Utley v. Commissioner of Social Security

Filing 20

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 2/3/2015. IT IS HEREBY ORDERED that the final decision of the Commissioner is AFFIRMED. Final and appealable Order. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:14CV-00066-HBB

TINA C. UTLEY

PLAINTIFF

VS.

CAROLYN W. COLVIN,
Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION
AND ORDER
BACKGROUND
Before the Court is the complaint (DN 1) of Tina C. Utley (APlaintiff@) seeking judicial
review of the final decision of the Commissioner pursuant to 42 U.S.C. ' 405(g). Both the
Plaintiff (DN 12) and Defendant (DN 18) have filed a Fact and Law Summary. Additionally,
Plaintiff has filed a motion for summary judgment (DN 12) and Defendant has filed a response
(DN 18).
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the
undersigned United States Magistrate Judge conducting all further proceedings in this case,
including issuance of a memorandum opinion and entry of judgment, with direct review by the
Sixth Circuit Court of Appeals in the event an appeal is filed (DN 10). By Order entered August
27, 2014 (DN 11), the parties were notified that oral arguments would not be held unless a written
request therefor was filed and granted. No such request was filed.

1

FINDINGS OF FACT
On August 15, 2011, Plaintiff filed applications for Disability Insurance Benefits and
Supplemental Security Income Benefits (Tr. 140-146, 147-153).

Plaintiff alleged that she

became disabled on April 11, 2011, as a result of Asthma (Tr. 182). Administrative Law Judge
Edward F. Sweeney (AALJ@) conducted a hearing on December 12, 2012, in Paducah, Kentucky
(Tr. 25). Plaintiff was present and represented by attorney Nathan Craig (Tr. 25). Also present
and testifying was James Adams, a vocational expert (Tr. 25).
In a decision dated January 10, 2013, the ALJ evaluated this adult disability claim pursuant
to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 11-20). The
ALJ concluded that Plaintiff meets the insured status requirements of the Social Security Act
through December 31, 2015 (Tr. 13). At the first step, the ALJ found Plaintiff has not engaged in
substantial gainful activity since April 11, 2011, the alleged onset date (Tr. 13). At the second
step, the ALJ determined that Plaintiff=s chronic obstructive pulmonary disease and asthma are
Asevere@ impairments within the meaning of the regulations (Tr. 13). Notably, at the second step,
the ALJ also determined that Plaintiff=s alleged carpal tunnel syndrome, chronic dry eyes,
difficulty reading, and difficulty writing are Anon-severe@ impairments within the meaning of the
regulations (Tr. 14). At the third step, the ALJ concluded that Plaintiff does not have an
impairment or combination of impairments that meets or medically equals one of the listed
impairments in Appendix 1 (Tr. 14).
At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform
less than a full range of sedentary work because she must avoid concentrated exposure to
environmental irritants such as fumes, dusts, and odors; and she must avoid concentrated exposure
to extreme heat or cold (Tr. 14). Relying on testimony from the vocational expert, the ALJ found
2

that Plaintiff is unable to perform her past relevant work as a chicken farm laborer (medium
exertional level), a nurse’s aide (medium exertional level), and a seamstress (light exertional level)
(Tr. 18).
The ALJ proceeded to the fifth step where he considered Plaintiff=s residual functional
capacity, age, education, and past work experience as well as testimony from the vocational expert
(Tr. 18-19). The ALJ found that Plaintiff is capable of performing a significant number of jobs
that exist in the national economy (Tr. 18-19). Therefore, the ALJ concluded that Plaintiff has not
been under a Adisability,@ as defined in the Social Security Act, from April 11, 2011 through
January 10, 2013, the date of the decision (Tr. 19-20).
Plaintiff timely filed a request for the Appeals Council to review the ALJ=s decision (Tr. 7).
The Appeals Council denied Plaintiff=s request for review of the ALJ=s decision (Tr. 1-3).

