Canchola v. Commissioner of Social Security
Filing
21
MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 12/13/2016; The final decision of the Commissioner is AFFIRMED. This is a final and appealable Order. cc: Counsel (CDR)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:16-CV-00067 HBB
JOSE CANCHOLA, Sr.
ADMINISTRATOR FOR THE ESTATE OF
CINDA R. CANCHOLA
PLAINTIFF
VS.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
DEFENDANT
MEMORANDUM OPINION
AND ORDER
BACKGROUND
Before the Court is the complaint (DN 1) of Cinda R. Canchola1 (APlaintiff@) seeking
judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. ' 405(g). Both
the Plaintiff (DN 18) and Defendant (DN 19) have filed a Fact and Law Summary.
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
1 Cinda R. Canchola filed the complaint (DN 1). However, she died on July 25, 2016 (DN 13-1 Kentucky Certificate
of Death). On September 28, 2016, the Circuit Court for Allen County, Kentucky, appointed Jose Canchola, Sr., as
administrator of the Estate of Cinda R. Canchola (DN 17). To avoid confusion, the undersigned will refer to Ms.
Canchola as the Plaintiff throughout this document.
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Sixth Circuit Court of Appeals in the event an appeal is filed (DN 11). By Order entered August
22, 2016 (DN 12), 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.
FINDINGS OF FACT
On October 18, 2012, Plaintiff filed applications for Disability Insurance benefits and
Supplemental Security Income payments (Tr. 12, 256-262). Plaintiff alleged that she became
disabled on November 10, 2010 as a result of a mental breakdown, chronic anxiety, diabetes,
diabetic neuropathy, and hypercalcenia (Tr. 12, 281). On May 26, 2015, Administrative Law
Judge Richard E. Guida (AALJ@) conducted a video hearing from Baltimore, Maryland, with
Plaintiff and her counsel participating in Bowling Green, Kentucky. Also present and testifying
was William H. Reed, Ph.D., a vocational expert.
In a decision dated June 3, 2015, the ALJ found that Plaintiff’s insured status expired on
September 30, 2013 (Tr. 14). The ALJ evaluated Plaintiff’s adult disability claim pursuant to the
five-step sequential evaluation process promulgated by the Commissioner (Tr. 12-20). At the
first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since November 6,
2010, the alleged onset date (Tr. 14). At the second step, the ALJ determined that Plaintiff=s
COPD, diabetes, neuropathy, and obesity are Asevere@ impairments within the meaning of the
regulations (Id.). The ALJ also determined that Plaintiff=s mental impairment is a Anon-severe@
impairment within the meaning of the regulations (Tr. 14-16). 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 (Id.).
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At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform
less than a full range of light work because she can only perform postural activities; can never use
ladders, ropes, or scaffolds; and must avoid concentrated exposure to vibrations, fumes, odors,
dusts, gases, poor ventilation, and hazards (Tr. 16). Relying on testimony from the vocational
expert, the ALJ found that Plaintiff is unable to perform any of her past relevant work (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 (Id.). Therefore, the ALJ concluded that Plaintiff has not been
under a Adisability,@ as defined in the Social Security Act, from November 6, 2010, through the
date of the decision (Tr. 19).
Plaintiff timely filed a request for the Appeals Council to review the ALJ=s decision (Tr.
7-8). The Appeals Council denied Plaintiff=s request for review of the ALJ=s decision (Tr. 1-4).
CONCLUSIONS OF LAW
Standard of Review
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. § 405(g); 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,
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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)).
As previously mentioned, the Appeals Council denied Plaintiff=s request for review of the
ALJ=s decision (Tr. 1-4). 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). Thus, the Court will be reviewing the decision of the ALJ, not the
Appeals Council, and the evidence that was in the administrative record when the ALJ rendered
the decision. 42 U.S.C. § 405(g); 20 C.F.R. § 404.981; Cline v. Comm’r of Soc. Sec., 96 F.3d
146, 148 (6th Cir. 1996); Cotton v. Sullivan, 2 F.3d 692, 695-696 (6th Cir. 1993).
The Commissioner’s Sequential Evaluation Process
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.
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).
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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 because he concluded that she could still
perform work that exists in significant numbers in the national economy despite the limitations
imposed by her physical and mental impairments.
