Wilson v. Commissioner of Social Security

Filing 26

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 8/1/2022 affirming the final decision of the Commissioner. cc:counsel (EAS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:20-CV-00200-HBB
TRUDY W.1

PLAINTIFF

VS.
KILOLO KIJAKAZI, ACTING COMMISSIONER
SOCIAL SECURITY ADMINISTRATION2

DEFENDANT

MEMORANDUM OPINION
AND ORDER
BACKGROUND
Before the Court is the complaint of Trudy W. (“Plaintiff”) seeking judicial review of the
final decision of the Commissioner pursuant to 42 U.S.C. § 405(g) (DN 1). Both the Plaintiff
(DN 19) and Defendant (DN 25) have filed a Fact and Law Summary. For the reasons that follow,
the final decision of the Commissioner is AFFIRMED.
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 14). By Order entered July 14,
2021, the parties were notified that oral arguments would not be held unless a written request
therefor was filed and granted (DN 15). No such request was filed.

1 Pursuant to General Order 22-05, Plaintiff’s name in this matter was shortened to first name and last initial.
2 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of
the Federal Rules of Civil Procedure, Kilolo Kijakazi is substituted as the defendant in this suit.

FINDINGS OF FACT
On August 8, 2017, Plaintiff protectively filed applications for Disability Insurance
Benefits and Supplemental Security Income (Tr. 16, 197-98, 200-06, 207-14). Plaintiff alleged
that she became disabled on August 14, 2017, as a result of pacemaker, diabetes, problems with
legs, leaky veins, high blood pressure, and high cholesterol (Tr. 16, 67-68, 78-79, 92, 103, 237).
The applications were denied initially on January 24, 2018, and upon reconsideration on May 16,
2018 (Tr. 16, 65, 66, 89, 90). On July 19, 2018, Plaintiff filed a written request for a hearing by
an administrative law judge (Tr. 16, 134-36).
On May 7, 2019, Administrative Law Judge Jennifer Thomas conducted a video hearing
from the Office of Hearings Operations in Nashville, Tennessee (Tr. 16, 60). Plaintiff, who was
unrepresented, participated by video from the field office in Owensboro, Kentucky (Id.). After
being advised of her right to representation, Plaintiff requested and received a one-time
continuance to have additional time to obtain representation (Tr. 60-64).
On November 5, 2019, Administrative Law Judge Lisa Hall (“ALJ”) conducted a video
hearing from Paducah, Kentucky (Tr. 16, 33). Plaintiff and her counsel, Sara J. Martin Diaz,
participated from Owensboro, Kentucky (Id.). Robert L. Bond, an impartial vocational expert,
testified during the hearing (Id.).
In a decision dated January 24, 2020, the ALJ evaluated this adult disability claim pursuant
to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 16-25). The
ALJ noted that Plaintiff insured status will expire on December 31, 2022 (Tr. 18). At step one,
the ALJ found Plaintiff has not engaged in substantial gainful activity since August 14, 2017, the
alleged onset date (Tr. 19).
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At the second step, the ALJ determined that Plaintiff has the following severe impairments:
history of sick sinus syndrome, seizures, and diabetes mellitus (Id.). The ALJ also determined
that Plaintiff’s lack of follow-up or compliance with CPAP treatment suggests that her obstructive
sleep apnea is a “non-severe” impairment (Id.). At the third step, the ALJ concluded that since
August 14, 2017, Plaintiff has not had an impairment or combination of impairments that meets or
medically equals one of the listed impairments in Appendix 1 (Id.).
At step four, the ALJ found since August 14, 2017, Plaintiff has the residual functional
capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b)
except she should never climb ladders; she should avoid concentrated exposure to temperature
extremes and vibration; and she should avoid all exposure to hazards such as unprotected heights
or moving/dangerous machinery (Id.). Additionally, the ALJ found since August 14, 2017,
Plaintiff has been unable to perform any past relevant work (Tr. 23).
The ALJ proceeded to the fifth step where she considered Plaintiff’s RFC, age, education,
and past work experience as well as testimony from the vocational expert (Tr. 23-24). The ALJ
found that prior to December 17, 2019, while Plaintiff was still classified as an individual closely
approaching advanced age, there were jobs that existed in significant numbers in the national
economy that Plaintiff could have performed (Id.). However, beginning December 17, 2019,
Plaintiff’s age category changed to an individual of advanced age, and there are no jobs that exist
in significant numbers in the national economy that Plaintiff could perform (Tr. 24). Therefore,
the ALJ concluded that Plaintiff became disabled on December 17, 2019, and has continued to be
disabled through the date of the decision (Id.).

