Whitaker v. SSA, No. 0:2013cv00115 - Document 12 (E.D. Ky. 2014)

Court Description: MEMORANDUM OPINION & ORDER: IT IS ORDERED: (1) that Plaintiff's Motion for Summary Judgment DE 10 is DENIED and (2) that Defendant's Motion for Summary Judgment DE 11 is GRANTED. Signed by Judge Joseph M. Hood on 9/26/2014.(KSS)cc: COR

Download PDF
Whitaker v. SSA Doc. 12 UNITED STATES DISTRICT COURT EASTERN DIVISION OF KENTUCKY NORTHERN DIVISION at ASHLAND LAVONDA KAY WHITAKER, ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. Case No. 0:13-CV-115-JMH MEMORANDUM OPINION & ORDER *** This matter is before the Court upon cross-motions for summary judgment [DE 10 and 11] on Plaintiff s appeal of the Commissioner s denial of her application for disability insurance benefits (DIB) and supplemental security income (SSI).1 The Court, having reviewed the record in this case and the motions filed by the parties, finds that the decision of the Administrative Law Judge is supported by substantial evidence, and, thus, the Court will grant Defendant s motion and deny Plaintiff s motion.                                                              1   These are not traditional Rule 56 motions for summary judgment. Rather, it is a procedural device by which the parties bring the administrative record before the Court. 1    Dockets.Justia.com I. Plaintiff was 43 years old at the time of the ALJ s decision (Tr. 21, 170), had an eighth grade education, and had worked in the past as a custodian, a housekeeper, and a hand packer (Tr. 43, 196- 197). Plaintiff alleged disability onset on November 15, 2009 (Tr. 164) due to chronic obstructive pulmonary disease (COPD), hyperlipidemia, disorder, high blood arthritis and carpal protectively income pressure, tunnel filed an on April (SSI) bi-polar high cholesterol, syndrome application 15, for 2010 disorder, (Tr. seizure depression, 195). Plaintiff supplemental (Tr. 170-173, security 205). An administrative law judge (ALJ) held a hearing on February 14, 2012 (Tr. 28-47) and issued an unfavorable decision on March 16, 2012 (Tr. 11-21). After considering the testimony and evidence of record, the ALJ found that Plaintiff retained the residual functional capacity (RFC) to perform a reduced range of light work (Tr. 17- considered the consultative considered 19). report examiner and In gave reaching of Karen greater a that conclusion, consultative Grantz, weight Psy.D. to the the examination The ALJ from ALJ also of state opinion agency consultative physician, Carlos X. Hernandez, M.D., than to that of treating nurse practitioner Shannon Stephens. 2    Dr. Hernandez opined that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently; she could stand, walk and sit six hours each in an eight hour day; she could occasionally climb ramps and stairs, balance, stoop, kneel, and crouch and could never climb ladders ropes or scaffolds (Tr. 5758). Dr. Hernandez also opined that Plaintiff was limited to frequent reaching with the right upper extremity and frequent handling and fingering bilaterally (Tr. 58). He further found Plaintiff needed to avoid concentrated heat, cold, and pulmonary irritants and needed to avoid all exposure to hazards (Tr. 59). The ALJ gave great weight to Dr. Hernandez s opinion because he found it was consistent with the medical evidence as a whole (Tr. 19). Nurse Practitioner Stephens wrote a letter in August 2010 in which she opined that a disability claim was in Plaintiff s best interest (Tr. 517). Ms. Stephens later filled out opinion forms in November 2010 in which she opined Plaintiff could lift and carry less than ten pounds occasionally, could sit and stand about two hours each in an eight hour day, could never climb, crouch, kneel, or crawl and could occasionally balance and stoop (Tr. 594-595). Ms. Stephens also opined that Plaintiff was limited to an unstated degree in reaching, handling, pushing, pulling and speaking and that she was restricted from heights, 3    moving machinery, temperature extremes, dust, chemicals, fumes, humidity and vibration (Tr. 595). Ms. Stephens also indicated that Plaintiff perform could sustained not perform handwork her while past work, sitting for could six to not eight hours or sustained clerical or sales work while standing six to eight hours; she could not perform sustained lifting or carrying, drive a motor vehicle, or stand and work operating hand or foot controls for six to eight hours; and she could not relate to coworkers, activity, or handle maintain the regular stress of attendance productive or attention work and concentration (Tr. 596). Ultimately, history, RFC based and on vocational Plaintiff s expert age, education, testimony, the ALJ work found Plaintiff could perform jobs existing in significant numbers in the national Plaintiff was economy not (Tr. disabled 20). (Tr. Therefore, 20-21). The the ALJ Appeals found Council denied Plaintiff s request for review on June 13, 2013 (Tr. 13). This case is ripe for review 1383(c)(3). 