Triplett v. SSA, No. 3:2012cv00042 - Document 13 (E.D. Ky. 2012)

Court Description: MEMORANDUM OPINION & ORDER: (1) that Plaintiff's Motion for Summary Judgment 10 is DENIED; and (2) that Defendant's Motion for Summary Judgment 11 is GRANTED. (3) that the Commissioner's final decision be, and the same hereby is, AFFIRMED. Signed by Judge Joseph M. Hood on 12/26/2012.(CBD)cc: COR

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UNITED STATES DISTRICT COURT EASTERN DIVISION OF KENTUCKY CENTRAL DIVISION at FRANKFORT BETTY FAYE TRIPLETT, ) ) ) ) ) ) ) ) ) ) Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant. Civil Case No. 3:12-cv-42-JMH MEMORANDUM OPINION & ORDER *** This matter is before the Court upon cross-motions for summary judgment Commissioner's insurance reviewed denial benefits. the record on of [Tr. and Plaintiff's her appeal application 21 31].1 being for The otherwise of the disability Court, having sufficiently advised, will deny Plaintiff's motion and grant Defendant's motion. I. OVERVIEW OF THE PROCESS AND THE INSTANT MATTER The Administrative Law Judge ("ALJ"), in determining disability, conducts a five-step analysis: 1. An individual who is working and engaging in substantial gainful activity is not disabled, regardless of the claimant's medical condition. 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. 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 disabled." Id. of this process to prove that he is "If the analysis reaches the fifth step without a finding that the claimant is not disabled, the burden transfers to the Secretary." Id. In the instant matter, the ALJ considered Plaintiff s claim in accordance evaluation process. with the [Tr. 21 31]. 2 five-step sequential He first determined that Plaintiff did not engage in substantial gainful activity during the relevant time period under step one. [Tr. 23]. Under step two, the ALJ found that Plaintiff had seven medically determinable severe impairments, including residual injuries sustained in a motor vehicle accident on August 30, condition, 2006, osteoarthritis, borderline and depression. intellectual osteoporosis, cardiac functioning, anxiety, [Tr. 24]. After deciding that Plaintiff s impairments did not equal a proceeded listed to impairment step four under step three, found that Plaintiff and the ALJ has a residual functional capacity ( RFC ) to perform light work as defined in 20 CFR § 404.1567(b). [Tr. 27 28]. Although the ALJ found that Plaintiff cannot perform her past relevant work with this RFC, he determined with the assistance of a vocational expert that other work exists in significant numbers nationally and across the state that Plaintiff can perform in her condition. [Tr. 28 31]. Thus, the ALJ determined that Plaintiff is not disabled under the Social Security Act. [Tr. 31]. In this appeal, Plaintiff primarily argues that the Commissioner s evidence improperly of decision record. evaluated is not She her supported first argues impairments 3 by substantial that and the ALJ improperly calculated her misdiagnosis RFC of abnormalities by focusing demyelinating were analysis syndrome shown by in lieu on of the other medically acceptable clinical and laboratory diagnostic techniques. 20 CFR § 404.1508. that his Further, Plaintiff argues that the ALJ did not give appropriate deference to the opinions of Plaintiff s treating physicians, Drs. Durham and Nukes, and Plaintiff s non-treating consultative examiner, Dr. Chugh, throughout his analysis, but gave too much deference to two reviewing state consultative examiners, Drs. Rennie and Witkind. Finally, Plaintiff contends that the ALJ erred by failing to give any Plaintiff s specific reasons credibility. as The to why Court he has discounted considered arguments by Plaintiff and the Commissioner, as well as the administrative record, and, for the reasons stated below, affirms the Commissioner s decision. II. STANDARD OF REVIEW In reviewing benefits, the the Court ALJ's may decision not try the to deny case de disability novo, nor resolve conflicts in the evidence, nor decide questions of credibility. Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). Instead, judicial review of the ALJ's decision is limited to an inquiry into whether the ALJ's findings were supported by substantial evidence, 4 42 U.S.C. § 405(g), Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001), and whether the ALJ employed the proper legal standards in reaching his conclusion, see Landsaw v. Sec'y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). "Substantial evidence" is "more than a scintilla of evidence, relevant but less evidence as than a a preponderance; reasonable adequate to support a conclusion." mind it might is such accept as Cutlip, 25 F.3d at 286. III. