Brantley v. Commissioner of Social Security

Filing 19

ORDER AFFIRMING THE DECISION OF THE COMMISSIONER. Signed by Chief Judge S. Thomas Anderson on 8/10/17. (Anderson, S. Thomas)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
KIMBERLEY BRANTLEY,
Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Case No: 1:14-cv-01245-STA-egb

ORDER AFFIRMING THE DECISION OF THE COMMISSIONER
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Plaintiff Kimberley Brantley filed this action to obtain judicial review of Defendant
Commissioner’s final decision denying her application for disability insurance benefits under
Title II of the Social Security Act (“Act”) and an application for supplemental security income
(“SSI”) benefits based on disability under Title XVI of the Act. Plaintiff’s applications were
denied initially and upon reconsideration by the Social Security Administration. Plaintiff then
requested a hearing before an administrative law judge (“ALJ”), which was held on June 12,
2003. On August 7, 2013, the ALJ denied the claim. The Appeals Council subsequently denied
the request for review. Thus, the decision of the ALJ became the Commissioner’s final decision.
For the reasons set forth below, the decision of the Commissioner is AFFIRMED.
Under 42 U.S.C. § 405(g), a claimant may obtain judicial review of any final decision
made by the Commissioner after a hearing to which he or she was a party. “The court shall have
the power to enter, upon the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security, with or without

remanding the cause for a rehearing.”1 The Court’s review is limited to determining whether
there is substantial evidence to support the Commissioner’s decision,2 and whether the correct
legal standards were applied.3
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”4 It is “more than a mere scintilla of evidence, but less than a
preponderance.”5 The Commissioner, not the Court, is charged with the duty to weigh the
evidence, to make credibility determinations and resolve material conflicts in the testimony, and
to decide the case accordingly.6

When substantial evidence supports the Commissioner’s

determination, it is conclusive, even if substantial evidence also supports the opposite
conclusion.7
Plaintiff was born on September 1, 1967. In her disability report, she alleged disability
due to fibromyalgia, arthritis, carpal tunnel, sleep apnea, degenerative disc disease of the lower
back, tailbone pain, pre-diabetes, chronic fatigue, depression, and migraines beginning April 30,
2008. She has a college degree in business administration, and she held an insurance license for
1

42 U.S.C. § 405(g).

2

Id.

3

Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). See also Landsaw v. Sec’y of Health &
Human Servs, 803 F.2d 211, 213 (6th Cir. 1986).

4

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (quoting Richardson v. Perales, 402 U.S.
389 (1971)).

5

Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996) (citing Consolidated Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)).

6

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997); Crum v. Sullivan, 921 F.2d
642, 644 (6th Cir. 1990); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
7

Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004).
2

a short time. She worked part-time as a nanny for her treating physician, Dr. Melanie Hoppers.
She last worked full-time at an auto parts store.
The ALJ made the following findings: (1) Plaintiff met the insured status requirements
through March 31, 2015; (2) Plaintiff has not engaged in substantial gainful activity since the
alleged onset date; (3) Plaintiff has severe impairments of obesity, sleep apnea, insomnia,
irritable bowel syndrome, tenosynovitis/carpal tunnel syndrome, anxiety, depression, and
adjustment disorders; but she does not have impairments, either alone or in combination, that
meet or equal the requirements of any listed impairment contained in 20 C.F.R. pt. 404, subpt. P,
app. 1 of the listing of impairments; (4) Plaintiff retains the residual functional capacity to
perform light work with postural, manipulative, and mental limitations; (5) Plaintiff is unable to
perform her past relevant work; (6) Plaintiff was a younger individual with at least a high school
education on the alleged onset date; (7) transferability of job skills is not material to the
determination of disability because using the Medical-Vocational Rules (“the grids”) as a
framework supports a finding that Plaintiff is not disabled whether or not he has transferable job
skills; (8) considering Plaintiff’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that Plaintiff
can perform; (9) Plaintiff was not under a disability as defined in the Act at any time through the
date of this decision.8
The Social Security Act defines disability as the inability to engage in substantial gainful
activity.9 The claimant bears the ultimate burden of establishing an entitlement to benefits.10

