Gillaspie v. Commissioner of Social Security

Filing 19

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 7/10/2018: The decision of the commissioner is AFFIRMED. IT IS FURTHER ORDERED that 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-00139HBB

CARLA GILLASPIE

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 Carla Gillaspie seeking judicial
review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the
Plaintiff (DN 13) and Defendant (DN 18) 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 January
31, 2018 (DN 10), 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 protectively filed an application for Disability Insurance and Supplemental
Security Income Benefits on July 20, 2016 (Tr. 268, 270, 277). Plaintiff alleged that she became
disabled on May 23, 2015 as a result of degenerative disc disease, fibromyalgia, chronic

migraines, major depression, anxiety, chronic fatigue, COPD, and high cholesterol (Tr. 270,
301). Administrative Law Judge Maribeth McMahon (“ALJ”) conducted a hearing on March 14,
2017 in Paducah, Kentucky. Plaintiff was present and represented by attorney Sara Martin. Also
present and testifying was vocational expert James Adams.
In a decision dated June 25, 2017, the ALJ evaluated this adult disability claim pursuant
to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 8-28). At
the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since May
23, 2014, the alleged onset date (Tr. 14). At the second step, the ALJ determined that Plaintiff’s
degenerative disc disease, migraines, depression, and anxiety are “severe” impairments within
the meaning of the regulations (Tr. 14). 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 light work (Tr. 16). The ALJ assessed the following limitations:
Specifically, the claimant may lift and/or carry 20 pounds
occasionally and 10 pounds frequently. She may frequently push
and/or pull with the lower extremities bilaterally. She may sit,
stand, and/or walk for 30 minutes at a time each, up to 4 hours
each in an 8-hour workday.
She may never climb
ladders/ropes/scaffolds. She may frequently climb ramps/stairs.
She may frequently stoop, kneel, crouch, and crawl. She should
avoid concentrated exposure to extreme cold, vibration,
unprotected heights, and moving machinery. She is able to
understand, remember, and carry out simple 1 to 2 step
instructions. She is able to make simple, workrelated decisions.
She is able to have occasional interaction with the public and
frequent interaction with supervisors and coworkers. She should
avoid confusing, complex, distracting, or fast-paced work.
(Tr. 16). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable
to perform any of her past relevant work as an administrative assistant (Tr. 21).
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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. 22-23). The ALJ found that Plaintiff is capable of performing a significant number of
jobs that exist in the national economy (Tr. 23). Therefore, the ALJ concluded that Plaintiff has
not been under a “disability,” as defined in the Social Security Act, from July 20, 2016, through
the date of the decision (Tr. 23).
Plaintiff timely filed a request for the Appeals Council to review the ALJ’s decision (Tr.
266-67). The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision (Tr. 15).
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)).

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As previously mentioned, the Appeals Council denied Plaintiff’s request for review of the
ALJ’s decision (Tr. 1-5). 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:
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

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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. For the reasons that follow, the ALJ's
decision is supported by substantial evidence, and Plaintiff's claim is denied.
Discussion
A. Listings 12.04 and 12.06
Plaintiff first contends the ALJ erred in finding that her depression and anxiety do not
satisfy the requirements of either Listing 12.04 or Listing 12.06 (DN 13 at PageID # 1758-62).
Plaintiff discusses her treatment and personal history at length, then concludes that some bit of
the previously discussed treatment history demonstrates marked limitations in three of the
relevant Paragraph B criteria in Listing 12.04 and 12.06. Notably, Plaintiff does not explain in
what way the cited treatment notes support her claim, nor does she indicate what evidence
satisfies which criteria.
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). Here, in order to satisfy the Paragraph
B criteria for Listings 12.04 and 12.06, a claimant's impairments must result in either two
"marked" or one "extreme" in a broad spectrum of functioning, including understanding,
remembering, or applying information; interacting with others; concentrating, persisting, or
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maintaining pace, or adapting or managing themselves. 20 C.F.R. Part 404, Subpart P, App'x 1,
¶¶ 12.04B; 12.06B.
In her decision, the ALJ discussed the Paragraph B criteria of Listings 12.04 and 12.06
(Tr. 15-16).

The ALJ found that Plaintiff exhibited mild limitations in understanding,

remembering, or applying information (Tr. 15). Plaintiff exhibited moderate limitations in both
interacting with others and concentrating, persisting, or maintaining pace (Tr. 15-16). Finally,
the ALJ found Plaintiff exhibited no limitations in adapting and managing herself (Tr. 16). The
ALJ supported each of these conclusions with specific examples, creating a clear foundation for
why she ruled as she did. Plaintiff, on the other hand, has offered nothing but a lengthy
recitation of her subjective complaints and treatment notes based on those subjective complaints
followed by a conclusory statement that, because of those complaints, Plaintiff has demonstrated
marked or extreme limitations. This does not suffice to create a meritorious argument. First, the
ALJ is not required to consider Plaintiff's objective complaints. Cruse v. Comm'r of Soc. Sec.,
502 F.3d 532, 542 (6th Cir. 2007). But more importantly, the undersigned cannot discern which
symptom Plaintiff is alleging corresponds to which limitation. And finally, even if Plaintiff had
presented an argument that evidence supported a finding of disabled under the B criteria, the
undersigned would still not reverse the decision of the ALJ because the issue is not whether
substantial evidence supports the Plaintiff's position, but rather whether substantial evidence
supports the ALJ's decision. The Sixth Circuit has held that a reviewing court should not upset
an ALJ's findings where supported by substantial evidence, even if substantial evidence could
support a decision the other way. Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir.
2004). Here, the ALJ supported her decision with substantial evidence. Therefore, this claim is
denied.

