Lanham v. Commissioner of Social Security

Filing 23

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 8/23/2018: The decision of the commissioner is AFFIRMED. IT IS FURTHER ORDERED that Plaintiff's complaint is DISMISSED WITH PREJUDICE. cc: counsel (JM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:17-CV-00126-HBB

DENISE LANHAM

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 Denise Lanham seeking judicial
review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the
Plaintiff (DN 16) 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 10). By Order entered
December 1, 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 Disability Insurance Benefits on June 13, 2013 (Tr. 20508). Plaintiff alleged that she became disabled on October 11, 2012 as a result of the following:
severe anxiety disorder; insomnia; constant fatigue; lack of concentration; loss of short and long

term memory; frequent migraines; nausea; dizziness; racing heart; and no energy (Tr. 227).
Administrative Law Judge Marci P. Eaton conducted a video hearing on September 24, 2015 in
Paducah, Kentucky (Tr. 62). Plaintiff appeared remotely from Owensboro and was represented
by Ms. Martin. Also present and testifying was vocational expert James Adams. Following
submission of additional evidence, ALJ Eaton conducted a supplemental administrative hearing
on June 23, 2016 (Tr. 34). Plaintiff again appeared remotely from Owensboro with her attorney,
but this time medical expert Elizabeth Kalb and vocational expert Kenny Boaz also testified.
In a decision dated August 8, 2016, the ALJ evaluated this adult disability claim pursuant
to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 17). At the
first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since October
11, 2012, the alleged onset date (Tr. 22). At the second step, the ALJ determined that Plaintiff’s
depression, anxiety, and migraines are “severe” impairments within the meaning of the
regulations (Tr. 22). Notably, at the second step, the ALJ also determined that Plaintiff’s
osteoarthritis and obesity are “non-severe” impairments within the meaning of the regulations
(Tr. 22). 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 following residual functional capacity:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform a full range of work at all exertional levels, but she should
avoid all exposure to moving machinery and unprotected heights.
In addition, she can understand, remember, and carry out short,
simple one to three step instructions. She should avoid interaction
with the public. She can have taskfocused interaction with
supervisors and coworkers. With these limitations in place, she
would be able to respond appropriately to changes in a routine
work setting.
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(Tr. 23-24). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is
unable to perform any of her past relevant work (Tr. 27).
The ALJ proceeded to the fifth step where he considered Plaintiff’s residual functional
capacity, age, education, and past work experience as well as testimony from the vocational
expert (Tr. 27). The ALJ found that Plaintiff is capable of performing a significant number of
jobs that exist in the national economy (Tr. 28). Therefore, the ALJ concluded that Plaintiff has
not been under a “disability,” as defined in the Social Security Act, from October 11, 2012
through the date of the decision (Tr. 28).
Plaintiff timely filed a request for the Appeals Council to review the ALJ’s decision (Tr.
203-04). The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision (Tr. 16).
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
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& 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. 1-6). 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
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:

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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 denied Plaintiff’s claim at the fifth step. Having considered Plaintiff's claims for
relief, the undersigned concludes the ALJ's decision was supported by substantial evidence and
comports with applicable law.
Summary of Plaintiff's Arguments
Plaintiff first claims the ALJ erred in finding that she does not meet or medically equal
Listings 12.04 and 12.06 (DN 16 at PageID # 529-33). Second, Plaintiff argues the ALJ erred in
finding that her back condition does not qualify as a severe impairment (Id. at PageID # 533-34).
Plaintiff claims the ALJ ignored that she has been diagnosed with osteoarthritis and has been
prescribed narcotics to manage her pain. Plaintiff contends the ALJ should have, at the very
least, ordered a consultative physical examination. Third, Plaintiff argues the ALJ erred in the
weight assigned to the opinions of Betty Medley and Sylvia Sweatt (Id. at PageID # 534-35).
Plaintiff suggests Ms. Medley and Ms. Sweatt are entitled to controlling weight but at the least
the ALJ offered insufficient reasons for discounting their opinions as well as the opinion of