CONCLUSIONS OF LAW
The Social Security Act authorizes payment of Disability Insurance Benefits and
Supplemental Security Income to persons with disabilities. 42 U.S.C. '' 401 et seq. (Title II
Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The term
Adisability@ is defined as an
[i]nability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than twelve (12)
months.

3

42 U.S.C. '' 423(d)(1)(A) (Title II), 1382c(a)(3)(A) (Title XVI); 20 C.F.R. '' 404.1505(a),
416.905(a); Barnhart v. Walton, 535 U.S. 212, 214 (2002); Abbott v. Sullivan, 905 F.2d 918, 923
(6th Cir. 1990).
The Commissioner has promulgated regulations setting forth a five-step sequential
evaluation process for evaluating a disability claim. See AEvaluation of disability in general,@ 20
C.F.R. '' 404.1520, 416.920. In summary, the evaluation proceeds as follows:
1)

Is the claimant engaged in substantial gainful activity?

2)

Does the claimant have a medically determinable
impairment or combination of impairments that satisfies the
duration requirement and significantly limits his or her
ability to do basic work activities?

3)

Does the claimant have an impairment that meets or
medically equals the criteria of a listed impairment within
Appendix 1?

4)

Does the claimant have the residual functional capacity to
return to his or her past relevant work?

5)

Does the claimant's residual functional capacity, age,
education, and past work experience allow him or her to
perform a significant number of jobs in the national
economy?

Here, the ALJ denied Plaintiff=s claim at the fifth step.
As previously mentioned, the Appeals Council denied Plaintiff=s request for review of the
ALJ=s decision (Tr. 1-3). At that point, the ALJ=s decision became the final decision of the
Commissioner. 20 C.F.R. '' 404.955(b), 404.981, 422.210(a); see 42 U.S.C. ' 405(h) (finality of
the Commissioner's decision).
Review by the Court is limited to determining whether the findings set forth in the final
decision of the Commissioner are supported by Asubstantial evidence,@ 42 U.S.C. Section 405(g);
4

Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Sec’y of Health & Human Servs., 974
F.2d 680, 683 (6th Cir. 1992), and whether the correct legal standards were applied. Landsaw v.
Sec’y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). ASubstantial evidence exists
when a reasonable mind could accept the evidence as adequate to support the challenged
conclusion, even if that evidence could support a decision the other way.@ Cotton, 2 F.3d at 695
(quoting Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)). In
reviewing a case for substantial evidence, the Court Amay not try the case de novo, nor resolve
conflicts in evidence, nor decide questions of credibility.@ Cohen v. Sec’y of Health & Human
Servs., 964 F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.
1984)).
Plaintiff disagrees with part of Finding No. 31 (DN 12, Memorandum at Pages 2-4). This
finding addresses the second step in the sequential evaluation process. At the second step a
claimant must demonstrate she has a Asevere@ impairment. 20 C.F.R. '' 404.1520(a)(4)(ii),
416.920(a)(4)(ii); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (per curiam). To satisfy
this burden, the claimant must show she suffers from a Amedically determinable@ physical or
mental condition that satisfies the duration requirement (20 C.F.R. '' 404.1509, 416.909) and
Asignificantly limits@ her ability to do one or more basic work activities.

20 C.F.R. ''

404.1520(a)(4)(ii) and (c), 416.920(a)(4)(ii) and (c); Social Security Ruling 96-3p; Social Security
Ruling 96-4p; Higgs, 880 F.2d at 863. To satisfy the Amedically determinable@ requirement the
claimant must present objective medical evidence (i.e., signs, symptoms, and laboratory findings)
that demonstrates the existence of a physical or mental impairment. 20 C.F.R. §§ 404.1508,
1 Plaintiff’s Fact and Law Summary erroneously indicates she disagrees with Finding No. 4 (DN 12, Fact and Law
Summary). It is clear from her argument that Plaintiff disagrees with Finding No. 3 (DN 12, Fact and Law Summary
and Memorandum at Pages 2-4).

