Brantley v. Colvin

Filing 15

ORDER AFFIRMING DECISION OF COMMISSIONER. Signed by Judge James D. Todd on 1/30/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE

CHESTER BRANTLEY,
Plaintiff,
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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No. 13-2512-T

ORDER AFFIRMING DECISION OF COMMISSIONER

Plaintiff has filed this action to obtain judicial review of Defendant Commissioner's
final decision denying his applications for disability insurance benefits under Title II of the
Social Security Act (“the Act”) and for supplemental security income (“SSI”) benefits based
on disability under 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 February 8, 2012.
On March 8, 2012, the ALJ issued a decision, finding that Plaintiff was not entitled
to benefits. The Appeals Council affirmed the ALJ's decision. This decision became the
Commissioner's final decision. Plaintiff then filed this action, requesting reversal of the
decision of the Commissioner. For the reasons set forth below, the decision of the
Commissioner is AFFIRMED.

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 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.” Id. The court's review is limited to
determining whether or not there is substantial evidence to support the Commissioner's
decision, 42 U.S.C. § 405(g), and whether the correct legal standards were applied. See
Lindsley v. Commissioner, 560 F.3d 601, 604–08 (6th Cir. 2009); Kyle v. Commissioner, 609
F.3d 847, 854 (6th Cir. 2010).
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. See Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). When
substantial evidence supports the Commissioner's determination, it is conclusive, 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 January 15, 1977, and was thirty-six years old at the time of the
hearing. He has a GED and past relevant work as a forklift operator. R. 277. He is allegedly
disabled due to cognitive brain trauma sustained on July 27, 2003. His allegedly disabling
symptoms include shortness of breath, poor mental status, stroke, severe brain damage, and
pain in his legs and arms. R. 164, 188. The Social Security Administration found Plaintiff

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to be disabled from July 2003 through March 2008, when his benefits were terminated due
to medical improvement. The termination was upheld by an ALJ in February 2010.
The ALJ enumerated the following findings: (1) Plaintiff met the insured status
requirements of the Act through March 31, 2013; (2) Plaintiff has not engaged in substantial
gainful activity since the alleged onset date; (3) Plaintiff has the following severe
impairments: seizure disorder, obesity, and organic mental disorder; but he 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 lift fifty pounds occasionally and
twenty-five pounds frequently and stand, walk, and sit six hours in an eight hour workday,
while avoiding work around hazards, moving machinery and work heights; mentally, despite
the limitations imposed by his mental disorder, he remains capable of understanding,
remembering, and carrying out simple one-two step job instructions and adapting to gradual
changes in the work place; (5) Plaintiff is unable to perform his past relevant work; (6)
Plaintiff was a younger individual with 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 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.
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The Social Security Act defines disability as the inability to engage in substantial
gainful activity. 42 U.S.C. § 423(d)(1). The claimant bears the ultimate burden of
establishing an entitlement to benefits. Born v. Secretary, 923 F.2d 1168, 1173 (6th Cir.
1990). The initial burden of going forward is on the claimant to show that he is disabled
from engaging in his 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. Id.
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 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.
20 C.F.R. § 404.1520(a)(4); Howard v. Commissioner, 276 F.3d 235, 238 (6th Cir. 2002).
Further review is not necessary if it is determined that an individual is not disabled at any
point in this sequential analysis. 20 C.F.R. § 404.1520(a). Here, the sequential analysis
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proceeded to the fifth step with a finding that, although Plaintiff cannot perform his past
relevant work, there is a substantial number of jobs that exist in the national economy that
he can perform.
Plaintiff argues that substantial evidence does not support the ALJ’s findings. He
specifically complains that the reports of the consultative examiners were flawed because the
examiners did not review his complete medical records. He also argues that the ALJ erred
in finding that he could perform other work at step five because the hypotheticals she posed
to the vocational expert did not reflect his mental limitations. Plaintiff’s arguments are not
persuasive.
Barry R. Siegel, M.D., conducted a consultative physical examination on May 5,
2010, R. 277-79, and Edward Amos, Ph.D., conducted one on June 8, 2010. R. 280-83. Dr.
Siegel noted that no objective medical information was supplied, R. 277, and Dr. Amos
stated that the only information provided to him was Dr. Siegel’s report. R. 280. Dr. Siegel
and Dr. Amos based their opinions on their interviews with Plaintiff and the results of
diagnostic testing.
The regulations provide that if the agency arranges for a consultative examination,
it will “give the examiner any necessary background information about [the claimant’s]
condition.” See 20 C.F.R. §§ 404.1517, 416.917. However, this provision does not mandate
that the agency give the examiner access to the claimant’s medical records. See, e.g.,
Genovese v. Astrue, 2012 WL 4960355, at *18 (E.D. N.Y. Oct. 17, 2012) (§§ 404.1517 and
416.917 do not require the agency to provide an examiner with claimant’s medical records);
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Hadley v. Astrue, 2010 WL 3386587, at *16 (E.D. Wis. Aug. 26, 2010) (the claimant failed
to show that reversal was required when the agency failed to provide extant medical records).
Accordingly, there was not requirement for Dr. Siegel and Dr. Amos to review Plaintiff’s
medical records prior to interviewing him and administering tests, and Plaintiff has failed to
explain how their opinions would have been different and/or favorable to him if they had
reviewed his earlier medical records.
Additionally, although Dr. Siegel and Dr. Amos did not review Plaintiff’s prior
medical records, the ALJ reviewed the records concerning Plaintiff’s 2003 coma, and her
decision includes a discussion of Plaintiff’s prior medical records. The ALJ also reviewed
the February 2010 ALJ decision, which concluded that medical improvement occurred as of
March 31, 2008. R. 12, 21-22, 56-68. Therefore, Plaintiff’s argument concerning his medical
records is without merit.
Dr. Siegel’s report shows that, despite Plaintiff’s poor memory, he was able to recount
his history of seizures, including the coma he endured several years before. R. 277. Plaintiff
reported that he believed it had been at least a year since his last seizure, his occasional
headache was alleviated with Ibuprofen, and he had history of hypertension. R. 277. Plaintiff
also related his work history, described his daily activities, and identified the medications that
he was taking. R. 277. Plaintiff further reported occasional heart fluttering and occasional
pain of his left ankle, left dorsal forearm, and elbow and said that he used to have pain in his
right arm. R. 278. Based on the examination, Dr. Siegel assessed a history of cognitive

