Mayes v. Social Security Administration, Commissioner of

Filing 14

MEMORANDUM AND OPINION as set forth in following order.Signed by District Judge R Leon Jordan on 5/18/11. (ABF)

IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF TENNESSEE
GREENEVILLE DIVISION

ESTATE OF DONNA MAYES by
EDDIE MAYES, EXECUTOR,

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Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

No. 2:10-CV-103

MEMORANDUM OPINION

This is an action for judicial review, pursuant to 42 U.S.C. § 405(g), of
defendant Commissioner’s final decision denying plaintiff’s claim for disability insurance
benefits.1 For the reasons provided herein, defendant’s motion for summary judgment [doc.
12] will be granted, and plaintiff’s motion for judgment on the pleadings [doc. 10] will be
denied. The final decision of the Commissioner will be affirmed.
I.
Procedural History
Plaintiff applied for benefits in May 2008, claiming to be disabled by liver and
pancreas diseases, respiratory problems, and depression. [Tr. 88, 102]. She alleged a

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The claimant died on March 25, 2010. This appeal is brought by the executor (her
husband) on behalf of the estate.

disability onset date of July 1, 2007, which was allegedly the last day she worked due to - in
her own words - pain, depression, and “heavy drinking and drug use.” [Tr. 88, 102].
Plaintiff’s claim was denied initially and on reconsideration. She then requested a hearing,
which took place before an Administrative Law Judge (“ALJ”) in August 2009.
The following month, the ALJ issued a decision denying benefits. He
concluded that plaintiff suffered from the severe impairments of liver disease, cirrhosis,
arthritis, and depression, but that these conditions did not meet or equal any impairment listed
by the Commissioner. [Tr. 13-14]. The ALJ found plaintiff’s subjective allegations to be
overstated [Tr. 16], and he concluded that plaintiff retained the residual functional capacity
(“RFC”) to perform simple work at the medium level of exertion. [Tr. 15]. Citing vocational
expert testimony, the ALJ further concluded that a significant number of jobs exist in the
national economy to accommodate plaintiff’s RFC. [Tr. 18]. Plaintiff was accordingly
deemed ineligible for benefits.
Plaintiff then sought review from the Commissioner’s Appeals Council.
Review was denied on March 9, 2010. [Tr. 1]. The ALJ’s ruling therefore became the
Commissioner’s final decision. See 20 C.F.R. § 404.981. The present complaint is timely
and has properly been brought before this court for review. See 42 U.S.C. § 405(g).

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II.
Applicable Legal Standards
This court’s review is confined to whether the ALJ applied the correct legal
standards and whether his factual findings were supported by substantial evidence. 42 U.S.C.
§ 405(g); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). “Substantial
evidence” is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The substantial evidence standard
“presupposes that there is a zone of choice within which the decisionmakers can go either
way, without interference by the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.
1986) (citation omitted). Nonetheless, the court must take care not to “abdicate [its]
conventional judicial function,” despite the narrow scope of review. Universal Camera
Corp. v. NLRB, 340 U.S. 474, 490 (1951).
A claimant is entitled to disability insurance payments under the Social
Security Act if she (1) is insured for disability insurance benefits, (2) has not attained
retirement age, (3) has filed an application for disability insurance benefits, and (4) is under
a disability. 42 U.S.C. § 423(a)(1). “Disability” is the “inability 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 12 months.” 42 U.S.C. § 423(d)(1)(A).

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An individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful work which
exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for work.
42 U.S.C. § 423 (d)(2)(A).

Disability is evaluated pursuant to a five-step analysis

summarized by the Sixth Circuit as follows:
1. If claimant is doing substantial gainful activity, he is not disabled.
2. If claimant is not doing substantial gainful activity, his impairment must be
severe before he can be found to be disabled.
3. If claimant is not doing substantial gainful activity and is suffering from a
severe impairment that has lasted or is expected to last for a continuous period
of at least twelve months, and his impairment meets or equals a listed
impairment, claimant is presumed disabled without further inquiry.
4. If claimant's impairment does not prevent him from doing his past relevant
work, he is not disabled.
5. Even if claimant's impairment does prevent him from doing his past relevant
work, if other work exists in the national economy that accommodates his
residual functional capacity and vocational factors (age, education, skills, etc.),
he is not disabled.
Walters, 127 F.3d at 529 (citing 20 C.F.R. § 404.1520). Plaintiffs bear the burden of proof
at the first four steps. See Walters, 127 F.3d at 529. The burden shifts to the Commissioner
at step five. See id.