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consultative examiner Marcy Walpert. Finally, Plaintiff argues the ALJ failed to consider the
debilitating effects of her impairments in combination (Tr. 536-37).
Discussion
The first issue is whether the ALJ erred in finding Plaintiff did not meet or medically
equal a listed impairment. A claimant bears the burden of demonstrating that she meets or
medically equals a Listing. Sullivan v. Zebley, 493 U.S. 521, 531-32 (1990). In order to satisfy
the Paragraph B criteria for Listings 12.04 and 12.06, a claimant's impairments must result in
two of the following: marked restrictions of activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining concentration, persistence, or
pace; or repeated episodes of decompensation, each of extended duration. 20 C.F.R. Part 404,
Subpart P, App'x 1, ¶¶ 12.04B; 12.06B.
Here, the ALJ discussed Listings 12.04 and 12.06 but ultimately concluded Plaintiff
cannot satisfy the B criteria (Tr. 23). The ALJ relied on the opinion of Elizabeth Kalb, Ph.D., an
impartial psychological expert, who found "the claimant is determined to have mild restriction of
activities of daily living, moderate difficulties maintaining social functioning, mild difficulties
maintaining concentration, persistence, or pace, and no episodes of decompensation of extended
duration, as indicated at Exhibits 9F and 16F" (Id. (referring to Tr. 402/12 and Tr. 455-468)).
Plaintiff has pointed only to her own testimony and the opinions of her counselor who is not an
acceptable medical source. The ALJ, on the other hand, relied on a psychological expert, Dr.
Kalb. An ALJ is entitled to rely on impartial psychological experts. SSR 96-6p. The ALJ did
precisely this and concluded that Plaintiff does not satisfy the Paragraph B criteria. Finally,
Plaintiff argues the ALJ disregarded Ms. Walpert's opinion but does not provide sufficient
elaboration to enable the undersigned to determine how Ms. Walpert's opinion would have

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enabled her to satisfy the B criteria. Therefore, the ALJ's decision was supported by substantial
evidence and comports with applicable law.
The next issue is whether it was error for the ALJ to find Plaintiff's back condition to be a
"non-severe" impairment. At the second step in the sequential evaluation process, a claimant
must demonstrate she 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 claimant must show she 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" her 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. "[A]n impairment can be considered not severe
only if it is a slight abnormality that minimally effects work ability, regardless of age, education
and work experience." Higgs, 880 F.2d at 862.
Here, the ALJ considered Plaintiff's osteoarthritis but concluded there was not evidence
in the record to find that the condition created substantial limitations (Tr. 23). Plaintiff has now
cited only to the fact that she once received narcotics for back pain as evidence to indicate her
condition should be found to be severe. Notably, there is no citation to a treating source opinion
that Plaintiff's osteoarthritis creates anything other than minimal limitations. Plaintiff accuses
the ALJ of acting as her own medical expert, but the ALJ supported her conclusion with a state
reviewing physician's opinion and a medical finding that Plaintiff had normal lower back
movement upon examination. Plaintiff simply has not provided evidence to meet her burden at
the second step. The ALJ's decision is supported by substantial evidence and comports with
applicable law.

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Next, Plaintiff offers an argument that the ALJ erred in the weight she assigned to the
opinions of Ms. Medley and Ms. Sweatt. It appears Plaintiff is even attempting to argue Ms.
Medley and Ms. Sweatt were entitled to controlling weight. 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. Sweatt, as the ALJ noted (Tr. 25), is a nurse
practitioner.

Nurse practitioners 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. Sweatt's opinion and offered
good reasons for rejecting it. 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. 25). The ALJ thus satisfied all requirements when discussing Ms. Sweatt'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. Medley is a counselor (Tr. 25). Counselors are, like nurse practitioners,
not acceptable medical sources under the guidelines applicable in this case. SSR 06-03p. Again,
the ALJ discussed Ms. Medley's opinion and offered good reasons for affording it little to no
weight. Specifically, Ms. Medley holds a bachelor's degree in social work, but she does not
appear to possess sufficient credentials to address serious psychological symptoms (Tr. 25).
Moreover, Ms. Medley kept no record of her sessions with the Plaintiff. For these reasons, and

1

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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for all the reasons set forth in the previous paragraph, Ms. Medley's opinion is not entitled to
controlling weight and was owed no deference by the ALJ. Therefore, the ALJ's decision is
supported by substantial evidence and comports with applicable law.
The final issue is whether the ALJ failed to consider the combined effects of Plaintiff's
impairments. The Administrative Law Judge is required to consider the combined effect of a
claimant’s impairments in determining whether the claimant is disabled. 20 C.F.R. § 404.1523.
However, discussing multiple impairments individually does not mean the ALJ failed to consider
the combined effect of those impairments where she specifically referred to a “combination of
impairments” in finding the claimant does not meet the listings. Loy v. Sec’y of Health &
Human Servs., 901 F.2d 1306, 1310 (6th Cir. 1990) (citing Gooch v. Sec’y of Health & Human
Servs., 833 F.2d 589, 592 (6th Cir. 1987)).

Here, the ALJ discussed Plaintiff’s multiple

impairments individually but, at the third step, he also specifically referred to a “combination of
impairments” in finding Plaintiff does not meet the listings (Tr. 23). Therefore, the undersigned
concludes Plaintiff’s argument is without merit.
Conclusion
For the forgoing reasons, the undersigned concludes the ALJ supported her decision with
substantial evidence, and Plaintiff's claims are therefore without merit.

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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.

August 23, 2018

Copies:

Counsel

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