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff is currently forty-nine years old with four years of college education. [Tr. 100 01]. She has past work experience as a Licensed Practical Nurse (LPN) and a wedding cake decorator. [Tr. 101, 104]. Plaintiff filed for disability under Title II on January 13, 2009, alleging disability beginning on August 6, 2006. [Tr. 21]. The claim was denied both initially on June 30, 2009, and upon reconsideration on November 21, 2009. [Tr. 21]. Thereafter, Plaintiff requested a hearing with the ALJ, and three separate hearings were conducted on 2010, June 16, 2011, and December 5, 2011. September [Tr. 21]. 23, The ALJ issued an unfavorable decision denying disability on December 27, 2011. [Tr. 31]. Plaintiff last worked in August, 2006, until she was involved in a motor vehicle 5 accident with a tractor- trailer. [Tr. 101]. As a result of the accident, Plaintiff has rods in both her left arm and leg. [Tr. 24]. Prior to her accident, she visited Dr. Theodore Nukes, a neurologist, for complaints of parasthesias in her legs. [Tr. 25]. which Dr. Nukes conducted a nerve conduction study showed mild evidence, but was demyelinating sensory polyneuropathy. puncture test evidence later of performed demyelinating on not diagnostic, [Tr. 26]. Plaintiff syndrome. of A lumbar showed [Tr. no 722]. Plaintiff s treating physician, Dr. Tammy Durham, adopted Dr. Nukes s opinion as a diagnosis of demyelinating syndrome and began treating her for it. [Tr. 24]. Durham osteoarthritis, also treated Plaintiff for Dr. osteoporosis, anxiety and depression. In evaluating benefit of Plaintiff s treatment records claims, of the Plaintiff s physicians, Dr. Durham and Dr. Nukes. Stephen Perry, examiner, Dr. Ed. Atul D., a Chugh and had the treating Additionally, G. consultative Dr. ALJ Joshua psychological McKenzie, two consultative medical examiners, and Dr. Laurie Rennie and Dr. Bruce G. Witkind, reviewing state agency consultants, also assessed Plaintiff s condition. IV. Analysis 6 medical Plaintiff first argues that the ALJ improperly evaluated her impairments and improperly calculated her RFC by focusing his analysis on the misdiagnosis of demyelinating syndrome in lieu of other abnormalities that were shown by medically acceptable clinical and laboratory diagnostic techniques. Plaintiff cites 20 that an proposition evidence when 20 CFR § 404.1508. C.F.R. ALJ § must evaluating Specifically, 404.1529(c)(2) consider for objective Plaintiff s claim, the medical including evidence of reduced joint motion, muscle spasm, sensory deficit or motor disruption. § 404.1529(c)(2). Using this regulation, she somehow concludes that because the ALJ spent a great deal of time discussing whether Plaintiff has demyelinating specific reveal syndrome, tests that he conducted she has must by Plaintiff s muscle not weakness have considered physicians and that coordination problems, among other things. After reviewing the transcript and the ALJ s opinion, the court argument. the ALJ is puzzled by Plaintiff s rather illogical First, with regard to Plaintiff s argument that improperly evaluated her impairments, 20 CFR § 404.1520 requires the ALJ to determine whether a claimant has a medically determinable impairment that is severe or a combination of impairments 7 that are severe. § 404.1520. The ALJ clearly engaged in this analysis in his opinion, finding impairments, that including Plaintiff residual has injuries seven severe sustained in a motor vehicle accident on August 30, 2006, osteoarthritis, osteoporosis, cardiac condition, borderline functioning, anxiety, and depression. naturally spent time on demyelinating intellectual [Tr. 24]. syndrome The ALJ in this section since he determined that, unlike all of Plaintiff s other impairments, misdiagnosis impairments. and, demyelinating thus, not [Tr. 24 27]. one of syndrome was Plaintiff s a severe Thus, Plaintiff s contention that the ALJ failed to properly evaluate her impairments is meritless. Second, Plaintiff s argument that the ALJ failed to properly calculate her RFC because he overly focused on the demyelinating syndrome misdiagnosis is equally unavailing. Under 20 CFR § 404.1520(a)(4)(iv), the ALJ must calculate a claimant s RFC, or her ability to do physical and mental work activities on a sustained basis despite limitations from her impairments. § 404.1520(a)(4)(iv); [Tr. 23]. In making this finding, the ALJ has to consider all of the relevant medical and other claimant s non-severe impairments. 