Evans v. Commissioner of Social Security
Filing
20
MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 3/31/2021. The final decision of the Commissioner is AFFIRMED. Judgment is GRANTED for the Commissioner. cc:counsel (JWM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:20-CV-00052-HBB
STACY M. EVANS
PLAINTIFF
VS.
ANDREW SAUL, COMMISSIONER
SOCIAL SECURITY ADMINISTRATION
DEFENDANT
MEMORANDUM OPINION
AND ORDER
BACKGROUND
Before the Court is the complaint (DN 1) of Stacy M. Evans (“Plaintiff”) seeking judicial
review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both Plaintiff
(DN 16) and Defendant (DN 19) have filed a Fact and Law Summary. For the reasons that follow,
the final decision of the Commissioner is AFFIRMED, and judgment is GRANTED for the
Commissioner.
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 12). By Order entered
September 29, 2020 (DN 13), 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
Prior to the present case, on June 30, 2014, Plaintiff protectively filed an application for
Supplemental Security Income Benefits (Tr. 28, 180). Plaintiff alleged to have become disabled
on January 1, 2014, which was amended to August 1, 2014 (Id.). The previous Administrative
Law Judge, Yvette N. Diamond (“ALJ Diamond”), found that Plaintiff had the following severe
impairments: degenerative disc disease of the lumbar spine; degenerative joint disease of the
knees, status post right knee arthroscopy; diabetes mellitus; asthma; obesity; and depressive
disorder (Tr. 182). None of these severe impairments met or medically equaled the Listings in
Appendix 1 (Id.). Ultimately, on February 22, 2016, ALJ Diamond denied Plaintiff’s claim at the
fifth step and found that she was not under a disability from August 1, 2014 (Tr. 28, 190-92).
Plaintiff protectively filed an application for Supplemental Security Income Benefits on
August 11, 20161 (Tr. 19, 201 216, 355). Plaintiff alleges to have become disabled on February
18, 2016, as a result of depression, anxiety, asthma, migraines, high blood pressure, diabetes, back
problems, and acid reflux (Tr. 19, 201-02, 346). This claim was initially denied on December 27,
2016, and the denial of the claim was affirmed upon reconsideration on March 14, 2017 (Tr. 19,
212-13, 228-29). Administrative Law Judge Walter R. Hellums (“ALJ Hellums”) conducted a
video hearing from St. Louis, Missouri on September 4, 2018 (Tr. 19, 147). Virtually present at
the hearing from Bowling Green, Kentucky was Plaintiff and his attorney Mary Burchett-Bower
(Id.). During the hearing, Tanja H. Hubacker testified as a vocational expert (Tr. 19, 147, 171-75).
1
ALJ Hellums stated that Plaintiff’s application date was August 30, 2016, as opposed to Plaintiff’s protective
filing date of August 11, 2016 (Tr. 19, 32-33, 201 216, 355). However, “[P]laintiff concedes that the error was
harmless[,]” as “[t]he ALJ was clearly intending to address the earliest relevant date in the case[, and n]othing
occurred between the protective filing date [. . .] and the application date [. . .] documenting a change in conditions
during this short period” (DN 16 PageID 1451).
2
At the first step, ALJ Hellums found that Plaintiff had not engaged in substantial gainful
activity since August 30, 2016 (Tr. 21). At the second step, ALJ Hellums determined Plaintiff
has the following severe impairments: thoracolumbar degenerative disc disease, asthma, right knee
chondromalacia, morbid obesity, anxiety, and depression (Id.).
ALJ Hellums also found
Plaintiff’s hypertension, diabetes, sleep apnea, kidney stones, borderline hepatomegaly with fatty
infiltration, and gastroesophageal reflux disease to be nonsevere, while Plaintiff’s migraine
headaches were not considered a medically determinable impairment (Tr. 21-22). At the third
step, ALJ Hellums concluded that Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in
Appendix 1 (Tr. 22).
