Dixon v. SSA
Filing
14
MEMORANDUM OPINION & ORDER: 1. Plaintiff Sandra L. Dixons Motion for Summary Judgment Record No. 12 is DENIED. 2. Defendant Carolyn W. Colvins Motion for Summary Judgment Record No. 13 is GRANTED. 3. The decision of Administrative Law Judge Don C. Paris will be AFFIRMEDby separate Judgment entered this date. Signed by Judge Danny C. Reeves on 9/29/15.(MJY)cc: COR, Sandra Dixon via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at Pikeville)
SANDRA LYNN DIXON,
Plaintiff,
V.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
Civil Action No. 7: 15-011-DCR
MEMORANDUM OPINION
AND ORDER
*** *** *** ***
This matter is pending for consideration of cross-motions for summary judgment filed
by Plaintiff Sandra Lynn Dixon (“Dixon” or “the Claimant”) and Defendant Carolyn W.
Colvin, Acting Commissioner of Social Security (“the Commissioner”). [Record Nos. 12,
13] Dixon argues that the Administrative Law Judge (“ALJ”) erred in concluding that she is
not entitled to a period of disability, disability insurance benefits, and supplemental security
income. However, the Commissioner contends that the ALJ’s decision is supported by
substantial evidence and should be affirmed. For the reasons discussed below, the Court will
grant the Commissioner’s motion and deny the relief requested by Dixon.
I.
On December 2, 2011, Dixon filed a Title II application for a period of disability and
disability insurance benefits.
[Administrative Transcript, “Tr.,” p. 233]
-1
She alleged a
disability beginning April 3, 2008.1 [Id., p. 231] Dixon, along with attorney David Hicks
and vocational expert (“VE”) Stephanie Barnes, appeared before ALJ Don C. Paris on
August 13, 2013, for an administrative hearing. [Id., pp. 1340] On August 29, 2011, ALJ
Paris found that Dixon was not disabled under sections 216(i) and 223(d) of the Social
Security Act (“the Act”). [Id., p. 55] Dixon appealed the ALJ’s determination to the Social
Security Administration’s (“SSA”) Appeals Council. However, the SSA Appeals Council
declined the Claimant’s request for review. [Id., p. 1]
Dixon was 35 years-old when her alleged disability began, and 41 years-old at the
time of the ALJ’s decision. [Tr., pp. 55, 143] She has completed high school and two years
of college. Dixon previously worked as a licensed practical nurse. [Id., pp. 24445] After
considering the testimony presented during the administrative hearing and reviewing the
record, the ALJ concluded that Dixon suffers from the following severe impairments: (i)
cardiac dysrhythmias; (ii) degenerative disc disease of the lumbar spine; (iii) affective
disorder; and (iv) anxiety disorder. [Id., p. 46] Notwithstanding these impairments, the ALJ
determined that the Claimant maintained the residual functional capacity (“RFC”) to perform
light work, subject to the following limitations:
standing or walking six hours in an eight-hour day, except with never climbing
ladders or scaffolds; only occasionally climbing ramps or stairs; and frequently
balancing, stooping, kneeling, crouching, or crawling. The claimant should
avoid exposure to extreme cold, vibration, and all hazards such as unprotected
heights and dangerous machinery. She has the ability to understand and
remember simple and detailed instructions with good understanding and
persistence within given physical limitations, sustain attention and
1
Dixon filed a prior claim for disability benefits on July 31, 2009. [Tr., p. 63] On November 10,
2011, ALJ Andrew J. Chwalibog found that she was not disabled under sections 216(i) and 223(d) of the
Social Security Act. [Id., p. 77]
-2
concentration for at least two hours at a time and not be distracted by others.
The claimant is able to perform activities within a schedule and maintain
regular attendance within customary tolerances. The claimant may have mild
difficulties interacting with the public, asking questions, and accepting
instruction and criticisms from supervisors. The claimant would be able to
interact appropriately with coworkers, maintain socially appropriate behavior
and adhere to basic standards of neatness. The claimant maintains the ability
to respond appropriately and adapt to simple changes in the environment, be
aware of hazards, travel, use public transportation, and set realistic goals and
plans independently.2
[Tr., p. 48]
After considering Dixon’s age, education, work experience, and RFC, ALJ Paris
concluded that the Claimant could perform a significant number of jobs in the national
economy, including: office helper, mail sorter, produce sorter, and phlebotomist. [Id., p. 55]
As a result, the ALJ determined that Dixon was not disabled from April 3, 2008, through the
date of the administrative hearing. [Id.]