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Plaintiff raises two challenges to the ALJ’s residual functional capacity assessment set
forth in Finding No. 5 (DN 18). The first challenge concerns a Physical Residual Functional
Capacity Assessment dated October 6, 2014 (DN 18-1 PageID #722, 728; Tr. 609-616, 617-624).
Plaintiff asserts that her treating physician, Dr. Kenny Manion, and his nurse, Gwen Wright,
APRN, prepared the opinion (DN 18-1 PageID # 722, 728). Plaintiff argues the ALJ erred as a
matter of law because he failed to consider and give controlling weight to Dr. Manion’s opinion
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(Id.). Alternatively, Plaintiff contends the ALJ erred as a matter of law because he failed to apply
the appropriate factors and provide “good reasons” when he determined how much weight to
accord the opinion (Id.).
Defendant points out that Plaintiff has not provided any credible evidence showing that Dr.
Manion is a treating source (DN 19 PageID # 736). Further, Defendant asserts that the ALJ
properly evaluated Dr. Manion’s opinion (Id.).
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The undersigned will first address Plaintiff’s argument that the ALJ erred as a matter of law
because he failed to consider and give controlling weight to Dr. Manion’s opinion. The Sixth
Circuit has provided the following comprehensive explanation regarding the standards for
weighing medical opinions:
As a general matter, an opinion from a medical source who has
examined a claimant is given more weight than that from a source
who has not performed an examination (a “nonexamining source”),
id. § 404.1502, 404.1527(c)(1), and an opinion from a medical
source who regularly treats the claimant (a “treating source”) is
afforded more weight than that from a source who has examined the
claimant but does not have an ongoing treatment relationship (a
“nontreating source”), id. § 404.1502, 404.1527(c)(2). In other
words, “[t]he regulations provide progressively more rigorous tests
for weighing opinions as the ties between the source of the opinion
and the individual become weaker.” Soc. Sec. Rul. No. 96–6p,
1996 WL 374180, at *2 (Soc. Sec. Admin. July 2, 1996).
The source of the opinion therefore dictates the process by which
the Commissioner accords it weight. Treating-source opinions
must be given “controlling weight” if two conditions are met: (1) the
opinion “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques”; and (2) the opinion “is not
inconsistent with the other substantial evidence in [the] case
record.” 20 C.F.R. § 404.1527(c)(2). If the Commissioner does
not give a treating-source opinion controlling weight, then the
opinion is weighed based on the length, frequency, nature, and
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extent of the treatment relationship, id., as well as the treating
source's area of specialty and the degree to which the opinion is
consistent with the record as a whole and is supported by relevant
evidence, id. § 404.1527(c)(2)-(6).
The Commissioner is required to provide “good reasons” for
discounting the weight given to a treating-source opinion. Id. §
404.1527(c)(2). These reasons must be “supported by the evidence
in the case record, and must be sufficiently specific to make clear to
any subsequent reviewers the weight the adjudicator gave to the
treating source's medical opinion and the reasons for that weight.”
Soc. Sec. Rul. No. 96–2p, 1996 WL 374188, at *5 (Soc. Sec.
Admin. July 2, 1996). This procedural requirement “ensures that
the ALJ applies the treating physician rule and permits meaningful
review of the ALJ's application of the rule.” Wilson v. Comm'r of
Soc. Sec., 378 F.3d 541, 544 (6th Cir.2004).
On the other hand, opinions from nontreating and nonexamining
sources are never assessed for “controlling weight.”
The
Commissioner instead weighs these opinions based on the
examining relationship (or lack thereof), specialization,
consistency, and supportability, but only if a treating-source opinion
is not deemed controlling. 20 C.F.R. § 404.1527(c). Other factors
“which tend to support or contradict the opinion” may be considered
in assessing any type of medical opinion. Id. § 404.1527(c)(6).
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375-76 (6th Cir. 2013).
Notably, the treating source rule only applies to a “medical opinion” rendered by a
“physician, psychologist, or other 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, 710 F.3d at 375-76; Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007);
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). The first requirement is
satisfied because there is no dispute that the assessment at issue is a medical opinion. Further,
there is no dispute that Dr. Manion satisfies the second requirement because he is a physician.
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Ms. Wright, however, does not satisfy the second requirement because she is a nurse practitioner.
