Hart v. Commissioner of Social Security

Filing 35

MEMORANDUM OPINION & ORDER by Magistrate Judge H. Brent Brennenstuhl on 3/7/2016: 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, Aaron Hart (pro se) (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:14CV-00009-HBB

AARON JOSEPH HART

PLAINTIFF

VS.

CAROLYN W. COLVIN, Acting
Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION
AND ORDER
BACKGROUND
The Commissioner of Social Security denied Aaron Joseph Hart’s application for
supplemental security income benefits.

Hart seeks judicial review of the Commissioner’s

decision pursuant to 42 U.S.C. § 405(g). Hart, proceeding pro se (DN 26), and the Commissioner
(DN 32) 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 12).

FINDINGS OF FACT
Aaron Joseph Hart (“Hart”) is 38-years-old, has his G.E.D., and lives in an apartment with
his mother in Madisonville, Kentucky (Tr. 32, 39). Although Hart testified to doing construction
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work and raking a few yards, he has no past relevant work (Tr. 44). Hart says he doesn’t get out a
lot, but if his mom gives him gas money he goes to the store, hunts a rock formation, or visits his
daughter (Tr. 41).
Hart applied for Supplemental Security Income benefits (“SSI”) claiming that he became
disabled on March 1, 2011, as a result of his “back, kidney, mva: head/dizziness, [and] hand” (Tr.
285). His application was denied initially and again on reconsideration (Tr. 57, 67). On May 21,
2013, Administrative Law Judge Mary S. Lassy (“ALJ Lassy”) conducted a video hearing in
Paducah, Kentucky (Tr. 73). Hart attended the hearing from Madisonville, Kentucky, and
represented himself (Tr. 73). Stephanie Barnes, an impartial vocational expert also appeared at
the hearing (Tr. 73). Almost three months later, ALJ Lassy held a supplemental video hearing at
Hart’s request (Tr. 73). The ALJ issued an unfavorable decision on September 13, 2013 (Tr. 80).
Hart appealed the ALJ’s decision, but the Appeals Council declined review (Tr. 87). As a
result, Hart appealed to this Court (DN 1). The Commissioner moved for voluntary remand of the
case under sentence six of 42 U.S.C. § 405(g) because the recording of Hart’s supplemental
administrative hearing was incomplete (DN 10, at p. 1). This Court granted the Commissioner’s
motion, finding that without the transcript of the hearing, it was unable to conduct a thorough
review of the case (DN 15, at p. 5).
On June 2, 2015, ALJ Lassy held a new hearing in Paducah, Kentucky (Tr. 30). Hart
appeared in person and again represented himself (Tr. 30). Dr. Kalb, a medical expert, and Ms.
Bose, an impartial vocational expert, also appeared at the hearing (Tr. 28). ALJ Lassy issued a
new decision on July 2, 2015, again denying Hart’s SSI application (Tr. 18).
ALJ Lassy 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.
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2010), and found as follows. First, Hart has not engaged in substantial gainful activity since April
27, 2011, his application date (Tr. 10). Second, Hart has the severe impairments of “a mood
disorder and spondylolisthesis at L5, grade 1 with low back pain” (Tr. 11). Third, none of Hart’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 (Tr. 13). Fourth, Hart has the residual
functional capacity (“RFC”) to perform light work with the following limitations:
He should never climb ladders, ropes or scaffolds and should avoid
concentrated exposure to hazardous machinery, heights and
vibration. The claimant should not interact with the general public
and have only occasional interaction with coworkers and
supervisors. He can adapt to stress in an object-oriented work
settings.
(Tr. 14). Additionally, Hart has no past relevant work to consider (Tr. 16). Fifth and finally,
considering Hart’s age, education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy that he can perform (Tr. 17).
Hart again appealed the ALJ’s decision, but the Appeals Council declined review (Tr. 1).
At that point, the denial became the final decision of the Commissioner. After the proceedings on
remand concluded, the Commissioner moved to restore the case to the active docket (DN 20),
which this Court granted (DN 23).

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)
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(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 her 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).
B. Hart’s Claims
Hart is proceeding pro se in this appeal. Pro se documents are to be liberally construed,
and Hart’s Fact and Law Summary will be so construed. See Erickson v. Pardus, 551 U.S. 89, 95,
127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007). After reviewing Hart’s Fact and Law Summary, it
appears he is advancing three arguments.
1. Jodi Bauer’s Consultative Examination
First, Hart points to his daughter’s report to psychological consultant, Jodi Bauer, MA,
LLP, that “he is paranoid and hears voices” (DN 26, at pp. 1, 3). Hart states: “There is no audio
statement, nor a written signed statement, nor did the alleged person speak to the Administrative
Law Judge . . . [t]he statement is a dictation from Jodi Bauer LLC” (DN 26, at p. 3). Hart’s
argument regarding this evidence is unclear.
The Commissioner interprets that Hart is claiming the ALJ failed to consider this evidence
in considering his mental functioning (DN 32, at pp.5-6). If the Commissioner’s construal is
correct, Hart’s claim is meritless. ALJ Lassy explicitly stated in Finding No. 2 that “[a]lthough
his daughter indicated he was paranoid and had auditory hallucinations, the claimant denied
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current or previous mental health treatment” (Tr. 12). Further, the ALJ gave Jodi Bauer’s opinion
“partial weight,” and evaluated “the evidence in the most favorable manner” to Hart (Tr. 16). The
ALJ, accordingly, properly considered the evidence in Jodi Bauer’s report in evaluating Hart’s
mental impairments.
If Hart believes the ALJ improperly considered his daughter’s statement to Jodi Bauer, his
argument is similarly meritless.1 Although the ALJ ultimately did not find that Hart’s mental
impairments render him disabled, any evidence of his paranoia and hallucinations only served to
support his claim.

