Taylor v. Commissioner of Social Security-

Filing 20

MEMORANDUM AND OPINION & ORDER by Magistrate Judge Dave Whalin on 1/9/2018; 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.cc:counsel (ARM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:17CV-00200-DW
QUINCY TAYLOR

PLAINTIFF

VS.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION
AND ORDER
The Commissioner of Social Security denied Quincy Taylor’s (“Taylor”) application for
supplemental security income benefits. Taylor seeks judicial review of the Commissioner’s
decision pursuant to 42 U.S.C. § 405(g). Both Taylor (DN 15) and the Commissioner (DN 18)
have filed a Fact and Law Summary. The parties have consented, under 28 U.S.C. § 636(c) and
Fed. R. Civ. P. 73, 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 14).

FINDINGS OF FACT
Quincy Taylor is 46 years old and lives in an apartment in Louisville, Kentucky. (Tr. 39).
Taylor was in special education classes in high school, has been in and out of custody for years,
and has only held temporary jobs, each lasting no more than a month. (Tr. 40, 51). According to
Taylor, he has trouble walking, standing, and sitting because of pinched nerves in his shoulder (Tr.
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42) and rods in his leg that were inserted during a surgery on his ACL (Tr. 46-47). Taylor also
states he has trouble being in large groups of people, cannot watch television, and has occasional
issues with seeing things and hearing things. (Tr. 53-54).
Taylor applied for supplemental security income benefits (“SSI”) under Title XVI,
claiming he became disabled on February 12, 2015 (Tr. 196), as a result of depression, chronic
depressive disorder NOS, knee problems, muscle pain, and arthritis (Tr. 215). His application was
denied initially (Tr. 79) and again on reconsideration (Tr. 95). Administrative Law Judge William
C. Zuber (“ALJ Zuber”) conducted a hearing in Louisville, Kentucky, on October 17, 2016. (Tr.
35-36). Taylor attended the hearing with his attorney. (Id.). An impartial vocational expert also
testified at the hearing. (Id.). The ALJ issued an unfavorable decision on November 19, 2016. (Tr.
28).
The ALJ applied the traditional five-step sequential analysis promulgated by the
Commissioner, 20 C.F.R. § 404.1520, Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 855 (6th Cir.
2010), and found as follows. First, Taylor has not engaged in substantial gainful activity since May
14, 2015, the application date. (Tr. 18). Second, Taylor has the severe impairments of
“degenerative disc disease of the lumbar spine, degenerative joint disease in the right knee and
right shoulder, depression, and history of polysubstance abuse in remission.” (Id.). Third, none of
Taylor’s impairments or combination of impairments meets or medically equals the severity of a
listed impairment from 20 C.F.R. Pt. 404, Subpt. P, App’x 1. (Id.). Fourth, Taylor has the residual
functional capacity to perform “less than a full range of light work” and is limited to:
simple, routine 1-3 step tasks that are non-fast paced or quota driven. He should be
afforded the option to sit and/or stand every 30-45 minutes. He is able to
occasionally climb ramps/stairs, stoop, crouch, crawl and kneel. He should avoid
climbing ladders, ropes, and scaffolds. He is able to occasionally perform overhead
reaching and occasional pushing and pulling with the right lower extremity. He is
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able to occasionally interact with coworkers and supervisors but should avoid
contact with the general public. Any changes in the work routine should be rare and
gradually introduced. He is able to sustain concentration, persistence and pace for
2-hour periods of time.
(Tr. 20). Additionally, Taylor has no past relevant work to consider. (Tr. 27). Fifth and finally,
considering Taylor’s age, education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy that he can perform.
Taylor appealed the ALJ’s decision. (Tr. 11). The Appeals Council declined review. (Tr.
1). At that point, the denial became the final decision of the Commissioner, and Taylor appealed to
this Court. (DN 1).