At the fourth step, ALJ Hellums found that Plaintiff has the residual functional capacity
(RFC) to perform light work as defined in 20 C.F.R. § 416.967(b) with the following limitations:
she is able to occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolds;
occasionally use foot controls with the bilateral lower extremities; and occasionally stoop, kneel,
crouch, and crawl; Plaintiff must avoid frequent exposure to work-related extreme cold, extreme
heat, and humidity; avoid frequent exposure to pulmonary irritants, such as fumes, odors, dusts,
gases, and poor ventilation and must avoid frequent exposure to hazards, such as unprotected
heights and unguarded moving machinery; Plaintiff is able to perform work that requires
occasional contact with the public and coworkers; and she is able to perform work that requires
occasional changes in work tasks and station (Tr. 25). ALJ Hellums found Plaintiff has no past
relevant work (Tr. 31).
3
At the fifth step, ALJ Hellums also considered Plaintiff’s RFC, age, education, and past
work experience, as well as testimony from the vocational expert, to find that Plaintiff is able to
perform other jobs that exist in significant numbers in the national economy (Id.). Therefore, ALJ
Hellums concluded that Plaintiff has not been under a “disability,” as defined in the Social Security
Act, since August 30, 2016 (Tr. 32).
Plaintiff timely filed a request for the Appeals Council to review ALJ Hellums’ decision
(Tr. 326-28). The Appeals Council denied Plaintiff’s request for review (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)).
4
As previously mentioned, the Appeals Council denied Plaintiff’s request for review of ALJ
Hellums’ decision (Tr. 1-4). At that point, ALJ Hellums’ decision became the final decision of
the Commissioner.
20 C.F.R. § 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 ALJ Hellums, not
the Appeals Council, and the evidence that was in the administrative record when ALJ Hellums
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.
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?
5
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, ALJ Hellums denied Plaintiff’s claim at the fifth step.
Drummond Challenge to ALJ Hellums’ Determination
1. Arguments of the Parties
Plaintiff’s primary challenge to ALJ Hellums’ determination is centered upon the RFC
finding (DN 16 PageID 1452). Plaintiff claims, “The ALJ recognize[d] a prior decision in
[Plaintiff’s] June 30, 2014 (protective filing date) application for SSI benefits” and that decision
noted the following severe impairments: “[d]egenerate disc disease of the lumbar spine;
degenerative joint disease of the knees, status post right knee arthroscopy; diabetes mellitus;
asthma; obesity; and depressive disorder” (Id. at PageID 1453). However, when looking at the
SSI application before the Court, “the ALJ indicate[d] new and additional evidence that provides
a basis for a different finding of [Plaintiff’s] residual functional capacity[,]” but “[d]espite the
ALJ’s conclusion, evidence in the August 2016 application suggest a worsening in the lumbar
spine impairment, not improvement” (Id. at PageID 1454-55).
6
In contrast, Defendant claims “[t]he ALJ’s assessment of Plaintiff’s residual functional
capacity . . . was reasonable and supported by substantial evidence” (DN 19 PageID 1468).
Defendant argues that “[t]he ALJ considered the prior ALJ’s decision, and discussed it in light of
Drummond v. Comm’r of Soc. Sec., . . . and Acquiescence Ruling [] 98-4(6)” (Id. at PageID 1469)
(citing Tr. 19, 28). Defendant, after a thorough recounting of Drummond and its progeny, asserts
that ALJ Hellums properly made “determinations based on a ‘fresh look’ of the ‘new evidence . .
. that covers a new period of alleged disability while being mindful of past rulings and the record
in prior proceedings” (Id. at PageID 1470) (citing Early v. Comm’r of Soc. Sec., 893 F.3d 929,
931 (6th Cir. 2018)). “The ALJ acknowledged that there was a prior claim that was denied at the
hearing level[,]” but “[t]he ALJ explained that the current claim involved deciding whether
Plaintiff was disabled during a period that was not adjudicated in the final decision on the prior
claim” (Id.) (citing Tr. 28) (footnote omitted). Thus, ALJ Hellums properly considered new
evidence regarding Plaintiff’s impairments and physical limitations (Id. at PageID 1470-72).
