Kiner v. Astrue

Filing 21

ORDER AFFIRMING COMMISSIONER'S DECISION. Signed by Judge James D. Todd on 3/23/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
TERRANCE LAMONT KINER,
Plaintiff,
VS.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 12-2254-JDT

ORDER AFFIRMING COMMISSIONER’S DECISION

This action was filed by the Plaintiff, Terrance Lamont Kiner, to obtain judicial
review of the defendant Commissioner’s final decision denying his applications for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq., and for
Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq.
Plaintiff’s applications for benefits were denied initially and upon reconsideration by the
Social Security Administration. At the Plaintiff’s request, a hearing was held before an
Administrative Law Judge (“ALJ”) on January 25, 2011. (R. 26-46.) On February 7, 2011,
the ALJ issued a decision finding that Plaintiff was not disabled. (R. 10-21.) The Appeals
Council denied Plaintiff’s request for review on March 7, 2012. (R. 1-3). Thus, the ALJ’s
decision became the final decision of the Commissioner.

Pursuant to 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
reviewing court may “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.” Id. Judicial review is limited to
determining whether or not there is substantial evidence in the record as a whole to support
the Commissioner’s decision, and whether the correct legal standards were applied. See 42
U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Lindsley v.
Comm’r of Soc. Sec., 560 F.3d 601, 604–08 (6th Cir. 2009); Kyle v. Comm’r of Soc. Sec., 609
F.3d 847, 854 (6th Cir. 2010).
Substantial evidence is evidence that a reasonable mind would accept as adequate to
support a conclusion. Perales, 402 U.S. at 401; Lindsley, 560 F.3d at 604-05; Kyle, 609 F.3d
at 854. The Commissioner, not the reviewing court, is charged with the duty to weigh the
evidence, to make credibility determinations, and to resolve material conflicts in the
testimony. See Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). In addition, if the
decision is supported by substantial evidence, it should not be reversed even if substantial
evidence also supports the opposite conclusion. See Foster v. Halter, 279 F.3d 348, 353 (6th
Cir. 2001); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
Plaintiff was born on September 3, 1979, and has an eighth grade education. (R. 19,
29-30, 140.) He has past relevant work experience as a laborer, truck driver, machine
operator, stock clerk, grocery bagger, janitor, sorter, and dishwasher. (R. 19, 42-43, 146.)
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Plaintiff alleged that he became disabled on January 18, 2007, due to the residual effects
from a traumatic brain injury, bipolar disorder, depression, memory loss, and other mental
problems. (R. 13, 145, 154, 204.)
The ALJ found that Plaintiff met the non-disability insured status requirements and
had not engaged in substantial gainful activity since his alleged disability onset date. (R. 12.)
The ALJ also found that Plaintiff’s depressive disorder and cognitive disorder were severe
impairments and that his impairments did not, either singly or in combination, meet or
medically equal a listed impairment in 20 C.F.R., Pt. 404, Subpt. P, Appendix 1. (R. 13-15.)
The ALJ determined that Plaintiff’s statements regarding the extent of his limitations were
not fully credible. (R. 16.) The ALJ further found that Plaintiff had the residual functional
capacity to perform a full range of work at all exertional levels. However, he could
understand, remember, and carry out only simple one- and two-step instructions and adapt
to minimal changes in the work environment. (R. 15-19.) The ALJ also determined that
Plaintiff was unable to perform his past relevant work. (R. 19.) Relying on the testimony
of a vocational expert (“VE”), the ALJ also determined that, considering Plaintiff’s age,
education, work experience, and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that he can perform. (R. 19-20). Accordingly,
Plaintiff was not under a disability at any time through the date of the decision. (R. 20.)
The Social Security Act defines disability as the inability to engage in substantial
gainful activity. 42 U.S.C. § 423(d)(1). The initial burden of going forward is on the
claimant to show that he is disabled from engaging in her former employment; the burden
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then shifts to the Commissioner to demonstrate the existence of available employment
compatible with the claimant’s disability and background. Id.; see Felisky v. Bowen, 35 F.3d
1027, 1035 (6th Cir. 1994). The claimant bears the ultimate burden of establishing an
entitlement to benefits. Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993).
In determining disability, the Commissioner conducts a five-step sequential analysis,
as set forth in 20 C.F.R. § 404.1520 and § 416.920:
1.
2.
3.

