Ogle v. Colvin (PLR1)

Filing 24

MEMORANDUM AND OPINION as set forth in following order. Signed by Magistrate Judge H Bruce Guyton on 2/14/17. (ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
PATRICIA ANN OGLE,
Plaintiff,
v.
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.

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No. 3:15-CV-403-HBG

MEMORANDUM OPINION
This case is before the undersigned pursuant to 28 U.S.C. § 636(c), the Rules of this Court,
and the consent of the parties [Doc. 16]. Now before the Court is the Plaintiff’s Motion for
Summary Judgment and Memorandum in Support [Docs. 17 & 18] and the Defendant’s Motion
for Summary Judgment and Memorandum in Support [Docs. 19 & 20]. The Plaintiff also filed a
Reply Memorandum [Doc. 23]. Patricia Ann Ogle (“the Plaintiff”) seeks judicial review of the
decision of the Administrative Law Judge (“the ALJ”), the final decision of the Defendant Carolyn
W. Colvin, Acting Commissioner of Social Security (“the Commissioner”).
On April 20, 2012, the Plaintiff filed an application for disability insurance benefits and
supplemental security income (“SSI”), claiming a period of disability which began April 9, 2012.
Her claim of disability was based on “nerves, depression, hypertension, chest pain and colon
problems” [Doc. 236]. After her application was denied initially and upon reconsideration, the
Plaintiff requested a hearing. On May 15, 2014, a hearing was held before the ALJ to review the

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During the pendency of this case, Nancy A. Berryhill replaced Acting Commissioner Carolyn
W. Colvin. Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted
as the Defendant in this case.

determination of Plaintiff’s claim [Doc. 24-45].
After the hearing the ALJ secured the following additional evidence in the case: (1)
consultative exam by Jeffrey Uzzle, M.D., on September 10, 2014; (2) consultative exam by Ellen
Denny, Ph.D., on August 28, 2014; and (3) a vocational interrogatory, consisting of nine questions
and answers, from Susan Thomas, vocational expert. The ALJ provided this evidence to the
Plaintiff and her representative of record, Ken Butler, and properly advised the Plaintiff of her
right to respond and/or submit to the ALJ written questions to be sent to Dr. Uzzle, Dr. Denny, or
Ms. Thomas [Tr. 301-302; 309-310]. The Plaintiff responded by letter to the ALJ as to the exams
by Dr. Uzzle and Dr. Denny [Tr. 304]. The Plaintiff responded by letter to the ALJ as to the
interrogatory answers by Ms. Thomas. The Plaintiff requested that two additional “hypothetical”
interrogatories be posed to Ms. Thomas which incorporate physical limitations found by Dr. Uzzle
[Tr. 312]. The ALJ, however, did not submit Plaintiff’s requested interrogatory to Ms. Thomas,
although she acknowledged receipt of the request in her Decision [Doc. 17].
On February 2, 2015, the ALJ found that the Plaintiff was not disabled, because the Plaintiff
could perform her past relevant work as a housekeeper [Tr. 10-18]. The Appeals Council denied
the Plaintiff’s request for review [Tr. 1-3]; thus, the decision of the ALJ became the final decision
of the Commissioner.
The Court has considered the medical evidence in the record, the testimony at the hearings,
and all other evidence in the record. The medical history of the Plaintiff and the content of the
ALJ’s Decision are not in dispute, and need not be repeated here.
I.

DISABILITY ELIGIBILITY
This case involves an application for SSI benefits. To qualify for SSI benefits, an

individual must file an application and be an “eligible individual” as defined in the Act. 42 U.S.C.
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§ 1382(a); 20 C.F.R. § 416.202. An individual is eligible for SSI benefits on the basis of financial
need and either age, blindness, or disability. See 42 U.S.C. § 1382(a).
“Disability” is “the inability to do 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 months.”
42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). A claimant will only be considered disabled
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. § 1382c(a)(3)(B); see also 20 C.F.R. § 4015.905(a).
Disability is evaluated pursuant to a five-step analysis summarized 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 (“RFC”) and
vocational factors (age, education, skills, etc.), he is not disabled.
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Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520).
Plaintiff bears the burden of proof at the first four steps. Id. The burden shifts to the Commissioner
at step five. Id. At the fifth step, the Commissioner must prove that there is work available in the
national economy that the claimant could perform. Her v. Comm’r of Soc. Sec., 203 F.3d 388,
391 (6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137, 146 (1987)).
II.

