Sutton v. Commissioner of Social Security

Filing 21

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 2/20/2018: The decision of the Commissioner is AFFIRMED; Plaintiff's complaint 1 is DISMISSED WITH PREJUDICE. cc: counsel (JM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:17-CV-00055-HBB

ADAM WAYNE SUTTON

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 Adam Wayne Sutton 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 20) 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 June
29, 2017 (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 Income benefits on December 30,
2013 (Tr. 163). Plaintiff alleged that he became disabled on December 1, 2013 (Tr. 177) as a
result of White Coat Syndrome, attention deficit and hyperactivity disorder, social anxieties, high

blood pressure, and gum disease (Tr. 182). Administrative Law Judge Mary Lassy conducted a
hearing on December 10, 2015 in Paducah, Kentucky (Tr. 35-56). Plaintiff was present and
represented by Wendell Holloway, an attorney. Also present and testifying were vocational
expert Dr. Stephanie Barnes and medical expert Dr. Tom Wagner.
In a decision dated December 31, 2015, the ALJ evaluated this adult disability claim
pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr.
18-34). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity
since December 27, 2013, the protective filing date (Tr. 23). At the second step, the ALJ
determined that Plaintiff’s history of attention deficit hyperactivity disorder, depression, anxiety,
and borderline intellectual function are “severe” impairments within the meaning of the
regulations (Tr. 23). 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. 23).
At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform
a full range of work at all exertional levels except "he would need to avoid ladders, ropes, and
scaffolds and exposure to hazardous machinery and heights. He can understand, remember, and
carry out simple instructions. There should be no complex work. He can sustain attention for
simple tasks. There should be no interaction with the general public. He can occasionally
interact with supervisors and coworkers. He can adapt to stress in a more object orientated work
setting. He would need to avoid strict production work" (Tr. 24). The ALJ determined the
Plaintiff has no past relevant work (Tr. 28).
The ALJ proceeded to the fifth step where she considered Plaintiff’s residual functional
capacity, age, education, and past work experience as well as testimony from the vocational

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expert (Tr. 28). The ALJ found that Plaintiff is capable of performing a significant number of
jobs that exist in the national economy (Tr. 28-29). Therefore, the ALJ concluded that Plaintiff
has not been under a “disability,” as defined in the Social Security Act, from December 27, 2013,
through the date of the decision (Tr. 29).
Plaintiff timely filed a request for the Appeals Council to review the ALJ’s decision (Tr.
15). 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.
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

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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.
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?
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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 fourth step. For the reasons that follow, the
Commissioner's decision is supported by substantial evidence, and Plaintiff's claim is denied.
CHALLENGED FINDINGS
Plaintiff first challenges the Commissioner's findings at the second step, arguing that
Plaintiff has additional severe impairments of anxiety disorder severe, anxiety disorder not
controlled, hyperactivity disorder chronic not controlled, and chronic organic mental disorder.
Plaintiff additionally points out that Plaintiff was found to have various limitations, though none
of these limitations appears to be a specific severe impairment (DN 12-2 at PageID # 487).
Next, Plaintiff challenges the Commissioner's findings at the third step that he does not have an
impairment or combination of impairments that meets or medically equals a listed impairment.
Plaintiff reiterates certain limitations, but he does not discuss to which listed impairment they
apply nor does he articulate a listed impairment the ALJ should have considered but did not
(Id.)..
Next, Plaintiff challenges the Commissioner's residual functional capacity finding.
Plaintiff contends that his lack of a driver's license means the Commissioner's RFC is not
supported by substantial evidence.

He argues that the ALJ imposed vocational training

requirements on Plaintiff that assume future events and are therefore based on facts not in the
record (Id. at PageID # 488-89). Moreover, Plaintiff appears to argue that the fact that Plaintiff
lives with his mother and does not work is proof that he cannot work. Plaintiff next details his

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daily activities, as presented in Plaintiff's hearing testimony, and concludes this testimony
precludes a finding of not disabled (Id. at PageID # 489).

