Kelly v. Astrue

Filing 20

OPINION and ORDER denying Plaintiff's Motion for Summary Judgment and granting Defendant's Motion for Summary Judgment. Signed by Judge James P. Jones on 11/8/13. (ejs)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
KATHY LYNNE KELLY,

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Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY, 1
Defendant.

Case No. 1:13CV00009
OPINION AND ORDER
By: James P. Jones
United States District Judge

E. Craig Kendrick, Browning, Lamie & Gifford, P.C., Abingdon, Virginia,
for Plaintiff; Nora Koch, Acting Regional Chief Counsel, Region III, Robert W.
Kosman, Assistant Regional Counsel, and Maija DiDomenico, Special Assistant
United States Attorney, Office of the General Counsel, Social Security
Administration, Philadelphia, Pennsylvania, for Defendant.
In this Social Security disability case, I affirm the decision of the
Commissioner.

I
Plaintiff Kathy Lynne Kelly filed this action challenging the final decision of
the Commissioner of Social Security (the “Commissioner”) denying her claim for
disability insurance benefits (“DIB”) and supplemental security income benefits
1

Carolyn W. Colvin became the Acting Commissioner on February 14, 2013, and
is substituted for Michael J. Astrue as the defendant in this suit pursuant to Federal Rule
of Civil Procedure 25(d).

(“SSI”) under Titles II and XVI of the Social Security Act (“Act”), 42 U.S.C.A. §§
401-434, 1381-1383f (West 2011, 2012 & Supp. 2013). Jurisdiction of this court
exists under 42 U.S.C.A. §§ 405(g) and 1383(c)(3).
Kelly filed for DIB and SSI administratively on November 4, 2009. After
preliminary denials of her claims, she obtained a hearing before an administrative
law judge (“ALJ”) on October 17, 2011, at which she was represented by her
present counsel and during which she testified along with an impartial vocational
expert. On January 9, 2012, the ALJ issued a written decision finding that Kelly
was not disabled under the Act. Kelly requested review by the Social Security
Administration’s Appeals Council. The Appeals Council denied her request for
review, thereby making the ALJ’s decision the final decision of the Commissioner.
Kelly then filed this action seeking judicial review of the Commissioner’s decision.
The parties have filed cross motions for summary judgment, which have
been briefed and orally argued. The case is ripe for decision.

II
Kelly claimed that she had been unable to work since July 16, 2007, based
upon both exertional and nonexertional impairments, including chronic obstructive
pulmonary disease (“COPD”), asthma, degenerative disc disease, ostetoporsis,
anxiety, chronic chest pain, and chronic lumbar back pain. She was born in 1962
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and at the time of the hearing before the ALJ was 49 years old.

She obtained a

GED in 1981 and has worked in the past as an office clerk and supervisor, a
receptionist, and a hotel front desk supervisor.2
In his written decision, the ALJ reviewed Kelly’s medical history and the
testimony presented at the hearing and set forth at length the reasons for his factual
findings.

He found that Kelly had severe impairments caused by COPD and

asthma, although her asthma did not meet or equal the severity of a listed
impairment under the applicable Social Security regulations. In addition, he found
that she had the residual functional capacity to perform light work, as defined by
the regulations, with limitations appropriate to her impairments. Based upon the
testimony of the vocational expert, the ALJ determined that Kelly was capable of
performing certain of her past relevant jobs, as well as other types of jobs existing
in significant numbers in the national economy.
It is contended in the present case that the ALJ erred in his credibility
determinations, and specifically in failing to accept Kelly’s own descriptions of her
impairments and the resulting pain and limitations.

It is also argued that in

reaching his decision the ALJ placed insufficient weight on the opinions of Kelly’s
treating physician, Michael Baron, M.D., and too much weight on the opinions of
2

Kelly previously applied for DIB and SSI on September 19, 2009, which
applications were denied following a hearing by a different ALJ. The Appeals Council
denied review of that decision on February 24, 2009.
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the state agency physicians who reviewed the medical records but did not
personally examine the plaintiff.