STANDARD OF REVIEW
When reviewing the Commissioner’s determination of whether an individual is disabled

pursuant to 42 U.S.C. § 405(g), the Court is limited to determining “whether the ALJ applied the
correct legal standards and whether the findings of the ALJ are supported by substantial evidence.”
Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009) (citing Key v. Callahan, 109
F.3d 270, 273 (6th Cir. 1997)). If the ALJ applied the correct legal standards and his findings are
supported by substantial evidence in the record, his decision is conclusive and must be affirmed.
42 U.S.C. § 405(g); Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). Substantial
evidence is “more than a scintilla of evidence but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Cutlip v. Sec’y
of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citing Kirk v. Secretary of Health &
Human Servs., 667 F.2d 524, 535 (6th Cir. 1981)) (internal citations omitted).
It is immaterial whether the record may also possess substantial evidence to support a
different conclusion from that reached by the ALJ, or whether the reviewing judge may have
decided the case differently. Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th
Cir. 1986). The substantial evidence standard is intended to create a “‘zone of choice’ within
which the Commissioner can act, without the fear of court interference.” Buxton v. Halter, 246
F.3d 762, 773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)).
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Therefore, the Court will not “try the case de novo, nor resolve conflicts in the evidence, nor decide
questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing Myers v.
Richardson, 471 F.2d 1265 (6th Cir. 1972)).
In addition to reviewing the ALJ’s findings to determine whether they were supported by
substantial evidence, the Court also reviews the ALJ’s decision to determine whether it was
reached through application of the correct legal standards and in accordance with the procedure
mandated by the regulations and rulings promulgated by the Commissioner. See Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
On review, the plaintiff “bears the burden of proving his entitlement to benefits.” Boyes
v. Sec’y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citing Halsey v. Richardson,
441 F.2d 1230 (6th Cir. 1971)).
In the present case, the Plaintiff argues that the ALJ violated her due process rights, and
the Social Security Administration’s own rules, by failing to submit her proposed interrogatory to
the vocational expert, Susan Thomas. The Defendant concedes that the “agency is bound to follow
its own rules,” but argues that the error by the ALJ was harmless.
The Plaintiff also argues that the ALJ should have included “pulmonary restrictions” and
additional mental limitations in the RFC finding. The Defendant responds that the ALJ fully
addressed the issues and that the limitations in the RFC were based on substantial evidence.
Finally, the Plaintiff argues that the ALJ should have developed more evidence regarding
Plaintiff’s intellectual functioning. The Defendant argues that the ALJ gave a proper evaluation
in this regard, given that the Plaintiff did not allege disability based on intellectual functioning.
The Court will address these issues in turn.

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III.

ANALYSIS
A.

Vocational Expert Interrogatory

Citing to Hearings, Appeals, and Litigation Law Manual (HALLEX) §I-2-5-58(B), Action
When Administrative Law Judge Receives Vocational Expert’s Responses to Interrogatories, the
Plaintiff argues that when post-hearing vocational evidence is obtained “an ALJ must allow a
claimant to propose additional interrogatories to the VE or request a supplemental hearing to
question the VE.” See also SSR 13-2p (requiring that an ALJ must follow all Agency policies,
including HALLEX). The Court agrees.
In the present case, after the hearing, the ALJ sent interrogatories to the vocational expert,
Susan Thomas. The responses were sent to the Plaintiff, along with notice of Plaintiff’s right to
submit interrogatories. Plaintiff did submit an additional question for the vocational expert, based
on the results of a consultative examination performed by Dr. Uzzle, which exam was performed
after the hearing. The ALJ did not submit Plaintiff’s question to the vocational expert for
consideration.
Federal agencies are obligated to abide by their own rules. Wilson v. Commissioner of
Social Security, 378 F.3d 541, 545 (6th Cir. 2004). Moreover, Wilson further holds that the
“harmless error” analysis does not apply when the Agency has denied a mandatory procedural
protection. Id. at 546; and Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011).
Simply stated, the Plaintiff has the right to cross-examine the author of expert opinions,
particularly when the expert’s evidence is obtained by the ALJ, post-hearing. Townley v. Heckler,
748 F.2d 109, 114 (2nd Cir. 1984) (“Although the ALJ asked appellant’s attorney to submit
objections and additions to the interrogatories posed to the vocational expert, there is no evidence
that the attorney’s suggestions were ever forwarded. [A]ppelant was denied his due process rights.
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. .”.).
The Court finds that the ALJ’s failure to proffer to Ms. Thomas the additional question
submitted by the Plaintiff deprived the Plaintiff of her fundamental right, under the Agency’s own
rules, to submit additional evidence through the vocational expert. The case must be remanded to
correct this error.
B.

