Hall v. Commissioner of Social Security

Filing 23

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 6/13/18: Plaintiff's claims are DENIED, and the complaint (DN 1 ) is DISMISSED WITH PREJUDICE. cc:counsel (DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:17-CV-00102-HBB

CHASTITY HALL, ON BEHALF OF
RANDY G. HALL, DECEASED

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 Chastity hall, seeking judicial review of the
final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Ms. Hall is standing in the
place of her deceased husband, Randy G. Hall. When the undersigned references "Plaintiff" in
this opinion, he is referring to Randy Hall, who was in this case the claimant. Both the Plaintiff
(DN 17) and Defendant (DN 22) 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
October 17, 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 applications for Disability Insurance Benefits, Period of Disability Benefits,
and Supplemental Security Income on May 27, 2014 (Tr. 11, 233, 239). Plaintiff alleged that he
became disabled on November 25, 2011 (Tr. 11). However, Plaintiff amended his disability
onset date during an administrative hearing to January 1, 2014 (Tr. 11, 57). Plaintiff alleged
disability as a result of PTSD, depression, breathing difficulties, anxiety, arthritis, and liver
problems. (Tr. 256). Administrative Law Judge Lisa Hall conducted a hearing on August 23,
2016 in Paducah, Kentucky. Plaintiff was present and represented by his attorney, Sarah Martin.
Also present and testifying was vocational expert Thomas Holcomb.
In a decision dated November 15, 2016, the ALJ evaluated this adult disability claim
pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 7).
At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since
January 1, 2014, the alleged onset date (Tr. 13). At the second step, the ALJ determined that
Plaintiff’s chronic obstructive pulmonary disease and anxiety are “severe” impairments within
the meaning of the regulations (Tr. 13). 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. 15).
At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform
a reduced range of sedentary work described as follows:
Specifically, the claimant can lift and carry or push/pull 10 pounds
occasionally. He can sit for at least 6 hours each in an 8-hour
workday. He can stand and walk about 2 hours in an 8-hour
workday. He should never climb, but can occasionally engage in
other postural activities. He should avoid concentrated exposure to
temperature extremes and avoid even moderate exposure to
pulmonary irritants.

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The claimant can perform simple, routine, repetitive work tasks,
meaning tasks that apply commonsense understanding to carry out
instructions furnished in written, oral, or diagrammatic form, with
the ability to deal with problems involving several concrete
variables in or from standardized situations. The claimant can
frequently interact with coworkers and supervisors and
occasionally interact with the general public.
(Tr. 16).
Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable to
perform any of his past relevant work (Tr. 21).
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
expert (Tr. 21). The ALJ concluded that, prior to December 13, 2015, the date Plaintiff's age
category changed, Plaintiff was capable of performing a significant number of jobs that exist in
the national economy (Tr. 21-22). However, after December 13, 2015, Medical Vocational Rule
201.10 required a finding that Plaintiff is disabled and remained disabled through the date of the
decision (Tr. 22).
Plaintiff timely filed a request for the Appeals Council to review the ALJ’s decision (Tr.
230). 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

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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

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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?

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 granted in part and denied Plaintiff’s claim at the fifth step, as explained above.
A. Challenged Findings
Plaintiff first challenges the ALJ's decision at step 3, arguing that the medical evidence
requires a finding that Plaintiff satisfied Listing 3.02(a) (DN 17 at PageID # 2222-24). Next,
Plaintiff argues the LJ erred in not affording controlling weight to Susan Rice, APRN (Id. at
pageID # 2224-25). It appears Plaintiff is arguing that Ms. Rice is entitled to controlling weight

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as a treating source, but Plaintiff argues in the alternative that her opinion is at least entitled to
great weight. Plaintiff next argues the ALJ failed to afford sufficient weight to the opinion of
Wendy Russell (Id. at PageID # 2225-28). Next, Plaintiff argues the ALJ erred in only affording
some weight to pulmonologist Dr. Nesketa (Id. at 2228-30). Finally, Plaintiff argues the ALJ
erred in failing to consider the effect of the combination of Plaintiff's impairments (Id. at PageID
# 2230-32).
B. Discussion
1. Listing 3.02
"For a claimant to show that his impairment matches a listing, it must meet all of the
specified medical criteria. An impairment that manifests only some of those criteria, no matter
how severely, does not qualify." Sullivan v. Zebley, 493 U.S. 521, 530 (1990). An ALJ need
not discuss a Listing whose requirements the claimant clearly doesn't meet. Sheeks v. Comm'r of
Soc. Sec., 544 F. App'x 639, 641 (6th Cir. 2013). Listing 3.02A requires a claimant demonstrate
that their forced expiratory volume in one second (FEV1) is "less than or equal to the value in
Table I-A or I-B for [their] age, gender, and height without shoes.]" 20 C.F.R. Pt 404, Subpt P,
App. 1 § 3.02A Table I. The explanatory section preceding this listing notes:
Spirometry, which measures how well you move air into and out of
your lungs, involves at least three forced expiratory maneuvers
during the same test session. A forced expiratory maneuver is a
maximum inhalation followed by a forced maximum exhalation,
and measures exhaled volumes of air over time. The volume of air
you exhale in the first second of the forced expiratory maneuver is
the FEV1.
Id. at § 3.00E1. Notably, the section later provides that "[w] e use your highest FEV1 value to
evaluate your respiratory disorder under 3.02A[.]" Id.
Here, Plaintiff is sixty-nine inches tall, meaning his highest FEV1 value would need to be