Regardless of which argument Hart attempted to make regarding his

daughter’s statement to Jodi Bauer, the undersigned finds the ALJ’s determination is supported by
substantial evidence and complies with the applicable law.
2. Neil Troffkin’s Treatment Records
Hart additionally points to evidence from Dr. Neil Troffkin’s treatment records (DN 26, at
p. 4). Specifically, Hart points to a record from April 21, 2011, stating “[Hart] is disabled” and “I
would not recommend surgical intervention at the current time” (Id. (citing Tr. 474, 476)).
Again, it is unclear what Hart is arguing in referencing this evidence.
The Commissioner indicates that Hart incorrectly attributes the April 2011 treatment
record to Neil Troffkin and explains that Jeremy Holman, PA-C, actually completed the portion of
the form that Hart references (DN 32, at p. 6). Either way, the Commissioner explains that Mr.
Holman’s statement that Hart is disabled is “not a medical finding, but merely a finding regarding
[Hart’s] social history” (Id.).

The Commissioner also notes that the ALJ was not required to give

1 After Hart’s daughter’s statement, Jodi Bauer noted that Hart ““does not feel these [statements] accurately represent
his current status” (Tr. 1074).

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Mr. Holman’s statement any special significance because it is an issue reserved to the
Commissioner (Id.).
Issues reserved to the Commissioner are findings that are dispositive of the case, or in other
words, “would direct the determination or decision of disability.” SSR 96-5P, 1996 WL 374183,
at *2 (citing 20 C.F.R. § 404.1527(e), 416.927). Even a treating source’s statement that is
dispositive of the case is not entitled to controlling weight or significance.

Id.

An

Administrative Law Judge is not bound by conclusory statements of doctors, “particularly where
they are unsupported by detailed objective criteria and documentation.” Kornecky v. Comm’r of
Soc. Sec., 167 F. App’x 496, 509 (6th Cir. 2006) (per curiam) (quoting Buxton v. Halter, 246 F.3d
762, 773 (6th Cir. 2001)).
The undersigned agrees Mr. Holman’s statement that Hart is disabled is an issue reserved
for the Commissioner that the ALJ was not bound to adopt. Moreover, the statement of disability
is located in a section titled “Social History,” rather than the “Assessment/Plan” section, which
means the statement is likely a subjective report from Hart (Tr. 476).
As for Neil Troffkin’s statement recommending against surgical intervention, the ALJ
appropriately considered it in making his RFC determination. The ALJ mentioned that surgical
intervention was not recommended for Hart as one of numerous factors that failed to corroborate
the severity of his spinal symptoms (Tr. 15). The undersigned finds no error relating to the ALJ’s
evaluation of Neil Troffkin and Jeremy Holman’s records.
3. Naghma S. Mufti’s Treatment Records
Hart notes that in October of 2015 he obtained medical records from Naghma S. Mufti,
M.D., dated from 2001-2005, which he submitted to the District Court (DN 26, at p. 4). Hart
claims he submitted these records at “his earliest convenience” (Id.). The Commissioner argues
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that Hart did not tender additional medical records in October of 2015, but, even if he had, he is not
entitled to a sentence six remand based on new evidence (DN 32, at p. 9).
A remand under “sentence six” of 42 U.S.C. § 405(g) allows for the consideration of
additional evidence only if the plaintiff demonstrates (1) the evidence is “new” and “material” and
(2) “good cause” for the failure to present the evidence to the Administrative Law Judge.
Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 276 (6th Cir. 2010) (citing Foster v. Halter, 279
F.3d 348, 357 (6th Cir. 2001)). “The party seeking a remand bears the burden of showing that
these two requirements are met.” Hollon ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477,
483 (6th Cir. 2006) (citing Foster, 279 F.3d at 357).
Here, Hart submitted medical records from Dr. Naghma S. Mufti to the Court at DN 19-1
on September 30, 2015. Unfortunately, the Administrative Law Judge does not base her decision
on case docket entries but rather on the Administrative Record.

As for the sentence six

requirements, Hart fails to demonstrate that the records are new and material. Dr. Mufti’s records
are from September and December of 2002, February and December of 2003, and January,
February, and March of 2005 (DN 19-1). The last of these treatment notes were rendered six
years prior to Hart’s alleged onset date of disability. These records additionally would not likely
change the ALJ’s decision. See Bass v. McMahon, 499 F.3d 506, 513 (6th Cir. 2007) (citing
Sizemore v. Sec’y of Health & Human Servs., 865 F.2d 709, 711 (6th Cir. 1988) (“Material
evidence is evidence that would likely change the Commissioner’s decision.”)). Although Dr.
Mufti’s records corroborate Hart’s lower back pain and spondylolisthesis at L5-S1 (DN 19-1, at p.
5), the records also indicate that Hart doesn’t care much about his pain (Id. at p. 8) and that Hart “is
able to tolerate the pain” (Id. at p. 9). Even if the ALJ had considered these records in her
determination, her decision would not likely have changed. Finally, Hart fails to prove “good
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cause” for failing to present this evidence to the ALJ, indicating only that he submitted it “at the
earliest convenience” (DN 26, at p. 4). As a result, the undersigned finds that a “sentence six”
remand to consider Dr. Mufti’s records is not warranted.

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:

Aaron Joseph Hart, pro se
Counsel

March 7, 2016

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