Newsome found Plaintiff did not appear
anxious or withdrawn and had appropriate
dress, speech, and affect (Tr. 796-97). Two
months later, she found Plaintiff was alert,
active, well groomed, appropriately dressed,
and in no acute distress (Tr. 794-95). Dr.
S. Ford who consistently found Plaintiff was
alert, active, well groomed, appropriately
dressed, and in no acute distress and had
clear lungs with no wheezes, rales, or
rhonchi and regular heart rate and rhythm
from June to October 2012 (Tr. 781, 787,
790).
[DE 10 at 5, Page ID#: 879.]
23
relevant
Further, there is evidence of record to support the ALJ’s
conclusion
that
inconsistent
Plaintiff’s
with
his
activities
subjective
of
daily
complaints
living
of
were
disabling
symptoms (Tr. 13, 16), including the activities he reported in
August 2011 (Tr. 234-37) and to Dr. L. Ford (Tr. 762-63). See 20
C.F.R.
§
416.929(c)(3)(i)
claimant’s
activities);
(stating
Cruse,
an
502
ALJ
F.3d
must
at
consider
543
(it
a
is
appropriate for the ALJ to take a claimant’s daily activities
into account in making his credibility determination). Finally,
there is evidence of record to support the ALJ’s conclusion that
Plaintiff’s subjective complaints were undermined by his failure
to
follow
smoking
treatment
cigarettes
(Tr.
17)
despite
and
the
his
fact
decision
that
his
to
continue
physicians
repeatedly telling him to stop (Tr. 762-63, 781, 784, 787-88,
791, 796-98, 805). See 20 C.F.R. § 416.929(c)(4) (stating an ALJ
must consider inconsistencies in the evidence).
As if all of the above would not be enough, there are
issues which Plaintiff does not even broach.
ALJ
also
properly
considered
evidence
For example, the
concerning
Plaintiff’s
criminal activity, only to conclude that it detracted from his
credibility
(Tr.
17).
There
is
evidence
of
record
that
Plaintiff told Dr. L. Ford he smoked marijuana on a daily basis,
24
was arrested three times on DUI charges, and spent 30 days in
jail
with
his
416.929(c)(4)
history).
last
arrest
(stating
The
ALJ
in
an
2009
ALJ
also
(Tr.
must
762-63).
consider
considered
and
See
a
id.
§
claimant’s
determined
that
Plaintiff’s credibility was undermined by the fact he stopped
working for reasons unrelated to his impairments (Tr. 17 and
762-63). See id. § 416.929(c)(3) (stating an ALJ must consider
evidence
about
a
claimant’s
prior
work
record).
As
the
ALJ
further found, the evidence did not show Plaintiff ever sought
treatment from a mental health professional, which might have
offered credence to his claims of impairment (Tr. 17). See id. §
416.929(c)(4).
Ultimately, the Court concludes that the ALJ did not err
when she decided to give less weight to the opinion of the
treating physician in developing an RFC and greater weight to
that
of
Having
the
state
determined
consulting
that
the
ALJ
psychologists
had
the
and
physician.
residual
functional
capacity for a range of light work with limitations as set forth
above and relying on testimony from a vocation expert which
assumed
a
functional
hypothetical
capacity,
individual
the
ALJ
with
Plaintiff’s
appropriately
relied
residual
on
that
testimony to conclude that Plaintiff, much like the hypothetical
25
person,
could
not
perform
his
past
relevant
work
but
could
perform other work, including the jobs of night cleaner, bagger,
floor
worker,
table
worker,
plastic
design
applier,
and
assembler in numbers that she found to be significant. (Tr. 2021, 60-63); see Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548
(6th Cir. 2004) (“[T]he Commissioner may rely on the testimony
of a vocational expert to find that the claimant possesses the
capacity
to
perform
other
substantial
gainful
activity
that
exists in the national economy.” (citations omitted)).
V.
Plaintiff has not demonstrated error on the part of the ALJ
in
establishing
a
residual
functional
capacity,
presenting
a
hypothetical question to the vocational expert based on that
assessment,
and
relying
on
the
testimony
of
the
vocational
expert in response to that hypothetical question in determining
that there are jobs that Plaintiff can do.
See
Foster v.
Halter, 279 F.3d 348, 356-57 (6th Cir. 2001); Varley v. Sec'y of
Health & Human Servs., 820 F.2d 777, 779-80 (6th Cir. 1987).
Substantial
evidence
supports
the
ALJ's
findings
and
her
conclusion that Plaintiff was not disabled within the meaning of
the Social Security Act.
26
For all of the reasons stated above, the Court concludes
that
Summary
Judgment
in
favor
of
Defendant
is
warranted.
Accordingly, IT IS ORDERED:
(1)
that Plaintiff’s Motion for Summary Judgment [DE 9]
is DENIED; and
(2)
that Defendant’s Motion for Summary Judgment [DE
10] is GRANTED.
This the 1st day of October, 2015.
27
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