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III.
Analysis
In this appeal, the executor claims that there were several errors in the
administrative proceedings below. The court will address these issues in turn.
A. Substance Abuse / Subjective Complaints
Plaintiff “was a daily drinker of a quart of alcohol per day for many years.”
[Tr. 266]. As for abusing narcotics, plaintiff once commented, “I have done it all.” [Tr. 285].
According to the appellant, the ALJ unduly relied on these facts in denying benefits.
The appellant first criticizes the following sentence contained in the ALJ’s
opinion: “During her hospital stay at Lakeway Regional Hospital in April of 2008, the
claimant was assessed with alcoholic cirrhosis, alcoholic hepatitis, alcoholic pancreatitis and
alcohol abuse . . . , which not only indicated that the claimant’s conditions were subsequent
to alcohol dependence but also suggested that the claimant’s condition would improve in the
absence of alcohol abuse.” [Tr. 16]. According to the appellant, “There is nothing in the
treatment notes to ‘suggest’ that Mrs. Mayes’ condition would improve at all in the absence
of alcohol.”
However, the records of Lakeway Hospital and other providers make clear that
the majority of plaintiff’s complaints were related to her multi-substance abuse. [Tr. 236,
264, 266, 324, 327, 405]. On July 9, 2008, Dr. Michael Ellis (a specialist in gastroenterology
and hepatology) wrote, “Ms. Donna Mayes is a 51-year-old female with a history of alcohol

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related pancreatitis. . . . I have encouraged her to remain abstinent to reduce the likelihood
of recurrent pancreatitis.” [Tr. 264]. Pancreatitis was one of the conditions upon which
plaintiff based her claim for disability. [Tr. 102]. The appellant’s argument - that plaintiff’s
organ disease and mental health would not have improved in the absence of substance abuse utterly defies common sense.
The appellant goes on to argue that the ALJ failed to determine plaintiff’s
vocational capacities independent of her multi-substance abuse, in violation of 20 C.F.R. §
404.1535. The appellant is incorrect. The ALJ reached his RFC conclusions in reliance on
the Mental and Physical RFC Assessments of record. [Tr. 15, 17, 278-83, 322-24, 345-50].
With the exception of a consultative mental examination to be discussed in section III(E) of
this opinion, these were the only vocational opinions in the file. The RFC Assessments
expressly speak to plaintiff’s abilities in the absence of substance abuse. [Tr. 324, 350].
There was no error.
Plaintiff’s unfortunate drug and alcohol consumption is relevant on one other
point. Ultimately, the present appeal criticizes the ALJ for not crediting plaintiff’s subjective
complaints. Had the ALJ completely believed plaintiff’s representations, VE testimony
would have supported a finding of disability. [Tr. 41]. The record pertaining to plaintiff’s
substance abuse helps explain why the ALJ found her less than credible. The court notes:

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1. Plaintiff testified and stated that she had consumed no alcohol since
approximately May 2008. [Tr. 23, 261]. Elsewhere, however, she claimed to
have stopped drinking in May 2007 [Tr. 208] or June 2008. [Tr. 264]. Despite
these varied representations, plaintiff sought medical care on August 20, 2008,
for abdominal pain that “[b]egan after drinking four beers today.” [Tr. 291].
By September 2008, plaintiff again denied recent alcohol use. [Tr. 326].
2. In June 2007, plaintiff told Dr. Todd Peters that her drinking had increased
since her mother’s February 2007 death. [Tr. 208]. However, in April 2007,
plaintiff had told Dr. Peters that it was “rare” for her to consume alcohol. [Tr.
224].
3. Plaintiff testified under oath that she stopped drinking on her own when she
reconciled with her husband, referring to him as her “rock.” [Tr. 24-25].
However, to Dr. Bojidar Dolaptchiev in April 2008, she blamed her husband
for her heavy alcohol consumption during the prior eight months. [Tr. 235].
Plaintiff also told Dr. Dolaptchiev that her mother’s death was another trigger
for her substance abuse but she now claimed that her mother had died in
September 2007 rather than February. [Tr. 235]. Plaintiff and her husband
were consuming a half-gallon of liquor every other day and she was noted to
have an “alcohol odor.” [Tr. 235-36]. Plaintiff reconciled with her husband
in August or September 2007 [Tr. 197, 235, 285].
4. In April 2008, plaintiff told Dr. Dolaptchiev that she had a cocaine injection
habit which ended in the early 1970s. [Tr. 235]. Plaintiff apparently did not
disclose to Dr. Dolaptchiev that she had been smoking approximately $100.00
of crack cocaine per day at least from February to September 2007. [Tr. 285,
405].
5. Plaintiff claimed in part to be disabled by worsening shortness of breath [Tr.
144, 181], yet she continued to smoke at least one pack of cigarettes per day.
[Tr. 26].
6. Plaintiff testified that she was disabled primarily by pain. [Tr. 25].
However, she admitted that pain medication improved her condition when
taken as prescribed, yet she acknowledged that she did not take her medication
unless it was “absolutely necessary and I know I’m going to have to be up and
be out and be physical.” [Tr. 25-26]. Plaintiff claimed to be unable to afford
certain necessary medications costing in the 20 to 35 dollar range [Tr. 149], yet
she could afford a pack of cigarettes and a liter of cola per day. [Tr. 285].
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As these inconsistencies illustrate, there was ample cause for the ALJ to find that plaintiff
was a less-than credible source of information. To the extent that it is now argued that the
ALJ erred in his credibility determination, that argument is rejected.
B. Light v. Medium Work
According to the VE’s testimony, most of plaintiff’s past relevant work was
at the light level of exertion. [Tr. 39]. The ALJ concluded that plaintiff could not perform
her past (mostly light) relevant work yet went on to conclude that plaintiff could do other
jobs at the higher medium level of exertion. The appellant contends that these conclusions
cannot be reconciled. If plaintiff could no longer perform light work, the argument goes,
then she should have been instead placed at the lower sedentary level of exertion. On its
face, this argument has definite allure, but that allure fades after a careful reading of the
record.
Explaining his conclusion regarding past relevant work, the ALJ wrote, “The
vocational