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Plaintiff timely filed a request for the Appeals Council to review the ALJ’s decision
(Tr. 193-96). The Appeals Council denied Plaintiff’s request for review (Tr. 1-3).
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. 1-3). 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 ALJ’s decision 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).
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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?

4)

Does the claimant have the RFC to return to his or her past
relevant work?

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5)

Does the claimant’s RFC, age, education, and past work
experience allow him or her to perform a significant number
of jobs in the national economy?

Here, for the period August 14, 2017, through December 16, 2019, the ALJ denied
Plaintiff’s applications at the fifth step.

Beginning December 17, 2019, the ALJ granted

Plaintiff’s applications at the fifth step.
Finding No. 5
1. Arguments of the Parties
Plaintiff contends that substantial evidence does not support the ALJ’s finding that she had
the RFC to perform light work on a full-time basis which would require her to stand and/or walk
six hours out of an eight-hour workday (DN 19-1 PageID # 1242-45). Plaintiff asserts that the
ALJ failed to consider the impact of her chronic symptoms—syncope, extreme fatigue, significant
dyspnea on exertion, shortness of breath, dizzy spells/vertigo, right-sided weakness, and
seizures—which are aggravated by exertion, including prolonged standing and walking (Id.)
(citing Tr. 47, 49, 306-10, 395, 490, 508, 531, 819, 1070). Additionally, Plaintiff indicates she
would need to take unscheduled and unpredictable breaks as well as miss work four or five times
a month (Id.) (citing Tr. 47).3 Plaintiff contends the ALJ should have found that she has the RFC
to perform less than sedentary work (Id.). Relatedly, Plaintiff argues that the ALJ failed comply
with her duty to consider the combined effects of Plaintiff’s multiple impairments in making the
RFC finding (Id. at PageID # 1245). Plaintiff asserts that if the ALJ considered the combined
effects of her multiple impairments the ALJ would have found Plaintiff disabled (Id.).

3 Plaintiff points out that the vocational expert testified there would be no jobs in the local or national economy that
would accommodate an employee with such limitations (Tr. 54-55).

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Defendant argues that the ALJ made no error in determining Plaintiff has the RFC to
perform light work because it is based on substantial evidence in the record, including Plaintiff’s
own testimony (Tr. 20, 40-42, 39, 44-51), the objective medical evidence (Tr. 20, 306, 308-09,
395-99, 508, 528, 531-32, 578, 608, 613, 616, 628, 904, 1148), and the prior administrative
medical findings of the state agency physicians Drs. P. Saranga and Jack Reed (Tr. 22) (DN 25
PageID # 1267-73).

Further, Plaintiff has not cited any medical opinion in the record

substantiating her claim that her RFC should have been limited to sedentary or less than sedentary
work and she needs to take additional breaks during the workday, and she will be absent from
work four or five times per month (Id.). Relatedly, Defendant contends the ALJ considered the
combined effect of all of Plaintiff’s impairments (Id. at PageID # 1273-74) (citing Tr. 19, 20-22).
To the extent Plaintiff may make a bare assertion that she meets several unidentified listings,
Defendant suggests that the issue is waived due to her failure to provide a developed argument in
support of her position (Id. at PageID # 1274-75).
2. Applicable Law
The RFC determination is the Administrative Law Judge’s ultimate determination of what
a claimant can still do despite his or her physical and mental limitations.