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impairment and mild arthritis of the left ankle and foot, R. 278, and concluded that Plaintiff
had no impairment-related physical limitations. R. 279.
Dr. Amos administered the Wechsler Adult Intelligence Scale-III Edition, which
revealed that Plaintiff’s overall intellectual functioning was several standard deviations
below average. Plaintiff’s score fell in the mildly mentally retarded range although Plaintiff
did well on the measure of immediate concentration. R. 282. Dr. Amos also administered the
Wide Range Achievement Test-4 Edition, the results of which showed that Plaintiff was
functioning at basically a fifth-grade level. R. 282-83. Dr. Amos’s diagnostic impression
included cognitive disorder, not otherwise specified, and status post neurological syndrome,
seizure disorder. R. 283. He gave Plaintiff a Global Assessment of Functioning (“GAF”)
score of 50. R. 283. Dr. Amos opined that Plaintiff had difficulty with problem solving and
carrying out step-by-step activities, but he had no major deficits from an emotional
standpoint. R. 283.
Because it was supported by the longitudinal record, the ALJ gave substantial weight
to Dr. Amos’s opinion that Plaintiff would only have difficulty with problem solving and
carrying out step-by-step activities. The ALJ gave very little weight to Dr. Amos’s GAF
score, finding that it was inconsistent with Plaintiff’s level of adaptive functioning. The ALJ
gave somewhat less weight to Dr. Siegel’s opinion that Plaintiff had no impairment-related
physical limitations because Dr. Siegel seemingly ignored Plaintiff’s seizure disorder. Those
opinions constitute substantial evidence to support the ALJ’s residual functional capacity
determination.
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Additionally, the ALJ adopted the previous ALJ’s findings regarding Plaintiff’s
physical limitations. See Acquiescence Ruling (AR) 98-3(6), 63 Fed. Reg. 29,770 (June 1,
1998); AR 98-4(6), 63 Fed. Reg. 29,771 (June 1, 1998); Drummond v. Commissioner, 126
F.3d 837 (6th Cir. 1997); Dennard v. Secretary, 907 F.2d 598, 600 (6th Cir. 1990).
The ALJ also considered Plaintiff’s activities of daily living. Plaintiff was capable of
attending to personal hygiene and grooming, preparing simple meals, doing laundry and
household chores, ironing, driving short distances, shopping for groceries, cleaning the
bathroom, and washing dishes. R. 35, 184, 199-200, 281. Plaintiff also socialized with
friends, visited relatives, talked on the phone, played video games, and attended church
regularly. R. 198, 201, 281, 842-43.
When evaluating a claimant’s subjective complaints, an ALJ must consider, in
addition to objective medical evidence and Plaintiff’s work record, any evidence relating to
Plaintiff’s daily activities; duration, frequency, and intensity of pain; dosage, effectiveness,
and side effects of medication; precipitating and aggravating factors; and functional
restrictions. See 20 C.F.R. §§ 404.1529, 416.929. Here, the ALJ considered Plaintiff’s
testimony, medical and opinion evidence, and inconsistencies between his allegations and
the evidence contained in the record and found that Plaintiff’s complaints were not entirely
credible.
For example, there was evidence that Plaintiff had malingered at his psychological
evaluations, including those in May 2006 and February 2008. R. 61-62. In January 2008, Dan
Murphy, Ph.D., considered Plaintiff’s credibility to be fair to questionable. R. 62. Although
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Plaintiff claimed that he had pain in his wrist, head, chest, and eye, he never mentioned those
problems to any treating source. R. 183. Furthermore, a chest x-ray revealed no