2. Discussion
At the fourth step, the Administrative Law Judge crafts an RFC finding which is the
ultimate determination of what a claimant can still do despite his or her physical and mental
limitations. 20 C.F.R. §§ 416.945(a), 416.946(c). The Administrative Law Judge makes this
finding based on a consideration of medical source statements and all other evidence in the case
record. 20 C.F.R. §§ 416.929, 416.945(a), 416.946(c). Thus, in making the RFC finding, the
Administrative Law Judge must necessarily assign weight to the medical source statements in the
record and assess the claimant’s subjective allegations. 20 C.F.R. §§ 416.927(c), 416.929(a).
7
While opinions from treating and examining sources are considered on the issue of RFC, the
Administrative Law Judge is responsible for making that determination. 20 C.F.R. § 416.927(d).
There is a difference between a medical opinion and an RFC Assessment prepared by the
Administrative Law Judge. The medical opinion is submitted by a medical source and expresses
impairment-related functional limitations.
20 C.F.R. §§ 416.913(a)(2), 416.927(a)(1).
By
contrast, the RFC Assessment is the Administrative Law Judge’s ultimate finding of what the
claimant can still do despite her limitations. 20 C.F.R. §§ 416.945(a), 416.946.
Turning to the issue of a prior application’s determination in the record, in Drummond v.
Comm’r of Soc. Sec., the Sixth Circuit held that the principles of res judicata apply to RFC
findings in the final decision of the Commissioner.
See 126 F.3d 837, 842-843.
More
specifically, the Sixth Circuit directed that when there is final a decision concerning a claimant’s
entitlement to benefits, and the claimant files a new application for benefits addressing the
unadjudicated period of time that proximately follows the adjudicated period of time, the
Commissioner is bound by the RFC findings in that final decision absent changed circumstances.
Id. Notably, the Sixth Circuit indicated that the burden is on the Commissioner to introduce
substantial evidence demonstrating changed circumstances to escape res judicata. Id. at 843.
In light of Drummond, the Commissioner issued Acquiescence Ruling (“AR”) 98-4(6)
directing states within the Sixth Circuit to follow that holding, by explaining the following in the
pertinent part:
When adjudicating a subsequent disability claim with an
unadjudicated period arising under the same title of the [Social
Security] Act as the prior claim, adjudicators must adopt such a
finding from the final decision by an ALJ or the Appeals Council on
the prior claim in determining whether the claimant is disabled with
8
respect to the unadjudicated period unless there is new and material
evidence relating to such a finding or there has been a change in the
law, regulations or rulings affecting the finding or the method for
arriving at the finding.
AR 98–4(6), 1998 WL 283902, at *3 (June 1, 1998) (emphasis added). Although Drummond
involved a Title II case, AR 98-4(6) recognizes that “similar principles also apply to Title XVI
cases.” Id. n.1. Therefore, AR 98-4(6) directs that the “Ruling extends to both title II and title
XVI disability claims.” Id.
On February 22, 2016, ALJ Diamond found that has the following severe impairments:
degenerative disc disease of the lumbar spine, status post right knee arthroscopy; diabetes mellitus;
asthma; obesity; and depressive disorder (Tr. 182). However, none of those impairments, or
combination thereof, met or medically equaled the listings in Appendix 1 (Id.). Thus, Plaintiff
had an RFC to perform light work with the following limitations: she can lift and carry twenty
pounds occasionally and ten pounds frequently; stand or walk for six out of eight hours; and sit for
six out of eight hours; she can occasionally climb stairs, balance, stoop, kneel, crouch, and crawl
but cannot climb ladders; she required the option to sit or stand at will without leaving the
workstation; she cannot have concentrated exposure to temperature extremes, respiratory irritants,
vibration, or hazards; she is limited to simple, routine tasks and occasional contact with
supervisors, coworkers, and the public; restricted to low stress work defined as occasional decision
making and occasional changes in work setting (Tr. 184-85).
