Coleman v. SSA
MEMORANDUM OPINION & ORDER: 1) that Plaintiffs Motion for Summary Judgment (DE 7 ) is DENIED; and 2) that Defendants Motion for Summary Judgment (DE 9 ) is GRANTED. Signed by Judge Joseph M. Hood on 9/29/17.(MJY) cc: COR Modified text on 9/29/2017 (MJY).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT PIKEVILLE
BRENDA K. COLEMAN
) Action No. 7:16-CV-000143-JMH
) MEMORANDUM OPINION AND ORDER
NANCY A. BERRYHILL,
Acting Commissioner of
This matter is before the Court on the parties’ cross-Motions
for Summary Judgment (DE 7, 9) on Plaintiff’s appeal of the
Commissioner’s denial of his application for disability insurance
The matter having been fully briefed by the parties is
now ripe for this Court’s review.
Administrative Law Judge (“ALJ”) uses a five step analysis:
1. An individual who is working and engaging
in substantial gainful activity is not
disabled, regardless of the claimant’s
2. An individual who is working but does not
significantly limits his physical or mental
ability to do basic work activities is not
These are not traditional Rule 56 motions for summary judgment. Rather,
it is a procedural device by which the parties bring the administrative record
before the Court.
3. If an individual is not working and has a
severe impairment which “meets the duration
requirement and is listed in appendix 1 or
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
Preslar v. Sec’y of Health & Hum. Servs., 14 F.3d 1107, 1110 (6th
Cir. 1994) (citing 20 C.F.R. § 404.1520(1982)).
Benefits (DIB) and Supplemental Security Income (SSI), alleging
disability (Tr. 217-21) beginning in June 2012. The applications
were denied initially and on reconsideration (Tr. 91-94), and by
an Administrative Law Judge after a hearing (“ALJ”) (Tr. 12-28,
review (Tr. 1-3), making the ALJ’s March 2, 2015 decision the final
agency decision for purposes of judicial review. 20 C.F.R. §
This appeal followed and the case is ripe for review
pursuant to 42 U.S.C. § 405(g).
Plaintiff was born on May 31, 1966, and was forty-six (46)
years of age at the time of the alleged onset of disability (TR
She has a tenth grade education and never obtained her
GED (TR 35).
She last worked as an associate at Bila’s Gas & Go
gas station where she did a number of tasks, including stocking
and inventory orders and had previous experience as an assistant
manager and a cashier at retail establishment and as a certified
nursing assistance in a nursing facility (TR 35-37).
In late June 2012, Plaintiff was treated at the Williamson
Memorial Hospital emergency room for complaints of back pain
resulting from a work-related injury. She complained of constant
sharp and shooting low back pain radiating down her left hip and
thigh (Tr. 425-434). A contemporaneous x-ray of Plaintiff’s lumbar
spine revealed mild disc space loss at L5-S1 with no fracture or
subluxation (Tr. 435). The following day, Plaintiff was seen by
Plaintiff was experiencing decreased lumbar range of motion. An
MRI scan revealed transitional fifth lumbar vertebra and mild
degenerative central and posterior disc herniation with early
degenerative change at L4-L5 (Tr. 454). Dr. Padmanaban diagnosed
Plaintiff with a lumbar sprain and lumbosacral sprain; prescribed
Subsequently, Plaintiff received physical therapy until September
2012, when it was noted that she did not return for additional
physical therapy (Tr. 464-473, 474, 476), and in late September
2012, Dr. Padmanaban released her back to work (Tr. 437-438).
Plaintiff did not seek treatment for her back again for
approximately six months, until March 2013 at Shelby Valley Clinic
(Tr. 614-618). At that time, she complained of aching and dull low
back pain radiating down her left leg; trouble walking; muscle
spasm; and numbness and tingling in her left lower extremity (Tr.
