Collins v. SSA
Filing
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MEMORANDUM OPINION AND ORDER: (1) The decision of Commissioner is found to be supported by substantial evidence and is hereby AFFIRMED; (2) Plaintiff's Motion for Summary Judgment 6 is hereby DENIED; (3) Defendant's Motion for Summary Judgment 7 is hereby GRANTED. Signed by Judge David L. Bunning on 3/18/2016. (RCB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT PIKEVILLE
CIVIL ACTION NO. 14-166-DLB
DAVID COLLINS
vs.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
DEFENDANT
********************
Plaintiff 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. The Court, having
reviewed the record, will affirm the Commissioner’s decision, as it is supported by
substantial evidence.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On December 2, 2011, Plaintiff David Collins filed his application for a period of
disability and Disability Insurance Benefits (“DIB”), alleging disability as of August 9, 2011.
(Tr. 194-97). Plaintiff’s claim was denied initially and on reconsideration. (Tr. 126-29 and
134-36). On June 20, 2013, Administrative Law Judge Michele M. Kelley conducted an
administrative hearing at Plaintiff’s request. (Tr. 38-78). ALJ Kelley ruled that Plaintiff was
not entitled to benefits on July 23, 2013. (Tr. 14-37). This decision became the final
decision of the Commissioner when the Appeals Council denied review on September 26,
2014. (Tr. 1-7).
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On November 25, 2014, Plaintiff filed the instant action. (Doc. # 1). This matter has
culminated in cross motions for summary judgment, which are now ripe for the Court’s
review. (Docs. # 6 and 7).
II. DISCUSSION
A.
Overview of the Process
Judicial review of the Commissioner’s decision is restricted to determining whether
it is supported by substantial evidence and was made pursuant to proper legal standards.
See Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
“Substantial evidence” is defined as “more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. Courts are not to conduct a de novo review, resolve
conflicts in the evidence, or make credibility determinations. Id. Rather, we are to affirm
the Commissioner’s decision, provided it is supported by substantial evidence, even if we
might have decided the case differently. See Her v. Comm’r of Soc. Sec., 203 F.3d 388,
389-90 (6th Cir. 1999).
The ALJ, in determining disability, conducts a five-step analysis. Step 1 considers
whether the claimant is still performing substantial gainful activity; Step 2, whether any of
the claimant’s impairments are “severe;” Step 3, whether the impairments meet or equal
a listing in the Listing of Impairments; Step 4, whether the claimant can still perform his past
relevant work; and Step 5, whether significant numbers of other jobs exist in the national
economy which the claimant can perform. As to the last step, the burden of proof shifts
from the claimant to the Commissioner. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469,
474 (6th Cir. 2003); Preslar v. Sec’y of Health & Human Servs., 14 F.3d 1107, 1110 (6th
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Cir. 1994).
B.
The ALJ’s Determination
At Step 1, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since the alleged onset date. (Tr. 19). At Step 2, the ALJ determined that Plaintiff had the
following severe impairments: (1) right shoulder tendinitis and rotator cuff tear; (2)
degenerative disc disease of the lumbar spine; (3) depression; and (4) anxiety. (Id.).
At Step 3, the ALJ concluded that Plaintiff does not have an impairment or
combination of impairments listed in, or medically equal to, an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 87-88). Specifically, the ALJ found that
Plaintiff’s right shoulder impairment did not meet the requirements of Listing 1.02 (major
dysfunction of a joint due to any cause) because it did not “result in the inability to perform
fine and gross movements.” (Tr. 22). She also concluded that Plaintiff’s degenerative disc
disease did not meet the requirements of Listing 1.04 (disorders of the spine) because
there is no evidence of significant spinal stenosis or neurological deficits. (Id.). Finally, the
ALJ found that Plaintiff’s depression and anxiety did not meet the requirements of Listing
12.04 (affective disorders) because he managed many activities associated with daily living
and had not experienced any episodes of decompensation of extended duration. (Id.).
At Step 4, the ALJ concluded that Plaintiff has the residual functional capacity
(“RFC”) to perform less than a full range of light work, as defined in 20 C.F.R. §§
404.1567(b), 416.967(b):
He can lift, carry, push, and pull 20 pounds occasionally and 10 pounds
frequently. He can stand and walk six hours in an eight-hour workday and
sit six hours in an eight-hour workday. He is limited to occasional pushing
and pulling with the right upper extremity, but cannot reach overhead with the
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right upper extremity. He can occasionally climb ramps or stairs, stoop,
kneel, crouch, and crawl. He cannot climb ladders, ropes, or scaffolds. He
should avoid concentrated exposure to vibration. He needs the option to
change positions every 30 to 60 minutes for a few minutes of time while
staying on task. He should avoid direct exposure to hazardous work
conditions, including unprotected heights, inherently dangerous moving
machinery or work environments, uneven surfaces, and large bodies of
water. He can understand, remember, and carry out unskilled work up to an
SVP of 2 and a reasoning level of 2.
