Creech v. SSA
Filing
18
MEMORANDUM OPINION & ORDER: (1) The decision of the Commissioner is AFFIRMED; (2) Plafs Motion for Summary Judgment (Doc. # 14 ) is DENIED; (3) Dfts Motion for Summary Judgment (Doc. # 17 ) is GRANTED; and (4) A Judgment in favor of Dft Commissioner will be entered contemporaneously herewith. Signed by Judge David L. Bunning on 12/13/17.(MJY) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT PIKEVILLE
CIVIL ACTION NO. 17-58-DLB
DAVID NELSON CREECH
vs.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
NANCY A. BERRYHILL, 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 June 18, 2014, Plaintiff David Nelson Creech filed an application for disability
insurance benefits (“DIB”), alleging disability beginning on March 6, 2014. (Tr. 172-75).
Specifically, Plaintiff alleged that he was limited in his ability to work due to the following:
bone deterioration disease in his back, degenerative disc disease, arthritis in both hands,
“HBP”, and asthma. (Tr. 191).
Plaintiff’s claim was denied initially and on reconsideration. (Tr. 60-75, 78-93). At
Plaintiff’s request, an administrative hearing was conducted on August 1, 2016, before
Administrative Law Judge (“ALJ”) Roger L. Reynolds. (Tr. 34-59). On June 23, 2015,
ALJ Reynolds ruled that Plaintiff was not entitled to benefits. (Tr. 11-26). This decision
1
became the final decision of the Commissioner when the Appeals Council denied review
on January 27, 2017. (Tr. 1-5).
On March 27, 2017, 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. # 14 and 17).
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, the Court
must affirm the Commissioner’s decision, provided it is supported by substantial
evidence, even if the Court might have decided the case differently. See Her v. Comm’r
of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). If supported by substantial evidence,
the Commissioner’s findings must be affirmed, even if there is evidence favoring Plaintiff’s
side. Listenbee v. Sec’y of Health and Human Servs., 846 F.2d 345, 349 (6th Cir. 1988).
Similarly, an administrative decision is not subject to reversal merely because substantial
evidence would have supported the opposite conclusion. Smith v. Chater, 99 F.3d 780,
781-82 (6th Cir. 1996).
2
The ALJ, in determining disability, conducts a five-step analysis.
Step One
considers whether the claimant is still performing substantial gainful activity; Step Two,
whether any of the claimant’s impairments are “severe”; Step Three, whether the
impairments meet or equal a listing in the Listing of Impairments; Step Four, whether the
claimant can still perform his past relevant work; and Step Five, 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 Cir. 1994).
B.
The ALJ’s Determination
At Step One, the ALJ found that Plaintiff had not engaged in substantial gainful
activity from his amended alleged onset date, March 6, 2014, through his date last
insured. (Tr. 16). At Step Two, the ALJ determined that Plaintiff had the following severe
impairments: obesity; chronic low back pain with left leg radiculopathy secondary to
degenerative disc disease of the lumbar spine, with disc herniations at the L4-5 and L5S1 levels; asthma/chronic obstructive pulmonary disease with continued nicotine abuse;
osteoporosis and scoliosis of the thoracic spine; hypertension; anxiety NOS (not
otherwise specified); and depression NOS (20 C.F.R. § 404.1520(c)). (Tr. 16). At Step
Three, the ALJ considered Listings 1.04, 3.02, 30.0, 12.04 and 12.06, and concluded that
Plaintiff did not have an impairment or combination of impairments that “meets or
medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1." (Tr. 22).
3
At Step Four, the ALJ concluded that Plaintiff had the residual functional capacity
(“RFC”) to perform a reduced range of sedentary work, as defined in 20 C.F.R. §
404.1567(a), with the exertional and non-exertional limitations as follows:
He can lift and carry ten pounds occasionally and five pounds frequently.