614). Physician’s Assistant, Pamela Newsome, under the supervision
Plaintiff that revealed restricted range of motion in the cervical
and lumbar spine; with 4/4 strength in her quadriceps, hamstring,
left bicep, and left triceps; 5/5 in all others; no acute distress;
and intact sensation (Tr. 616-617). Plaintiff was diagnosed with
lumbago, neck pain, incontinence without sensory awareness, benign
hypertension and a tobacco use disorder (smoking one pack per day).
An MRI of her cervical spine was ordered and she was referred to
specialists (Tr. 617). The record does not disclose any further
treatment for Plaintiff’s alleged back or neck conditions.
Comprehensive Care Center (MCCC) in early October 2012 (Tr. 580).
Clinical Social Worker, Neta Maynard, conducted an examination of
Plaintiff and noted that she exhibited a slumped posture but normal
body movements; a depressed, sad, and anxious mood with congruent
affect; normal thought content; poor concentration; and impaired
memory, insight, and judgment. Plaintiff was diagnosed with a major
depressive disorder with psychotic features and a posttraumatic
anxiousness; poor sleep and appetite; obsessive thoughts; trouble
fatigue; crying spells, and visual hallucinations (Tr. 581-613).
Plaintiff also complained of flashbacks and nightmares of being
robbed at gunpoint when she previously worked at a gas station
In January 2013, Plaintiff reported a stable mood, fair sleep,
no hallucinations, and only mild anxiety at her January 2013
appointment at MCCC (Tr. 657-658). The following month, Plaintiff
reported feeling better and getting out more (Tr. 653-654). At her
last appointment at MCCC, in July 2013, Plaintiff exhibited normal
eye contact and speech; no impaired cognition; a depressed and
anxious mood with congruent affect; and no perceptual disturbances
Plaintiff was prescribed medication and received
improvement in symptoms (Tr. 580-613, 627-664). The record does
not disclose any further treatment for Plaintiff’s alleged mental
psychiatrist, David Atcher, M.D (Tr. 621-624). Dr. Atcher noted
that Plaintiff exhibited a distant and somewhat confused facial
expression; poor eye contact; tense psychomotor activity; poor
concentration; normal gait; slow speech rate; no evidence of
tangential process; depressed mood; blunted affect; detached and
preoccupied attitude; with intact immediate, recent, and long-term
memory (Tr. 623). Dr. Atcher diagnosed Plaintiff with a depressive
disorder with psychotic features, and opined that Plaintiff could
not reliably carry through with simple tasks and directions due to
a very short attention span and poor memory; could not reliably
carry through with complex tasks and directions also due to a very
short attention span and poor memory; and would not respond well
to the usual pressures of the work environment due to paranoia and
hallucinations (Tr. 623-624).
Luking, D.O., opined that Plaintiff could perform light exertion
work and could occasionally climb ramps and stairs; never climb
ladders, ropes, or scaffolds; frequently stoop, kneel, crouch, and
crawl; but she must avoid even moderate exposure to vibration (Tr.
Also in September 2013, state agency psychologist, Ilze
Sillers Ph.D., opined that Plaintiff would be able to understand
and remember simple instructions, but may have more difficulties
with more detailed instructions; would be able to complete simple
tasks work procedures and make work decisions, but may have
extended periods and at times may have difficulties carrying out
detailed instructions; would be able to cooperate and be socially
appropriate, but has reduced social activity; would be able to
react and adapt appropriately to the work environment; and would
be mentally capable of independently performing routine tasks on
a sustained basis (Tr. 121-122, 126-128). Dr. Sillers opined that
Dr. Atcher’s more restrictive opinion was without substantial
persuasive. Dr. Siller’s further opined that Dr. Atcher’s opinion
was an overestimate of the severity of Plaintiff’s restrictions
and limitations (Tr. 128).