5

416.908; Social Security Ruling 96-4p, 1996 WL 374187, at *1; Social Security Ruling 96-3p,
1996 WL 374181, at *2. Thus, symptoms and subjective complaints alone are not sufficient to
establish the existence of a Amedically determinable@ physical or mental impairment. Social
Security Ruling 96-4p, 1996 WL 374187, at *1.
Plaintiff argues the ALJ should have found her chronic bilateral hand pain and chronic dry
eyes are severe impairments (DN 12, Memorandum at Pages 2-4). Plaintiff asserts the ALJ’s
findings to the contrary are not supported by substantial evidence in the record and do not comport
with the applicable legal standards (DN 12, Memorandum at Pages 2-4).
The ALJ determined there was no objective medical evidence in the record substantiating
Plaintiff’s claimed bilateral carpal tunnel syndrome (Tr. 14). Therefore, the ALJ found Plaintiff
“does not have a medically determinable impairment regarding this condition” (Tr. 14). Plaintiff
argues this finding is not supported by substantial evidence for the following reasons:
The record indicates that Ms. Utley has been treated for symptoms
of chronic hand and wrist pain due to her previous work experience
that required repetitive use of her hands. (TR 193-201). The
record shows a continuous diagnosis of ulnar neuropathy. (TR
237-239) and [sic] has been prescribed an anti-inflammatory in the
form of Naproxen. (Tr. 237-239).
(DN 12, Memorandum at Page 3). However, Plaintiff’s transcript citation at the end of the first
sentence does not identify supporting medical evidence (Tr. 193-201). Instead, her transcript
citation identifies a “WORK HISTORY REPORT” that she filed out on August 27, 2011 (Tr.
193-201). Additionally, Plaintiff’s transcript citations at the end of the second and third sentences
do not identify medical records showing a continuous diagnosis of ulnar neuropathy and treatment
with a prescription anti-inflammatory (Tr. 237-239). Rather, the transcript citation identifies a
consultative examiner’s report that addresses Plaintiff’s asthma (Tr. 237-239). Notably, the
6

consultative physical examination revealed 5/5 strength in all extremities and no significant
limitations with Plaintiff’s range of motion (Tr. 238, 239). Thus, Plaintiff has failed to identify
objective medical evidence in the record that demonstrates her hand/wrist pain is a “medically
determinable” impairment. Further, the undersigned concludes the ALJ’s finding is supported by
substantial evidence in the record and comports with applicable law.
It is well-established that Aissues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.@ United States v. Layne, 192 F.3d
556, 566 (6th Cir.1999) (quoting McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.1997)); see
also Brindley v. McCullen, 61 F.3d 507, 509 (6th Cir.1995) (observing that A[w]e consider issues
not fully developed and argued to be waived.@). Here, Plaintiff has not set forth any argument or
medical evidence supporting her position that chronic dry eyes are a medically determinable
physical condition that significantly limits her ability to do one or more basic work activities (DN
12, Memorandum at Pages 2-4). Therefore, Plaintiff is deemed to have waived her argument that
the ALJ should have found her chronic dry eyes are a severe impairment. Notwithstanding, the
ALJ’s finding--Plaintiff’s chronic dry eyes did not impose significant limitations on her ability to
do one or more basic work activities--is supported by substantial evidence in the record and
comports with applicable law (Tr. 14).
Next, Plaintiff disagrees with the residual functional capacity assessment in Finding No. 5
(DN 12, Fact and Law Summary and Memorandum at Pages 4-8). At the fourth step in the
sequential evaluation process the Administrative Law Judge makes findings regarding the
claimant’s residual functional capacity. See 20 C.F.R. §§ 404.1520(e), 416.920(e). The residual
functional capacity assessment is the Administrative Law Judge=s ultimate determination of what a
claimant can still do despite his or her physical and mental limitations. 20 C.F.R. '' 404.1545(a),
7

404.1546, 416.945(a), 416.946.