4    pursuant to 42 U.S.C. § II. The Administrative Law Judge ( ALJ ), conducts a five-step analysis to determine disability: 1. An individual who is working and engaging in substantial gainful activity is not disabled, regardless of the claimant's medical condition. 2. An individual who is working but does not have a severe impairment which significantly limits his physical or mental ability to do basic work activities is not disabled. 3. If an individual is not working and has a severe impairment which meets the duration requirement and is listed in appendix 1 or is equal to a listed impairment(s) , then he is disabled regardless of other factors. 4. If a decision cannot be reached based on current work activity and medical facts alone, and the claimant has a severe impairment, then the Secretary reviews the claimant's residual functional capacity and the physical and mental demands of the claimant's previous work. If the claimant is able to continue to do this previous work, then he is not disabled. 5. If the claimant cannot do any work he did in the past because of a severe impairment, then the Secretary considers his residual functional capacity, age, education, and past work experience to see if he can do other work. If he cannot, the claimant is disabled. Preslar v. Sec y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994) (citing 20 C.F.R. § 404.1520 (1982)). The burden of proof is on the claimant throughout the first four steps of this process to prove that he is disabled. Id. If the analysis reaches the fifth step 5    without a finding that the claimant is not disabled, the burden transfers to the Secretary. Id. III. Pursuant to 42 U.S.C. § 405(g), this Court reviews this administrative decision to determine whether the Commissioner s decision is supported by substantial pursuant to proper legal standards. evidence and was made Ealy v. Comm r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (citing Rogers v. Comm r of Soc. Sec., quotation 486 marks F.3d 234, omitted). 241 (6th Cir. Substantial 2007)) evidence (internal is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. (quoting Lindsley v. Comm r of Soc. Sec., quotation 560 marks F.3d 601, omitted). 604 In (6th other Cir. words, 2009)) as (internal long as an administrative decision is supported by substantial evidence, this Court must affirm, regardless of whether there is evidence in the record to support a different conclusion. Lindsley, 560 F.3d at 604-05 (citing Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994)) (internal quotation marks omitted) ( administrative findings are not subject to reversal merely because substantial evidence exists in the record conclusion ). 6    to support a different IV. As a threshold matter, Plaintiff contends that the ALJ erred in relying on an unsigned consultative examination from Dr. Grantz and that, thus, the ALJ s decision is unsupported by the evidence of record. [Pl. s Br. at 5-6 (citing 20 C.F.R. § 416.919o(b)).] However, the record demonstrates that Dr. Grantz provided an appropriate electronic signature when submitting her report. [Tr. 481.] Dr. Grantz submission of an Electronic Records Express attestation was a sufficient signature for her consultative examination. See Program Operations Manual System (POMS) DI 22510.015(C)(1) (noting that the Electronic Records Express attestation submissions examination report signatures).2 ALJ relied on Dr. Grantz are acceptable consultative Therefore, to the extent the consultative examination in his decision, there was no error due to the absence of a signature because the report of the examination was properly signed by Electronic Records Express attestation. Next, Plaintiff argues that the ALJ erred in giving more weight to the opinion of the consultative agency physician, Dr. Hernandez, than to that of her treating nurse practitioner, Ms. Stephens, because Ms. Stephens had examined Plaintiff while Dr.                                                              2  Found at https://secure.ssa.gov/apps10/poms.nsf/lnx/0422510015 (last visited September 23, 2014).  