Lung Impairments and Plaintiff’s Residual Functional Capacity

In this case, the ALJ considered all of the evidence of record in formulating Plaintiff’s
RFC, and found that additional limitations based on lung problems were not warranted (Tr. 1417). When applying for benefits, the Plaintiff did not allege disability from lung-related problems.
The ALJ recognized Plaintiff’s alleged limitations from her lung problems, including her
allegations that she had difficulty performing any activities, for example, house cleaning (Tr. 14,
276). Physical examination in July 2012 showed oxygen saturation levels at 98% and examination
of Plaintiff’s lung was within normal limits (Tr. 54, 367). William Downey, M.D., concluded that
although Plaintiff’s COPD could cause some limitations, her allegations exceeded the objective
findings, including the pulmonary function spirometry test and the recent physical examination
(Tr. 54). He opined that given the objective findings, Plaintiff should be capable of performing
medium work (Tr. 54). In February 2013, at the reconsideration level, Dr. Juliao affirmed Dr.
Downey’s discussion and conclusions without alteration or addition (Tr. 79-81).
The ALJ found that Dr. Downey and Dr. Juliao’s opinions were consistent with the record
as a whole, and the later evidence supports that conclusion (Tr. 16). In July 2012, Ogle’s oxygen
was again 98% with a normal lung examination (Tr. 367). Her breathing was unlabored and her
chest movement symmetrical (Tr. 367). Similar findings were made in October 2012 (Tr. 441).
On June 12, 2013, Plaintiff’s oxygen level was 98%, and her breathing was again described as
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unlabored, with symmetrical chest movement (Tr. 467). In July 2013, she reported no lung or
respiratory complaints and continued to use her inhalers as prescribed (Tr. 465). In October 2013,
her oxygen level was 99%, her examination was normal, and her treatment plan was unchanged
(Tr. 463).
At her examination in September 2014, Plaintiff reported dyspnea on exertion with walking
less than a block, but upon examination there were only a “few scattered rhonchi in both fields
with fair to good air movement; otherwise, normal breath sounds” (Tr. 565). The Court finds that
substantial evidence in the record supports those limitations included in Plaintiff’s RFC (Tr. 1417). The Court concludes that remand for further consideration of Plaintiff’s lung impairments is
not required.
C.