8

R. 53 – 63.

9

42 U.S.C. § 423(d)(1).

10

Born v. Sec’y of Health & Human Servs, 923 F.2d 1168, 1173 (6th Cir. 1990).
3

The initial burden of going forward is on the claimant to show that he or she is disabled from
engaging in his or her former employment; the burden of going forward then shifts to the
Commissioner to demonstrate the existence of available employment compatible with the
claimant’s disability and background.11
The Commissioner conducts the following, five-step analysis to determine if an
individual is disabled within the meaning of the Act:
1. An individual who is engaging in substantial gainful activity will not be found to be
disabled regardless of medical findings.
2. An individual who does not have a severe impairment will not be found to be disabled.
3. A finding of disability will be made without consideration of vocational factors, if an
individual is not working and is suffering from a severe impairment which meets the duration
requirement and which meets or equals a listed impairment in Appendix 1 to Subpart P of the
regulations.
4. An individual who can perform work that he or she has done in the past will not be
found to be disabled.
5. If an individual cannot perform his or her past work, other factors including age,
education, past work experience and residual functional capacity must be considered to
determine if other work can be performed.12
Further review is not necessary if it is determined that an individual is not disabled at
any point in this sequential analysis.13 Here, the sequential analysis proceeded to the fifth step
with a finding that, although Plaintiff cannot perform her past relevant work, there are a
significant number of jobs existing in the national economy that she can perform.

11

Id.

12

Willbanks v. Sec’y of Health & Human Servs, 847 F.2d 301 (6th Cir. 1988).

13

20 C.F.R. § 404.1520(a).
4

Plaintiff argues that substantial evidence does not support the ALJ’s decision. She
specifically argues that the ALJ erred in the credibility assessment, in weighing the medical
opinion evidence, and in finding that she retains the residual functional capacity to perform work
other than her past relevant work. Plaintiff’s arguments are not persuasive.
Medical opinions are to be weighed by the process set forth in 20 C.F.R. § 404.1527(c).
Under the treating physician rule, an ALJ must give controlling weight to the opinion of a
claimant’s treating physician if it “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in
[the claimant’s] case record.”14 The term “not inconsistent” is meant to convey that “a wellsupported treating source medical opinion need not be supported directly by all of the other
evidence, (i.e., it does not have to be consistent with all the other evidence) as long as there is no
other substantial evidence in the case record that contradicts or conflicts with the opinion.”15
If an ALJ decides that the opinion of a treating source should not be given controlling
weight, the ALJ must take certain factors into consideration when determining how much weight
to give the opinion, including “the length of the treatment relationship and the frequency of
examination, the nature and extent of the treatment relationship, supportability of the opinion,
consistency of the opinion with the record as a whole, and the specialization of the treating
source.”16 Any decision denying benefits “must contain specific reasons for the weight given to
the treating source’s medical opinion, supported by the evidence in the case record, and must be

14

20 C.F.R. § 404.1527(c)(2).

15

Soc. Sec. Rul. 96–2P, 1996 WL 374188 at *3 (July 2, 1996).

16

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
5

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.”17
Generally, 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,18 and an opinion from a
medical source who regularly treats the claimant is afforded more weight than that from a source
who has examined the claimant but does not have an ongoing treatment relationship.19 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.”20 Opinions from
nontreating sources are not assessed for “controlling weight.”

Instead, these opinions are

weighed based on specialization, consistency, supportability, and any other factors “which tend
to support or contradict the opinion” may be considered in assessing any type of medical
opinion.21 State agency consultants are highly qualified specialists who are also experts in the
Social Security disability programs, and their opinions may be entitled to great weight if the
evidence supports their opinions.22
In the present case, substantial evidence supports the weight given to the medical
evidence and opinions in the record and the evaluation of Plaintiff’s physical residual functional

17

Soc. Sec. Rul. 96–2P, 1996 WL 374188 at *5 (July 2, 1996).

18

20 C.F.R. § 404.1502, 404.1527(c)(1).

19

Id. § 404.1502, 404.1527(c)(2).

20

Soc. Sec. Rul. No. 96–6p, 1996 WL 374180 at *2.