7    Hernandez had not and because Dr. Hernandez did not have the complete record, including Ms. Stephens opinion, at the time of his opinion. [Pl. s Br. at 6.] The Court cannot ignore, however, that Ms. Stephens is not an acceptable medical source upon whose opinion the Commissioner may rely to establish the existence of a medically determinable impairment because only acceptable medical sources can provide medical opinions and, thus, only acceptable medical sources can be considered treating sources whose opinions may be entitled to controlling weight. See 20 C.F.R. §§ 416.902, 416.913(a), 416.927(a)(2), (c); Social Security Ruling (SSR) 06-03p, 2006 WL 2329939, at *2 (S.S.A.). True, Ms. Stephens opinion was entitled to consideration as an other source, but it was not entitled to any special (S.S.A.); deference. see 20 SSR C.F.R. 06-03p, §§ 2006 WL 416.912(b)(4), 2329939, 416.913(a), at *2 (d), 416.927; Cruse, 502 F.3d at 540-41 (an ALJ has discretion to determine the proper weight to give other sources. ). Additionally, Ms. Stephens opinions about whether Plaintiff was able to work are issues reserved to the Commissioner and are due no particular weight. See 20 C.F.R. § 416.927(d)(1); Ferguson, 628 F.3d at 274. Further, even the opinion of a treating physician the quintessential acceptable medical source may be disregarded 8    or greater weight may be given to a nonexamining source if the treating physician s opinion is unsupported by objective medical evidence and is inconsistent with the record as a whole. See 20 C.F.R. § 416.927(c)(3)-(4); Warner v. Comm r of Soc. Sec., 375 F.3d 387, 390-91 (6th Cir. 2004); see also Massey v. Comm r of Soc. Sec., 409 F. App x 917, 920-21 (6th Cir. 2011) (affirming ALJ s denial of benefits where he gave great weight to a nonexamining medical expert after properly discounting treating physician opinions and where medical evidence supported the nonexamining physician opinion). acceptable medical source, Here, although she was not an the ALJ gave good reasons to discount Ms. Stephens very restrictive opinion because he found that the results of her examinations were not consistent with her opinion. [Tr. at 19.] Specifically, the ALJ noted that, despite Ms. Stephen s opinion that Plaintiff was disabled due to shortness of breath and chronic pain, practically all of Ms. Stephens examinations of Plaintiff revealed normal results [Tr. at 19, 433, 436, 439, 442, 445, 447, 449, 520, 523, 526, 543, 546, 548, 551, 554, 557, 560, 563, 566, 568.] the Court were to assume that Ms. Stephens As such, even if were due more deference than she was given as a nurse practitioner (which it does not), the ALJ properly discounted Ms. Stephens opinions, and the evidence, such as Ms. 9    Stephens repeated normal findings, supported the less restrictive opinion of Dr. Hernandez. Moreover, while Plaintiff contends that the ALJ improperly relied on Dr. Hernandez s opinion because he did not have the entire record evidence that before would him, have Plaintiff changed the points to no specific Commissioner s ultimate conclusion other than Ms. Stephens discredited opinion. [Pl. s Br. at matter, obtained 6.] If anything, Plaintiff from Dr. has considering identified Hernandez, a but the evidence weakness it does in not the in this evidence diminish the conclusions which may be drawn from Dr. Hernandez s opinion by the ALJ, nor does it suggest that the ALJ s opinion was not supported by substantial evidence. See Casey v. Sec y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993) (rejecting the claimant s argument that substantial evidence contradicted the Commissioner s substantial findings evidence as also a reason supported for the remand where Commissioner s findings). Accordingly, IT IS ORDERED: (1) that Plaintiff s Motion for Summary Judgment [DE 10] is DENIED and (2) that Defendant s Motion for Summary Judgment [DE 11] is GRANTED. 10    This the 26th day of September, 2014. 11   

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.