expert

did

not

indicate

that

a

person

with

the

claimant’s

medical/vocational/educational profile who is able to perform simple, medium work would
be able to perform the claimant’s past relevant jobs. Accordingly, the claimant is unable to
perform past relevant work.” [Tr. 17] (emphasis added). The ALJ’s explanation accurately
portrays what took place in the administrative proceeding. The hearing transcript shows that
the ALJ failed to ask the VE whether or not plaintiff could return to her past relevant work.
Therefore, there was no proof on this point and thus no grounds for the ALJ to deny the claim

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at step four of the sequential evaluation process (past relevant work). Because of what the
VE “did not indicate” (because she was never asked the question), plaintiff received the
benefit of the doubt and her claim was allowed to proceed to step five. Any error below was
an error in her favor.
C. Dr. Kouser
It is next alleged that the ALJ erred by disregarding Dr. Aqueel Kouser’s
“assessment of” fibromyalgia. It is also alleged that the ALJ disregarded Dr. Kouser’s
records “pointing to” other severe impairments. [Doc. 11, unnumbered p. 8].
Addressing first the issue of fibromyalgia, that condition is diagnosed by “(1)
the testing of a series of focal points for tenderness and (2) the ruling out of other possible
conditions through objective medical and clinical trials.” Rogers v. Comm’r of Soc. Sec.,
486 F.3d 234, 244 (6th Cir. 2007). Dr. Kouser (a rheumatologist) conducted focal point
testing on February 6, 2009, and that testing was negative. [Tr. 354]. Inexplicably, however,
that same day he wrote “[s]he hurts because of fibromyalgia.” [Tr. 354].
Assuming arguendo that it was error not to discuss Dr. Kouser’s fibromyalgia
notation, the error was harmless. It is harmless error for an ALJ to disregard a medical
opinion that is so patently deficient that no reasonable fact-finder could have credited it. See
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004). Dr. Kouser’s “assessment
of” fibromyalgia on the very same day that his testing had shown the absence of that
condition certainly could be described as a “patently deficient” opinion. See also 20 C.F.R.

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§ 404.1527(d)(3) (“The more a medical source presents relevant evidence to support an
opinion, particularly medical signs and laboratory findings, the more weight we will give that
opinion. The better an explanation a source provides for an opinion, the more weight we will
give that opinion.”); Vance v. Comm’r of Soc. Sec., 260 F. App’x 801, 806 (6th Cir. 2008)
(“a diagnosis of fibromyalgia does not automatically entitle [the claimant] to disability
benefits . . . . Some people may have a severe case of fibromyalgia as to be totally disabled
from working . . . but most do not and the question is whether [claimant] is one of the
minority.”) (emphasis in original) (citation and quotation omitted).
As for the argument that Dr. Kouser’s records “pointed to” other severe
conditions, the appellant does not explain which conditions those are or how they would have
limited plaintiff’s vocational capacity. [Doc. 11, unnumbered p. 8]. The argument is
therefore waived. See Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 491 (6th Cir. 2006);
McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997).
D. Dr. Misra
The ALJ relied in part on a Physical RFC Assessment completed by Dr. Reeta
Misra.