ALJ Hellums, in determining Plaintiff’s new RFC, found that “new and additional evidence
that provides a basis for a different finding” was present in the new application (Tr. 28).
“Specifically, [ALJ Hellums found] that the mild findings on physical examination . . . do not
9
support the balancing, vibration, or sit/stand limitation given by [ALJ Diamond]” (Id.).
Additionally, Plaintiff’s knee and radiculopathy supported limitations on the use of foot controls
(Id.). Throughout the paragraph distinguishing from ALJ Diamond’s opinion, ALJ Hellums cited
no exhibits or evidence, except for citing ALJ Diamond’s decision in preface (Id.).
At issue, then, is whether there was new and material evidence that substantiates a
deviation from ALJ Diamond’s determination regarding the balance, vibration, and sit/stand
limitations, as well as the foot control limitations. Upon first review of the relevant limitations,
ALJ Diamond’s RFC determination had the following limitations: Plaintiff can stand or walk for
six out of eight hours; she can sit for six out of eight hours; she can occasionally balance; she
requires the option to sit or stand at will without leaving the workstation; and she must avoid
concentrated exposure to vibration (Tr. 185). There were no limitations on foot controls, and
there were no discussions in ALJ Diamond’s opinion regarding balance or foot controls (Tr. 18490). In contrast, ALJ Hellums’ RFC determination implemented only one relevant functional
limitation: Plaintiff can occasionally use foot controls with the bilateral lower extremities (Tr. 25).
ALJ Hellums did not impose any limitations on balance, vibration, or sitting and standing (Id.).
In ALJ Diamond’s report, she utilized the following information to craft the
aforementioned RFC limitations: Plaintiff’s testimony that she cannot stand because of back pain
and numbness in her feet, as well as her ability to only sit and stand for ten minutes at a time; an
August 2014 report of intense pain radiating down Plaintiff’s back and into her hips, which
worsens with prolonged sitting or standing; a September 2014 report noting “a waddling gait” and
an inability to sit down or stand still due to back pain, and the abnormal gait was documented again
in March 2015; a November 2014 report “alleg[ing] that she has back pain with radiation through
10
her legs, and stated that prolonged standing brings her to tears”; a February 2015 knee x-ray which
documented little left knee degeneration after a July 2014 arthroscopy and chondroplasty surgery;
in May 2015, Plaintiff had “bilateral leg edema . . . further suggesting vascular complications”; a
January 2016 report noting guarded movements between sitting and standing with a limited range
of motion in her lumbar spine; and Plaintiff’s conflicting reports of whether she uses a cane for
ambulatory assistance (Tr. 185-88). 2 These reports assisted in the crafting of the limitations
related to alternating between sitting and standing, as well as the avoidance of vibration (Id.).
However, ALJ Diamond’s report does not explicitly mention any reports which would influence
the balance limitation, and ALJ Diamond never discussed any limitations, reports, or notations
regarding foot controls (Tr. 182-92).
Included in the opinion weighing was the opinion of State agency medical consultant Dr.
Diosdado Irlandez, M.D., who was awarded considerable weight, and Dr. Irlandez asserted, among
other conclusions, that Plaintiff should avoid concentrated exposure to vibration, and Plaintiff is
able to “stand or walk up to six hours out of an eight-hour day, and sit up to six hours out of an
eight-hour day” (Tr. 189). ALJ Diamond noted that Dr. Irlandez rendered his opinion prior to
documentation that described restrictions to thirty percent of normal lumbar range of motion (Id.).
