Howard v. SSA
Filing
14
MEMORANDUM OPINION & ORDER: Plas MOTION for Summary Judgment 11 be OVERRULED and Dfts MOTION for Summary Judgment 13 be SUSTAINED. A judgment in favor of Dft will be entered contemporaneously. Signed by Judge Henry R. Wilhoit, Jr. on 8/16/2019. (TDA) cc: COR
Eastern 1Jistr1ct of Kentucky
F~l.!D
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
At PIKEVILLE
AUG ·1 6 2019
AT ASHLAND
ROBERT R. CARR
CLERK U.S. DISTRICT COURT
Civil Action No. 18-41-HRW
BARBARA ANN HOW ARD,
v.
PLAINTIFF,
MEMORANDUM OPINION AND ORDER
ANDREW SAUL,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
Plaintiff has brought this action pursuant to 42 U.S.C. §405(g) to challenge a final
decision of the Defendant denying Plaintiff's application for disability insurance benefits. The
Court having reviewed the record in this case and the dispositive motions filed by the parties,
finds that the decision of the Administrative Law Judge is supported by substantial evidence and
should be affirmed.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed her current application for disability insurance benefits in January 2015,
alleging disability beginning on October 27, 2014, due to cervical radiculopathy, spinal stenosis,
degeneration of cervical intervertebral discs, degeneration of thoracic and lumbar interverbal
discs, lumbar radiculopathy, sacroiliitis, fibromyalgia, multilevel degenerative disc disease,
multiple pinched nerve inc-spine and 1-spine and cervicalgia (Tr. 258). This application was
denied initially and on reconsideration. Thereafter, upon request by Plaintiff, an administrative
video hearing was conducted by Administrative Law Judge Anthony Johnson, Jr. (hereinafter
"ALJ"), wherein Plaintiff, accompanied by counsel, testified. At the hearing, George D. Moore,
a vocational expert (hereinafter "VE"), also testified.
At the hearing, pursuant to 20 C.F.R. § 416.920, the ALJ performed the following fivestep sequential analysis in order to determine whether the Plaintiff was disabled:
Step 1: If the claimant is performing substantial gainful work, he is not disabled.
Step 2: If the claimant is not performing substantial gainful work, his impairment(s)
must be severe before he can be found to be disabled based upon the requirements in 20
C.F.R. § 416.920(6).
Step 3: If the claimant is not performing substantial gainful work and has a severe
impairment (or impairments) that has lasted or is expected to last for a continuous period
of at least twelve months, and his impairments (or impairments) meets or medically
equals a listed impairment contained in Appendix 1, Subpart P, Regulation No. 4, the
claimant is disabled without further inquiry.
Step 4: If the claimant's impairment (or impairments) does not prevent him from doing
his past relevant work, he is not disabled.
Step 5: Even if the claimant's impairment or impairments prevent him from performing
his past relevant work, if other work exists in significant numbers in the national
economy that accommodates his residual functional capacity and vocational factors, he is
not disabled.
The ALJ issued a decision finding that Plaintiff was not disabled. Plaintiff was 46 years
old at her alleged onset of disability. She has a 1th grade education and her past relevant work
experience consists of work as a food service supervisor and convenience store manager.
At Step 1 of the sequential analysis, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since the alleged onset date of disability.
The ALJ then determined, at Step 2, that Plaintiff suffers from degenerative disc disease
of the lumbar and cervical spine, sacroiliitis, and myofascial pain syndrome, which he found to
be "severe" within the meaning of the Regulations.
At Step 3, the ALJ found that Plaintiff's impairments did not meet or medically equal any
of the listed impairments. In doing so, the ALJ specifically considered Listing 1.04.
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The ALJ further found that Plaintiff could return to her past relevant work and also
determined that she has the residual functional capacity ("RFC") to perform light work with only
occasional stooping, kneeling, crouching, crawling, and climbing of stairs or ramps, and no
climbing of ropes, ladders, or scaffolds.
The ALJ finally concluded that these jobs exist in significant numbers in the national
and regional economies, as identified by the VE.
Accordingly, the ALJ found Plaintiff not to be disabled at Steps 4 and 5 of the sequential
evaluation process.
The Appeals Council denied Plaintiffs request for review and adopted the ALJ's decision
as the final decision of the Commissioner. Plaintiff thereafter filed this civil action seeking a
reversal of the Commissioner's decision. Both parties have filed Motions for Summary
Judgment and this matter is ripe for decision.
II. ANALYSIS
A.