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B. Severity of Plaintiff's Back Condition
Plaintiff next argues the ALJ misunderstood the severity of Plaintiff's back condition and
as a result improperly formed Plaintiff's residual functional capacity (DN 13 at PageID # 176264). Plaintiff notes that she received a disc fusion at L4 L5 but continued to experience pain (Id.
at PageID # 1762). Plaintiff goes on to argue that she received a stimulator that did not help
(Id.). In addition, Plaintiff notes her continued back treatment as well as the fact that she
exhibited generalized light touch discomfort and eighteen fibromyalgia trigger points (Id.).
Plaintiff claims the ALJ "completely disregarded" the ongoing nature of her back pain and
instead assigned an RFC that was not supported by substantial evidence.
Here, it is difficult to discern the precise nature of Plaintiff's legal argument. It is
apparent that Plaintiff is unhappy with the ALJ's determination of her residual functional
capacity, but merely objecting, even strenuously, to an ALJ's opinion does not provide grounds
for reversal. A conclusory statement that the ALJ's decision is not supported by substantial
evidence is a nonstarter as well. See United States v. Layne, 192 F.3d 556, 566 (6th Cir.1999).
Here, Plaintiff does not offer a single legal citation to support her argument, nor does she explain
how the ALJ's decision is unsupported by substantial evidence. Rather, she attempts to provide
evidence that paints more severe limitations than those expressed by the ALJ. But the issue is
not whether other evidence might support a more restrictive RFC. The issue is whether the ALJ
supported her RFC with substantial evidence. Here, the ALJ did offer substantial evidence to
support the limitations she imposed. For instance, the ALJ noted Plaintiff's post-fusion status,
but she additionally noted that the fusion occurred in 2010, and subsequent treatments have
consisted only of injections and medications (Tr. 19).

The ALJ further supported the

determination that Plaintiff can perform a restricted range of light work by noting that Plaintiff

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can perform a range of daily activities including shopping, light cooking, sweeping, dusting, and
laundry folding (Tr. 19-20). The undersigned will not disturb the ALJ's assessment, and this
claim is therefore denied.
C. The Treating Physician Rule
Plaintiff next argues the ALJ erred in her decision to afford little weight to Dr. Johnson's
opinion that Plaintiff cannot work (DN 13 at PageID # 1764-66). Plaintiff contends Dr. Johnson
is a treating source and as such is entitled to controlling weight.
The Sixth Circuit has provided the following comprehensive explanation regarding the
standards for weighing medical opinions:
As a general matter, an opinion from a medical source who has
examined a claimant is given more weight than that from a source
who has not performed an examination (a “nonexamining source”),
id. § 404.1502, 404.1527(c)(1), and an opinion from a medical
source who regularly treats the claimant (a “treating source”) is
afforded more weight than that from a source who has examined
the claimant but does not have an ongoing treatment relationship (a
“nontreating source”), id. § 404.1502, 404.1527(c)(2). In other
words, “[t]he regulations provide progressively more rigorous tests
for weighing opinions as the ties between the source of the opinion
and the individual become weaker.” Soc. Sec. Rul. No. 96–6p,
1996 WL 374180, at *2 (Soc. Sec. Admin. July 2, 1996).
The source of the opinion therefore dictates the process by which
the Commissioner accords it weight. Treating-source opinions
must be given “controlling weight” if two conditions are met: (1)
the opinion “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques”; and (2) the opinion “is not
inconsistent with the other substantial evidence in [the] case
record.” 20 C.F.R. § 404.1527(c)(2). If the Commissioner does
not give a treating-source opinion controlling weight, then the
opinion is weighed based on the length, frequency, nature, and
extent of the treatment relationship, id., as well as the treating
source's area of specialty and the degree to which the opinion is
consistent with the record as a whole and is supported by relevant
evidence, id. § 404.1527(c)(2)-(6).

