Kinsey v. Commissioner of Social Security Administration

Filing 24

Memorandum Opinion and Order that the decision of the Commissioner denying Kinsey disability insurance benefits is affirmed. (Related docs # 12 , 1 ). Signed by Magistrate Judge William H. Baughman, Jr on 9/29/17. (H,D)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

RHONDA KINSEY,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

)
)
)
)
)
)
)
)
)
)

CASE NO. 4:16 CV 2194

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
Before me1 is an action by Rhonda Kinsey under 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security denying her application
for disability insurance benefits.2 The Commissioner has answered3 and filed the transcript
of the administrative record.4 Under my initial5 and procedural6 orders, the parties have

1

ECF # 12. The parties have consented to my exercise of jurisdiction.

2

ECF # 1.

3

ECF # 8.

4

ECF # 9.

5

ECF # 5.

6

ECF # 11.

briefed their positions7 and filed supplemental charts8 and the fact sheet.9 They have
participated in a telephonic oral argument.10

Facts
A.

Background facts and decision of the Administrative Law Judge (“ALJ”)
Kinsey, who was 57 years old at the time of the administrative hearing,11 has an

eleventh grade education.12 She is married and lives with her husband.13

Her past

employment includes work as a cashier and stock clerk.14
The ALJ, whose decision became the final decision of the Commissioner, found that
Kinsey had the following severe impairments: chronic obstructive pulmonary disease
(COPD)/asthma (20 CFR 404.1520(c)).15
After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding Kinsey’s residual functional capacity (“RFC”):
7

ECF # 21 (Commissioner’s brief); ECF # 16 (Kinsey’s brief).

8

ECF # 21-1 (Commissioner’s charts); ECF # 16-1 (Kinsey’s charts).

9

ECF # 15 (Kinsey’s fact sheet).

10

ECF # INSERT.

11

ECF # 9, Transcript (“Tr.”) at 40.

12

Id.

13

Id.

14

Id. at 42-44.

15

Id. at 23.
-2-

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined
in 20CFR 404.1567(b) except she can frequently climb ramps, stairs, ladders,
ropes or scaffolds. She must avoid even moderate exposure to respiratory
irritants such as fumes, odors, dust, gases, and temperature extremes and
concentrated exposure to hazards.16
Based on that residual functional capacity, the ALJ found Kinsey capable of her past relevant
work as a cashier17 and, therefore, not under a disability.18
B.

Issues on judicial review
Kinsey asks for reversal of the Commissioner’s decision on the ground that it does not

have the support of substantial evidence in the administrative record. Specifically, Kinsey
presents the following issues for judicial review:
•

Whether the ALJ erred in failing to give good and specific reasons
supported by accurate facts within the record for rejecting to [sic]
opinions of a consulting physician.

•

Whether substantial evidence supports the ALJ’s decision that
plaintiff’s skin condition, diagnosed as “lichen planus” was not a severe
impairment.

For the reasons that follow, I will conclude that the ALJ’s finding of no disability is
supported by substantial evidence and, therefore, must be affirmed.

Analysis
A.

Standards of review - substantial evidence
16

Id. at 24.

17

Id. at 26.

18

Id. at 27.
-3-

The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable
to decisions of the ALJs in disability cases:
Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by
this court is whether the decision is supported by substantial evidence.
Substantial evidence is “ ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ”
The findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different
conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.19
Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable
minds could reach different conclusions on the evidence. If such is the case, the
Commissioner survives “a directed verdict” and wins.20 The court may not disturb the
Commissioner’s findings, even if the preponderance of the evidence favors the claimant.21
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
B.

Application of standards
19

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).

20

LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06CV403, 2008 WL 399573, at *6 (S.D. Ohio Feb. 12,
2008).
21

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
-4-

1.

Dr. Lakhani
As noted above, following the hearing the ALJ here ordered that Kinsey undergo a

consultative examination with Dr. Pradhudas Lakhani, M.D., which examination was
conducted in June 2015.22 Dr. Lakhani found that Kinsey had COPD23 and also found that
she had lichen planus of the hands and right foot.24 As to functional limitations, the ALJ
summarized Dr. Lakhani’s findings as follows:
Consultative examiner, Pradhudas Lakhani, MD opined on June 4, 2015 that
the claimant could occasionally lift up to 10 pounds, sit 6 hours, stand 4 hours,
and walk 2 hours total, with sitting 2 hours at a time, standing 30 minutes at
a time, and walking 10-15 minutes at a time. He noted her hands were limited
to occasional reaching in all directions bilaterally, frequent handling
bilaterally, never pushing and pulling, occasional foot controls, occasional
climbing ramps and stairs, stooping, kneeling, crouching, and crawling, and
no climbing ladders. He noted she could occasionally operate a motor vehicle,
never be exposed to hazards, humidity, wetness, temperature extremes or
vibrations, and could have moderate exposure to office noise due to dizziness
and shortness of breath (9F).25
The ALJ then assigned little weight to these limitations, reasoning as follows:
Dr. Lakhani's opinion is given little weight, as it is inconsistent with his
examination of the claimant, which was entirely normal, other than that breath
sounds were harsh. That single finding does not merit his extreme limitations.
It is further inconsistent with the other medical evidence of record, which
generally notes entirely normal exam findings (5F/18, l F). It is inconsistent
with the prior CE which also found normal oxygen rates and breath sounds
(2F). Further, his noted manipulative limitations "due to shortness of breath"

22

Tr. at 448-462.

23

Id. at 449-50.

24

Id. at 448.