The residual functional capacity finding is based on a

consideration of medical source statements and all other evidence in the case record about what a
claimant can do despite limitations caused by his or her physical and mental impairments. 20
C.F.R. '' 404.1529, 404.1545(a), 404.1546, 416.929, 416.945(a), 416.946; Social Security Ruling
96-5p; Social Security Ruling 96-7p. Thus, in making the residual functional capacity finding the
Administrative Law Judge must necessarily assign weight to the medical source statements in the
record and consider the subjective allegations of the claimant and make credibility findings. 20
C.F.R. '' 404.1527(c), 404.1529; Social Security Ruling 96-7p.
First, Plaintiff argues the ALJ’s evaluation of the medical source opinion from Ms. Lindsay
McGehee, APRN, does not comport with applicable law (DN 12, Memorandum at Pages 4-7).
The law is well established. The treating source rule applies to a “medical opinion” rendered by
an “acceptable medical source” who has, or has had, an ongoing treatment relationship with the
claimant.

20 C.F.R. §§ 404.1502, 404.1513(a)(1), 404.1527(a)(2) and (c), 416,902,

416.913(a)(1), 416.927(a)(2) and (c); Social Security Rule 96-2p; Gayheart v. Commissioner, 710
F.3d 365, 375-376 (6th Cir. 2013); Rogers v. Commissioner, 486 F.3d 234, 242 (6th Cir. 2007);
Wilson v. Commissioner, 378 F.3d 541, 544 (6th Cir. 2004). Additionally, the regulations
expressly indicate only “acceptable medical sources” are qualified to render “medical opinions”
about the nature and severity of a claimant’s impairment, including limitations or restrictions
imposed by the impairment. 20 C.F.R. §§404.1513(a) and (b)(6), 404.1527(a)(2), 416.913(a) and
(b)(6), 416.927(a)(2). Nurse practitioners are not classified as “acceptable medical sources”
under the regulations. 20 C.F.R. §§ 404.1513(a), 416.913(a). Instead, nurse practitioners are
one of several types of “medical sources” that are classified as “other sources” evidence. 20
C.F.R. §§ 404.1513(d)(1), 416.913(d)(1). Applying the applicable law to the evidence in the
8

record, the treating source rule does not apply to Nurse McGehee because she is a nurse
practitioner. 20 C.F.R. §§ 404.1502, 404.1513(a) and (d), 404.1527(c), 416.902, 416.913(a) and
(d), 416.927(c). Further, Nurse McGehee is not qualified to render a medical opinion about
restrictions imposed by Plaintiff’s impairments because she is not an “acceptable medical source”
and “treating source” under the regulations. 20 C.F.R. §§ 404.1502, 404.1513(a) and (d),
404.1527(c), 416.902, 416.913(a) and (d), 416.927(c).
Although the treating source rule does not apply to the opinion rendered by Nurse
McGehee, Social Security Ruling 06-03p indicates the factors in 20 C.F.R. §§ 404.1527(c) and
416.927(c) can be applied when the ALJ assigns weight to her opinion. This means the opinion
can be weighed based on factors such as “the examining relationship (or lack thereof),
specialization, consistency, and supportability...” Gayheart, 710 F.3d at 376 (citing 20 C.F.R. §
404.1527(c)(2)). Further, other factors that tend to support or contradict Nurse McGehee’s
opinion may be considered in assessing her opinion. Gayheart, 710 F.3d at 376 (citing 20 C.F.R.
§ 404.1527(c)(2)).

Notably, Social Security Ruling 06-03p indicates not every factor in 20

C.F.R. §§ 404.1527(c) and 416.927(c) will apply in every case. Additionally, Social Security
Ruling 06-03p indicates assessing opinions from “other sources” will depend on the particular
facts of the case and each case must be adjudicated on its own merits based on a consideration of
the probative value of the opinions and the weighing of all the evidence in that particular case.
Nurse McGehee works at the Bell Clinic and treated Plaintiff’s asthma condition (Tr.
250-267). On November 28, 2012, Nurse McGehee prepared a letter that in relevant part reads as
follows:
Mrs. Tina Utley suffers from severe COPD and asthma. Due to
severe asthma and frequent flare ups Mrs. Utley requires a home
nebulizer medicine.
9