II.
Under the Social Security Act, a “disability” is defined as “the inability to engage in
‘substantial gainful activity,’ because of a medically determinable physical or
mentalimpairment of at least one year’s expected duration.” Cruse v. Comm’r of Soc. Sec.,
502F.3d 532, 539 (6th Cir. 2007) (citing 42 U.S.C. § 423(d)(1)(A)).
A claimant’s
SocialSecurity disability determination is made by an ALJ in accordance with “a five-step
‘sequential evaluation process.’” Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 642 (6th Cir.
2006) (en banc) (quoting 20 C.F.R. § 404.1520(a)(4)). If the claimant satisfies the first four
2
The ALJ largely adopted the constraints in the previous ALJ’s decision. [Compare Tr., p. 48 with
p. 67] However, the ALJ in this case added a few mental constraints and altered the constraint on
crawling from “occasionally” to “frequently.” [Id.]
-3
steps of the process, the burden shifts to the Commissioner with respect to the fifth step. See
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).
A claimant must first demonstrate that she is not engaged in substantial gainful
employment at the time of the disability application.
20 C.F.R. §§ 404.1520(b),
416.920(b).Second, the claimant must show that she suffers from a severe impairment or
combination of impairments. 20 C.F.R. §§ 404.1520(c), 416.920(c). Third, if the claimant is
not engaged in substantial gainful employment and has a severe impairment which is
expected to last for at least twelve months and which meets or equals a listed impairment,
she will be considered disabled without regard to age, education, and work experience. 20
C.F.R. §§ 404.1520(d), 416.920(d).
Fourth, if the Commissioner cannot make a
determination of disability based on medical evaluations and current work activity and the
claimant has a severe impairment, the Commissioner will then review the claimant’s RFC
and relevant past work to determine whether she can perform her past work. If she can, she
is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f).
Under the fifth step of the analysis, if the claimant’s impairments prevent her from
doing past work, the Commissioner will consider her RFC, age, education, and past work
experience to determine whether she can perform other work. If she cannot perform other
work, the Commissioner will find the claimant disabled.
20 C.F.R. §§ 404.1520(g),
416.920(g). The Commissioner has the burden of proof only on “‘the fifth step, proving that
there is work available in the economy that the claimant can perform.’” White v. Comm’r of
Soc. Sec., 312 F. App’x 779, 785 (6th Cir. 2009) (quoting Her v. Comm’r of Soc. Sec., 203
F.3d 388, 391 (6th Cir. 1999)).
-4
Judicial review of the denial of a claim for Social Security benefits is limited to
determining whether the ALJ’s findings are supported by substantial evidence and whether
the correct legal standards were applied. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241
(6th Cir. 2007). The substantial-evidence standard presupposes that there is a zone of choice
within which decision makers can go either way, without interference from the court.
McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006).
Substantial
evidence is such relevant evidence as a reasonable mind might accept as sufficient to support
the conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Bass v. McMahon, 499
F.3d 506, 509 (6th Cir. 2007).
If supported by substantial evidence, the Commissioner’s decision must be affirmed
even if the Court would decide the case differently and even if the claimant’s position is also
supported by substantial evidence. Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir.
2007); Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007); Longworth v. Comm’r of Soc.
Sec. Admin., 402 F.3d 591, 595 (6th Cir. 2005); Casey v. Sec’y of Health & Human Servs.,
987 F.2d 1230, 1233 (6th Cir. 1993). In other words, the Commissioner’s findings are
conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g).
III.
Dixon claims that the ALJ erred in concluding that she has an RFC of light work,
with certain constraints. [Record No. 12] Residual functional capacity is “an assessment of
an individual’s ability to do sustained work-related physical and mental activities in a work
setting on a regular and continuing basis.” S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2,
1996). The RFC determination is a matter reserved for the ALJ. See 20 C.F.R. § 416.946(c).