25

Id. at 26.
-5-

do not make sense, nor do restrictions regarding operation of a motor vehicle,
and avoidance of noise and vibrations (9F/8-9). In addition, his statement is
internally inconsistent, as he indicates all of these limitations, yet he states she
can independently shop, care for hygiene, walk a block a reasonable pace, use
public transportation, climb a few steps, and prepare simple meals (9F/10).26
Kinsey observes in her brief that ‘[h]ad the ALJ given any degree of weight to Dr.
Lakhani’s opinion, a finding of disability would necessarily have resulted, as Dr. Lakhani’s
opinion is for sedentary capacity, at best, and Ms. Kinsey, over age 50 and without
transferable skills, and with no sedentary work experience, would ‘grid’ with a sedentary
residual functional capacity under the Medical-Vocational Rules (20 C.F.R. Part 404,
Subpart P. Appendix 2).”27 Thus, she argues, any reversible error by the ALJ in the
assignment of weight to Dr. Lakhani’s opinion “is directly prejudicial” to her claim.28
In that regard, Kinsey initially argues that the ALJ was impermissibly “playing
doctor” when he concluded that the finding of harsh lung sounds in connection with COPD
does not support the “extreme” functional limitations set out by Dr. Lakhani.29 The
Commissioner responds, however, that the ALJ found the harsh breath sounds were
inconsistent with the rest of the examination, which appeared normal,30 and which showed

26

Id.

27

ECF # 16 at 9.

28

Id.

29

Id.

30

ECF # 21 at 8 (citing tr. at 26).
-6-

that Kinsey was ambulating normally without assistance.31 More important, the ALJ here
observed that Dr. Lakhani’s harsh lung sound finding was inconsistent with a prior
consultative examination, which “found normal oxygen rates and breath sounds.”32 Further,
the ALJ reasoned that restrictions in Dr. Lakhani’s opinion such as avoiding noise and
vibrations “do not make sense’ as a response to a finding of shortness of breath,” and that
such restrictions are themselves inconsistent with Dr. Lakhani’s own notes, which indicate
that Kinsey can independently shop, walk a block at a reasonable pace, and climb a few
stairs.33
The ALJ was not substituting his own judgment for that of Dr. Lakhani, nor was he
making his own independent medical finding.34 Rather, as the Commissioner states,35 the ALJ
engaged in determining the appropriate weight to assign to Dr. Lakhani’s opinion, and doing
so according to the relevant standards. In particular, Dr. Lakhani as a consultative examiner
is not entitled to be evaluated as a treating source, and the weight given to his opinion is,

31

Tr. at 449, 459-62.

32

Tr. at 26 (citing record).

33

Id.

34

ECF # 16 at 9.

35

ECF # 21 at 10.
-7-

therefore, presumed to be less than that given to a treating source, but more than is given to
a non-examining reviewing source.36
Accordingly, as I observed in Tolbert v. Commissioner of Social Security:
But, an “ALJ need not give reasons for discounting an examining source’s
opinion” because such an opinion was never presumptively entitled to any
such controlling weight in the first instance. Indeed the Sixth Circuit has
recently re-emphasized that where, as here, the opinion under review is from
“an examining psychologist-not a treating doctor-his opinion is not entitled to
any special deference.” Rather, the opinions of non-treating sources are never
presumed to have controlling weight, but are assigned weight based on the
various factors in the regulations, such as “the examining relationship (or lack
thereof), specialization, consistency and supportability.”37
The ALJ properly evaluated the opinion of Dr. Lakhani, and properly articulated the
foundation for the weight assigned. That articulation is capable of meaningful judicial
review, and the reasons stated are supported by substantial evidence.
2.

Lichen planus
As noted, Kinsey was diagnosed with lichen planus, but the ALJ did not find this to

be a severe impairment.38 The reason stated by the ALJ was that the impairment did not meet

36

Cook v. Commissioner of Social Security, 2016 WL 3944757, at *3 (S.D. Ohio June
29, 2016), report and recommendation adopted, 2016 WL 3945695 (S.D. Ohio July 19,
2016).
37

Tolbert v. Comm’r of Social Security, 2014 WL 1094378, at * 3 (N.D. Ohio March
18, 2014)(Footnotes omitted).
38

Tr. at 23.
-8-

the 12-month durational requirement, with the additional reason that nothing in the record
showed her as having limited use of her hands as a result of this condition.39
The first reason cited by the ALJ may not be supportable given that Kinsey appears
to have sought treatment for this condition since October 2013.40 As to the second reason,
Kinsey further argues that the ALJ erred in claiming her hands were not affected because
Dr. Lakhani opined that Kinsey was unable to open jars during flare-ups of this condition,
and so restricted Kinsey’s use of her hands to no more than frequent handling bilaterally. 41
The Commissioner counters by noting that Dr. Lakhani’s opinion as to functional
limitations - which is discussed above - also stated that Kinsey could pick up a coin and key,
write, hold a cup, use a button or zipper, and open a door without difficulty.42 The
Commissioner also notes that the ALJ took notice on the record that Kinsey could shop,
prepare meals, and care for her own hygiene.43 Finally, the Commissioner also points out that
“neither the dermatologist nor her other treating providers that treated her rashes opined that
she had any functional limitations due to her skin condition.”44

39

Id.

40

See, tr. at 348.

41

ECF # 16 at 14 (citing record).

42

Tr. at 460.

43

Tr. at 26.

44

ECF # 21 at 8.
-9-

I find no error in the ALJ’s decision at Step Two to not find lichen planus as a severe
impairment.

Conclusion
Substantial evidence supports the finding of the Commissioner that Kinsey had no
disability. Accordingly, the decision of the Commissioner denying Kinsey disability
insurance benefits is affirmed.
IT IS SO ORDERED.

Dated: September 29, 2017

s/ William H. Baughman, Jr.
United States Magistrate Judge

-10-