Cooper v. Commissioner of Social Security

Filing 16

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 5/24/2017 concluding the ALJ's findings are supported by substantial evidence, and Plaintiff's complaint (DN 1 ) is DENIED. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:16-CV-00165-HBB

KAREN SUE COOPER

PLAINTIFF

VS.

NANCY A. BERRYHILL, Acting
Commissioner of Social Security

DEFENDANT

MEMORANDUM, OPINION,
AND ORDER
BACKGROUND
Before the Court is the complaint (DN 1) of Plaintiff Karen Sue Cooper 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 15) 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
Sixth Circuit Court of Appeals in the event an appeal is filed (DN 10). By Order entered
December 27, 2016 (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.

FINDINGS OF FACT
Plaintiff filed an application for Supplemental Security and Disability Insurance Benefits
on December 3, 2013 (Tr. 253-66). Plaintiff alleged that she became disabled on April 15, 2009
(Tr. 253). Plaintiff described the conditions leading to her claim as follows:
1. Tendonitis both hands
2. Nerves
3. Right arm and shoulder
4. Neck
(Tr. 282). Administrative Law Judge Greg Holsclaw conducted a hearing on August 25, 2015 in
Lexington, Kentucky. Plaintiff was present and represented by M. Gail Wilson. Also present
and testifying was William Braunig, a vocational expert (Tr. 29).
In a decision dated October 29, 2015, the ALJ evaluated this adult disability claim
pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 928). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since
April 15, 2009, the alleged onset date (Tr. 15). At the second step, the ALJ determined that
Plaintiff has the following “severe” impairments within the meaning of the regulations:
[A]sthma; right lateral de Quervain's tendonitis; bilateral de
Quervain's tendonitis; status post carpal tunnel release surgeries
bilaterally; thoracic outlet syndrome/brachial plexus lesion with
history of cervical steroid injection; status post removal of
ganglion cyst from left wrist; plantar fasciitis; obesity; rule out
diagnosis of right rotator cuff tear; depression; anxiety and posttraumatic stress disorder
(Tr. 15). 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. 15-16).

2

At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform
a reduced range of light work (Tr. 16). More specifically, the ALJ found that Plaintiff has the
following exertional and non-exertional restrictions:
[N]o lifting and carrying more than 20 pounds occasionally, ten
pounds frequently; no standing and walking more than six hours
out of an eight-hour day, and for no more than 30 minutes at one
time; no sitting more than six hours out of an eight-hour day, and
for no more than 90 minutes at one time; can do occasional
pushing and pulling up to the exertional limitations, such as use of
hand controls; no more than occasional balancing, stooping,
kneeling, crouching, or climbing of ramps or stairs, but no
climbing ladders, ropes or scaffolds or crawling; no reaching
overhead bilaterally; no more than frequent handling, fingering or
reaching; no work in areas of concentrated heat or humidity; no
work in areas of concentrated dusts, fumes, gases or other
pulmonary irritants; no work around concentrated full body
vibration or use of vibrating hand tools; no more than simple,
routine work, can maintain attention and concentration for two
hour intervals necessary to complete simple tasks; no more than
occasional interaction with coworkers or supervisors; no more than
occasional contact with the general public; no more than
occasional changes in the workplace setting.
(Tr. 16). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable
to perform any of her past relevant work as a lumber handler, bending machine operator, and
notching or punch press operator (Tr. 22).
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. 22-23). The ALJ found that Plaintiff is capable of performing a significant number of
jobs that exist in the national economy (Tr. 23). Therefore, the ALJ concluded that Plaintiff has
not been under a “disability,” as defined in the Social Security Act, from April 15, 2009, through
the date of the decision (Tr. 23).

3

Plaintiff timely filed a request for the Appeals Council to review the ALJ’s decision (Tr. 5-8).
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 “substantial 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). “Substantial
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 “may 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).

4

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 “disability” 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).
The Commissioner has promulgated regulations setting forth a five-step sequential
evaluation process for evaluating a disability claim. See “Evaluation 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?
5

Here, the ALJ denied Plaintiff’s claim at the fifth step. For the reasons set forth below, the ALJ
supported his decision with substantial evidence, and Plaintiff's claim is denied.
Analysis
Plaintiff first contends the ALJ erred in not considering the entire record (DN 12 at pp. 34). Specifically, Plaintiff argues that the ALJ failed to consider the amount of time the Plaintiff
would need to spend attending future appointments for medical care. Plaintiff does cite to a list
of her various medical appointments in 2014 and 2014 (Tr. 613-14). But Plaintiff offers no
citation, either to the record to verify a concrete ongoing treatment plan that would require
Plaintiff to miss work, or to a case, rule, or regulation in support of the idea that an ALJ must
attempt to divine how a claimant's hypothetical future medical appointments might cause her to
miss work. The undersigned has inspected the record and researched the law and finds no
support from either source. While some courts have faulted an ALJ's failure to consider the
effects of recurring prescribed treatments on a claimant's need to miss work, Plaintiff has failed
to identify any such concrete and definable future treatments in this case. See Miller v. Astrue,
2012 WL 6644390 (S.D. Ohio Dec. 20, 2012) (ALJ's findings not supported by substantial
evidence because ALJ failed to ask vocational expert about effects on work absences of
claimant's prescribed infusion treatments).
Plaintiff next claims the ALJ erred by not discussing a note suggesting that Plaintiff
sometimes sees and hears things that aren't there (Tr. 413). But this was an isolated report. The
Plaintiff has not identified any other instances where hallucinations were reported. While an
ALJ has an obligation to consider the entire record, this obligation does not extend to a
requirement that he discuss every piece of evidence individually. Thacker v. Comm'r of Soc.
Sec, 99 F. App'x 661, 665 (6th Cir. 2004).

6

Plaintiff next argues that the ALJ did not consider that a prior GAF score had been
measured as low as 50. This is incorrect. The ALJ noted that social worker Deborah Story and
Nurse Tarah Mathews assessed a GAF of 50 on March 24, 2014 (Tr. 19). However, the ALJ
continued his review of the record and observed that by June of 2014, Plaintiff's GAF had
increased to 65, suggesting only mild limitations. The ALJ's RFC includes mental limitations,
and Plaintiff has not offered evidence that this one-time GAF score of 50 undermines the RFC.
Next, Plaintiff argues that the ALJ misconstrued the records of Dr. Tillet. Plaintiff argues
that the records reflect a history of shoulder pain, a narrowing of a joint in her shoulder, arthritis,
and a double crush nerve injury (DN 12 at p. 4). Again, the ALJ discussed these records (Tr.
20). Contrary to Plaintiff's assertion that the ALJ did not consider the pain associated with these
conditions, the ALJ found Plaintiff's shoulder problems to constitute a severe impairment (Tr.
15). And, the ALJ discussed Plaintiff's pain in detail, noting that she sees Dr. Tillet for her
shoulder issues and has undergone treatment for pain management (Tr. 18). Therefore, there is
no merit to this claim.
Plaintiff argues the ALJ erred in relying on the opinions of state agency physicians rather
than on the opinions of her treating physicians. But Plaintiff offers no citations to contrasting
opinions from treating physicians. This argument either misunderstands the distinction between
a medical opinion and medical evidence, or it is alternatively so underdeveloped as to be deemed
waived. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997). Either way, the claim
is without merit.

7

ORDER
For the foregoing reasons, the undersigned concludes the ALJ's findings are supported by
substantial evidence, and Plaintiff's complaint (DN 1) is DENIED.

May 24, 2017

Copies:

Counsel

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