At the hearing before the ALJ, Plaintiff provided testimony
as to the duties and nature of her past work (Tr. 35-41), which
included prolonged standing and frequent lifting. She said the
primary reason she was unable to work was due to her heart, nerves
and back; and then described the nature and location of pain and
other symptoms including numbness in her extremities, chest pain,
anxiety and difficulty concentrating (Tr. 41-49). She testified
that her pain radiates from her back to her legs and is worsened
by sitting or standing for longer than five minutes and that the
pain does not allow her to twist at all (Tr. 43-44). She testified,
as well, that her legs “give out” on her two to three times a day
(Tr. 45) and that she cannot do housework, relying on her son and
daughter to do household chores like vacuuming (Tr. 43).
testified that she could only lift 5-7 pounds (Tr. 50).
complained of bad headaches due to a disk issue in her neck, which
also causes numbness in her fingers and toes (Tr. 44).
that she has anxiety and fainting spells that cause weakness in
her body due to a heart condition which also prevents her from
sleeping and causes sharp pains in her chest (Tr. 46).
she explained that she experiences anxiousness and nervousness, is
panicked, and often worries (Tr. 47).
She testified that she has
problems remembering things in the short term, having trouble
remembering things as recent as one to two days before (Tr. 49),
A vocational expert (VE), Anthony Michael, testified at the
December 2014 administrative hearing (Tr. 51-54). The VE testified
that Plaintiff’s past work ranged from skilled to unskilled, and
ranged from light to heavy exertion (Tr. 51-52). The ALJ asked the
education, and work experience with limitations the same as those
ultimately determined by the ALJ to be those of the Plaintiff (Tr.
52). The VE testified that such an individual could not perform
Plaintiff’s past work but could perform the representative light
and sedentary exertion occupations of home aide and garment bagger
(light) as well as sorter and inspector (sedentary) (Tr. 52-53).
The ALJ and Plaintiff’s counsel then asked if the individual would
be able to work if she had other limitations that were not part of
determination. The VE said that such limitations would both allow
and preclude employment, depending on the described limitation
(Tr. 53-54). The VE testified that his testimony was consistent
with the Dictionary of Occupational Titles except for the off-task
and sit/stand limitations, where he relied on his experience as
vocational rehabilitation expert (Tr. 54).
After a careful review of the record, the ALJ found that
Plaintiff had both severe physical and mental impairments (Tr. 14;
Finding No. 3), namely degenerative disc disease of the cervical
posttraumatic stress disorder. The ALJ found that Plaintiff’s
impairments, singly or in combination, did not meet or equal the
severity of a listed impairment (Tr. 15; Finding No. 4). The ALJ
found that Plaintiff’s complaints of disabling limitations were
not entirely credible (Tr. 19) and cited the absence of evidence
of her seeking financial assistance for medical treatment or
medical treatment on a sliding scale in light of her inability to
2 Plaintiff objects to this assessment of credibility, arguing that ALJ
is not permitted to draw an adverse inference about a claimant's symptoms
additional postural, environmental and mental limitations (Tr. 17;
Finding No. 5), including the representative light and sedentary
exertion occupations of home aide and garment bagger (light) as
well as sorter and inspector (sedentary), existing in significant
numbers in the national economy (Tr. 22-23; Finding No. 10). Thus,
the ALJ found that Plaintiff was not under a disability from her
alleged disability onset date of June 29, 2012, through March 2,
2015, the date of the Commissioner’s final decision (Tr. 23;
Finding No. 11).
When reviewing a decision made by the ALJ, the Court may not
“‘try the case de novo, resolve conflicts in evidence, or decide
questions of credibility.’” Ulman v. Comm’r of Soc. Sec., 693 F.3d
709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506,
509 (6th Cir. 2007)).
“The ALJ’s findings are conclusive as long
based solely on the failure to seek or pursue regular medical treatment,
without giving consideration to the claimant's explanation that he or
she is unable to afford treatment in light of SSR 96-7p, 1996 WL 374186,
in place at the time of the ALJ’s decision. Johnson v. Colvin, No.