4.
5.

An individual who is engaging in substantial gainful activity will not
be found to be disabled regardless of medical findings.
An individual who does not have a severe impairment will not be found
to be disabled.
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 found in 20 C.F.R. Part 404, Subpart P,
Appendix 1.
An individual who can perform work that he has done in the past will
not be found to be disabled.
If an individual cannot perform his past relevant work, other factors
including age, education, past work experience, and residual functional
capacity will be considered to determine if other work can be
performed.

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Further analysis is unnecessary if it is
determined that an individual is not disabled at any point in this sequential evaluation
process. Id.; see also Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 238 (6th Cir. 2002).
Here, the analysis proceeded to step five, where the ALJ determined there are jobs existing
in significant numbers in the national economy that the Plaintiff can perform based on age,
education, past work experience, and residual functional capacity.

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Plaintiff first contends the ALJ erred in failing to find that he meets Listing 12.02, for
Organic Mental Disorders, and Listing 12.04, for Affective Disorders. At the Listing level,
the burden of proof is on the claimant to show that her impairment “meet[s] all of the
specified medical criteria” of a listed impairment. Sullivan v. Zebley, 493 U.S. 521, 530
(1990); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). Likewise, in order to show that
an impairment is “equivalent” to a listed impairment, she “must present medical findings
equal in severity to all the criteria for the one most similar listed impairment.” Zebley, 493
U.S. at 531; Foster, 279 F.3d at 355.
Plaintiff specifically contends the ALJ should have determined that he meets the
Paragraph B criteria of Listings 12.02 and 12.04, which can be satisfied by showing at least
two of the following:
1.
2.
3.
4.

Marked restriction of activities of daily living; or
Marked difficulties in maintaining social functioning; or
Marked difficulties in maintaining concentration, perisistance, or pace; or
Repeated episodes of decompensation, each of extended duration[.]

20 C.F.R., Pt. 404, Subpt. P, App. 1, §§ 12.02B, 12.04B. Plaintiff asserts that the opinion
of Dr. Yvonne H. Osborne, Ph.D., a consultative psychologist who examined him on July 14,
2009, shows that he meets this Paragraph B criteria. However, the ALJ gave Dr. Osborne’s
opinion only limited weight. Instead, the ALJ gave greater weight to the opinion of a state
agency reviewing psychologist, Dr. Cal VanderPlate, Ph.D.
The opinion of an examining physician is generally given more weight than that of
a non-examining medical source. See 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1). However,

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an ALJ need not give “good reasons” for rejecting the opinion of an examining but nontreating source. See Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875-76 (6th Cir. 2007)
(recognizing that the requirement in §§ 404.1527(c)(2) and 416.927(c)(2) that the SSA give
“good reasons” for rejecting the opinion of a medical source applies only to treating sources).
Nevertheless, an ALJ should properly evaluate the opinion evidence from each medical
source in the record by considering the factors set out in the regulations, such as whether the
opinion is supported by medical signs, laboratory findings, and detailed explanation; whether
the opinion is consistent with the record as a whole; the specialty of the medical source; and
how familiar the source is with the other evidence in the record.

