Pepper v. Commissioner of Social Security

Filing 18

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 1/23/2018; The undersigned concludes the ALJ's decision is supported by substantial evidence and comports with all applicable law. Plaintiff's claims are DENIED. Plaintiff's complaint (DN 1 ) is dismissed with prejudice. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:17-CV-00065-HBB

JAMES R. PEPPER

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 James R. Pepper seeking judicial
review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the
Plaintiff (DN 13) and Defendant (DN 17) 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 11). By Order entered July 5,
2017 (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
Plaintiff filed an application for Supplemental Security Income and Disability Insurance
Benefits on March 11, 2014 (Tr. 224-38). Plaintiff alleged that he became disabled on February
18, 2011 (Tr. 224) as a result of diabetes, high blood pressure, blurred vision, weakness in legs,
degenerative disc disease, and "arthritis in back, nerves" (Tr. 252). Administrative Law Judge
Ronald Kayser (“ALJ”) conducted a hearing on June 14, 2016 in Lexington, Kentucky. Plaintiff
was present and represented by Gail M. Wilson. Also present and testifying was vocational
expert Martha Goss.
In a decision dated July 29, 2016, the ALJ evaluated this adult disability claim pursuant
to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 38-53). At
the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since
February 18, 2011, the alleged onset date (Tr. 44). At the second step, the ALJ determined that
Plaintiff has no “severe” impairments within the meaning of the regulations (Tr. 44). As a result,
the ALJ concluded that Plaintiff has not been under a “disability,” as defined in the Social
Security Act, from February 18, 2011 through the date of the decision (Tr. 47).
Plaintiff timely filed a request for the Appeals Council to review the ALJ’s decision (Tr.
34). The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision (Tr. 1).
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.

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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). 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 “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.

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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?

Here, the ALJ denied Plaintiff’s claim at the second step. For the reasons set forth below, the
commissioner's decision was supported by substantial evidence. The Plaintiff's complaint is
therefore denied.
Arguments of the Parties
Plaintiff's primary argument rests on attempting to prove that the ALJ's conclusion that
none of Plaintiff's medically determinable impairments are severe is not supported by substantial
evidence (DN 13 at PageID # 644-46). Plaintiff claims there is ample medical evidence to
support a conclusion that he had a severe vision problem, a severe back problem, and a severe
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mental health condition. Plaintiff notes that the standard at step two is intended to weed out
frivolous claims, and the hurdle for finding a claimant disabled should not be a high bar.
As far as specific findings supporting Plaintiff's claimed severe impairments, Plaintiff
first notes that records from Adanta confirm the severity of Plaintiff's depression and anxiety
(DN 13 at PageID # 644). Plaintiff states that the ALJ must not have considered these records or
otherwise he would have found the condition to be severe (Id.). With respect to the alleged
diabetes mellitus and resulting vision problems, Plaintiff points to a record indicating Plaintiff's
blood sugar was 339 on January 9, 2014 (Id.). And on December 2, 2014, Plaintiff's A1C was
8.30. Moreover, Plaintiff points to a letter from ophthalmologist Dr. Bloom, who opined that
Plaintiff would be limited in certain work activities and would be unable to focus for more than
four hours at a time (Id.). Plaintiff further claims that Dr. Bloom's opinion is consistent with his
office notes, and the ALJ improperly disregarded Plaintiff's testimony concerning his blurry
vision (DN 13 at PageID # 644-45). Finally, Plaintiff notes records of treatment for back pain,
including an MRI indicating degenerative disc disease (DN 13 at PageID # 645). Plaintiff argues
Dr. Nadim's office notes reflect the fact that Plaintiff would have difficulty accomplishing certain
work-related activities due to his back pain (Id.).
In response, the Defendant points out that no treating physicians besides Dr. Bloom
opined that any of Plaintiff's medically determinable impairments imposed work-related
restrictions (DN 17 at PageID # 659). With respect to the vision issue, the Commissioner notes
that Plaintiff was diagnosed with diabetes in 2006, continued working until 2011, received
unemployment benefits until 2012, and even at the time of the hearing possessed a valid driver's
license and drove two times a week (DN 17 at PageID # 660-61). Respecting the other alleged
disabling conditions, the Commissioner notes that the ALJ relied on the state examining