CONCLUSIONS OF LAW
A. Standard of Review
When reviewing the Administrative Law Judge’s decision to deny disability benefits, the
Court may “not try the case de novo, nor resolve conflicts in the evidence, nor decide questions of
credibility.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citations
omitted). Instead, the Court’s review of the Administrative Law Judge’s decision is limited to an
inquiry as to whether the Administrative Law Judge’s findings were supported by substantial
evidence, 42 U.S.C. § 405(g); Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (citations
omitted), and whether the Administrative Law Judge employed the proper legal standards in
reaching his conclusion. See 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 v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993).
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B. Analysis
1. ALJ Zuber’s Step Three Analysis
Taylor first asserts that ALJ Zuber erred in finding that he did not meet or equal any listed
impairment from 20 C.F.R. Pt. 404, Subpt. P, App’x 1. (DN 15, at p. 8). He believes it was error
because even when he is not hearing voices, “he is easily distracted, per his medical records,” but
ALJ Zuber did not address this in his evaluation of the listings. (Id.). The Commissioner responds
that Taylor has waived this argument by failing to develop it. (DN 18, at p. 4). Even if Taylor had
not waived the argument, the Commissioner explains there is no indication that Taylor’s
distractibility causes any additional limitation beyond those recognized by ALJ Zuber in
evaluating the listings. (Id.).
The Court agrees with the Commissioner that Taylor’s argument is sparse and
undeveloped. He neither identifies a specific listing under which ALJ Zuber should have
considered his distractibility nor cites to specific medical records describing such distractibility.
Because Taylor adverted to this issue in a “perfunctory manner, unaccompanied by some effort at
developed argumentation,” the Court deems this argument waived. McPherson v. Kelsey, 125 F.3d
989, 995-96 (6th Cir. 1997). Yet even if Taylor had developed his argument, the outcome would
remain the same. ALJ Zuber thoroughly evaluated Listings 12.02, 12.04, and 12.09, all of which
deal with mental impairments. In evaluating the Paragraph B criteria for these Listings, ALJ Zuber
clearly considered Taylor’s distractibility in concluding that Taylor has “moderate difficulties”
with regard to concentration, persistence, or pace and that he would “not be best suited for detailed
or complex work tasks in a pressured setting.” (Tr. 20). ALJ Zuber’s findings at Step Three,
accordingly, are supported by substantial evidence in the record and comply with the applicable
regulations.
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2. ALJ Zuber’s Residual Functional Capacity Determination
Taylor next argues that ALJ Zuber committed error by failing to follow the treating
physician rule from 20 C.F.R. § 404.1572 and Social Security Ruling 96-2p. (DN 15, at p. 8).
Taylor believes he had a treating relationship with his doctors at Jewish Hospital, University of
Louisville Hospital, Seven Counties Services, and Amin Family Practice because these physicians
treated him “for the entire time of alleged disability in this case.” (Id. at p. 9). According to Taylor,
ALJ Zuber did not determine whether these treating opinions were entitled to controlling weight
and instead improperly relied on the State agency consultant opinions and improperly discussed
and discounted the treating physician’s Global Assessment of Functioning (“GAF”) scores. (Id. at
pp. 10-11). In response, the Commissioner explains that none of Taylor’s alleged treating
physicians completed medical opinions for ALJ Zuber to weigh. (DN 18, at p. 5). Because there
were no treating physician opinions in the record, the Commissioner feels ALJ Zuber did not
commit error by adopting portions of the state agency consultant opinions or by discussing the
GAF scores in the record. (Id. at p. 6).
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. The Administrative Law Judge bases his RFC finding on a review of the record as a
whole, including a claimant’s credible testimony and the opinions from a claimant’s medical
sources. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The source of a medical opinion dictates the