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The Commissioner is required to provide “good reasons” for
discounting the weight given to a treating-source opinion. Id. §
404.1527(c)(2). These reasons must be “supported by the evidence
in the case record, and must be sufficiently specific to make clear
to any subsequent reviewers the weight the adjudicator gave to the
treating source's medical opinion and the reasons for that weight.”
Soc. Sec. Rul. No. 96–2p, 1996 WL 374188, at *5 (Soc. Sec.
Admin. July 2, 1996). This procedural requirement “ensures that
the ALJ applies the treating physician rule and permits meaningful
review of the ALJ's application of the rule.” Wilson v. Comm'r of
Soc. Sec., 378 F.3d 541, 544 (6th Cir.2004).
On the other hand, opinions from nontreating and nonexamining
sources are never assessed for “controlling weight.”
The
Commissioner instead weighs these opinions based on the
examining relationship (or lack thereof), specialization,
consistency, and supportability, but only if a treating-source
opinion is not deemed controlling. 20 C.F.R. § 404.1527(c).
Other factors “which tend to support or contradict the opinion”
may be considered in assessing any type of medical opinion. Id. §
D404.1527(c)(6).
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375-76 (6th Cir. 2013).
Plaintiff is therefore correct that the opinion of a treating physician is presumptively
entitled to controlling weight, but with the important caveat that the presumption is far from
absolute. Here, the ALJ discussed Dr. Johnson's opinion as follows:
On April 14, 2016, Dr. Johnson opined the claimant was unable to
sit, stand, or walk for more than 15 minutes at a time; lift or carry
more than 10 pounds regularly; or bend, stoop, lift, or use fine
motor skills without significant pain. (Ex. B6F. See also Exs.
B19F/17 and B20F/3). He stated the claimant had loss of feeling
in both hands and dropped objects frequently. (Ex. B6F). Dr.
Johnson opined the claimant could sit, stand, and/or walk 1 hour at
a time, each, for a total of 4 hours in a day, each. However, he
reported she has to lie down every hour for 15-20 minutes. He also
opined the claimant should never bend, kneel, crouch, climb,
balance, drive, or lift more than 5 pounds. (Ex. B18F/3). Dr.
Johnson stated there was no way the claimant could work full time,
as it would be very dangerous to people she worked with and pain
to herself. He reported the claimant had to move positions every
hour.

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Little weight is placed upon this opinion. It is not consistent with
the claimant's medical records or the claimant's activities of
performing light household chores, attending church, and visiting
with friends. Furthermore, a CT was normal after the claimant
reported numbness in her upper extremities, such that there is no
significant objective evidence supporting restrictions with the
claimant's hands.
(Tr. 20). The ALJ discounted Dr. Johnson's opinion because it conflicted with Plaintiff's own
testimony and because Dr. Johnson did not support his opinion with objective medical evidence.
The Sixth Circuit has held that an ALJ may properly discount physicians' conclusory statements.
White v. Comm'r of Soc. Sec., 572 F.3d 272, 286 (6th Cir. 2009). Additionally, Plaintiff's brief
primarily relies on more subjective complaints, though the complaints were taken from treatment
notes. Given this fact, combined with the conclusory nature of Dr. Johnson's opinion and its
inconsistency with the remaining evidence of record, the undersigned concludes that the ALJ
properly discounted the opinion. Moreover, the undersigned finds that the reasons cited by the
ALJ in the decision constitute good reasons for purposes of the treating physician rule. This
claim is therefore denied.
D. The Drummond Rule
Next, Plaintiff argues the ALJ's conclusion that her condition had not worsened since a
prior disability hearing was unsupported by substantial evidence and violates the rule set forth in
Drummond v. Comm'r of Soc. Sec., 126 F.3d 877 (6th Cir. 1997). Plaintiff contends substantial
evidence supports a finding that her condition has worsened since the prior adjudication.
In Drummond, the Sixth Circuit held that the principles of res judicata apply to RFC
findings in the final decision of the Commissioner. See 126 F.3d at 842-843. More specifically,
the Sixth Circuit directed that when there is a final decision concerning a claimant’s entitlement
to benefits, and the claimant files a new application for benefits addressing the unadjudicated

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period of time that proximately follows the adjudicated period of time, the Commissioner is
bound by the RFC findings in that final decision absent changed circumstances. 126 F.3d at 842843. Here, the ALJ acknowledged the prior adjudication (Tr. 18-19). The ALJ went on to
discuss evidence submitted subsequent to the prior adjudication (Tr. 18-19). As the ALJ noted,
Plaintiff was hospitalized for a short period in 2016 (Tr. 19). However, the ALJ further noted
that treatment records from River Valley Behavioral Health indicated improvement in Plaintiff's
depression and anxiety (Id.). Moreover, the ALJ noted Plaintiff's history of substance abuse and
indicated that, while not specifically relevant, the history did not improve Plaintiff's credibility
(Id.). Now, Plaintiff has failed to identify any evidence, other than Plaintiff's hearing testimony,
that her condition has worsened. Therefore, the undersigned concludes the ALJ supported her
Drummond determination with substantial evidence, and this claim is denied.
E. Combined Effects of Plaintiff's Impairments
Finally, Plaintiff asserts the ALJ failed to consider the combined effects of her
impairments (DN 13 at PageID # 1768-69). However, the only argument offered in support is
yet another recitation of Plaintiff's subjective complaints. In no way does Plaintiff explain how
the ALJ failed to consider the effects of her impairments in combination. Given that this
argument is merely a conclusory assertion, the undersigned will deem the argument waived and
therefore denied.

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) (quoting McPherson v. Kelsey, 125 F.3d 989, 995-96
(6th Cir.1997)).

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Conclusion
For the forgoing reasons, the decision of the Commissioner is supported by substantial
evidence and supported by 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.

July 10, 2018

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Counsel

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