-5
In making this determination, the ALJ considers the medical evidence, non-medical
evidence, and the claimant’s credibility. Coldiron v. Comm’r of Soc. Sec., 391 F. App’x 435,
439 (6th Cir. 2010). An ALJ’s RFC finding will be upheld where it is supported by
substantial evidence.
Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. S.S.R. 83-10, 1983 WL 31251, at *5 (Jan. 1,
1983). A job in this category usually involves either a “good deal of walking or standing,” or
sitting while pushing and pulling arm-hand or leg-foot controls. Id.
Dixon argues that the ALJ erred in determining that she has an RFC of light work
with several identified restrictions. First, she asserts that the ALJ improperly discounted the
opinion of her “treating physician.” [Record No. 12, p. 3] Second, Dixon claims that the
ALJ improperly accorded significant weight to the opinions of non-examining sources. [Id.]
Third, she takes issue with the ALJ’s assessment of her subjective complaints. [Id., p. 4]
Finally, Dixon contends that the ALJ should have accorded more weight to her husband’s
third-party report. [Id., p. 3] None of these arguments are persuasive.
A.
Dr. Smith’s Opinion
Dixon argues that the ALJ improperly accorded “no weight” to physician’s assistant
Terry Smith’s opinion. [Record No. 12, p. 3] Physician’s assistants are not considered
“acceptable medical sources” under 20 C.F.R. § 404.1502. Rather, they are “other sources”
whose opinions are not entitled to controlling weight. 20 C.F.R. § 404.1513(d)(1); S.S.R.
06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006). The Sixth Circuit has consistently held
that the opinions of non-acceptable medical sources are not binding on the ALJ, and that the
-6
ALJ has discretion to determine the appropriate weight to afford these opinions based on all
the evidence in the record. See Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 53031 (6th
Cir. 1997) (holding that where the ALJ considered the opinions of non-acceptable medical
sources and weighed them with all the other evidence in the record, the court rejected
claimant’s argument “that the ALJ was required to accord any more deference than this”);
see also Brown v. Astrue, No. 11-123-GFVT, 2012 WL 4498526, at *2 (E.D. Ky. Sept. 28,
2012).
Mr. Smith completed two disability forms for Dixon. In May 2012, he assessed less
than sedentary limitations, including sitting no more than an hour per day, with unscheduled
breaks every 15 to 30 minutes for 10 to 15 minutes at a time. [Tr., pp. 48485, 489] He also
determined that Dixon: (i) would miss work more than four days per month; (ii) had a poor
ability to interact with supervisors; and (iii) had no ability to deal with work stresses. [Id., p.
49091] On the second form, Mr. Smith found similar sitting and break limitations, as well
as concluding that Dixon could not walk a city block without rest and needed to recline three
hours per day. [Id., p. 52324] With respect to Dixon’s mental limitations, Mr. Smith
marked that she would be “off-task” at work more than 30% of the time and that she would
be absent from work or unable to complete an eight-hour day more than five days per month.
[Id., p. 525] Dixon argues that the ALJ erred in according no weight to these findings.
[Record No. 12, p. 3]
Since Mr. Smith is not an acceptable medical source, the ALJ did not have to accord
significant weight to his opinion, nor did he have to provide “good reasons” for discrediting
it. See S.S.R. 96-2p, 1996 WL 374188, at *5 (July 2, 1996) (requiring “good reasons” for
-7
discrediting treating sources). Even still, the ALJ provided good reasons for discounting the
opinion. With respect to the Claimant’s back condition, the ALJ noted that, from 2011 to
early 2012, Mr. Smith prescribed Lorcet for Dixon’s back pain even though there were no
abnormal findings, suggesting that Mr. Smith primarily relied on Dixon’s subjective
complaints. [Tr., p. 51, referring to pp. 43136] Next, the ALJ indicated that Mr. Smith
primarily relied on Dixon’s allegations of pain, rather than objective medical evidence, for
his conclusions on the two disability forms. See Doolin v. Astrue, No. 3:08-cv-243, 2009
WL 1212232, at *8 (S.D. Ohio May 1, 2009) (ALJ properly discounted medical opinions that
relied only on plaintiff’s subjective complaints). [Tr., p. 53, referring to pp. 48486]
Mr. Smith did note objective findings between May 2012 and April 2013.3 [Tr., pp.