The claimant can stand or walk two hours in an eight-hour workday. He can
sit six hours in an eight-hour workday. He cannot climb ropes, ladders or
scaffolds, but he can occasionally climb stairs or ramps. The claimant can
occasionally stoop, kneel, crouch or crawl. He cannot perform aerobic
activities such as running or jumping. He should avoid work with hands
over the head. The claimant cannot operate foot pedal controls. He should
avoid exposure to concentrated dusts, gases, smoke, fumes, temperature
extremes, excess humidity, concentrated vibration or industrial hazards.
The claimant requires entry-level work with simple repetitive procedures.
He can tolerate only occasional changes in work routines. The claimant
should work in an object-oriented environment with only occasional and
casual contact with coworkers, supervisors or the general public.
(Tr. 19). Based upon the RFC, the ALJ concluded that Plaintiff was not able to perform
his past relevant work. (Tr. 25). Accordingly, the ALJ proceeded to Step Five and found
that, considering Plaintiff’s age, education, work experience, and RFC, jobs existed in
significant numbers in the national economy that Plaintiff could perform. (Tr. 25-26). The
ALJ therefore concluded that Plaintiff was not under a disability, as defined in the Social
Security Act, from the alleged onset date through the date of decision. (Tr. 26).
C.
Plaintiff’s Arguments
Plaintiff presents one issue on appeal, alleging that the ALJ “erred in rejecting the
opinion of treating physician Van Breeding, M.D.” (Doc. # 15 at 1). For the reasons
below, the Court finds that the ALJ did not err in weighing Doctor Breeding’s opinion.
In social security disability cases, medical evidence may come from treating
sources, non-treating sources, and non-examining sources. 20 C.F.R. § 404.1502. A
treating source is the claimant’s “own physician, psychologist, or other acceptable
4
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 non-treating source is an acceptable medical source who has examined
the claimant but does not have an ongoing treatment relationship with him or her, and a
non-examining source is one that has not examined the claimant but has provided
medical or other opinion evidence in the case. Id.
Plaintiff assigns as error the weight that the ALJ gave to Doctor Breeding’s
assessment of his functional limitation. (Doc. # 15). In doing so, Plaintiff does not argue
that Doctor Breeding’s assessment and opinion should be given “controlling weight” (Tr.
15 at 10), but that the ALJ did not “discuss the significance of [Doctor] Breeding’s opinion
as a treating physician.” Id. at 9.
The Social Security Administration regulations require the ALJ to give a treating
physician’s opinion weight based on the following: length of treatment relationship;
frequency of examination; nature and extent of the treatment relationship; supportability
of the opinion; the consistency of the opinion with other evidence in the record; and
whether the treating source is a specialist. 20 C.F.R. § 404.1527(c). In announcing the
relative weight given to a treating physician’s opinion, the ALJ “should explain the weight
given to opinions from these sources or otherwise ensure that the discussion of the
evidence in the determination or decision allows a claimant or subsequent reviewer to
follow the [ALJ’s] reasoning.” 20 C.F.R. § 404.1527(f)(2). The ALJ must also “always
give good reasons … for the weight [given to a claimant’s] treating source’s medical
opinion. 20 C.F.R. § 404.1527(c)(2)
5
In determining the Plaintiff’s RFC, the ALJ analyzed the record, including medical
and testimonial evidence. (Tr. 19-24). The ALJ considered Plaintiff’s testimony at the
hearing on this matter, the May and June 2014 treatment and examination notes of Doctor
Tibbs, the March through September 2015 pain-management records of Doctor Sai Gutti,
the May 2015 nerve conduction velocity study of Doctor Sajita Gutti, the February 2015
consultative examination by Doctor Kip Beard, the September 2015 examination by
Doctor J. Thomas Burt, and Plaintiff’s treatment history at Mountain Comprehensive
Health Corp. (“MCHC”) from March 2014 through June 2016, including the functionalcapacity form filled out by physician’s assistant Sarah Justice and subsequently signed
by Doctor Van Breeding on June 28, 2016. (Tr. 21-22). The ALJ also considered records
from Plaintiff’s emergency-room visit in May 2014 and past records from MCHC,
confirming a prior injury and an L5-S1 microdiscectomy. (Tr. 22). In addition, the ALJ
considered Plaintiff’s functional capacity assessment made by Doctor S. Mukherjee in
March 2015, and agreed with by Doctor P. Saranga in June 2015. (Tr. 22-23). Both
Doctors Mukherjee and Saranga are state agency medical consultants. Id.