21

20 C.F.R. § 404.1527(c).

22

See 20 C.F.R. § 404.1527(e)(2)(i); Soc. Sec. Rul. 96-6p, 1996 WL 374180, 61 Fed. Reg.
34,466-01 (July 2, 1996).
6

capacity. The ALJ properly determined that Plaintiff could perform a reduced range of light
work, and Plaintiff has failed to show that she is otherwise more limited.
Plaintiff complains that the ALJ did not give controlling weight to the opinions of her
treating physicians and failed to give good reasons for not doing so. Both Dr. Hoppers and Dr.
Peter Gardner opined that Plaintiff could not perform even sedentary work.23 Dr. Gardner
completed a Medical Source Statement and opined that Plaintiff could lift ten pounds
occasionally and less than ten pounds frequently due to shoulder problems and fatigue; she could
stand and walk at least two hours in an eight-hour day and could sit one to two hours in a day,
due to hip tenderness; lunch and break periods would provide adequate relief; she could
occasionally climb, balance, stoop, kneel, crouch, and crawl but had limited ability to reach,
handle, and finger; she should avoid heights due to pain and fatigue.24 Dr. Hoppers wrote a oneparagraph “To whom it may concern” letter in which she stated that Plaintiff had been her patient
for several years and was now being treated by Dr. Gardner, and she concurred with Dr.
Gardner’s assessment.25 Dr. Hoppers stated that Plaintiff would be unable to work without
missing three or four days a month due to pain, depression, and excessive fatigue.
The ALJ gave little weight to the opinions of Dr. Gardner and Dr. Hoppers because they
were inconsistent with their own medical findings and the overwhelming weight of the evidence.
Dr. Hoppers did not identify any evidence of record to support her opinion. The ALJ may give
greater weight to the “detailed narrative summary” of clinical findings than to the doctor’s

23

R. 1038-39, 1056.

24

R. 1038-39.

25

R. 1056.
7

conclusions.26 Moreover, Dr. Hoppers’ reliance on Plaintiff to care for her daughter suggests
that she did not really believe that Plaintiff is as limited as Dr. Gardner opined. The ALJ also
noted that, because Dr. Hoppers employed Plaintiff as a nanny, she might be somewhat biased.27
As for Dr. Gardner, as the Commissioner notes, it is not clear that his opinion should be
regarded as a treating source opinion. Plaintiff began treatment with Dr. Gardner on May 6,
2013, just a month before her disability hearing, when she saw him for a routine physical
examination and requested that he complete disability paperwork.28 Thus, when he completed
the form, Dr. Gardner did not have the longitudinal relationship with Plaintiff that warrants
recognition as a treating relationship.
Additionally, Dr. Gardner’s findings appear to be based primarily on Plaintiff’s
subjective reports of body aches, weakness, and pain because, upon examination, Dr. Gardner
noted that Plaintiff did not appear to be in any pain.29 “The ALJ is not required to simply accept
the [opinion] of a medical examiner based solely on the claimant’s self-reports of symptoms, but
instead is tasked with interpreting medical opinions in light of the totality of the evidence.”30
Findings on physical examination were generally normal, other than a comment that Plaintiff had
“far more than 11/18 tender/trigger points consistent with a diagnosis of Fibromyalgia.”31
26

See Daniel v. Comm’r of Soc. Sec., 527 F. App’x 374, 375 (6th Cir. 2013).

27

Contrary to Plaintiff’s argument, the ALJ looked at more than Dr. Hoppers’ perceived bias
when weighing her opinion.
28

R. 1038-39, 1043.

29

R. 1044-45.

30

Griffith v. Comm’r of Soc. Sec., 2014 WL 3882671 at * 8 (6th Cir. Aug. 7, 2014) (citing 20
C.F.R. § 416.927(b)).
31