8 evidence, including 20 CFR § 404.1545. a Again, the ALJ s opinion reveals that he followed this legal framework. For example, he discussed contradicting reports from doctors about Plaintiff s muscle tone, muscle movements, pain. strength, ability [Tr. fractures to 29]. that she ability lift He to and use carry discussed received in her rapid alternating weight, and Plaintiff s 2006 chest multiple accident, but explained that, according to treatment notes, there is no indication that the hardware surgically Plaintiff has malfunctioned in any way. implanted [Tr. 29]. in He noted that while Plaintiff alleges that she has chest pain and cardiac problems, Dr. Durham, her treating physician, did not report that Plaintiff has any specific limitations from these problems. [Tr. 29]. Further, the ALJ noted that Plaintiff claims to be mentally impaired, suffering from anxiety and depression; however, he pointed out that there is no evidence in the record that psychiatric impairments. Plaintiff treatment [Tr. 29]. has and/or ever been referred hospitalization for for these He also noted that the psychiatric consultative examiner, Dr. Perry, opined that Plaintiff is capable of doing simple tasks, tolerating mildly stressful situations, and generally possesses the ability to complete work-related activities. [Tr. 29]. 9 Finally, the ALJ spent a significant amount of time considering Plaintiff s self-attested daily activities when determining Plaintiff s RFC. See 20 CFR § 404.1545(e) ( In assessing the total limiting effects of your impairment(s) and any related symptoms, we will consider all of the medical and nonmedical evidence, including the information described in § 404.1529(c) ); 20 CFR § 404.1529(c) (listing a claimant s consider). daily For activities example, as the something ALJ the discussed ALJ can Plaintiff s ability to grocery shop and carry her groceries, noted that she lives alone, can take care of her personal needs, prepares her own meals, cleans her house, does laundry, drives, and has a boyfriend and friends. [Tr. 29 30]. She also does low-impact exercises and paints with oils in her free time. [Tr. 114; 117 18]. Therefore, contrary to Plaintiff s argument, the ALJ did not spend almost 100 percent of his evaluation on disproving the existence of a demyelinating syndrome. 4]. Plaintiff s [D.E. 10, Plaintiff s Brief, at argument that the ALJ erred when calculating her RFC is meritless. Plaintiff s second argument is that the ALJ failed to give appropriate physicians, Dr. deference Durham and to Dr. examining physician, Dr. Chugh. 10 Plaintiff s Nukes, and a treating one-time Instead, Plaintiff argues that the ALJ examining Witkind, erroneously state who agency opined accepted the consultants, that there was opinions Drs. not of non- Rennie and any objective medical evidence that Plaintiff has demyelinating syndrome. However, Plaintiff s argument again falls short. With regard to Plaintiff s treating physicians opinions, it is true that under the treating physician rule, a treating physician s opinion is normally entitled to substantial deference; however, it is also true that the ALJ is not bound to give that opinion controlling weight. Jones v. Comm r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003) (citing Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987)); controlling 20 weight C.F.R. should § 404.1527(c)(2). only be given to Rather, a treating physician when his opinion is not inconsistent with the other substantial evidence in [the] case record. 20 C.F.R. § 404.1527(c)(2); see also Bogle v. Sullivan, 998 F.2d 342, 347 48 (6th Cir. 1993) ( such opinions receive great weight only if they are supported by sufficient clinical findings and are consistent with the evidence. ). In this case, objective medical evidence neither Dr. Durham s nor Dr. Nukes s opinions. supports Dr. Nukes, a neurologist, examined Plaintiff to determine whether she had demyelinating syndrome in 11 2005. [Tr. 724 31]. However, the initial nerve conduction study that Dr. Nukes used to test for demyelinating syndrome was mildly suggestive, but not diagnostic, of demyelinating sensory polyneuropathy. [Tr. 731]. Moreover, Dr. Nukes determined that Plaintiff was alert with normal attention span and concentration, had normal visual acuity and visual fields, intact extraocular movements, intact and symmetric facial sensations, normal strength (5/5) in all four extremities, normal tone, no atrophy, no abnormal movements, and normal gait and station. [Tr. 728]. Further, the results from Plaintiff s lumbar puncture, the primary diagnostic tool for demyelinating syndrome, were negative in 2006. 722]. [Tr. Therefore, to the extent that Dr. Nukes diagnosed Plaintiff with demyelinating syndrome, the objective medical evidence does not support his diagnosis. Despite the fact that all of the objective testing indicated that Plaintiff syndrome, Dr. Durham, did not have Plaintiff s demyelinating family physician, reported that Plaintiff not only suffers from the disease, but also opined that her functioning is extremely limited as a result. objective [Tr. evidence 446]. did not However, support as explained, the this diagnosis, and there is no evidence in the record that Dr. Durham did any further diagnostic testing on 12 her own. [Tr. 27]. Moreover, Dr. McKenzie, a consultative physician, examined Plaintiff in 2011, and his findings support that Plaintiff s neurological condition remains the same as it appeared in 2005 and 2006, as he reported that Plaintiff had good tone with 5/5 strength bilaterally in all