After consideration of the objective medical evidence, the ALJ determined that
Plaintiff had “severe impairments, but the impairments [did] not foreclose all useful
abilities.” (Tr. 23). The ALJ found that Plaintiff had “significant degenerative changes in
his lumbar spine as well as surgery almost 10 years ago,” as well as “limited range of
lumbar motion and mixed findings on straight-leg-raise tests (some listed as positive,
others listed as equivocal, and others as negative).” (Tr. 23-24).
However, “[a]t least
two neurosurgeons, [Doctors] Tibbs and Burt, do not feel the claimant needs surgical
intervention.” (Tr. 24). The ALJ concluded his analysis of Plaintiff’s impairments by
6
stating that “the residual function capacity adopts very strict exertional, postural,
manipulative, and environmental limitations,” and that such “guidelines give due
accommodation to the severe physical impairments.” (Tr. 24).
The ALJ was equally comprehensive in considering the opinion evidence of the
doctors who treated and examined Plaintiff. (Tr. 24). The ALJ give significant weight to
Doctors Tibbs, Burt, and Beard, as they were examining doctors and were “generally
consistent with one another.”
Id.
The ALJ gave less weight to the state agency
consultants, as their opinions complimented those of Doctors Tibbs, Burt, and Beard, but
they were not examining doctors. Id. However, in balancing the Plaintiff’s subjective
complaints, the ALJ found it necessary to adopt stricter work limitations than the state
agency doctors had suggested. Id. Finally, because the limitations that Doctor Breeding
placed on Plaintiff were “not consistent with the objective clinical findings,” the ALJ gave
Doctor Breeding’s functional-capacity assessment of Plaintiff little weight. Id.
Contrary to Plaintiff’s claim, the ALJ did not reject Doctor Breeding’s medical
opinion; instead, the ALJ considered it in light of the medical evidence (Tr. 21-23), and
the opinions of several specialists (Tr. 24), and determined that Doctor Breeding’s
functional-capacity opinion was inconsistent with the medical evidence in the record. Id.
Thus, the ALJ’s determination that Doctor Breeding’s opinion merited “little weight,”
detailing his “good reasons” for doing so, were in accordance with 20 C.F.R. §
404.1527(c). Accordingly, the Court finds no error in this portion of the ALJ’s Step Four
analysis.
In the end, Plaintiff is asking this Court to find that the ALJ misinterpreted the
evidence or emphasized certain aspects of the medical record in favor of others.
7
However, this is equivalent to requesting a de novo review of the record, a task far beyond
the Court’s limited role in determining whether the ALJ’s finding is supported by
substantial evidence. See Roberts v. Astrue, No. 1:09-01518, 2010 WL 2342492, at *9
(N.D. Ohio June 9, 2010). As stated earlier, an administrative decision is not subject to
reversal merely because substantial evidence would have supported the opposite
conclusion. Smith v. Chater, 99 F.3d at 781-82. Substantial evidence exists to support
the ALJ’s decision, and the Court’s review must stop there.
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. # 14) is hereby DENIED;
(3)
Defendant’s Motion for Summary Judgment (Doc. # 17) is hereby
GRANTED; and
(4)
A Judgment in favor of Defendant Commissioner will be entered
contemporaneously herewith.
This 13th day of December, 2017.
K:\DATA\SocialSecurity\MOOs\Pikeville\17-58 Creech MOO.docx
8
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?