3:13CV-65-S, 2013 WL 6565644, at *10 (W.D. Ky. Dec. 13, 2013). The ALJ,
in this instance, did not err because the analysis goes one step further
and illuminates the absence of evidence about whether free or low-cost
medical services were available to Plaintiff, which is a subtle but not
unimportant aspect of analysis of whether a party has accessed health
care opportunities under SSR 96-7p. See SSR 96-7p, 1996 WL 374186 at
*8 (“The individual may be unable to afford treatment and may not have
access to free or low-cost medical services.”)
as they are supported by substantial evidence.” 42 U.S.C. § 405(g);
Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (citations
Substantial evidence “‘means such relevant evidence as
a reasonable mind might accept.’” Foster, 279 F.3d at 353 (quoting
Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th
The Court first rejects Plaintiff’s argument that the ALJ
erred because he failed to properly evaluate physician source
opinions that she had disabling limitations. As the ALJ noted, the
record does not contain a physical or mental residual functional
capacity assessment from a treating source. (Tr. 20).
the ALJ properly gave “little weight” to the medical source
inconsistent with the treatment notes contained in the record,
therapy and that Plaintiff exhibited intact immediate, recent, and
long-term memory. (Tr. 21, 580-613, 623, 627-664). See Richardson
v. Perales, 402 U.S. 398, 399 (1971) (“We . . . are presented with
the not uncommon situation of conflicting medical evidence. The
trier of fact has the duty to resolve that conflict.”).
In determining “the most [a claimant] can still do despite
[her] impairments[,]” an ALJ is required to assess a claimant’s
RFC based on all of the relevant medical and other evidence. 20
C.F.R. §§ 404.1520(a)(4), 404.1545(a)(1) & (5), 404.1545(a)(3).
Thus, no medical source opinion is alone conclusive on this issue.
SSR 96-5p, 1996 WL 374183, at *2, 4-5. Similarly, a claimant’s
subjective complaints of pain or other symptoms cannot alone
establish disability. 20 C.F.R. § 404.1529(a). While there is a
limited burden shift to the Commissioner at step five of the
sequential evaluation to identify work existing in significant
numbers in the national economy that a claimant can perform, the
claimant retains the burden of establishing her RFC limitations.
Jordon v. Comm’r of Soc. Sec., 548 F.3d 417, 423 (6th Cir. 2008)
(citation omitted) (“The SSA’s burden at the fifth step is to prove
the availability of jobs in the national economy that the claimant
is capable of performing . . . The claimant, however, retains the
burden of proving her lack of RFC.”) (citing Her v. Comm’r of Soc.
Sec., 203 F.3d 388, 391-92 (6th Cir. 1999)). She has failed to
carry that burden in this matter.
caused functional limitations so severe that she was unable to
engage in any substantial gainful activity for a continuous period
of at least 12 months so as to be considered disabled for the
purposes of the Social Security Act. See Barnhart v. Walton, 535
U.S. 212, 220 (2002); 42 U.S.C. § 423(d)(1)(A). The disability,
not just the impairment, must last twelve months. Walton, 535 U.S.
at 220. Here, contrary to her arguments, the substantial evidence
disabling limitations through the date of the ALJ’s decision. See
inconsistencies in the evidence); see also Walters v. Comm’r of
Soc. Sec., 127 F.3d 525, 532 (6th Cir. 1997) (“The absence of
particularly relevant issue, and in such circumstances, this court
will generally defer to the Commissioner’s assessment when it is
supported by an adequate basis.”).
She insists that the ALJ should have given greater weight to
her reported symptoms, which are subjective complaints about a
claimant’s condition and cannot be the basis for a finding of
disability, in developing an RFC. See 20 C.F.R. § 404.1529(a)
(“statements about your pain or other symptoms will not alone
establish that you are disabled”).