20 C.F.R.

§§ 404.1527(c)(3)-(6) & 416.927(c)(3)-(6).
Plaintiff reported to Dr. Osborne that his mental problems began after he suffered a
head injury in an automobile accident in 1999. He stated he was treated as a psychiatric
inpatient in 2006 and in 2007 and then on an outpatient basis with medication and
counseling. Based on her examination and observations, Dr. Osborne found that Plaintiff’s
memory and concentration was impaired, and she assessed him as having marked limitations
in the areas of understanding, remembering, concentrating, persistence, and pace.
Plaintiff further reported to Dr. Osborne that he managed his hygiene and grooming
without assistance; assisted with household chores, laundry, preparing meals, and shopping;
felt he could manage his own finances; used public transportation without assistance and
could find his way to an unfamiliar part of town alone; attended church every week;
socialized with friends, neighbors, and relatives; exercised; and enjoyed various pastimes
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such as television, radio, reading, sitting outside, playing games, talking on the phone, and
going places. Notwithstanding these reported activities of daily living, Dr. Osborne then
opined:
Mr. Kiner reports that he manages activities of daily living adequately.
However, his presentation during this evaluation causes this examiner to
suspect that he is not as productive as he reports. He depends on others for
financial support and assistance with transportation. He identified meaningful
relationships in his life; and he identified adequate pleasurable activities.
However, this examiner suspects that he does not actively interact socially and
that he spends much of his time alone.
(R. 322.) Dr. Osborne did not give an actual rating to Plaintiff’s degree of limitation with
regard to his activities of daily living. However, she concluded that Plaintiff had moderate
restrictions in the area of social interaction and marked restrictions in the area of adapting
to changes in work settings and requirements. Plaintiff contends Dr. Osborne’s overall
opinion is sufficient to show that he satisfies the Paragraph B criteria of Listings 12.02 and
12.04.1
The ALJ found that Dr. Osborne’s conclusions regarding the degree of Plaintiff’s
limitations were inconsistent with the evidence in the record as a whole. He stated:
The degree of functional limitation assessed by Dr. Osborne . . . is largely
belied by his activities of daily living. The claimant previously performed
substantial gainful activity following his purportedly disabling brain injury.
He had a driver’s license in the past, navigates public transportation without
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Plaintiff also appears to argue that the GAF (Global Assessment of Functioning) score
of 45 that Dr. Osborne assessed on the day of the evaluation shows that he was seriously
impaired. However, GAF scores can vary and fluctuate from day to day. In addition, GAF
scores “may have little or no bearing on the subject’s social and occupational functioning,”
Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 511 (6th Cir. 2006), and thus are of little
use in determining whether an individual has the ability to work.
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assistance, attends to personal hygiene and grooming independently, interacts
with family, attends church, enjoys socializing with friends and participating
in athletics. Treatment records do no otherwise contain any clinical findings
of any pathology that could impose the extreme degree of functional limitation
that she opined to be present. Because Dr. Osborne’s opinion is unsupported
by medical evidence and inconsistent with the record as a whole, it is given
limited evidentiary weight . . . to the extent that it is consistent with the
residual functional capacity set forth above.
(R. 18.) The ALJ did not err in giving Dr. Osborne’s opinion only limited weight.2 Dr.
Osborne indicated that she “suspected” that Plaintiff’s activities of daily living were more
restrictive than he reported, based on his “presentation” during the examination. However,
she made no attempt to explain what that meant, and the conclusion has no other basis in the
medical evidence of record.
Dr. VanderPlate, the non-examining psychologist, found that Plaintiff’s mental
limitations were no more than mild to moderate in any area. This opinion is consistent with
the other evidence in the record, including the treatment evidence, which shows that Plaintiff
was able to return to substantial gainful employment for several years after his automobile
accident, although he had some problems with memory and concentration. From 2006 to
2009, he was treated for his mental health issues only sporadically, usually after he would
stop taking his medication, sometimes for months. At the time of the hearing in January
2011, Plaintiff had sought no mental health treatment for over a year.

2

The ALJ did not completely reject Dr. Osborne’s opinion. He incorporated her
conclusions regarding Plaintiff’s limitations in memory and concentration, and his limitations in
adapting to changes in the work environment, into the residual functional capacity determination.
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After considering the record as a whole, the Court concludes the ALJ did not err in
giving limited weight to the opinion of Dr. Osborne and greater weight to the opinion of Dr.
VanderPlate. Thus, substantial evidence supports the ALJ’s determination that Plaintiff did
not meet the Pargraph B criteria of Listings 12.02 and 12.04 and his determination of
Plaintiff’s residual functional capacity. Accordingly, the Commissioner’s decision that
Plaintiff is not disabled is AFFIRMED.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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