Intellectual Functioning and Plaintiff’s Residual Functional Capacity

The ALJ discussed Plaintiff’s allegedly disabling mental impairments in the Decision (Tr.
14-17). In rating the degree of functional limitations under the “paragraph B” criteria, the ALJ
determined Plaintiff had moderate restrictions in activities of daily living; moderate difficulties in
social functioning; moderate difficulties in the ability to concentrate, persist, or maintain pace; and
no episodes of decompensation of extended duration [(Tr. 13). The ALJ specified that the
limitations identified by the “paragraph B” criteria were not an RFC assessment, and that the
mental RFC would include a more detailed assessment that would itemize the various functions
contained in the broad paragraph B categories (Tr. 14).
After determining that none of Plaintiff’s impairments met or equaled the requirements of
any listing, the ALJ formulated Plaintiff’s RFC for use at step four (Tr. 12-14). The Court finds
that the ALJ formulated Plaintiff’s RFC based on her consideration of all of Plaintiff’s symptoms
and the extent to which those symptoms could reasonably be accepted as consistent with the
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objective medical evidence and other evidence, based on the requirements of 20 C.F.R. §§
404.1529 and 416.929 and SSRs 96-4p and 96-7p (Tr. 14). The ALJ also considered opinion
evidence in accordance with the requirements of 20 C.F.R. §§ 404.1527 and 416.927 and SSRs
96-2p, 96-5p, 96-6p, and 06-3p (Tr. 14). With respect to Plaintiff’s mental limitations, specifically
her moderate limitations in concentration, persistence, or pace, the ALJ found that despite these
limitations, Plaintiff retained the ability to do simple and detailed work (Tr. 14). With respect to
her moderate limitations in social functioning, the Plaintiff was to interact with people very seldom
and superficially (Tr. 14).
Expert opinion in the record provides substantial evidence to support the ALJ’s RFC. In
October 2012, Frank Kupstas, Ph.D., opined that Plaintiff could maintain concentration,
persistence, and pace for low-level detailed tasks over a normal workday with appropriate breaks
(Tr. 16-17, 55). That limitation accounted for both Plaintiff’s moderate limitations in her ability
to maintain attention and concentration for extended periods and her moderate limitations in her
ability to perform activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances (Tr. 54-55). Dr. Kupstas noted Plaintiff’s reports of her ability to perform
many activities of daily living (Tr. 51, 247-54). He concluded that Plaintiff’s allegations were
credible and consistent with moderate limitations (Tr. 51). In February 2013, Jenaan Khaleeli,
Psy.D., affirmed Dr. Kupstas opinion (Tr. 17, 107-112).
Plaintiff, however, argues that the opinion of Ellen Denny, Ph.D., showed that Plaintiff had
severe impairments in concentration and that she likely functioned in the extremely low range of
intellectual ability (Tr. 549, 551). Dr. Denny performed a psychological consultative examination
of Plaintiff in August 2014, and opined that Plaintiff displayed a moderate to severe impairment
in comprehension and judgment (Tr. 547), and that Plaintiff’s ability to concentrate on work
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routines was “likely to be quite impaired” (Tr. 551). Dr. Denny also opined that Plaintiff would
have moderate impairments in her ability to understand, remember, and carry out simple
instructions, as would her ability to make judgments on simple work-related decisions (Tr. 551).
The ALJ found that Dr. Denny’s opinion was entitled to less weight, based on her
evaluation that the record as a whole supported no more than moderate restrictions in Plaintiff’s
ability to sustain concentration and attention and adapt to changes and requirements (Tr. 16). The
Court finds that the ALJ reasonably evaluated the medical opinions in formulating the RFC.
Although the ALJ was not required to provide “good reasons” for affording less weight to the
opinion of Dr. Denny, her decision reflects that she properly evaluated the opinion using the
relevant factors in 20 C.F.R. §§ 404.1527(c)(1)-(6) and 416.927(c)(1)-(6). She recognized that the
doctors reached different conclusions and resolved these conflicts as directed by the regulations.
Although Plaintiff argues that the RFC limitation did not sufficiently account for all of her
limitations, Dr. Kupstas specified that the Plaintiff’s ability to maintain concentration, persistence,
and pace for low-level detailed tasks over a normal workday with appropriate breaks accounted
for both her moderate limitations in her ability to maintain attention and concentration for extended
periods and her moderate limitations in her ability to perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerances (Tr. 54-55). Substantial evidence
supports the ALJ’s conclusion that the Plaintiff retained the ability to do simple and detailed work.
Plaintiff also argues that the ALJ erred in failing to follow Dr. Denny’s recommendation
for further intellectual testing. Plaintiff argues that such testing could establish the existence of a
medically determinable impairment, such as mental retardation or borderline intellectual
functioning. Plaintiff, however, did not allege such an impairment, and there is little evidence in
the record to support it. The ALJ did not err in failing to evaluate a condition that Plaintiff did not
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raise as potentially disabling. The Court concludes that remand for further evaluation of Plaintiff’s
mental impairments is not required.
IV.

CONCLUSION
Based upon the foregoing, it is hereby ORDERED that the Plaintiff’s Motion for Summary

Judgment [Doc. 17] be GRANTED in part and DENIED in part, and the Commissioner’s
Motion for Summary Judgment [Doc. 19] be GRANTED in part and DENIED in part, and that
this matter be REMANDED for further proceedings consistent with this opinion.
ORDER ACCORDINGLY.
ENTER:

United States Magistrate Judge

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