(Tr. 24). The ALJ further found that Plaintiff was unable to perform past relevant work as
an underground coal miner and belt man. (Tr. 28).
Accordingly, the ALJ proceeded to the final step of the sequential evaluation. At
Step 5, the ALJ found that there are a significant number of jobs in the national economy
that Plaintiff could perform. (Tr. 29). The ALJ based this conclusion on testimony from a
vocational expert (“VE”), in response to a hypothetical question assuming an individual of
Plaintiff's age, education, work experience, and RFC. (Id.). The VE testified that a
hypothetical individual with Plaintiff's vocational profile and RFC could find light work as an
information clerk (900,000 nationally/900 regionally), gate tender (15,000 nationally/700
regionally) or photocopy operator (60,000 nationally/400 regionally). (Id.). Based on the
testimony of the VE and Plaintiff’s age, education, work experience, and RFC, the ALJ
found that Plaintiff is capable of making a successful adjustment to other work and thus
concluded that he was not under a "disability," as defined by the Social Security Act. (Id.).
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C.
Plaintiff’s Arguments
Plaintiff advances four arguments on appeal.1 (Doc. # 6-1). First, Plaintiff argues
that the ALJ failed to give controlling weight to the opinion of Dr. Anbu Nadar, one of his
treating physicians. Second, Plaintiff complains that the ALJ erred in her credibility
assessment. Third, Plaintiff contends that the ALJ posed an inaccurate hypothetical
question to the VE. Fourth, Plaintiff suggests that the ALJ’s decision should be overturned
because there is substantial evidence to support a finding of disability. Each of these
arguments will be addressed in turn.
1.
The ALJ did not err in weighing the opinion of Dr. Nadar.
In social security disability cases, the Commissioner depends on medical sources
“to provide evidence, including opinions, on the nature and severity of [claimant’s]
impairment(s).” 20 C.F.R. § 404.1527(d)(2). Such evidence may come from treating
sources, non-treating sources and/or non-examining sources. 20 C.F.R. § 404.1502. A
treating source is the claimant’s “own physician, psychologist, or other acceptable medical
source who provides [claimant], or has provided [claimant], with medical treatment or
evaluation and who has, or has had, an ongoing treatment relationship with [claimant].” Id.
A treating source’s opinion is entitled to controlling weight if it is “‘well supported by
medically acceptable clinical and laboratory diagnostic techniques’ and ‘not inconsistent
1) The Commissioner argues that Plaintiff has waived his arguments by failing to adequately
develop them. (Doc. # 7 at 4-5). After all, “[i]ssues adverted to in a perfunctory manner
unaccompanied by some effort at developed argumentation, as deemed waived. It is not sufficient
for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put
flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997). The Court agrees
that Plaintiff’s brief is poorly developed. However, because the Court is able to broadly identify the
issues raised, it will analyze them briefly out of an abundance of caution.
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with the other substantial evidence in the case record.’” Wilson v. Comm’r of Soc. Sec.,
378 F.3d 541, 544 (6th Cir. 2004) (quoting 20 C.F.R. § 404.1527(d)(2)). If a treating
source’s opinion is not entitled to controlling weight, the ALJ must consider the following
factors in order to determine how much weight to give the opinion: (1) the length of the
treatment relationship and the frequency of the examination; (2) the nature and extent of
the treatment relationship; (3) supportability of the opinion; (4) consistency of the opinion
with the record as a whole; and (5) the specialization of the treating source. Id. The ALJ
must also provide “good reasons” for the weight given to a treating source’s opinion. 20
C.F.R. § 404.1527(d)(2); see also Soc. Sec. Rul. 96-2p, 1996 WL 374188 at *5 (1996)
(explaining that the ALJ’s decision “‘must contain specific reasons for the weight given to
the treating source’s medical opinion, supported by the evidence in the case record”).
This “treating physician rule” only applies to medical opinions. While a medical
expert may opine “on issues such as whether [claimant’s] impairment(s) meets or equals
the requirements of any impairment(s) in the Listing of Impairments,” as well as claimant’s
residual functional capacity or the application of vocational factors, such opinions are not
entitled to controlling weight.