process by which the Administrative Law judge gives it weight. Gayheart v. Comm’r of Soc. Sec.,
710 F.3d 365, 376 (6th Cir. 2013). Treating sources must be given controlling weight if their
opinion is “well supported by medically accepted clinical and laboratory diagnostic techniques”
and is “not inconsistent with other substantial evidence” in the claimant’s case record. 20 C.F.R. §
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404.1527(c)(2); Gayheart, 710 F.3d at 376. If the Administrative Law Judge determines a treating
source’s opinion should not receive controlling weight, he must apply factors from the regulations
to determine the appropriate weight to assign the opinion, see 20 C.F.R. § 404.1527(c)(2)(i)-(ii),
(c)(3)-(5); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004), and must provide
“good reasons” for the weight being assigned to the treating source opinion, 20 C.F.R. §
404.1527(c)(2); Gayheart, 710 F.3d at 376. But when a treating physician does not make a medical
judgment about the nature and severity of the claimant’s impairments, the Administrative Law
Judge has no duty to give the physician’s observations or treatment records controlling weight or
provide good reasons for not doing so. Bass v. McMahon, 499 F.3d 506, 510 (6th Cir. 2007).
First, the Commissioner is correct that there were no treating physician opinions included
in Taylor’s record. While Taylor did treat periodically at Jewish Hospital, University of Louisville
Hospital, Seven Counties Services, and Amin Family Practice, the records from these providers
consist solely of treatment records and testing/imaging results. ALJ Zuber, as a result, was not
required to afford controlling weight to these records, when no physician from these providers
submitted an opinion featuring medical judgments as to the nature and severity of Taylor’s
impairments. See Bass, 499 F.3d at 510. Taylor’s argument in this respect is meritless.
Additionally, the Court does not find error in ALJ Zuber’s evaluation of the State agency
consultant opinions. The regulations provide that “State agency medical or psychological
consultants are highly qualified and experts in Social Security disability evaluation.” 20 C.F.R. §
416.913a(b)(1); see also Soc. Sec. Ruling 96-6p, 1996 WL 374180, at *2; Miller v. Comm’r of
Soc. Sec., 811 F.3d 825, 834 (6th Cir. 2016). Administrative Law Judges are not bound by State
agency consultant opinions but “they may not ignore these opinions and must explain the weight
given to the opinions in their decisions.” SSR 96-6P, at *2.
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Here, before discussing the non-examining state agency consultant opinions, ALJ Zuber
afforded partial weight to the consultative examination opinion of Dr. Carter. ALJ Zuber explained
that he agreed with Dr. Carter that Taylor could sit, stand, or walk throughout an 8-hour work day
but stated that recent MRI findings and Taylor’s history of right anterior ligament repair lend
support for a stand/sit option. (Tr. 26). ALJ Zuber also explained that these findings support
restrictions beyond Dr. Carter’s opinion, including difficulty in climbing ladders, ropes and
scaffolds, performing more than occasional postural actions, and pushing and pulling with the
right lower extremity. (Id.). ALJ Zuber then went on to discuss the State agency consultant
opinions. As to Dr. Sadler, the State agency medical consultant, ALJ Zuber declined to “wholly
accept” her opinion because she appeared to base her conclusion that Taylor “remained capable of
performing a range of medium work exertion” on Dr. Carter’s consultative exam and opinions,
which ALJ Zuber previously afforded only partial weight. (Id.). ALJ Zuber stated that he “finds
the evidence supportive of a greater degree of functional limitation that [sic] either Dr. Carter or
Dr. Sadler have assessed.”1 (Id.).
Taylor specifically takes issue with ALJ Zuber’s reliance “on the [S]tate agency
consultants, to discount the evidence of the treating sources, even when some of [sic] conclusions
by the consultants he discounted.” (DN 15, at p. 10). Taylor goes on to argue that “[t]he ALJ states
that he does not wholly accept the consultative examination findings of Dr. Sadler, but still uses
part of those conclusions to undercut the Claimant’s treating providers.” (Id.). Taylor’s arguments
confuse the titles and roles of the physicians that offered opinions in his case. Dr. Carter completed