5153, referring to pp. 477, 50607] But it was reasonable for the ALJ to question Mr.
Smith’s conclusions about the severity of the findings because observations of muscle spasm
and back tenderness were accompanied by findings of normal motor strength. [Id., pp.
5152, referring to pp. 496, 541, 545, 550] Further, no abnormal findings related to Dixon’s
back were found in May, June, or July 2013. [Id., p. 52, referring to pp. 533, 535, 537, 539]
Regarding Dixon’s heart condition, the ALJ concluded that Mr. Smith’s opinion was
inconsistent with treating source opinions, which may be entitled to controlling weight.
S.S.R. 96-2p, at *1 [Tr., pp. 51, 53] While treating physician Dr. Podapati diagnosed
hypertension, chronic palpitations, three premature atrial contractions, and intermittent
3
One report describes tender to palpation over the lumbar-sacral spine and straightening of the
lumbar lordosis. [Tr., p. 477] The other describes thoracic tenderness, lumbosacral tenderness, and
sacrociliac joint tenderness. [Id., p. 506]
-8
ventricular pacing, he also found a normally functioning pacemaker and no ventricular
arrhythmias.
[Id., pp. 45759]
And while Dr. Antimisiaris observed supraventricular
tachycardia,4 he did not find any syncope5 or hypersensitive carotid stress syndrome.6 [Id., p.
474] Although these findings strongly suggest the existence of a cardiac impairment, they do
not support Mr. Smith’s conclusions regarding the severity of Dixon’s condition. Further,
when Dr. Antimisiaris upgraded Dixon to a biventricular pacemaker in January 2013, she
reported no palpitations until July 9, 2013. [Id., pp. 533, 548] Additionally, the ALJ noted
that the treating physicians offered no opinion regarding Dixon’s limitations. [Id., p. 53]
Because Mr. Smith’s opinion is inconsistent with the record as a whole, the ALJ was entitled
to discount it.7 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4).
With respect to Dixon’s mental impairments, the ALJ stated that he accorded “great
weight” to Mr. Smith’s findings regarding Dixon’s ability to remember and carry out
instructions, but that he accorded “little weight” to Mr. Smith’s conclusion that Dixon has a
poor ability to deal with work stresses. [Tr., p. 54] An ALJ may discount the findings of an
4
Supraventricular tachycardia is a rapid heart rate caused by an abnormal electrical impulse.
Typical symptoms include palpitations, anxiety, chest pain, and fainting. Supraventricular Tachycardia,
EMEDICINEHEALTH, available at
http://www.emedicinehealth.com/supraventricular_tachycardia/page3_em.htm#supraventricular_tachycar
dia_svt_psvt_symptoms.
5
Syncope is a temporary loss of consciousness and posture, described as fainting. Syncope,
AMERICAN HEART ASSOCIATION, available at
http://www.heart.org/HEARTORG/Conditions/Arrhythmia/SymptomsDiagnosisMonitoringofArrhythmia
/Syncope-Fainting_UCM_430006_Article.jsp.
6
This condition is an exaggerated response to stimulation of the carotid sinus baroreceptor. It
results in dizziness and fainting. Carotid Sinus Hypersensitivity, MEDSCAPE, available at
http://emedicine.medscape.com/article/153312-overview.