Finally, Plaintiff argues the

Commissioner did not afford sufficient weight to the affidavit of his mother, Donna Sutton.
Plaintiff challenges Dr. Tom Wagner's expert testimony, arguing that Dr. Wagner's
recommendation that, should Plaintiff be awarded benefits, he be assigned a payee is conclusive
of disability (Id. at PageID # 490). He further argues that Dr. Wagner did not have Plaintiff's
most recent treatment records, which express marked limitations. Finally, Plaintiff appears to
argue that, because Dr. Wagner (a psychologist) stated he was not qualified to answer questions
about the effects of Plaintiff's high blood pressure, his entire testimony is unreliable, and the
ALJ's reliance on his opinion is misplaced (Id. at PageID # 491).
Plaintiff challenges the findings of vocational expert Dr. Stephanie Barnes. Plaintiff
apparently argues that Dr. Barnes testified there are no sedentary jobs Plaintiff could perform
because of his mental restrictions. As a result, Plaintiff contends, because he cannot perform
sedentary work, he cannot perform any work. Moreover, Plaintiff argues that none of the
occupations cited by Dr. Barnes exist in Plaintiff's hometown, and this finding is therefore
erroneous (Id. at PageID # 491).
Finally, Plaintiff contends that pages of Donna Sutton's affidavit as well as pages of a
memorandum prepared by Plaintiff's counsel are missing from the record. This, argues the
Plaintiff, is grounds for reversal and an abuse of discretion (Id. at PageID # 496).
Discussion
At the second step in the sequential evaluation process, a claimant bears the burden of
demonstrating 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

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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. To satisfy the "medically determinable" requirement the claimant must present
objective medical evidence (i.e., signs, symptoms, and laboratory findings) that demonstrates the
existence of a physical or mental impairment. 20 C.F.R. § 416.908; Social Security Ruling
96-4p, 1996 WL 374187, at *1; Social Security Ruling 96-3p, 1996 WL 374181, at *2. Thus,
symptoms and subjective complaints alone are not sufficient to establish the existence of a
"medically determinable" physical or mental impairment. Social Security Ruling 96-4p, 1996
WL 374187, at *1. Notably, so long as the ALJ determines that the claimant has one severe
impairment, they must continue the five step evaluation process. 20 C.F.R. §§ 404.1520(a)(4)(ii)
and (c), 416.920(a)(4)(ii) and (c). If the ALJ considers the claimants limitations in the remainder
of the assessment, then the failure to find a specific impairment severe cannot constitute
reversible error. Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir.
1987).
Here, the ALJ concluded that Plaintiff's ADHD, depression, anxiety, and borderline
intellectual disorder were severe impairments (Tr. 23).

The undersigned does not fully

understand why Plaintiff complains the ALJ did not find hyperactivity disorder and anxiety to be
severe impairments when in fact the ALJ concluded that both are severe.

Additionally,

Plaintiff's recitation of symptoms such as difficulty seeing, difficulty walking, Etc. are not
impairments, but instead constitute limitations that the ALJ may consider or not, depending on

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their supportability in the record. The Commissioner's decision at the second step is wellsupported by substantial evidence and comports with all applicable laws.
Plaintiff challenges the ALJ's finding that he does not meet or medically equal a listing.
However, Plaintiff offers no relevant analysis, not even identifying a specific listing nor
discussing whether the Plaintiff meets the listing or medically equals it. It is well-established
that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived." United States v. Layne, 192 F.3d 556, 566 (6th Cir.1999)
(internal quotations omitted).

The undersigned concludes this claim is therefore waived.

However, in an abundance of caution, the undersigned reviewed the ALJ's conclusion at the third
step and nonetheless concludes it is supported by substantial evidence.
With respect to the residual functional capacity, Plaintiff's arguments are unpersuasive.
The notion that a person's decision or ability not to obtain a driver's license is somehow
dispositive of disability is baseless. Plaintiff offers no legal citation in support of this argument,
and the undersigned could not independently find support for the proposition. This argument is
therefore without merit.
The next issue is whether the ALJ properly assessed the opinion testimony of Dr. Wagner
and Dr. Barnes. The ALJ properly afforded Dr. Wagner's opinion great weight. In her decision,
the ALJ noted that Dr. Wagner's testimony is generally consistent with the treatment record (Tr.
27), and the ALJ implemented the restrictions suggested by Dr. Wagner when fashioning
Plaintiff's RFC. Plaintiff further offers inconsistent treatment of his own view of Dr. Wagner's
testimony. On one hand, he argues Dr. Wagner's conclusion that Plaintiff should be assigned a
payee is dispositive of disability. On the other hand, he argues that Dr. Wagner's inability to
answer questions about Plaintiff's blood pressure, an area far afield from his specialty, is

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disqualifying of his entire expert opinion. Either way, Plaintiff offers no legal support for either
of these statements. Additionally, the ALJ thoroughly discussed Dr. Wagner's qualifications and
opinions (Tr. 24-28).
The next issue is whether the ALJ improperly discounted Plaintiff's testimony.