20 C.F.R.

§§ 404.1545(a), 404.1546(c). The Administrative Law Judge makes this finding based on a
consideration of medical source statements and all other evidence in the case record. 20 C.F.R.
§§ 404.1529, 404.1545(a)(3), 404.1546(c).

Thus, in making the RFC determination, the

Administrative Law Judge must necessarily evaluate the persuasiveness of the medical source
statements in the record and assess the claimant’s subjective allegations. 20 C.F.R. §§ 404.1520c,
404.1529(a).
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As Plaintiff filed her applications after March 27, 2017, the new regulations for evaluating
medical opinions are applicable to Plaintiff’s case. See 20 C.F.R. §§ 404.1520c, 416.920c. The
new regulations explicitly indicate “[w]e will not defer or give any specific evidentiary weight,
including controlling weight, to any medical opinion(s) or prior administrative medical
finding(s),” 4 in the record, even if it comes from a treating medical source.
§§ 404.1520c(a), 416.920c(a). 5

20 C.F.R.

Instead, Administrative Law Judges will now evaluate the

“persuasiveness” of medical opinions and prior administrative medical findings by utilizing the
five factors listed in paragraphs (c)(1) through (c)(5) of the regulation. 20 C.F.R. §§ 404.1520c(a)
and (b), 416.920c(a) and (b). The five factors are supportability, consistency, relationship with
the claimant, specialization, and other factors.
416.920c(c)(1)-(5). 6
consistency.

20 C.F.R. §§ 404.1520c(c)(1)-(5),

Of these five factors, the two most important are supportability and

20 C.F.R. §§ 404.1520c(a) and (b)(2), 416.920c(a) and (b)(2).

Further, the

regulation requires Administrative Law Judges to explain how they considered the supportability
and consistency factors in determining the persuasiveness of the medical source’s opinion.
20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). Notably, Administrative Law Judges “may, but
are not required to, explain how” they considered the three other factors in determining the
persuasiveness of the medical source’s opinion. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).

4 At the initial and reconsideration levels State agency medical and psychological consultants review the evidence in
the case record and make “administrative medical findings.” 20 C.F.R. §§ 404.1513a(a)(1), 416.913a(a)(1).
Administrative law judges “must consider” the administrative medical findings of non-examining state agency
medical or psychological consultants according to the new regulation. 20 C.F.R. §§ 404.1513a(b)(1), 416.913a(b)(1).
5 The language quoted above indicates that the new regulation has done away with the controlling weight rule in
20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2).
6 In assessing the relationship with the client, consideration should be given to the following: length of the treatment
relationship, frequency of examinations, purpose of the treatment relationship, extent of the treatment relationship,
and examining relationship. 20 C.F.R. §§ 404.1520c(c)(3)(i)-(v), 416.920c(c)(3)(i)-(v).

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3. Discussion
Essentially, Plaintiff’s challenge to the ALJ’s RFC determination asks the Court to re-try
or re-evaluate the ALJ’s assessment of Plaintiff’s subjective allegations concerning the impact of
her chronic symptoms. But it is not this Court’s place to re-try or re-evaluate the findings of the
ALJ. 42 U.S.C. § 405(g). Rather, this Court is limited to assessing whether substantial evidence
exists to support the ALJ’s findings and if the ALJ followed the applicable law. See Warner v.
Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004).
The ALJ acknowledged that in considering Plaintiff’s symptoms, she must follow a
two-step process which first requires a determination whether there are any underlying medically
determinable physical or mental impairment(s) that could reasonably be expected to produce
Plaintiff’s pain or other symptoms (Tr. 20). 20 C.F.R. §§ 404.1529, 416.929; Social Security
Ruling 16-3p; Duncan v. Sec’y of Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986).
Here, the ALJ provided a thorough summary of Plaintiff’s subjective statements and testimony
regarding her physical impairments and the chronic symptoms or limitations that they impose
(Tr. 20). Next, the ALJ discussed much of the medical evidence concerning the medically
determinable physical impairments that purportedly caused Plaintiff’s chronic symptoms or
limitations (Tr. 20-22).