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physicians' reports, that such reliance was reasonable, and that Plaintiff has waived any challenge
to the state examining physicians because he did not challenge their findings in his fact and law
summary (DN 17 at PageID # 659). Finally, with respect to Plaintiff's alleged mental health
issues, the Commissioner argues that, while Plaintiff was hospitalized on one occasion in 2013,
he also stated that his depression is largely controlled with medication (DN 17 at PageID # 664).
And, the ALJ relied on Dr. Dennis, the state psychological examining consultant, who noted that
Plaintiff performed poorly on certain function tests, but Dr. Dennis believed the poor
performance was largely a result of Plaintiff's refusal to cooperate, perhaps related to secondary
gain (Id.).
Discussion
At the second step in the sequential evaluation process a claimant must demonstrate he
has a "severe" 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
he suffers from a "medically determinable" physical or mental condition that satisfies the
duration requirement (20 C.F.R. §§ 404.1509, 416.909) and "significantly limits" his 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.
Here, only one of Plaintiff's treating physicians, Dr. Bloom, stated that any of the alleged
disabling conditions would create limitations in a work environment (Tr. 466).

The ALJ

considered this opinion (Tr. 47) and concluded the letter was inconsistent with Plaintiff's own
testimony. Specifically, the ALJ noted that Plaintiff has a driver's license, regularly drives a car,
and watches hours of television each day (Tr. 47, Tr. 60, Tr. 73). Moreover, Plaintiff uses a
riding lawn mower and hunted until a year before the hearing (Tr. 75). Ordinarily, a reviewing

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court gives deference to such credibility determinations. Kirk v. Sec'y of Health & Human
Servs., 667 F.2d 524, 538 (6th Cir. 1981). Plaintiff has offered no reason why the ALJ's
determination does not deserve deference. Therefore, the undersigned concludes the ALJ's
finding regarding the severity of Plaintiff's vision problems was supported by substantial
evidence.
With respect to Plaintiff's diabetes, the undersigned notes that the ALJ did find this to be
a medically determinable impairment, diagnosed in 2006 (Tr. 45). However, the ALJ noted that
Plaintiff continued working until 2011, despite his condition (Tr. 45).

Moreover, Plaintiff

collected unemployment for a year and a half following being laid off in 2011, which suggests
that, during that time, Plaintiff was presumably able and attempting to work. See Workman v.
Comm'r of Soc. Sec., 105 F. App'x 794, 801 (6th Cir. 2004) ("Applications for unemployment
and disability benefits are inherently inconsistent.") Moreover, while Plaintiff points out a
couple of records reflecting high blood sugar, nothing requires the ALJ to discuss each
individual medical record in detail. Kornecky v. Comm'r of Soc. Sec., 167 F. App'x 496, 508
(6th Cir. 2006). The ALJ clearly considered Plaintiff's diabetes, weighed the evidence, and
concluded the condition was not severe. This conclusion was supported by substantial evidence.
Next, Plaintiff points to MRIs and treatment notes indicating positive straight leg raising,
stiffness, and limited range of motion that he argues proves his degenerative disc disease is
severe. But no medical opinion accompanies these tests that indicate any medical professional
believed Plaintiff's condition would impact his ability to work. With no conflicting opinions, it
is apparent that the ALJ's reliance on the state agency examining physician's report (Tr. 131-40)
was entirely reasonable. The ALJ's conclusion that Plaintiff's degenerative disc disease didn't
satisfy the requirements for a severe impairment was supported by substantial evidence.

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The final issue is whether Plaintiff's depression and anxiety rose to the level of a severe
impairment.

Notably, Plaintiff has offered nothing to counter Dr. Dennis' conclusion that

Plaintiff was not exhibiting a good faith effort during his evaluation (Tr. 380). Despite the poor
effort, the ALJ acknowledged that Plaintiff has received mental health treatment and takes
medication for his condition (Tr. 46). The ALJ assessed the record and Dr. Dennis' opinion and
concluded that Plaintiff's condition is controlled with medication and not severe. This decision
was supported by substantial evidence.
Conclusion
Therefore, the undersigned concludes the ALJ's decision is supported by substantial
evidence and comports with all applicable law.
ORDER
IT IS HEREBY ORDERED that Plaintiff's claims are DENIED.
IT IS FURTHER ORDERED that Plaintiff's complaint (DN 1) is dismissed with
prejudice.

January 23, 2018

Copies:

Counsel

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