In

assessing a claimant's residual functional capacity, the Administrative Law Judge must
necessarily consider the subjective allegations of the claimant and make credibility findings. 20
C.F.R. §§ 404.1529, 416.929; Social Security Ruling 96-7p. Here, Plaintiff focuses solely on his
statements at the hearing that suggest limitations. However, this ignores many other statements,
including that Plaintiff had gone deer hunting only three weeks before the hearing, that he folds
clothes, and that he uses Facebook and helps care for a cat and dog (Tr. 43-45). The ALJ
discussed these statements in detail, and concluded that such activities, particularly deer hunting,
are inconsistent with the level of limitation claimed by the Plaintiff (Tr. 26). The undersigned
finds no reason to cast doubt on this ALJ's credibility determination, particularly where the ALJ
was present at the hearing and had the opportunity to observe the Plaintiff in person. Such
determinations should "not be discharged lightly." Houston v. Sec’y of Health & Human Servs.,
736 F.2d 365, 367 (6th Cir. 1984) (citing Beavers v. Sec’y of Health, Educ. & Welfare, 577 F.2d
383 (6th Cir. 1978)). To conclude, the ALJ's credibility determination is well-supported by
substantial evidence and comports with applicable law.
The final issue is whether the ALJ improperly discounted the opinion of Plaintiff's
mother Donna Sutton, and whether the omission of a page of her affidavit is fatal to the
Commissioner's decision. The undersigned answers both inquiries in the negative. SSR 96-7p
requires the ALJ to weigh all the evidence of record, including medical sources as well as other

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opinion evidence such as statements of family members. 1996 WL 374186, at *1. Here, the
ALJ discussed Ms. Sutton's opinion and wrote as follows:
Finally, the undersigned notes that she has reviewed the third party
statements of the claimant's mother, Donna Sutton, at Exhibits 6E,
8E, and 15F, and the claimant's sister, Stephanie Pollard, at Exhibit
3E. While their statements may generally correspond with the
claimant's subjective allegations, they are not reasonably
commensurate with the weight of the objective medical evidence.
Also, as close relatives of the claimant, neither Ms. Sutton nor Ms.
Pollard can reasonably be considered a wholly impartial party in
this matter. Accordingly, no significant weight can be attributed to
their statements.
(Tr. 28). Thus, the ALJ considered the evidence, concluded it was consistent with Plaintiff's
subjective allegations, and decided to afford the opinions little weight in light of the objective
medical record. It is unclear whether the ALJ was missing a page of Ms. Sutton's affidavit when
reviewing her statement. Moreover, if a page was missing, it is unclear whether this was
administrative error by the Social Security Administration or by Plaintiff himself. However,
even assuming the information cited in Plaintiff's brief was missing, it does not create reversible
error. The information Plaintiff highlights from the missing page is that, in the affiant's opinion,
Plaintiff is disabled as a result of an organic mental disorder, anxiety, ADHD, and high blood
pressure (DN 12-2 at PageID # 495). Nothing in this opinion is new or inconsistent with
Plaintiff's testimony. It establishes no fact other than what the ALJ plainly glommed: that Ms.
Sutton believes her son is totally disabled. Therefore, even if the page in question was missing,
Plaintiff has demonstrated no impact that the absence had on the ALJ's ultimate determination.
Thus, any error from the missing page is harmless. See Cole v. Astrue, 661 F.3d 931, 940 (6th
Cir. 2011).

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Conclusion
The undersigned concludes that Plaintiff's claims are without merit. The decision of the
Commissioner is supported by substantial evidence and comports with applicable law.
ORDER
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED.
IT IS FURTHER ORDERED that Plaintiff's complaint (DN 1) is DISMISSED WITH
PREJUDICE.

February 20, 2018

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Counsel

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