R. 1046-47.
8

However, a year earlier, Plaintiff saw a specialist for evaluation of fibromyalgia, and the
specialist noted that all findings were within normal limits and concluded that Plaintiff’s
condition did not warrant a return appointment.32 There are no contemporaneous treatment
records from Dr. Gardner. Therefore, the ALJ could properly give little weight to the opinions of
Dr. Gardner and Dr. Hoppers and adequately explained why she did so.
The ALJ gave significant weight to the opinion of medical consultant Susan Warner,
M.D., as to Plaintiff’s ability to function physically because her opinion was well-explained and
consistent with the overall weight of the evidence in the record.33 The ALJ also gave significant
weight to the opinions of Rebecca Joslin, Ed.D., and Andrew Phay, Ph.D., regarding Plaintiff’s
ability to function mentally, as they were specific in assessing her ability to perform work-related
activities and the opinions were consistent with the evidence of record as a whole.34 The ALJ
articulated appropriate reasons for giving more weight to the opinions of these reviewers than to
the opinions of Dr. Gardner and Dr. Hoppers.
Next, Plaintiff complains of the ALJ’s credibility assessment. A claimant’s credibility
comes into question when her “complaints regarding symptoms, or their intensity and
persistence, are not supported by objective medical evidence.”35 To assess credibility, the ALJ
must consider the entire record, including “any medical signs and lab findings, the claimant’s
own complaints of symptoms, any information provided by the treating physicians and others, as

32

R. 976-77.

33

R. 967-75, 1021-22.

34

R. 939-56, 979.

35

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007).
9

well as any other relevant evidence contained in the record.”36 This Court is required to “accord
the ALJ’s determinations of credibility great weight and deference particularly since the ALJ has
the opportunity, which we do not, of observing a witness’s demeanor while testifying,”37
although the ALJ’s credibility finding must find support in the record.
The Court finds no error in the ALJ’s credibility determination because Plaintiff did not
provide objective medical evidence to establish the intensity and persistence of her alleged
symptoms, and the record as a whole does not indicate that her condition was of disabling
severity. The ALJ carefully considered the record as a whole, including Plaintiff’s work history
and treatment history.
In assessing Plaintiff’s credibility, the ALJ pointed out that the treatment records did not
support the degree of impairment alleged. For example, Plaintiff had conservative treatment
during the alleged period of disability. Many of Plaintiff’s doctor visits were for B12 injections,
adjustments to her lap band, and acute illnesses; she frequently complained about minor issues
like sinusitis, rather than her allegedly disabling impairment.38 Modest treatment is “inconsistent
with a finding of total disability.”39 Moreover, her symptoms improved significantly with
medication.40 Disability is not supported when an individual’s impairments are improved with
medications.41

36

Id.

37

Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003) (citations omitted).

38

R. 57, 531, 816, 988, 993, 1010, 1023.

39

Helm v. Comm’r of Soc. Sec., 405 F. App’x 997, 1001 (6th Cir. 2011).

40

R. 57, 524, 976, 1026.

41

See Smith v. Comm’r of Soc. Sec. Admin., 564 F. App’x 758, 763 (6th Cir. 2014).
10

Although Plaintiff complained of occasional anxiety and depression, records show that
her anxiety and depression were situational in nature and related to her marital problems and
concerns about her teenage son’s behavior.42 Plaintiff even reported that she was happy most of
the time.43
Plaintiff made numerous subjective complaints, but findings on physical examination
were generally normal, with normal strength, reflexes, and sensation, and a normal gait.44 An
ALJ may consider the disparity between a claimant’s subjective claims of disabling limitations
and the relatively modest clinical findings in assessing credibility.45
Additionally, Plaintiff’s daily activities were not consistent with her allegations of
disabling impairments. Plaintiff was able to care for herself, her dogs, and her teenage son; she
could cook, prepare simple meals, clean, do laundry, drive, and shop; she visited friends and
family members several times a week; and she attended church, managed her own finances, took
vacations, helped out at a fair, and navigated the internet.46 During the alleged period of
disability, Plaintiff walked and swam regularly, used a treadmill and bike, performed strength
training and kickboxing, and worked with a personal trainer.47

Daily activities may be

considered in a credibility assessment.48

42

R. 511, 534-36, 551, 1026, 1068.

43

R. 501.

44

R. 31, 37, 507, 746, 851, 865 - 903, 913, 961, 1046.

45

See Johnson v. Comm’r of Soc. Sec., 535 F. App’x 498, 506-07 (6th Cir. 2013).