7
The ALJ also observed that Mr. Smith’s opinion was inconsistent with the findings of state
agency physician Dr. Reed, who concluded that the Claimant had the same RFC as the first time she was
denied benefits. [Id., p. 53]
-9
“other source” where they conflict with the opinions of acceptable medical sources. See 20
C.F.R. § 404.1527(c)(4); Arnett v. Comm’r of Soc. Sec., No. 3:14-cv-177, 2015 WL
4776698, at *4 (S.D. Ohio Aug. 14, 2015). Here, licensed clinical psychologist Dr. Lynch,
an acceptable medical source, found that Dixon suffered from only slight-to-moderate
limitations in her ability to understand and carry out simple instructions; tolerate work stress;
sustain attention and concentration; and respond appropriately to supervision. [Id., p. 428]
In addition, state agency reviewing consultants noted only mild limitations in Dixon’s ability
to deal with the public, ask questions, and accept instructions from supervisors, as well as a
moderate limitation in her tolerance of changes in a work setting. [Tr., pp. 9596, 113]
Because Mr. Smith’s opinion regarding Dixon’s ability to handle work stress conflicted with
both of these opinions, the ALJ was entitled to discount that conclusion. See S.S.R. 06-3p,
2006 WL 2329939, at *5 (Aug. 9, 2006).
Finally, the Claimant asserts that the ALJ erred in discounting Mr. Smith’s opinion
because of his work relationship with Dixon. [Record No. 12, p. 3] The ALJ implied that
Mr. Smith’s opinion might be biased due to this three-year professional relationship, finding
that Mr. Smith’s failure to rely on objective medical evidence supported such an inference.
[Tr., p. 53] The ALJ’s inference was reasonable. See, e.g., Dixon v. Massanari, 270 F.3d
1171, 1178 (7th Cir. 2001).8 Further, because the ALJ provided several independently-
8
“We must keep in mind the biases that a treating physician may bring to the disability evaluation.
‘The patient's regular physician may want to do a favor for a friend and client, and so the treating
physician may too quickly find disability.’” Id. (quoting Stephens v. Heckler, 766 F.2d 284, 289 (7th Cir.
1985)).
- 10
sufficient reasons why he discredited Mr. Smith’s opinion, any error is harmless. See Wilson
v. Comm’r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004).
B.
Non-examining Source Opinions
Dixon also argues that the ALJ erred in giving “great weight” to the opinions of nonexamining sources, pointing particularly to the opinions of the state agency reviewing
consultants.
[Record No. 12, p. 3] Findings of fact made by state agency reviewing
physicians are treated as expert opinion evidence of non-examining sources. S.S.R. 96-6p, at
*1. The ALJ must consider the relevant factors in 20 C.F.R. § 416.927(c)(2)–(6) in
determining the weight to give these opinions. In appropriate circumstances, opinions from
state agency medical consultants may be entitled to greater weight than the opinions of
treating or examining sources. Brooks v. Comm’r of Soc. Sec., 531 F. App’x 636, 642 (6th
Cir. 2013).
While the ALJ did not state the reasons why he accorded great weight to the opinions
of non-examining sources, he compared the findings of the state agency reviewing
consultants with those of treating sources. [Tr., pp. 5253] For example, he noted that in
assessing Dixon’s mental capabilities, Dr. Lynch estimated Dixon’s global assessment of
functioning9 as 52 to 54, indicating only moderate symptoms. [Id., p. 52, referring to p. 428]
Regarding Dixon’s physical limitations, the ALJ compared the consultants’ opinions with the
opinions of the treating cardiologists and Mr. Smith. [Id., p. 53] Because the ALJ assessed
9
The Global Assessment of Functioning Scale has a range of 1100, with a score of 1 indicating
“persistent danger of severely hurting self or others” and a score of 100 indicating no symptoms. Thus, a
score of 5254 is directly in the middle of this range, indicating less than serious symptoms. Guidelines
to Use of Axis V: Global Assessment Functioning Scale, NEW AVENUES – MIDWEST BEHAVIORAL
HEALTH NETWORK (August 2011), available at www.newavenuesonline.com/
- 11
the supportability of these non-treating source opinions, he did not err.
20 C.F.R. §
416.927(c)(3).
C.
Dixon’s Subjective Complaints
Dixon asserts that the ALJ failed to properly evaluate her credibility, alleging that he
drew “impermissible inferences about [her] lack of mental health treatment.” [Record No.
12, p. 4] When an ALJ makes a determination regarding a claimant’s credibility, he is
entitled to great deference because he is able to “observe the claimant and judge her
subjective complaints.” Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001). However, an
ALJ who rejects a claimant’s testimony must clearly state his reasons. Felisky v. Brown, 35
F.3d 1027, 1036 (6th Cir. 1994).