Standard of Review
The essential issue on appeal to this Court is whether the ALJ's decision is supported by
substantial evidence.
"Substantial evidence" is defined as "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion;" it is based on the record as a
whole and must take into account whatever in the record fairly detracts from its weight. Garner
v. Heckler, 745 F.2d 383, 387 (6 th Cir. 1984).
If the Commissioner's decision is supported by
substantial evidence, the reviewing Court must affirm.
Kirk v. Secretary of Health and Human
Services, 667 F.2d 524,535 (6 th Cir. 1981), cert. denied, 461 U.S. 957 (1983). "The court may
not try the case de nova nor resolve conflicts in evidence, nor decide questions of credibility."
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Bradley v. Secretary of Health and Human Services, 862 F.2d 1224, 1228 (6 th Cir. 1988).
Finally, this Court must defer to the Commissioner's decision "even if there is substantial
evidence in the record that would have supported an opposite conclusion, so long as substantial
evidence supports the conclusion reached by the ALJ." Key v. Callahan, 109 F.3d 270,273 (6th
Cir.1997).
B.
Plaintiffs Contentions on Appeal
Plaintiff contends that the ALJ's finding of no disability is erroneous because: (1) the
ALJ did not consider her non-severe impairments of anxiety and depression and fibromyalgia in
combination and their effect on her ability to perform work related activities and (2) the ALJ
failed to include find any limitations for myofascial pain and degenerative disc disease of the
cervical spine.
C.
Analysis of Contentions on Appeal
Plaintiffs first claim of error is that the ALJ did not consider her non-severe impairments
of anxiety and depression and fibromyalgia in combination and their effect on her ability to
perform work related activities.
20 CFR § 404. 1522 (a) defines a non-severe impairment as one that does not
"significantly limit [the] physical or mental ability to do basic work activities." See also SSR 8528, supra, at * "Basic work activities" include the physical functions of "walking, standing,
sitting" as well as the capacity for "seeing, hearing, and speaking;" "[u]nderstanding, carrying
out, and remembering simple instructions;" "[u]se ofjudgment;" "[r]esponding appropriately to
supervision, co-workers and usual work situations;" and, "[d]ealing with changes in a routine
work setting." See generally, Kuchar-Kusnir v. Comm'r Social Security, 2018 WL 1456207
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(E.D. Mich. 2018).
First, with regard to fibromyalgia, Plaintiff argues that the ALJ did not properly consider
it effects as a non-severe impairment. However, Plaintiff misconstrues the ALJ's findings in
this regard. The ALJ found that Plaintiffs fibromyalgia was a not a medically determinable
impairment per SSR 12-2p. As such, the ALJ was not required to consider it in crafting
Plaintiffs RFC. Further, in the hearing decision, the ALJ set forth the criteria used to evaluate
fibromyalgia and the evidence needed to establish it as a bona fide impairment. I
1 SSR l 2-2p "provides guidance on how [the Commissioner will] develop evidence to establish that a
person has a medically determinable impairment (MDI) of fibromyalgia (FM), and how [the
Commissioner will] evaluate [fibromyalgia] in disability claims and continuing disability reviews under
titles II and XVI of the Social Security Act (Act)." Titles JI & XVI: Evaluation of Fibromyalgia, SSR I 22p, 2012 WL 3104869, at *I (S.S.A. July 25, 2012)
Pursuant to SSR 12-2p, fibromyalgia is a medically determinable
impairment "when it is established by appropriate medical evidence." Id.
at *2. The Ruling then provides the following guidance:
Generally, a person can establish that he or she has an MDI of FM by
providing evidence from an acceptable medical source. A licensed
physician (a medical or osteopathic doctor) is the only acceptable
medical source who can provide such evidence. We cannot rely upon the
physician's diagnosis alone. The evidence must document that the
physician reviewed the person's medical history and conducted a
physical exam. We will review the physician's treatment notes to see if
they are consistent with the diagnosis of FM, determine whether the
person's symptoms have improved, worsened, or remained stable over
time, and establish the physician's assessment over time of the person's
physical strength and functional abilities .
... We will find that a person has an MDI of FM if the physician
diagnosed FM and provides the evidence we describe in section II.A. or
section II. B., and the physician's diagnosis is not inconsistent with the
other evidence in the person's case record. These sections provide two
sets of criteria for diagnosing FM, which we generally base on the 1990
American College of Rheumatology (ACR) Criteria for the Classification
of Fibromyalgia (the criteria in section II .A.), or the 20 IO ACR
Preliminary Diagnostic Criteria (the criteria in section II.B.).