Additionally, ALJ Diamond awarded some weight to the functional opinion of Plaintiff’s motherin-law, where Plaintiff’s mother-in-law stated that Plaintiff had difficulty walking due to leg and
foot swelling, can walk no more than four or five feet before resting, and requires crutches to walk
(Tr. 190).
2
In ALJ Diamond’s opinion, she explicitly cites to the medical documentation in the record before her. However,
as that record pagination may have changed since ALJ Diamond’s report, the undersigned has omitted the
citations to avoid confusion of the exhibits in this record.
11
Before ALJ Hellums was over one thousand pages of documentation, detailing the various
medical visits, results, notations, and opinions.
In his determination, ALJ Hellums clearly
remarked, “While physical examination shows some decreased range of motion in the lumbar
spine and occasional wheezing, routine findings are largely normal: normal gait, intact strength,
intact sensation, normal joint range of motion, and full chest expansion” (Tr. 26) (citing B22F,
B23F, B28F, B30F, B34F). Additionally, the EMG/NCV of the lower extremities was normal
(Id. citing B27F), the interpretation noted that the lumbar spine, hip, and knee active ranges of
motion were normal, and Plaintiff’s gait was normal (Tr. 1187-91). Next, ALJ Hellums remarked
that Plaintiff’s allegations regarding her impairments were not supported by the radiographic
evidence, specifically the MRI of the lumbar spine revealing mild hypertrophic changes, moderate
left paracentral disc herniation, and moderate degenerative changes (Tr. 26). This lack of support
was also due to the imaging of Plaintiff’s knee showing only mild degenerative change (Id.).
Another consideration was the conservative and limited treatment to Plaintiff’s physical
impairments (Id.). Additionally, ALJ Hellums articulated that Plaintiff was classified as morbidly
obese, which may impose limitations on sitting, standing, walking, lifting, carrying, pushing,
pulling, climbing, balance, stooping, and crouching, but ALJ Hellums noted that Plaintiff’s
“obesity was adequately accommodated with the light residual functional capacity” (Tr. 26-27).
As discussed in more depth below, ALJ Hellums awarded little weight to Nurse Sheffield’s
opinion, stating the limitations noted were extreme compared to all other opinions in the record
(Tr. 29). As for the functional report by Plaintiff’s aunt, it was awarded little weight due to
infrequency of visitation to observe Plaintiff’s impairments, the consideration of whether
Plaintiff’s aunt could be objective, and that Plaintiff’s aunt not being a medical professional (Id.).
12
While only awarded “some weight”, ALJ Hellums considered the state agency nonexamining consultants, who found mild limitations, and remarked that Plaintiff could sit or stand
and walk for six hours out of an eight-hour work day, but should avoid concentrated exposure to
vibration (Tr. 29); see also (Tr. 211, 225-26). Surprisingly, Dr. Sadler, the State agency nonexamining consultant from the reconsideration stage, remarked that the “[n]ew evidence does not
indicate significantly different limitations than assigned in 2/2/16 ALJ [Diamond’s] decision”
(Tr. 227). Dr. Sadler indicated that Drummond and AR 98-4(6) may apply (Tr. 228-29).
However, when comparing ALJ Diamond’s determination with ALJ Hellums’ opinion, as
well as the evidence in the record, ALJ Hellums’ decision and explanation that “new and additional
evidence” was present to craft a new RFC was proper. There were several examinations that
displayed normal results, and those that didn’t were properly accounted for in the RFC
determination, specifically the knee pain, the left-sided radiculopathy, and the bilateral neuropathy
of the feet (Tr. 27). The evidence of the radiculopathy and the bilateral neuropathy both provided
a foundation for the limitation requiring occasional use of foot controls (Tr. 27-28).
Substantial evidence exists in the record to support this determination, as discussed above.
Therefore, the undersigned finds that ALJ Hellums’ opinion comports with applicable law when
deviating from ALJ Diamond’s determination, and Plaintiff is not entitled to relief.