The Sixth Circuit has a two-prong test for evaluating subjective allegations. First, the
court examines whether objective medical evidence confirms the severity of the alleged pain
arising from the condition. Hash v. Comm’r of Soc. Sec., 309 F. App’x 981, 990 (6th Cir.
2009). Second, it examines whether the medical condition can reasonably be expected to
produce the alleged disabling pain. Id. The ALJ followed the test, finding that Dixon was
credible regarding the nature of her impairments and that these impairments could reasonably
be expected to cause the alleged symptoms. [Tr., p. 50] He did not find Dixon credible,
however, in her claims regarding the intensity, persistence, and limiting effects of the
symptoms. [Id.]
The ALJ provided four reasons for discounting the Claimant’s testimony. First, he
appropriately highlighted the discrepancy between her testimony and the objective medical
evidence, discussed in detail above. S.S.R. 96-7p, 1996 WL 374186, at *1 (July 2, 1996).
- 12
[Tr., pp. 5052]
Second, the ALJ noted that Dixon has failed to seek mental health
treatment. [Id., p. 52] Failure to seek formal mental health treatment is “hardly probative”
of whether a claimant suffers from a mental impairment, Burton v. Apfel, 208 F.3d 212, at *4
(6th Cir. 2000), and “should not be a determinative factor in a credibility assessment.”
Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989). The record does not reveal
whether the ALJ drew any inference from Dixon’s failure to seek treatment, and the Court
will not speculate as to the ALJ’s reasoning process.
Third, the ALJ discounted Dixon’s testimony because she was able to work for ten
years after receiving the pacemaker. [Tr., p. 52] This reason carries little weight, as Dixon
only worked for one year after her alleged disability began. [Id., pp. 20911, 231] Fourth,
the ALJ found Dixon’s alleged limitations inconsistent with her daily activities. [Id., p. 52]
An ALJ may consider the claimant’s daily living activities in assessing her credibility. 20
C.F.R. § 416.929(c)(3); Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453 (6th
Cir. 1986). Dixon testified that she helps with housework, such as by wiping off counters or
picking-up, with frequent breaks. [Id., pp. 31, 50] She also occasionally shops and can clean
dishes while seated.
[Id., pp. 31, 33]
Due to the ALJ’s consideration of these daily
activities, he did not err in according less weight to Dixon’s allegations regarding the
severity of her symptoms. S.S.R. 96-7p, at *3.
While two of the ALJ’s four reasons for discrediting the Claimant’s testimony may
not be valid, any error is harmless. Maloney v. Comm’r of Soc. Sec., 480 F. App’x 804, 810
(6th Cir. 2012) (error is harmless if “no reasonable ALJ, when fully crediting the testimony,
could have reached a different disability determination”).
- 13
Because Dixon’s testimony
conflicted with the objective medical evidence and her own report of her daily activities, the
ALJ did not err in according it little weight.
D.
Third-Party Report
In addition, Dixon claims that the ALJ erred in giving little or no weight to her
husband’s third-party report.10 [Record No. 12, p. 3] “Perceptible weight must be given to
the testimony of lay witnesses where it is consistent with medical evidence.” Malone v.
Comm’r of Soc. Sec., 69 F.3d 537, at *3 (6th Cir. 1995). “If lay witness testimony is
provided, the ALJ cannot disregard it without comment, and must give reasons for not
crediting the testimony that are germane to each witness.” Maloney, 480 F. App’x at 810.
However, where an ALJ discusses at length the objective medical evidence, he is not
required to include a separate review of a third party statement. See Pasco v. Comm’r of Soc.
Sec., 137 F. App’x 828, 842 (6th Cir. 2005) (finding that the ALJ did not commit reversible
error by failing to specifically mention letter from claimant’s mother).