At one point during this process, the ALJ made the following

observations:
Overall, the evidence shows that the claimant’s medication has
helped reduce her syncope and syncope like episodes. Extensive
cardiac testing has indicated no significant abnormalities, with her
sick sinus syndrome stable with a pacemaker. Her shortness of
breath has also decreased with the use of an inhaler. Although she
had one hospitalization for seizure like activity, no subsequent
incidents are included in the evidence of record. Therefore, the
evidence shows that the claimant could perform light exertional
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work consistent with the above residual functional capacity. Her
ability to work 20 hours per week through these symptoms at a
medium to heavy exertional job further support the finding that that
she could work a full time job at the light exertional level.
(Tr. 21-22). The ALJ discussed the remainder of the medical evidence concerning Plaintiff’s
diabetes mellitus and related mild non-proliferative diabetic retinopathy which purportedly caused
some of Plaintiff’s chronic symptoms or limitations (Tr. 22).

The ALJ also commented,

“Therefore, in combination with her other impairments, her diabetes contributes to the overall
residual functional capacity, but would not support further occupational limitations” (Id.). After
a careful consideration of the evidence, the ALJ found that Plaintiff’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms but Plaintiff’s
“statements concerning the intensity, persistence and limiting effects of these symptoms are not
fully supported for the reasons in this decision” (Id.).
As Plaintiff’s statements concerning the intensity, persistence and limiting effects of these
symptoms suggested impairments of greater severity than could be substantiated by the objective
medical evidence, the ALJ appropriately considered other information and factors which may be
relevant to Plaintiff’s allegations. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). For example,
the ALJ considered Plaintiff’s level of daily activity, which included part time work at the medium
to heavy exertional level through the date of the hearing, in determining the extent to which
Plaintiff’s symptoms are of disabling severity (Tr. 20-22). See 20 C.F.R. §§ 404.1529(c)(3)(i),
416.929(c)(3)(i); Bogle v. Sullivan, 998 F.2d 342, 348 (6th Cir. 1993); Blacha v. Sec’y of Health
& Human Servs., 927 F.2d 228, 231 (6th Cir. 1990). Another factor the ALJ considered is
whether there were any inconsistencies in the evidence and the extent to which there were any
conflicts between Plaintiff’s statements and the rest of the evidence (Id.).
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See 20 C.F.R.

§§ 404.1529(c)(4) and 416.929(c)(4). The ALJ also considered the medications prescribed, their
effectiveness, and their side effects (Id.). 20 C.F.R. §§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv).
Contrary to Plaintiff’s assertion, the ALJ considered the impact of Plaintiff’s chronic
symptoms—syncope, extreme fatigue, significant dyspnea on exertion, shortness of breath, dizzy
spells/vertigo, right-sided weakness, and seizures—which were purportedly aggravated by
exertion, including prolonged standing and walking. Additionally, the ALJ considered Plaintiff’s
testimony about the need to take unscheduled and unpredictable breaks as well as missing four or
five days of work per month. The ALJ found that Plaintiff does not suffer from the alleged
chronic symptoms to the extent Plaintiff testified. In the absence of detailed corroborating
evidence of Plaintiff's subjective complaints, it is the duty of the ALJ to assess the degree to which
Plaintiff suffers from the chronic symptoms. Since tolerance of chronic symptoms is a highly
individualized matter, the conclusion of the ALJ, who has the opportunity to observe the claimant's
demeanor, “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)).

For the above reasons, the ALJ’s findings concerning Plaintiff’s chronic

symptoms is supported by substantial evidence and fully comports with applicable law.
Relatedly, the ALJ is required to consider the combined effect of Plaintiff’s impairments
in determining her RFC.

See 20 C.F.R. §§ 404.1523(c), 416.923(c).