abnormalities, and a left wrist x-ray was normal. R. 278. Plaintiff also complained of ankle
pain and muscle cramps in his arms and legs. R. 20-21, 41-42. X-rays of his feet, however,
revealed no evidence of fracture or dislocation, with preserved joint spaced, normal
alignment, and unremarkable soft tissues. R. 20-21, 278. A left ankle x-ray was essentially
normal. R. 21, 278. Plaintiff testified that he still required anticonvulsant medication, but he
failed to list any as a current medication, R. 43, 235, 365, and records show that Plaintiff’s
seizure disorder was resolved, and he no longer needed seizure medication. R. 321, 324.
These inconsistencies support the ALJ’s credibility determination.
It is the ALJ’s responsibility to determine residual functional capacity based on all the
relevant evidence, including medical records, observations of treating physicians and others,
and the claimant’s own description of his limitations. See Anderson v. Shalala, 51 F.3d 777
(8th Cir. 1995); 20 C.F.R. §§ 416.945(a) & 416.946. Here, the ALJ considered all of the
evidence in the record and adequately explained the basis for her residual functional capacity
finding. As the ALJ’s residual functional capacity was within the “zone of choice” supported
by substantial evidence, her finding is upheld. See Mullen v. Bowen, 800 F.2d 535, 545 (6th
Cir. 1986) (en banc).
When a claimant’s vocational characteristics coincide with the factors of a rule in the
grids, the existence of jobs in the national economy is established, and the claimant is
considered not disabled. See 20 C.F.R. §§ 404.1569, 404.1569a(b), 416.969, 416.969a(b);
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20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(b); Heckler v. Campbell, 461 U.S. 458, 461-62,
470 (1983); Kimbrough v. Secretary, 801 F.2d 794, 796 (6th Cir. 1986). If the grids cannot
be used to direct a finding of disabled or not disabled, as here, because of the claimant’s
nonexertional limitations, they may be used as a framework for the decision-making process.
See 20 C.F.R. §§ 404.1569, 404.1569a(d), 416.969, 416.969a(d); 20 C.F.R. pt. 404, subpt.
P, app. 2, § 200.00(e)(2).
The Commissioner met her burden at step five by eliciting the testimony of a
vocational expert. The ALJ's hypothetical questions included all relevant vocational
information that pertained to Plaintiff, including the limitations that the ALJ found in her
assessment of Plaintiff's residual functional capacity. R. 49-51. The vocational expert
identified examples of jobs that an individual with Plaintiff's vocational characteristics could
perform, which the ALJ included in her decision. Because the vocational expert’s testimony
was in response to hypothetical questions that set forth all the reasonable limitations Plaintiff
had on his ability to work, the ALJ properly relied on that testimony. See 20 C.F.R. §§
404.1529, 416.929; Smith v. Halter, 307 F.3d 377, 378 (6th Cir. 2001) (A vocational expert's
testimony concerning the availability of suitable work may constitute substantial evidence
where the testimony is elicited in response to a hypothetical question that accurately sets
forth the plaintiff's physical and mental impairments.) Based on vocational expert testimony,
the ALJ found that Plaintiff could perform various jobs within the medium level of work
activity such as sorter and housekeeper.

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Because there is substantial evidence in the record supporting the Commissioner's
decision denying Plaintiff's applications for benefits, the decision of the Commissioner is
AFFIRMED. The clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.

s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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