During times of asthma exacerbation, Tina may have to use her
nebulizer machine every 4 to 6 hours, usually taking 10-20 minutes
per treatment.
Tina also must avoid environmental pollutants, dusts, gases, odors,
fumes and chemicals as they may trigger an asthma attack.
(Tr. 301).
The ALJ appropriately noted that the Bell Clinic records did not indicate a worsening of
Plaintiff’s asthma condition prior to April 11, 2011 (the alleged onset of disability) (Tr. 16,
250-267, 270-276). Further, the ALJ observed that on August 6, 2012, almost a year and a half
after the alleged onset date, Plaintiff began complaining about significant problems with her
asthma (Tr. 16, 270-273). The ALJ accurately summarized the Bell Clinic’s records regarding
Plaintiff’s three office visits on August 6, August 24, and December 13, 2012, that pertained to her
asthma (Tr. 16). The ALJ’s summary discussed Plaintiff’s reported asthma difficulties, the
number of times per day she reported using her inhaler and nebulizer, the number of cigarettes she
reported smoking daily, what examinations revealed, what an x-ray revealed, and that Nurse
McGehee urged Plaintiff to quit smoking (Tr. 16, 270-280, 283-288, 300-311). Readily apparent
from the ALJ’s summary is how infrequently Plaintiff sought treatment from the Bell Clinic in
2011 and 2012 for an exacerbation of her asthma. Also obvious from the record is a notable
absence of trips to a hospital emergency room or other type of emergent care facility in 2011 and
2012 because of an exacerbation of asthma.
The ALJ also noted the conflict between Plaintiff’s statements in the disability application
and her hearing testimony about the frequency she used her nebulizer (Tr. 16). The ALJ
concluded that although Plaintiff may require more nebulizer treatments during periods of
exacerbations, the evidence of record failed to reveal frequent exacerbations (Tr. 16). The ALJ
10

noted that the evidence did not reveal Plaintiff was experiencing any significant problems until
August 6, 2012, almost a year and a half after her alleged onset date (Tr. 16). Additionally, the
ALJ observed that Plaintiff’s decision to continue smoking, despite numerous recommendations to
quit, suggested her limitations from the asthma were not as severe as she alleged (Tr. 17).
The ALJ accurately summarized Nurse McGehee’s letter dated November 28, 2012 (Tr.
17). The ALJ’s assessment of Nurse McGehee’s opinions reads as follows:
Although a nurse practitioner is not an acceptable medical source,
their opinions must be considered as “other evidence”. Nurse
McGehee’s opinion that the claimant should avoid environmental
pollutants is consistent with the evidence of record and is afforded
some weight. Accordingly, the undersigned finds that the
claimant should avoid concentrated exposure to environmental
irritants, such as fumes, dusts, and odors. In addition, she
should avoid concentrated exposure to extreme heat or cold.
While Nurse McGehee stated that the claimant “may” have to use
her nebulizer every four to six hours during “times of asthma
exacerbation”, as stated earlier, the record fails to reveal evidence
of frequent exacerbations. The claimant’s alleged onset date is
April 11, 2011. The record reveals only a few months of
significant complaints, which did not begin until August 2012,
almost a year and a half after her alleged onset date. Accordingly,
the undersigned affords little weight regarding Nurse McGehee’s
opinion regarding the frequency of needed treatments.
(Tr. 18) (emphasis added). The undersigned concludes the ALJ’s assignment of weight to Nurse
McGehee’s opinion comports with applicable law and is supported by substantial evidence in the
record.
Next, Plaintiff disagrees with the ALJ’s residual functional capacity assessment because
she believes he failed to comply with Social Security Ruling 96-7p when he evaluated the
credibility of her subjective complaints about her symptoms (DN 12, Memorandum at Pages 7-9).
In assessing a claimant=s residual functional capacity the Administrative Law Judge must