Challenge to ALJ Hellums’ RFC Determination
1. Arguments of the Parties
In tandem to the Drummond challenge, Plaintiff claims “[t]he ALJ fails to consider
evidence of Chris Taleghani, M.D., of May 18, 2017 indicating antalgic gait” and “[t]he ALJ was
wrong to reject the sit/stand at will option, avoid concentrated exposure to vibration, and
13
occasional balance restrictions identified in the prior ALJ decision” (DN 16 PageID 1456) (citing
Tr. 225-27, 1376). Further, Plaintiff asserts that “the ALJ fails to give proper consideration to the
opinions of APRN Sheffield regarding physical and mental limitations” (Id. at PageID 1457)
(citing Tr. 1367-70, 1372-73). Finally, “the ALJ fails to consider evidence indicating a worsening
in mental state since the prior ALJ decisions” (Id.).
The United States instead argues that “[t]he ALJ took into account that Plaintiff’s treatment
for her physical conditions had been conservative and limited in nature” (DN 19 PageID 1473).
Turning to the mental impairments and limitations, Defendant claims ALJ Hellums properly
considered the diagnoses, complaints, and medical notes, as well as the conservative treatment
history (Id. at PageID 1474). As for information that was not explicitly discussed by ALJ
Hellums, Defendant claims that ALJ Hellums was not required to “discuss every piece of
evidence” (Id. at PageID 1476) (citing Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 508
(6th Cir. 2006)). Defendant also disputes Plaintiff’s theory that the diagnostic evidence supported
the claim that the back impairment was worsening, not improving (Id.). Defendant argues that
ALJ Hellums properly considered all the evidence in the record, and even if there is support for
greater limitations, the existence of that evidence does not make ALJ Hellums’ determination
unsupported by substantial evidence (Id. at PageID 1476-77).
2. Discussion
As discussed earlier in this opinion (supra pp. 7-8), the RFC finding is the Administrative
Law Judge’s ultimate determination of what a claimant can still do despite her physical and mental
limitations. 20 C.F.R. §§ 416.945(a), 416.946(c). The Administrative Law Judge makes this
finding based on a consideration of medical source statements and all other evidence in the case
14
record. 20 C.F.R. §§ 416.929, 416.945(a), 416.946(c). Thus, in making the RFC finding, the
Administrative Law Judge must necessarily assign weight to the medical source statements in the
record and assess the claimant’s subjective allegations. 20 C.F.R. §§ 416.927(c), 416.929(a).
While opinions from treating and examining sources are considered on the issue of RFC, the
Administrative Law Judge is responsible for making that determination. 20 C.F.R. § 416.927(d).
There is a difference between a medical opinion and an RFC Assessment prepared by the
Administrative Law Judge. The medical opinion is submitted by a medical source and expresses
impairment-related functional limitations.
20 C.F.R. §§ 416.913(a)(2), 416.927(a)(1).
By
contrast, the RFC Assessment is the Administrative Law Judge’s ultimate finding of what the
claimant can still do despite her limitations. 20 C.F.R. §§ 416.945(a), 416.946.
In assessing a claimant’s RFC, the Administrative Law Judge must necessarily consider
the subjective allegations of the claimant and make findings. 20 C.F.R. §, 416.929; SSR 16-3p.
A claimant's statement that he/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/or
other symptoms alleged. 20 C.F.R. § 416.929(a). In determining whether a claimant suffers
from debilitating pain and/or 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. If there is, then 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
15
expected to produce the alleged disabling pain." Id. When, as in this case, the reported pain
and/or other 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. § 416.929(c)(3).
The frequency that Plaintiff has sought treatment for impairments is a factor that may be
considered in assessing her subjective complaints. 20 C.F.R. § 416.929(c)(3)(v). Another factor
that may be considered is whether there are "any inconsistencies in the evidence and the extent to
which there are any conflicts between [Plaintiff’s] statements and the rest of the evidence . . . ".