46

R. 80 - 83, 253 - 57, 288, 499, 802 - 08, 1073.

47

R. 778 - 845.

48

See Temples v. Comm’r of Soc. Sec., 515 F. App’x 460, 462 (6th Cir. 2013).
11

The ALJ further found that Plaintiff’s work activities called her credibility into question.
Plaintiff alleges that she became disabled as of April 2008, yet she became an AFLAC insurance
agent in May 2008, a position she held for at least one year, and, throughout the alleged period of
disability, Plaintiff continued to represent herself as an AFLAC salesperson.49 An ALJ may
consider an individual’s work history during a period of time in which she alleges disability.50
At the time of the hearing, Plaintiff worked as a nanny and had done so for several years,
caring for an eight-year old child and several older children.51 Plaintiff’s ability to perform child
care is an adverse credibility factor.52 Plaintiff also worked about three days a semester as a
substitute teacher.53 Although none of this work was performed at the substantial gainful activity
level, it does suggest that Plaintiff’s physical and mental impairments did not preclude all
employment.
The ALJ identified other inconsistencies in the record that undermined Plaintiff’s
credibility. Plaintiff testified that she had headaches about three times a month, but she told the
consultative examiner that she had daily headaches, lasting more than four hours each.54
Plaintiff told Dr. Woods that she was diagnosed with carpal tunnel by nerve conduction studies
49

R. 245, 260, 262, 304.

50

See Miller v Comm’r of Soc. Sec., 524 F. App’x 191, 194 (6th Cir. 2013) (“Further, the ALJ
did not err by considering Miller’s ability to maintain part-time employment as one factor
relevant to the determination of whether he was disabled.”).

51

R. 245, 260, 265, 304.

52

See Moore v. Comm’r of Soc. Sec., 573 F. App’x 540, 543 (6th Cir. 2014) (“The ALJ also
properly took into account Moore’s daily activities, which included caring for two school-aged
children and performing household chores.”).
53

R. 246, 260 - 63, 304.

54

R. 88, 958.
12

and was advised to have surgery but was unable to afford it.55 However there is no evidence of
nerve conduction studies in the record, and Plaintiff testified at the hearing that she had excellent
health insurance, fully paid by the government.56 Plaintiff represented that she experienced
chronic fatigue “all the time,” yet she told a doctor that she had significant fatigue only if she had
been very busy and active for several days in a row.57 And, Plaintiff complained about anxiety,
but she never sought mental health care treatment from a mental health care provider during the
period in question, claiming she could not afford to do so. These inconsistencies undermine
Plaintiff’s credibility. Accordingly, the ALJ’s credibility determination is supported by
substantial evidence.
At step five, the Commissioner must identify a significant number of jobs in the economy
that accommodate the claimant’s residual functional capacity and vocational profile.58 The
Commissioner may carry this burden by applying the grids59 which direct a conclusion of
“disabled” or “not disabled” based on the claimant’s age and education and on whether the
claimant has transferable work skills.60 Use of the grids alone is appropriate only when the
claimant can perform all or substantially all of the exertional demands of a given level. In the
present case, Plaintiff can perform only a reduce level of light work. Because the ALJ could

55

R. 957.

56

R. 84.

57

R. 275, 291.

58

Jones, 336 F.3d at 474.

59

20 C.F.R. Pt. 404, Subpt. P, App. 2.

60

Wright v. Massanari, 321 F.3d 611, 615 (6th Cir. 2003); Burton v. Sec’y of Health & Human
Servs., 893 F.2d 821, 822 (6th Cir. 1990).
13

look to the grids as a framework only for decisionmaking, she obtained the testimony of a
vocational expert.

The vocational expert responded to a hypothetical that a person with

Plaintiff’s age, education, work experience, and residual functional capacity could perform light,
unskilled jobs as a slot tag inserter and garment sorter.61 A vocational expert’s testimony in
response to a hypothetical question accurately portraying a claimant’s vocational abilities and
limitations, as in the present case, provides substantial evidence to meet the Commissioner’s
burden at the fifth step of the sequential evaluation process.62
Substantial evidence supports the ALJ’s determination that Plaintiff was not disabled, and
the decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: August 10, 2017.

61

R. 98-99.

62

See Lee v. Comm’r of Soc. Sec., 529 F. App’x 706, 714 (6th Cir. 2013).
14