1 Taylor does not appear to challenge ALJ Zuber’s acceptance of the State agency psychological consultants’
opinions at Exs 2A and 4A as “very much consistent with the objective record, the claimant’s clinical presentations
and demonstrated functioning, and his self-described activities of daily living.” (Tr. 26-27).

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an in-person consultative examination of Taylor on August 15, 2015 (Tr. 319-22); whereas, Dr.
Sadler, as a State agency physician, only reviewed Taylor’s record before rendering her opinion on
January 19, 2016 (Tr. 90-92). Dr. Sadler, accordingly, did not offer consultative examination
findings as Taylor alleges. Moreover, Taylor does not identify what conclusions of Dr. Sadler and
Dr. Carter “undercut” the evidence provided by his treating providers.
Taylor’s argument also does not succeed because, as described above, ALJ Zuber declined
to wholly accept Dr. Sadler’s opinion since “the evidence as a whole” does not support that Taylor
can withstand the lifting and carrying physical demands of medium work as opined by Dr. Sadler
and by consultative examiner Dr. Carter. (Tr. 26). In other words, ALJ Zuber gave both Dr.
Sadler’s State agency opinion and Dr. Carter’s consultative examination opinion only partial
weight because he assessed a more restrictive RFC than either physician. If anything, ALJ Zuber’s
decision to afford partial weight to the opinions of Dr. Sadler and Dr. Carter benefitted Taylor’s
case and, therefore, does not constitute error. See Mosed v. Comm’r of Soc. Sec., No.
2:14-cv-14357, 2016 WL 6211288, at *7 (E.D. Mich. Jan. 22, 2016) (claimant’s “argument that
the ALJ erred in assessing a more restrictive RFC than that opined by the State agency consultants
is curious and unavailing”) (citing Warren v. Comm’r of Soc. Sec., No. 13-cv-13523, 2014 WL
3708565, at *4 (E.D. Mich. July 28, 2014) (affirming the ALJ’s RFC as supported by substantial
evidence, in part because the ALJ assessed a more restrictive RFC than that opined by the
claimant’s physicians)). The Court finds ALJ Zuber’s decision to afford partial weight to the
opinions of Dr. Carter and Dr. Sadler is supported by substantial evidence in the record.
Lastly, the Court is unpersuaded by Taylor’s assertion that ALJ Zuber’s consideration of
Taylor’s GAF scores as part of the RFC determination was an error of law. (DN 15, at pp. 11-12).
A GAF rating is considered opinion evidence, meaning the extent to which an adjudicator can rely
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on the GAF rating as a measure of impairment severity and mental functioning depends on
whether the GAF rating is consistent with other evidence, how familiar the rater is with the
claimant, and the rater’s expertise. See Soc. Sec. Admin., Global Assessment of Functioning
(GAF) Evidence in Disability Adjudication, AM-13066 (July 22, 2013) REV (Oct. 14, 2014).
Here, ALJ Zuber mentioned the two GAF scores of 34 from Seven Counties Services, where
Taylor received “some outpatient counseling” since February of 2015. (Tr. 24, 26). ALJ Zuber
recognized that although Taylor’s GAF score of 34 is indicative of major impairment in many
areas according to the DSM-IV, “this degree of functioning is both inconsistent with the claimant’s
demonstrated clinical presentations, assessed diagnoses, and limited treatment notable for an
absence of psychiatric admission or crisis intervention.” (Tr. 24). Based on AM-13066 it was
appropriate for ALJ Zuber to mention Taylor’s GAF scores from Seven Counties Services and to
discount such scores by describing in detail how the scores were inconsistent with the other
evidence in Taylor’s record. The Court finds no error with respect to ALJ Zuber discussing
Taylor’s GAF scores and finds his RFC determination is supported by substantial evidence in this
respect.

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.

Copies:

Counsel

January 9, 2018

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