20 C.F.R. §§ 404.1513(a) and (d)(1), 416.913(a) and (d)(1).
With regard to the third requirement, “[a] physician qualifies as a treating source if the
claimant sees her ‘with a frequency consistent with accepted medical practice for the type of
treatment and/or evaluation required for [the] medical condition.’” Smith v. Commissioner, 482
F.3d 873, 876 (6th Cir. 2007) (quoting 20 C.F.R. § 404.1502). Clearly, Plaintiff’s general
assertion is not sufficient. A review of Dr. Manion’s treatment records must be conducted to
assess whether he has, or has had, an ongoing treatment relationship with Plaintiff.
Unfortunately, Dr. Manion’s treatment records are not in the administrative record. Notably,
during the administrative hearing the ALJ specifically asked Plaintiff’s counsel if Dr. Manion’s
treatment records were in the administrative record (Tr. 37-38). Plaintiff’s counsel confirmed
they were not and explained that he decided not to obtain and submit them to the ALJ because
counsel believed the hospital records were a better source of information about Plaintiff’s recent
acute medical problems (Id.).
In sum, there is no evidence in the administrative record that substantiates Plaintiff’s bare
assertion that Dr. Manion is a treating source within the meaning of the regulations. It is well
settled law that medical “opinions from nontreating and nonexamining sources are never assessed
for ‘controlling weight.’” Gayheart, 710 F.3d at 376. Therefore, the ALJ’s decision not to
assess Dr. Manion’s opinion for controlling weight fully comports with applicable law.
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Next, the undersigned will address Plaintiffs argument that the ALJ erred as a matter of law
because he failed to apply the appropriate factors and provide “good reasons” when he determined
how much weight to accord to Dr. Manion’s opinion.
In relevant part, the administrative decision reads as follows:
In contrast, the residual functional capacity assessment signed by
Kenny Manion, M.D., and Gwen Wright, NP, is given little weight.
(Exhibit 14F). The record contains no treatment records from these
two providers. Also, their opinions do not match the treatment
records that are in the records.
(Tr. 18). Although relatively brief, the ALJ’s analysis is more than adequate. It clearly indicates
the ALJ discounted the opinion because the opinion was unsupported by treatment records from
Dr. Manion and Nurse Wright and inconsistent with other treatment records in the administrative
record. Supportability and consistency are factors that may be considered in deciding how much
weight to accord to a medical opinion in the record. Gayheart, 710 F.3d at 376; 20 C.F.R. §§
404.1527(c)(3) and (4), 416.927(c)(3) and (4). The ALJ could not consider factors such as
examining relationship, length of treatment, and specialization because of the absence of treatment
records. 20 C.F.R. §§ 404.1527(c)(1) and (5), 416.927(c)(1) and (5). In light of the evidence in
the record the ALJ provided “good reasons” for discounting Dr. Manion’s opinion. Therefore,
the ALJ’s assignment of weight to the opinion of Dr. Manion comports with applicable law.
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Next, Plaintiff challenges the residual functional capacity assessment in Finding No. 5 by
arguing that the ALJ failed to seriously consider the disabling effect that Plaintiff’s weight had in
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conjunction with her diabetes, COPD, cardiac problems, neuropathy, and mental problems2 (DN
18-1 PageID # 722). The ALJ indicated that he considered the impact Plaintiff’s obesity had on
her co-existing impairments in assessing her residual functional capacity (Tr. 16). Furthermore,
the ALJ’s residual functional capacity assessment is supported by substantial evidence in the
record. Therefore, there is no merit to Plaintiff’s argument.
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.
December 13, 2016
Copies:
Counsel
2 In the argument, Plaintiff characterizes herself as having been diagnosed with “serious mental problems” (DN 18-1
PageID # 722). However, Plaintiff acknowledges that substantial evidence supports Finding No. 2 which includes
the ALJ’s determination that Plaintiff’s mental condition is a nonsevere impairment (Tr. 14-16). Because the ALJ
could and did consider the limitations imposed by Plaintiff=s mental impairment in determining whether she retained
sufficient residual functional capacity to perform other jobs in the national economy (Tr. 14-18), the ALJ's failure to
find that Plaintiff=s mental impairment is Asevere@ within the meaning of the regulations could not constitute reversible
error. Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987).
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