Discussing multiple

impairments individually does not mean the ALJ failed to consider the combined effect of those
impairments when, as here, the ALJ specifically referred to a “combination of impairments” in
finding the claimant does not meet the listings (Tr. 19, Finding No. 4). See Loy v. Sec’y of Health
& Human Servs., 901 F.2d 1306, 1310 (6th Cir. 1990) (citing Gooch v. Sec’y of Health & Human
11

Servs., 833 F.2d 589, 592 (6th Cir. 1987)). Moreover, in the context of assessing Plaintiff’s RFC,
the ALJ discussed Plaintiff’s multiple impairments individually and the combined effect of
Plaintiff’s impairments (Tr. 22). Therefore, the undersigned concludes there is no merit to
Plaintiff’s accusation that the ALJ failed to comply with her duty to consider the combined effect
of Plaintiff’s multiple impairments in making the RFC finding.7
Additionally, in the context of assessing Plaintiff’s RFC, the ALJ considered the
administrative medical findings of the non-examining state agency physicians, Drs. Jack Reed and
P. Saranga (Tr. 22).

After summarizing their findings concerning Plaintiff’s functional

limitations, the ALJ concluded the opinions of Drs. Reed and Saranga are “persuasive” because
they are “consistent with and supported by the overall record as detailed above showing that
[Plaintiff] could perform light exertional work” (Id.).

The ALJ’s findings concerning the

persuasiveness of these administrative medical findings are supported by substantial evidence and
comport with applicable law. See 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).
In sum, the ALJ’s RFC determination is supported by substantial evidence and fully
comports with applicable law. Therefore, Plaintiff is not entitled to relief based on her challenges
to the ALJ’s RFC determination.
Finding No. 10
Next, Plaintiff posits that if the ALJ had found Plaintiff has the RFC to perform sedentary
work, at step five the applicable GRID Rule would have directed a finding of disabled since her

7 Additionally, the undersigned notes that in support of her claim Plaintiff provides the following citation, “43 U.S.C.
§ 423 (d)(2)(C); see also Hall, 835 F.2d at 49” (DN 19-1 PageID # 1245). But 43 U.S.C. § 423 is a statute that applies
to public lands classified as permanently unproductive. Further, Plaintiff’s citation to the Hall case is equally
unavailing because the volume number, reporter, and page number in Plaintiff’s citation directs the Court to a wholly
unrelated case, United States v. DiPaolo, 835 F.2d 46 (2d Cir. 1987).

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alleged onset date of August 14, 2017 (DN 19-1 PageID # 1245-46). Defendant responds, as
Plaintiff’s RFC is limited to a reduced range of light work the GRID Rules do not direct a finding
of disability (DN 25 PageID # 1275-76).
As the ALJ’s RFC determination—Plaintiff has the RFC to perform a range of light work—
is supported by substantial evidence and fully comports with applicable law, there is no factual
basis for Plaintiff’s challenge to Finding No. 10. Therefore, Plaintiff is not entitled to relief on
this claim.
Conclusion
As the Court noted previously, “[a]s long as substantial evidence supports the
Commissioner’s decision, we must defer to it, even if there is substantial evidence in the record
that would have supported an opposite conclusion.” Warner v. Comm’r of Soc. Sec., 375 F.3d
387, 390 (6th Cir. 2004). Regardless of how this Court may view the evidence, it is not this
Court’s place to re-try or re-evaluate the findings of the ALJ. 42 U.S.C. § 405(g). Rather, this
Court is only to find if substantial evidence exists to support the ALJ’s decision and if the ALJ
followed the applicable law. (Id.). After reviewing the record, the Court concludes that the
ALJ’s determination is supported by substantial evidence in the record and correctly followed the
applicable law. Therefore, Plaintiff is not entitled to relief with regard to her challenge.

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ORDER
IT IS HEREBY ORDERED that the final decision of the Commissioner is AFFIRMED.

August 1, 2022

Copies:

Counsel

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