In unfortunately imprecise shorthand, the ALJ summarized that physician’s

conclusions in material part as follows: “Dr. Misra opined that the claimant was able to
perform medium work and to sit/stand/walk six hours of an eight-hour workday.” [Tr. 17].
This wording was consistent with the ALJ’s RFC finding that “the claimant has the residual
functional capacity to perform the full range of simple, medium work . . . as well as

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sit/stand/walk six hours of an eight-hour workday.” [Tr. 15].
The appellant has seized on the ALJ’s shorthand (“sit/stand/walk six hours”)
as evidence of disability, interpreting it as a prediction that plaintiff could sit, stand, and walk
in combination for a mere six hours per day. If that were the case, it is argued, then plaintiff
should have been found disabled because she did not have the ability to engage in these
activities for a full eight-hour workday.
The appellant’s argument “simply fails the straight face test.” Coffey v. Dowley
Mfg., Inc., 187 F. Supp. 2d 958, 977 (M.D. Tenn. 2002). Dr. Misra’s assessment shows that
the physician predicted that plaintiff could sit for approximately six hours per workday and
that she could also stand and/or walk for approximately six hours per workday. [Tr. 346].
The ALJ’s imprecise wording was not evidence of disability. Dr. Misra’s report and
conclusions speak for themselves. There was no error.
E. Dr. Nevils
Clinical psychologist Roy Nevils performed a consultative examination on
August 13, 2008. [Tr. 284]. Wechsler Memory Scale testing led Dr. Nevils to conclude that
plaintiff “would be expected to have marked difficulties with memory and possibly
concentration in a competitive job circumstance.” [Tr. 287]. Dr. Nevils’ report was colored
by plaintiff’s misstatement that her alcohol abuse was in remission. [Tr. 287].2

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As noted above, plaintiff sought medical care for beer-induced abdominal pain a mere
seven days after the consultation with Dr. Nevils. [Tr. 291].
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The appellant correctly notes that the ALJ did not address, adopt, or explain
the rejection of Dr. Nevils’ opinion as it pertained to memory. The ALJ did note Dr. Nevils’
assessment regarding concentration, but not memory. [Tr. 17].
The court deems this error harmless. Frances Breslin, Ph.D. completed a
Mental RFC Assessment in August 2008, and that assessment was considered by the ALJ
[Tr. 15], along with a subsequent counseling intake form indicating normal mental
functioning (in the absence of substance abuse). [Tr. 17, 404]. Dr. Breslin reviewed Dr.
Nevils’ report along with other record evidence. [Tr. 320]. Dr. Breslin opined that plaintiff’s
concentration and memory would be no more than moderately limited (in the absence of
substance abuse). [Tr. 322-24].
The failure to address a medical source opinion may be deemed harmless if:
1. The medical opinion was so patently deficient that no reasonable fact-finder
could have credited it;
2. The ALJ elsewhere adopted the opinion;
3. An earlier decision by the ALJ adequately addressed the issue; or
4. The ALJ’s reasoning could be inferred from his overall discussion of the
condition.
Wilson, 378 F.3d at 547; Hall v. Comm’r of Soc. Sec., 148 F. App’x 456, 462-66 (6th Cir.
2005). Arguably, the ALJ’s reasoning could be inferred from his adoption of Dr. Breslin’s
conclusions as that source had considered Dr. Nevils’ report. Arguably, Dr. Nevils’ opinion
was “patently deficient” because it appears he had been mislead regarding plaintiff’s

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continued alcohol consumption. Most importantly, however, the ALJ in fact elsewhere
adopted Dr. Nevils’ memory restrictions by limiting plaintiff to “simple” work. See Parks
v. Soc. Sec. Admin., No. 09-6437, 2011 WL 867214, at *10 (6th Cir. Mar. 15, 2011)
(Consultant’s prediction of limited memory was sufficiently accounted for by a restriction
to jobs with “no ‘more than simple instruction.’”). For this reason alone, any error was
harmless.
F. Conclusion
The administrative record contains some objective indication of conditions that
could reasonably be expected to cause some pain or limitation. The ALJ credited that
evidence in restricting plaintiff’s RFC to a range of simple, medium work. The record does
not contain sufficient objective documentation to render that decision unsupported by
substantial evidence. The final decision of the Commissioner will accordingly be affirmed.
An order consistent with this opinion will be entered.

ENTER:

s/ Leon Jordan
United States District Judge

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