See 20 CFR § 404.1527(d)(2) (stating that “the final
responsibility for deciding these issues is reserved to the Commissioner”). “Although the
ALJ may not entirely ignore such an opinion, his decision need only explain the
consideration given to the treating source’s opinion.” Turner v. Comm’r of Soc. Sec., 2010
WL 2294531, at *4 (6th Cir. June 7, 2010).
Plaintiff complains that the ALJ did not give controlling weight to the opinions of Dr.
Anbu Nadar, an orthopedic surgeon with whom he had a treating relationship. In the
hearing decision, the ALJ discussed two different opinions provided by Dr. Nadar:
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Dr. Nadar opined at the conclusion of an October 2011 examination that the
claimant would not be able to return to work at that time. The undersigned
rejects this opinion, as the determination of disability is one reserved for the
Commissioner. Further, the finding at that time was done so only two months
after his right shoulder injury, and prior to further treatment and surgery. A
subsequent opinion by Dr. Nadar dated April 24, 2013, concluded that the
claimant would have limitation in work activities that required heavy lifting,
pushing and pulling with the right arm, and with overhead activity. The
undersigned affords great weight to this opinion, as its conclusions were
done after treatment received and findings consistent with the objective
medical evidence.
(Tr. 27).
The ALJ was correct in stating that Dr. Nadar’s opinion of October 2011 was not
entitled to controlling weight because he opined on an issue ultimately reserved for the
Commissioner’s determination. The ALJ then went on to explain why she totally rejected
that opinion, citing to medical evidence of Plaintiff’s improved condition. As for Dr. Nadar’s
opinion of April 2013, the ALJ may not have used the term controlling weight, but she did
explain that his opinion was entitled to great weight because it was consistent with the
medical evidence of record. Perhaps this would be error in some cases; here, it is little
more than a question of semantics. The record indicates that the ALJ incorporated all of
the limitations identified by Dr. Nadar into the RFC assessment, which is precisely what the
ALJ is supposed to do with an opinion that is entitled to controlling weight. Because
Plaintiff cannot demonstrate that any aspect of Dr. Nadar’s opinions were improperly
treated by the ALJ, the Court finds that the ALJ’s Step 4 analysis is supported by
substantial evidence.
2.
The ALJ did not err in assessing Plaintiff’s credibility.
Although relevant to the RFC assessment, a claimant’s description of his or her
symptoms is not enough, on its own, to establish the existence of physical and/or mental
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impairments or disability. Soc. Sec. Rul. 96-7p, 1996 WL 374186 at *2 (July 2, 1996).
When evaluating a claimant’s symptoms, the ALJ must determine whether there is an
underlying medically determinable impairment that could reasonably be expected to
produce the alleged symptoms. Id. Once that is established, the ALJ must “evaluate the
intensity, persistence, and limiting effects of the individual’s symptoms to determine the
extent to which the symptoms limit the individuals’ ability to do basic work activities.” Id.
When the claimant’s description of his or her symptoms is not supported by objective
medical evidence, the ALJ must assess the credibility of the claimant’s statements based
on the entire case record, including medical and laboratory findings, claimant’s statements,
information provided by treating or examining physicians about how the symptoms affect
the claimant, and any other relevant evidence. Id. The ALJ may also consider the
claimant’s daily activities; the location, duration, frequency, and intensity of the claimant’s
symptoms; factors that precipitate and aggravate the symptoms; the type, dosage,
effectiveness and side effects off any medication the individual takes or has taken to
alleviate pain or other symptoms; treatment, other than medication, the individual receives
for pain relief; any other measures used for pain management; and any other factors
concerning the claimant’s limitations due to symptoms. Id. at *3. Credibility determinations
based solely on intangible or intuitive notions are impermissible. Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234, 247 (6th Cir. 2007).
Although Plaintiff does not directly take issue with the ALJ’s credibility assessment,
he does note that “consideration should be given to all of [his] symptoms, including pain,
and the extent to which the signs and findings confirm those symptoms.” (Doc. # 6-1 at
10). The implication, of course, is that the ALJ failed to do so. Accordingly, the Court will
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briefly review the ALJ’s credibility assessment.
At Step 4, the ALJ found that the underlying physical or mental impairments could
reasonably be expected to produce the claimant’s pain or other symptoms. (Tr. 25).
However, she observed that “the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible for the reasons
explained in this decision.” (Id.). To illustrate this point, the ALJ cited to several pieces to
medical evidence that were inconsistent with Plaintiff’s testimony regarding his symptoms:
The claimant testified that all he does is sit around due in part to his inability
to get comfortable enough to do anything. However, Function Reports
completed by the claimant and his wife indicate that he prepares simple
meals daily, washes clothes, helps his young to bath [sic] and dress, and
grocery shops for up to 25 minutes. However, when questioned about his
previous day, the claimant reported that he made a trip to and from
Lexington, Kentucky, a trip of about three hours, and underwent a five-hour
vocational assessment. As noted above, the claimant testified to some
benefits from his prescribed medications, but noted continued significant pain
levels in both his shoulder and back. However, treatment records from Dr.