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less than or equal to 1.75 liters. As the ALJ noted (Tr. 14), Plaintiff's highest FEV1 value was
his pre-bronchodilator result of 2.04 liters (Tr. 483). Of course, 2.04 is higher than 1.75. As a
result, the ALJ bore no obligation to discuss Listing 3.02A because Plaintiff obviously couldn't
satisfy the objective requirements. Plaintiff's claim that the post-bronchodilator value is the
APPROPRIATE number to consider is simply unsupported and without merit. This claim is
therefore denied.
2. Weight Afforded to Susan Rice and Wendy Russell
For applications such as this filed prior to April 1, 2017, the term "medical sources"
refers to "acceptable medical sources, or other health care providers who are not acceptable
medical sources." 20 C.F.R. §§ 404.1502, 416.902 (emphasis added). Only acceptable medical
sources can offer medical opinions and therefore be afforded controlling weight. SSR 06-03p.
Ms. Rice, as the ALJ noted (Tr. 18), is a nurse. Nurses are not acceptable medical sources under
the guidelines applicable to Plaintiff's case. SSR 06-03p. As a result, her opinion was not
entitled to any particular deference or weight. Nonetheless, the ALJ discussed Ms. Rice's
opinion and afforded it some weight (Tr. 18). Notably, while the Sixth Circuit has suggested that
an ALJ need not provide any reasons at all for discounting a non-acceptable medical source
opinion,1 in this instance the ALJ offered a reason: that the opinion was inconsistent with the
medical evidence of record (Tr. 14). The ALJ thus satisfied all requirements when discussing
Ms. Rice's opinion. This aspect of the ALJ's decision is supported by substantial evidence and
comports with applicable law. Plaintiff's claim is therefore denied.
Similarly, Ms. Russell is a professional counselor (Tr. 20). Professional counselors are,
like nurses, not acceptable medical sources under the guidelines applicable in this case. SSR 06-

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See Martin v. Comm'r of Soc. Sec., 658 F. App'x 255, 259 (6th Cir. 2016); Thacker v. Comm'r of Soc. Sec., 99 F.
App'x 661, 664 (6th Cir. 2004).

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03p. For all the reasons set forth above, then, her opinion is not entitled to controlling weight.
Additionally, the ALJ discussed Ms. Russell's opinion, noting that such extreme limitations were
inconsistent with the medical record and were more suggestive of a patient who should have
been hospitalized (Tr. 20). Thus, this claim is also without merit and is denied.
3. Opinion of Dr. Nesketa
The next issue is whether the ALJ appropriately discounted the opinion of pulmonologist
Dr. Nesketa. Plaintiff argues that Dr. Nesketa was a treating physician entitled to controlling
weight. The problem is, Dr. Nesketa based his entire opinion as to Plaintiff's limitations on the
Plaintiff's own subjective complaints (Tr. 646). His report even acknowledges as much where,
when asked about day-to-day limitations, Dr. Nesketa states "[t]he only thing I can tell you is
from the history, what he tells me" (Id.). Repetition of a claimant's subjective complaints does
not constitute objective medical evidence. Mitchell v. Comm'r of Soc. Sec., 330 F. App'x 563,
569 (6th Cir. 2009). Moreover, Plaintiff has failed to identify any limitation that, if incorporated,
would have altered the resulting RFC. Finally, and most puzzling, the report cited by Plaintiff is
dated January of 2016, after the date the ALJ determined Plaintiff became disabled. Thus it is
unclear what value Plaintiff hopes this report, even taken at its word, could contribute to his
claim for benefits before his fiftieth birthday. This claim is without merit and is therefore
denied.
4. Impairments in Combination
The next issue is whether the ALJ properly considered Plaintiff's impairments in
combination. Plaintiff has again presented an argument without support in the record. The ALJ
referred to Plaintiff's "impairments" in the plural throughout the opinion (Tr. 13, 15, 17-18, 20).
The RFC clearly contemplates multiple impairments, and the ALJ's hypothetical question to the

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vocational expert also reflected a consideration of multiple impairments (Tr. 80-81). Thus,
Plaintiff's claim is baseless and is therefore denied.
Conclusion
The undersigned concludes that the decision of the Commissioner is supported by
substantial evidence and comports with applicable law. All of Plaintiff's claims are without
merit and are therefore denied.
ORDER
IT IS HEREBY ORDERED that Plaintiff's claims are DENIED, and the complaint (DN
1) is DISMISSED WITH PREJUDICE.

Copies:

June 13, 2018

Counsel

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