III
The plaintiff bears the burden of proving that she is under a disability.
Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). The standard for
disability is strict.

The plaintiff must show that her “physical or mental

impairment or impairments are of such severity that [she] is not only unable to do
[her] previous work but cannot, considering [her] age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy . . . .” 42 U.S.C.A. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In assessing disability claims, the Commissioner applies a five-step
sequential evaluation process. The Commissioner considers whether the claimant:
(1) has worked during the alleged period of disability; (2) has a severe impairment;
(3) has a condition that meets or equals the severity of a listed impairment; (4)
could return to her past relevant work; and (5) if not, whether she could perform
other work present in the national economy. See 20 C.F.R. § 404.1520(a)(4),
416.920(a)(4) (2013).

The fourth and fifth steps of the inquiry require an

assessment of the claimant’s residual functional capacity, which is then compared

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with the physical and mental demands of the claimant’s past relevant work and of
other work present in the national economy.
In accordance with the Act, I must uphold the Commissioner’s findings if
substantial evidence supports them and the findings were reached through the
application of the correct legal standard. Craig v. Chater, 76 F.3d 585, 589 (4th
Cir. 1996). Substantial evidence means “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales,
402 U.S. 389, 401 (1971) (internal quotation marks and citation omitted).
Substantial evidence is “more than a mere scintilla of evidence but may be
somewhat less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th
Cir. 1966). It is the role of the ALJ to resolve evidentiary conflicts, including
inconsistencies in the evidence. Seacrist v. Weinberger, 538 F.2d 1054, 1056-57
(4th Cir. 1976). It is not the role of the court to substitute its judgment for that of
the Commissioner. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
I have carefully reviewed the record evidence and conclude that the ALJ’s
decision in this case is supported by substantial evidence and was reached through
application of the correct legal standard.
The ALJ found Kelly’s testimony only partially credible, based upon the
other evidence in the record. In particular, he found that her descriptions of her
pain and other limitations were inconsistent with her treating physician’s notes and
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reports and with her admitted life activities, including caring for her two young
grandchildren while her son was deployed overseas with the military. (R. 24-25.)3
He also noted that although suffering from breathing disorders and advised by her
doctor to stop smoking, she continued to smoke and was “not forthright about her
tobacco use.” (R. 24.) 4
A treating physician’s medical opinion will be given controlling weight
when it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in
[the] case record.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (2013). However,
the ALJ has “the discretion to give less weight to the testimony of a treating
physician in the face of persuasive contrary evidence.” Mastro v. Apfel, 270 F.3d
171, 178 (4th Cir. 2001). The ALJ was within his discretion to afford less weight
to Dr. Baron’s opinion in this case, based upon its reliance upon the plaintiff’s
subjective reports of her symptoms and conclusory nature. Furthermore, no special
weight is afforded to a medical opinion on issues reserved to the Commissioner,
such as whether a claimant is disabled.

20 C.F.R. §§ 404.1527(d)(1),

3

Dr. Baron wrote in December of 2009 that she was caring for her two small
grandchildren five days and nights a week, over two years after she claimed she became
disabled. (R. 371.)
4

In spite of her doctor’s notation that she was still smoking in July of 2011, Kelly
told the ALJ at the hearing in October that she had stopped smoking and had last smoked
a cigarette in May, “[A]nd that was just one. I had a real stressful moment.” (R. 75.)
When confronted by the ALJ with the doctor’s note, she agreed that it was “possible”
because “July is a very stressful and bad month for me.” (Id.)
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416.927(d)(1) (2013). Therefore, the ALJ’s decision was supported by substantial
evidence.

IV
For the foregoing reasons, the plaintiff’s Motion for Summary Judgment is
denied, and the defendant's Motion for Summary Judgment is granted. A final
judgment will be entered affirming the Commissioner’s final decision denying
benefits.
It is so ORDERED.

ENTER: November 8, 2013
/s/ James P. Jones
United States District Judge

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