That is not enough, however,
as the ALJ engaged with her description of her symptoms and
balanced it, weighing her credibility, by relying on her medical
records which included accounts of improvement in her symptoms,
reports of feeling better and getting out more in February 2013,
and mental and physical examinations demonstrating mild findings
(Tr. 19-20; Tr. 580-613, 627-664);
127 F.3d at 531
(“Discounting credibility to a certain degree is appropriate where
an ALJ finds contradictions among the medical reports, claimant’s
testimony, and other evidence.”).
supported by the opinions of the state agency medical consultants,
Drs. Luking and Sillers. In September 2013, Dr. Luking opined that
Plaintiff retained the RFC for light exertion work with additional
postural, manipulative and environmental limitations (Tr. 123126). The ALJ gave Dr. Luking’s assessment consideration and
accorded it “great weight” because it was consistent with the
overall treatment notes which showed mild objective findings and
treatment (Tr. 20). Also in September 2013, Dr. Sillers opined
that Plaintiff would be able to understand and remember simple
instructions, but may have more difficulties with more detailed
procedures and make work decisions, but may have difficulty with
maintaining attention and concentration for extended periods and
at times may have difficulties carrying out detailed instructions;
would be able to cooperate and be socially appropriate, but had
appropriately to the work environment; and would be mentally
capable of independently performing routine tasks on a sustained
basis (Tr. 121-122, 126-128). Further, Dr. Sillers’s opined that
Dr. Atcher’s more restrictive opinion was without substantial
persuasive. Dr. Sillers opined that Dr. Atcher’s opinion was an
limitations (Tr. 128).
The ALJ submitted Dr. Sillers’s assessment to some scrutiny
and accorded it “great weight” because it was consistent with the
overall treatment notes (Tr. 21). As “[s]tate agency medical and
psychological consultants . . . are highly qualified physicians
disability evaluation,” 20 C.F.R. § 404.1527(e)(2)(i) (effective
August 24, 2012 to March 26, 2017, amended 82 FR 15132 effective
March 27, 2017), the decision to give more weight to a state agency
permissible. Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 409
(6th Cir. 2009). In evaluating the objective evidence in his
reasonable RFC determination, the ALJ clearly indicated that there
was an absence of consistent objective clinical or laboratory
findings to support disabling limitations as advanced by Plaintiff
statements and the medical record). Because the ALJ’s RFC finding
as to extent of Plaintiff’s work-related limitations was supported
decision. 68 Fed. Reg. 51,153, 51,155 (Aug. 26, 2003) (comments to
final rule) (recognizing a claimant bears the burden of proving
residual functional capacity); Kyle v. Comm’r of Soc. Sec., 609
F.3d 847, 854-55 (6th Cir. 2010) (“Even if this Court might have
reached a contrary conclusion of fact, the Commissioner’s decision
A review of the record in this matter supports the ALJ’s
finding that the record does not include objective findings that
considered and reasonably weighed the medical source opinions, and
it was in any event the ALJ’s responsibility to determine whether
Plaintiff was disabled. Plaintiff ultimately asks the Court to
simply disagree with the Commissioner’s decision because she views
the evidence differently and believes that the Court should do so,
as well, but that does not mean that the decision is not supported
by substantial evidence. See Buxton v. Halter, 246 F.3d 762, 772
(6th Cir. 2001); see also Smith v. Chater, 99 F.3d 780, 782 (6th
Cir. 1996) (even if the Court would have decided the matter
differently than the ALJ, if substantial evidence supports the
ALJ’s decision, it must be affirmed).
As such, the ALJ was not
required to include additional limitations in his hypothetical
question to the VE. See, e.g., Casey v. Secretary of Health and
Human Services, 987 F.2d 1230, 1235 (6th Cir. 1993) (“It is well
established that an ALJ . . . is required to incorporate only those
limitations accepted as credible by the finder of fact.”). The
VE’s response to the ALJ’s hypothetical question that included
Plaintiff’s credible limitations constitutes substantial evidence
in support of the ALJ’s finding that there were jobs in the
representative light and sedentary exertion positions identified
by the VE (Tr. 22-23, Finding No. 10; Tr. 51-53).
The decision of the Commissioner will be affirmed.
Accordingly, for all of the reasons set forth above, IT IS
that Plaintiff’s Motion for Summary Judgment (DE 7) is
that Defendant’s Motion for Summary Judgment (DE 9) is
This the 29th day of September, 2017.
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