Id. (footnotes omitted).
Under the 1990 ACR criteria, a person may have a medically determinable impairment of
fibromyalgia if he or she has all three of the following: (I) a history of widespread pain; (2) at least 11
positive tender points on physical examination; and (3) evidence that other disorders that could cause the
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Yet, despite the ALJ' s clear roadmap, Plaintiff has not challenged his decision in this
regard, choosing only to cast her argument in terms of non-severity, not medically determinable.
As the Commissioner properly points out, Plaintiff does not assert, let alone develop, an
argument challenging the ALJ's
It is well established that Plaintiff cannot simply make bald claims that the ALJ erred,
while leaving it to the Court to scour the record to support this claim. "[I] ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived. It is not sufficient for a party to mention a possible argument in a most skeletal way,
leaving the court to ... put flesh on its bones." McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th
Cir.1997) ( citation omitted); see also Crocker v. Comm'r of Soc. Sec., 2010 WL 882831 at *6
(W.D.Mich. Mar.9, 2010) ("This court need not make the lawyer's case by scouring the party's
various submissions to piece together appropriate arguments.") (citation omitted).
As such, the Court finds no error in the ALJ's consideration of Plaintiff's fibromyalgia.
With regard to Plaintiff's assertion that the ALJ's failed to properly consider her anxiety
and depression, it is without merit. It is clear from the hearing decision that the ALJ did, in fact,
consider her mental impairments. He discussed her diagnoses, cited to the pertinent medical
records and referred to her own testimony in analyzing the effect of anxiety and depression on
symptoms or signs were excluded. Id. at *2-3.
A person may have a medically determinable impairment of fibromyalgia under the 20 IO ACR
criteria if all three of the following requirements are met: (1) a history of widespread pain; (2) repeated
manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions; and (3) evidence
that other disorders that could cause the repeated manifestations of symptoms, signs, or co-occurring
conditions were excluded. Id
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Plaintiff's ability to perform work related activities. The Court finds that the ALJ's thorough
review of Plaintiff's mental impairments and his resulting findings are supported by substantial
evidence. To the extent that Plaintiff suggests that this evidence is open to another interpretation
that favors her claim, the Court is foreclosed from reweighing the evidence in this fashion. If the
Commissioner's decision denying benefits is supported by substantial evidence, as it is here, the
Court must affirm that decision. Longworth v. Commissioner ofSocial Security, 402 F.3d 591,
595 (6 th Cir. 2005).
Plaintiffs second claim of error is that the ALJ failed to include find any limitations for
myofascial pain and degenerative disc disease of the cervical spine. Specifically, Plaintiff
alleges that ALJ erred by not including manipulative limitations such as reaching, handling,
fingering, feeling or a limitation on her ability to rotate her head.
Again, a review of the ALJ's decision establishes that he considered limitations for
myofascial pain and degenerative disc disease of the cervical spine but did not find evidence
with which to support them.
The ALJ summarized Plaintiff's testimony and other self-reports and expressly noted her
allegations of difficulty reaching overhead, turning her head, and grasping objects. Yet, he
found that, notwithstanding some tenderness and limitation in range of motion, the physical
exams tended to be otherwise unremarkable. Medical records supported the ALI' s conclusion
that Plaintiff was capable of using her hands for repetitive actions without restriction. The ALJ
also noted that the record indicated that Plaintiff's symptoms, including her neck pain and
decreased range of motion, had responded to treatment. The ALJ further noted that Plaintiff
reported to her medical providers that her treatment allowed her to remain active. Finally,
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Plaintiffs own testimony regarding her daily activities belie her insistence of limitations in
reaching, handling, fingering, feeling or a limitation on her ability to rotate her head.
The Court finds that The ALJ considered the relevant evidence pertaining to myofascial
pain and degenerative disc disease of the cervical spine, made a reasoned finding, and provided
substantial support for that finding.
III.
CONCLUSION
The Court finds that the ALJ' s decision is supported by substantial evidence on the
Accordingly, it is HEREBY ORDERED that the Plaintiffs Motion for Summary
record.
Judgment be OVERRULED and the Defendant's Motion for Summary Judgment be
SUSTAINED.
A judgment in favor of the Defendant will be entered contemporaneously
herewith.
This
JbJ~ayof_~t,A-1./-
, 2019.
~
Signed By:
Henry R, Wilhoit. J.L.
United States District Ju''v•c
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