Here, the ALJ did not explicitly state why he discredited Dixon’s husband. However,
because he preceded his discussion of the third-party report with a thorough explanation of
the objective medical evidence, he was not required to explicitly state his reasons. See
Pasco, 137 F. App’x at 842. [Tr., pp. 5152] Further, because Mr. Dixon essentially
parroted his wife’s subjective complaints, the ALJ’s reasons for discrediting the Claimant’s
reports also apply to his view of Mr. Dixon’s report. Moreover, the ALJ noted that Mr.
Dixon’s report was internally inconsistent. [Id., p. 52] Mr. Dixon reported that the Claimant
10
Dixon suggests that the ALJ gave little or no weight to her daughter’s opinion and/or the opinions
of other family members. [Record No. 12, p. 3] However, no other lay witness opinions appear in the
record. Thus, the Court does not address these alleged reports.
- 14
does about one hour of housework each day, but he also stated that he and their daughter do
all the housework during the week. [Compare Tr., p. 235 with p. 237] For these reasons, the
ALJ did not err in according little weight to Mr. Dixon’s report.
E.
Hypothetical Question
The Court disagrees with Dixon argues that the ALJ’s hypothetical question to the
vocational expert was improper.11
A VE’s response to a hypothetical question only
constitutes substantial evidence where it “accurately portrays [the plaintiff’s] individual
physical and mental impairments.” Varley v. Sec’y of Health & Human Servs., 820 F.2d 777,
779 (6th Cir. 1989). However, an ALJ is only required to incorporate the limitations he
accepts as credible. Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir.
1993) (affirming Secretary’s decision where ALJ’s hypothetical question to VE included
only some of the plaintiff’s alleged illnesses). Where there is “some evidence in the record”
supporting the assumptions of the hypothetical, the hypothetical question is not erroneous.
Chandler v. Comm’r of Soc. Sec., 124 F. App’x 355, 35859 (6th Cir. 2005).
The ALJ’s hypothetical included physical constraints such as only “occasional
climbing of ramps or stairs” and no more than “frequent balancing, stooping, kneeling,
crouching, or crawling.”12 [Tr., p. 36] It also included a description of Dixon’s mental
capacities, such as an ability to sustain concentration for two hours at a time and to adapt to
11
Dixon claims that she cannot perform the job titles listed by the VE. [Record No. 12, p. 6] In
pointing to her medical history, symptoms, medications, and side effects, Dixon seems to be arguing that
the ALJ did not include these limitations in his hypothetical.
12
The ALJ determined that the Claimant can now crawl “frequently,” rather than occasionally,
because few abnormalities regarding her knees, hips, shoulders, or other joints have been noted since the
decision of the prior ALJ. [Tr., pp. 53, 477, 496, 500, 502, 506]
- 15
simple changes in a work environment. [Id., p. 37] This hypothetical is supported by more
than “some evidence in the record.” Chandler, 124 F. App’x at 3589. For instance, the
ALJ incorporated many of the exact physical findings of the state agency reviewing
consultants. [Compare Tr., p. 36 with p. 94] Additionally, these consultants found that the
Claimant had no understanding, memory, concentration, persistence, or social interaction
limitations, and that she could tolerate simple changes in her routine. [Id., p. 96] Further,
Dr. Lynch only found slight-to-moderate limitations in Dixon’s ability to sustain
concentration and respond to work pressures. [Id., p. 428]
Because the ALJ incorporated the limitations he accepted as credible, his hypothetical
was not improper. Thus, the VE’s response constitutes substantial evidence of an RFC of
light work, with identified restrictions. Casey, 987 F.2d at 1235.
IV.
The ALJ properly evaluated the opinions of the physician’s assistant and nonexamining consultants.
The record of this proceeding also demonstrates that the ALJ
properly assessed the credibility of the Claimant and her husband. Further, substantial
evidence supports the ALJ’s determination that Dixon can perform light work, with some
restrictions. Accordingly, it is hereby
ORDERED as follows
1.
Plaintiff Sandra L. Dixon’s Motion for Summary Judgment [Record No. 12] is
DENIED.
2.
Defendant Carolyn W. Colvin’s Motion for Summary Judgment [Record No.
13] is GRANTED.
- 16
3.
The decision of Administrative Law Judge Don C. Paris will be AFFIRMED
by separate Judgment entered this date.
This 29th day of September, 2015.
- 17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?