20 C.F.R. § 416.929(c)(4). Additionally, the medication used to alleviate the alleged pain or other
symptoms may also be considered.
20 C.F.R. § 416.929(c)(3)(iv).
Mild medication and
infrequency of dosages taken by the claimant do not bear out claims of debilitating pain. See
Maher v. Sec’y of Health & Human Servs., 898 F.2d 1106, 1109 (6th Cir. 1989).
Finally, as this application was filed prior to March 27, 2017, the law is well established
regarding the use of medical opinions and acceptable medical sources. 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. § 416.927(a). 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. §§ 416.913(a), 416.927(a). The regulations
do not classify nurse practitioners as “acceptable medical sources.” 20 C.F.R. § 416.902(a)(7).
16
In the present case, Plaintiff argues that ALJ Hellums failed to properly consider Dr. Chris
Taleghani’s report, including a notation of antalgic gait (DN 16 PageID 1456).
However,
ALJ Hellums cites to Dr. Taleghani’s report (listed as Exhibit B34F) when discussing that Plaintiff
“treats her hypertension and high cholesterol with maintenance medication with little to no
resultant symptomology” and when stating, “While physical examination shows some decreased
range of motion in the lumbar spine and occasional wheezing, routine findings are largely normal:
normal gait, intact strength, intact sensation, normal joint range of motion, and full chest
expansion” (Tr. 22, 26). Additionally, Dr. Taleghani stated that he thought Plaintiff “need[ed] to
complete physical therapy, [and . . .] obtain an EMG of the lower extremities” (Tr. 1376). Plaintiff
did obtain an EMG, and ALJ Hellums noted that the results were normal (Tr. 26) (citing Tr.
1187-91). Therefore, ALJ Hellums appropriately considered Dr. Taleghani’s documentation.
Nurse Sheffield, as noted above, was not considered an acceptable medical source at the
time the application was filed. 20 C.F.R. §§ 416.902(a)(7)., 416.927. As ALJ Hellums explicitly
explained, Nurse Sheffield was awarded little weight as she was not an acceptable medical source
and “[t]he physical and mental limitations provided are extreme in comparison to the . . . mild
findings on both physical and mental examination” (Tr. 29). In her report, Nurse Sheffield stated
that Plaintiff could sit, stand, and walk less than two hours per eight-hour work day, that Plaintiff
needed a ten minute walk every ten to fifteen minutes, that Plaintiff must spent at least half of an
eight-hour work day with her legs elevated above her heart, and that Plaintiff cannot sit in the same
position for more than five to ten minutes (Tr. 1368-70). As for the mental health notations, ALJ
Hellums properly noted that Nurse Sheffield is not a mental health professional and awarded little
weight to her opinion as a whole (Tr. 29).
17
Finally, ALJ Hellums, at step three of the process, considered Listings 12.04 and 12.06,
which pertain to Plaintiff’s mental impairments (Tr. 23). ALJ Hellums echoed the opinions of
the State agency consultants, who found mild limitations in the paragraph “B” criteria for these
listings (Tr. 23-25); see also (Tr. 208, 223). Further, ALJ Hellums discussed the diagnoses of
depression and anxiety, but state that “[m]ental status examination does not fully corroborate the
claimant’s allegations. Treatment records note a flat/depressed affect and mild anxiety, but do
not record any significant psychological abnormalities on examination” (Tr. 27). Additionally,
ALJ Hellums remarked that Plaintiff’s mental health treatment “has been conservative and limited
to antidepressant medication and counseling. . . . There have been no inpatient admissions” (Id.).
Therefore, the undersigned finds that ALJ Hellums comported with applicable law, and his
determination is supported by substantial evidence.
ALJ Hellums properly considered the
opinions of Dr. Taleghani and Nurse Sheffield, as well as fully analyzing and discussing Plaintiff’s
mental impairments. As such, Plaintiff is awarded no relief under this challenge.