11

necessarily consider the subjective allegations of the claimant and make credibility findings. 20
C.F.R. §§ 404.1529, 416.929; Social Security Ruling 96-7p. A claimant's statement that she is
experiencing pain or other symptoms will not, taken alone, establish that she is disabled; there
must be medical signs and laboratory findings which show the existence of a medical impairment
that could reasonably be expected to give rise to the pain and other symptoms alleged. 20 C.F.R.
§§ 404.1529(a), 416.929(a). In determining whether a claimant suffers from debilitating pain and
other symptoms, the two-part test set forth in Duncan v. Sec’y of Health & Human Servs., 801
F.2d 847, 853 (6th Cir. 1986), applies. First the Administrative Law Judge must examine whether
there is objective medical evidence of an underlying medical condition. Here, the ALJ reviewed
the record and concluded there was objective medical evidence of chronic obstructive pulmonary
disease (“COPD”) and asthma (Tr. 13-14).
Next, the Administrative Law Judge must determine: "(1) whether objective medical
evidence confirms the severity of the alleged pain arising from the condition; or (2) whether the
objectively established medical condition is of such severity that it can reasonably be expected to
produce the alleged disabling pain." Id. Here, the ALJ found Plaintiff’s COPD and asthma were
not of such severity that they could reasonably be expected to produce the alleged disabling
symptoms (Tr. 16). When, as in this case, the reported symptoms suggest an impairment of
greater severity than can be shown by objective medical evidence, the Administrative Law Judge
will consider other information and factors which may be relevant to the degree of pain alleged.
20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
Here, the ALJ appropriately considered Plaintiff's level of daily activity as a factor in
determining the extent to which her symptoms are of disabling severity (Tr. 17). 20 C.F.R. §§
404.1529(c)(3)(i), 416.929(c)(3)(i); Bogle v. Sullivan, 998 F.2d 342, 348 (6th Cir. 1993); Blacha
12

v. Sec’y of Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990). Additionally, the ALJ
considered the infrequency that Plaintiff has sought treatment for her COPD and asthma as a factor
in assessing her subjective complaints. 20 C.F.R. §§ 404.1529(c)(3)(v) and 416.929(c)(3)(v).
Further, the ALJ reflected on inconsistencies in the evidence like Plaintiff’s decision to continue
smoking despite being urged to quit and there being no indication her condition worsened around
the time of her alleged onset of disability (Tr. 16-18).

20 C.F.R. §§ 404.1529(c)(4) and

416.929(c)(4).
The ALJ found from the medical records and Plaintiff's testimony that Plaintiff does not
suffer COPD and asthma symptoms to the extent she testified. In the absence of detailed
corroborating evidence of Plaintiff's subjective complaints, it becomes the duty of the ALJ to
resolve the issue of Plaintiff's credibility.

Since tolerance of such symptoms is a highly

individualized matter, and a determination of disability based symptoms depends, of necessity,
largely on the credibility of Plaintiff, the conclusion of the ALJ, who has the opportunity to
observe the claimant's demeanor, "should not be discharged lightly." Houston v. Sec’y of Health
& Human Servs., 736 F.2d 365, 367 (6th Cir. 1984) (citing Beavers v. Sec’y of Health, Educ. &
Welfare, 577 F.2d 383 (6th Cir. 1978)). The undersigned concludes that the ALJ's findings
regarding Plaintiff's credibility are supported by substantial evidence and fully comport with
applicable law.
Next, Plaintiff disagrees with Finding No. 10 and Finding No. 11 because she believes her
physical limitations would not allow her to perform a significant number of jobs in the national
economy (DN 12, Fact and Law Summary). Notably, Plaintiff’s position is based on her previous
challenges to the ALJ’s findings. For the reasons set forth above, the undersigned concludes
there is no merit to Plaintiff’s disagreement with Finding No. 10 and Finding No. 11.
13

ORDER
IT IS HEREBY ORDERED that the final decision of the Commissioner is AFFIRMED.
This is a final and appealable Order and there is no just cause for delay.

February 3, 2015

Copies:

Counsel

14