Mann, as recent as June 2013, indicate that the claimant’s symptoms were
stable and fairly well controlled with his medications and restricted activities.
Treatment records indicated the claimant continued to have some symptoms
in the right shoulder following his second surgery, but did find some
improvement. The undersigned notes that although Mr. Collins testified to
a history of low back injuries, he continued to sustain work activity at a very
heavy exertional level. The undersigned finds the claimant’s mental health
impairments appear to be related to loss of employment and financial
reasons rather than a longitudinal mental health problem. Both Drs. Ford
and Edwards placed the claimant’s GAF at 60 or above, consistent with only
a mild mental health disorder.
(Id.).
Based on its review of the record, the Court finds that the ALJ did exactly as the
regulations instruct. She concluded that there were inconsistencies between the severity
of Plaintiff’s symptoms and the objective medical evidence, necessitating an assessment
of Plaintiff’s credibility. In making this assessment, the ALJ availed herself of the entire
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case record, as Social Security Ruling 96-7p instructs. She not only provided multiple
examples of the inconsistencies between the objective medical evidence and Plaintiff’s
testimony, she also highlighted the inconsistencies in Plaintiff’s own testimony. Finally, the
ALJ incorporated the limitations that she found to be justified in assigning an RFC of light
work. Under these circumstances, the Court finds that this aspect of the ALJ’s Step 4
analysis is also supported by substantial evidence..
3.
The ALJ did not err in relying on the VE’s response to an appropriate
hypothetical question.
In posing a hypothetical question to a vocational expert, an ALJ must accurately
describe Plaintiff’s functional limitations. Varley v. Sec’y of Health and Human Servs., 820
F.2d 777, 779. (6th Cir. 1987). However, the ALJ need only incorporate those limitations
she finds to be credible. Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235
(6th Cir. 1993).
Plaintiff insists that the ALJ’s hypothetical question was deficient because it did not
“accurately account for the Plaintiff’s subjective complaints and the medical evidence he
submitted.” (Doc. # 6-1 at 10). He further states that “[o]nce the vocational expert had
been presented with [an accurate] hypothetical, . . . the vocational expert conceded that the
Plaintiff would be unable to perform work on a regular and sustained basis.” (Id.).
Although Plaintiff does not specifically identify which hypothetical was accurate, the Court
presumes that he is referring to the hypothetical posed by his attorney. (Tr. 76-77).
Specifically, Plaintiff’s attorney asked the VE whether there would be work remaining in the
regional or national economy if she gave full credit to his testimony about the severity of
his symptoms. (Id.). The VE replied that Plaintiff would not be able to sustain employment.
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(Id.).
For reasons explained above, the ALJ did not find those limitations to be credible.
Therefore, there is no error in her failure to rely upon the hypothetical question crafted by
Plaintiff’s attorney. Rather, the ALJ identified the limitations that she did find credible, then
incorporated them into the hypothetical question that she posed to the VE, as the
regulations instruct. The Court sees no error in the ALJ’s Step 5 analysis.
4.
It does not matter whether there is substantial evidence to support a
finding of disability.
As a final matter, Plaintiff asserts that “a conclusion that the Plaintiff’s physical
impairments have rendered him disabled is amply supported by the medical records from
the physicians in the record.” (Doc. # 6-1 at 9). This argument is little more than an
attempt to re-weigh the evidence, which is not the task of this Court. Its role is limited to
determining whether there is substantial evidence in the record to support the ALJ’s
decision, not whether there is substantial evidence to support a different decision. Her, 203
F.3d at 389-90. The Court having found that the ALJ’s decision is supported by substantial
evidence, for reasons stated above, it is unnecessary to consider this argument further.
III. CONCLUSION
Accordingly, for the reasons stated herein, IT IS ORDERED as follows:
(1)
The decision of the Commissioner is found to be supported by substantial
evidence and is hereby AFFIRMED;
(2)
Plaintiff’s Motion for Summary Judgment (Doc. # 6) is hereby DENIED;
(3)
Defendant’s Motion for Summary Judgment (Doc. # 7) is hereby GRANTED.
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A Judgment in favor of Defendant Commissioner will be entered contemporaneously
herewith.
This 18th day of March, 2016.
G:\DATA\SocialSecurity\MOOs\Pikeville\14-166 Collins MOO.wpd
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