Challenge to Finding No. 9
1. Arguments of the Parties
Plaintiff’s last challenge to ALJ Hellums’ determination, stemming from the RFC
challenge above, is the claim that ALJ Hellums’ reliance upon the vocational expert’s testimony
was erroneous, due to an improper RFC (DN 16 PageID 1458-59). Taking Plaintiff’s Finding
No. 4 argument as correct, arguendo, then ALJ Hellums’ hypothetical questioning posed to the
vocational expert would not have been applicable to someone with Plaintiff’s “appropriate” RFC
(Id.); see also Varley v. Sec. of Health & Hum. Servs., 820 F.2d 777, 779 (6th Cir. 1987).
18
In response to this argument, Defendant claims, “Because the ALJ did not err in assessing
Plaintiff’s RFC [. . .], the ALJ properly relied on the vocational expert’s testimony in response to
a hypothetical question that indicated the RFC limitations that he ultimately assessed in order to
find that Plaintiff could perform a significant number of jobs in the economy, and thus, was not
disabled” (DN 19 PageID 1482).
2. Discussion
At the fifth step of the sequential analysis, a vocational expert's testimony must be based
on a hypothetical question which accurately portrays the claimant's physical and mental
impairments. Varley, 820 F.2d at 779. A hypothetical question is not erroneous where at least
one doctor substantiates the information contained therein. Hardaway v. Sec’y of Health & Hum.
Servs., 823 F.2d 922, 927-28 (6th Cir. 1987) (per curiam). Furthermore, there is no requirement
that the ALJ's hypothetical question to the vocational expert reflect the claimant's unsubstantiated
complaints. David v. Sec’y of Health & Hum. Servs., 915 F.2d 186, 189 (6th Cir. 1990). It is
the Commissioner’s job to evaluate the trustworthiness of the vocational expert's testimony. Sias
v. Sec’y of Health & Human Servs., 861 F.2d 475, 480 (6th Cir. 1988) (per curiam). A vocational
expert's testimony can constitute substantial evidence to support the ALJ’s finding that a plaintiff
is capable of performing a significant number of jobs existing in the local, regional, and national
economies, Bradford v. Sec’y, Dep't. of Health & Hum. Servs., 803 F.2d 871, 874 (6th Cir. 1986)
(per curiam), so long as the vocational expert's testimony is based on a hypothetical question which
accurately portrays the plaintiff's physical and mental impairments. Varley, 820 F.2d at 779.
19
As described above, ALJ Hellums’ RFC determination was supported by substantial
evidence. Supra pp. 13-14, 18. Thus, the questioning posed to the vocational expert was proper,
and the responses regarding occupations and limitations is supported by substantial evidence.
Therefore, Plaintiff’s argument is unpersuasive.
Conclusion
As the Court noted previously, “[a]s long as substantial evidence supports the
Commissioner’s decision, we must defer to it, even if there is substantial evidence in the record
that would have supported an opposite conclusion.” Warner v. Comm’r of Soc. Sec., 375 F.3d
387, 390 (6th Cir. 2004). Regardless of how this Court may view the evidence, it is not this
Court’s place to re-try or re-evaluate the findings of ALJ Hellums. 42 U.S.C. § 405(g). Rather,
this Court is only to find if substantial evidence exists to support the ALJ’s decision and if ALJ
Hellums followed the applicable law. (Id.). After reviewing the record, the Court concludes that
the ALJ’s determination is supported by substantial evidence in the record and correctly followed
the applicable law. Therefore, Plaintiff is not entitled to relief with regard to her challenge.
20
ORDER
IT IS HEREBY ORDERED that the final decision of the Commissioner is AFFIRMED.
IT IS FURTHER ORDERED that judgment is GRANTED for the Commissioner.
March 31, 2021
Copies:
Counsel of Record
21
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