muscle groups and without her rapid fatigue. alternating [Tr. movements 733 35]. were This intact evidence appropriately led the ALJ to conclude that the treating physicians opinions were inconsistent with the record and he appropriately discounted their testimony. Plaintiff also argues that the ALJ erred by discounting Dr. Chugh s testimony, but, because Dr. Chugh is a one-time consultative physician, the ALJ was free to reject his opinion without giving any reasons for doing so. See Smith v. Comm r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007) (noting that the SSA only requires ALJ s to give reasons for defined as rejecting a opinions physician in relationship with the patient). of an treating physicians, ongoing treatment Regardless, a review of the record shows that the ALJ did not err by discounting Dr. Chugh s opinions. First, Dr. Chugh s opinion is internally inconsistent, as his objective examination of Plaintiff does not support his conclusion that Plaintiff s impairments essentially render her sedentary. 13 For example, as Dr. Whitkin pointed out, if Plaintiff truly had demyelinating syndrome, her reflexes would not be normal, or would at least be worse than they have been in the past. [Tr. 54]. However, Dr. Chugh reported that her deep tendon reflexes were +2, or, in other words, the same as they have always been. [Tr. 705]. Moreover, Dr. Chugh s prescribed limitations for Plaintiff are utterly inconsistent with her level of activity. For example, while Dr. Chugh reported that Plaintiff is only capable of traveling as a passenger in a car, Plaintiff readily admitted at her hearing that she has a car and regularly drives. [Tr. 706; 100]. Dr. Chugh also reported that Plaintiff needs a cane to get around; however, Plaintiff came to her hearings without the assistance of a cane, and admitted that she does low-impact exercises. [Tr. 111; 117 18]. These inconsistencies support the ALJ s decision to discount Drs. Durham, Nukes, and Chugh s opinions in favor of the non-examining physicians. Plaintiff s adequately final explain contention, the level of that the ALJ credibility assigned to Plaintiff s testimony, also fails. did not that he While an ALJ must consider a plaintiff s statements about her pain when determining whether she is disabled, [d]iscounting credibility to a certain degree is appropriate where an ALJ 14 finds contradictions among the medical reports, claimant s testimony, and other evidence. Walters v. Comm r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). Furthermore, an ALJ s findings based on the credibility of the applicant are to be accorded great weight and deference, particularly since an ALJ is charged with the duty witness s demeanor and credibility. of observing a Id. at 531 (citing Villareal v. Sec y of Health & Human Servs., 818 F.2d 461, 463 (6th Cir. 1987)). In this partially case, discounted the ALJ clearly Plaintiff s explained credibility that because he the pain and symptoms that she alleged are inconsistent with both Plaintiff s evidence in the testimony record. and For the objective example, while medical Plaintiff claims on one hand that she has such pain that she cannot engage in any type of work whatsoever, she also lives alone, admits to grocery shopping, can take care of her personal needs, prepares her own meals, cleans her house, does laundry, drives, pays bills, has a boyfriend and friends, gets along with authority figures, does low-impact exercises, occasionally gets out in the yard, and paints with oils in her free time. [Tr. 29 30; 114; 117 18]. The ALJ appropriately discounted Plaintiff s credibility to the extent that her involvement in these daily activities are 15 inconsistent with her complaints of pain. See Walters, 127 F.3d at 532 (citing Blacha, 927 F.2d at 231; Crisp v. Sec y of Health 1986)) & ( An activities Human ALJ Servs., may engaged also in by 790 F.2d consider the 450, 453 household claimant in (6th and Cir. social evaluating a claimant s assertions of pain or ailments. ). Plaintiff cites Walston v. Gardner, 381 F.2d 580 (6th Cir. 1967) for the proposition that Plaintiff s ability to engage in daily activities cannot be, in and of itself, a valid basis for discounting her credibility. However, first, the claimant in Walston was objectively suffering a great deal more than Plaintiff, as every single doctor who examined him confirmed his testimony that he suffered great pain with every movement, and no doctor ever testified that he could engage in substantial gainful activity. 586. Id. at By contrast, some physicians in this case reported that Plaintiff s gait, movement and reflexes were normal. [Tr. 734 35; 725; 728; 705]. that the symptoms that Dr. Whitkin also pointed out Plaintiff often reported were subjective, and, thus, it is impossible to get objective medical evidence to substantiate her claims. Moreover, ability to the ALJ engage did in not daily solely rely activities on when [Tr. 47]. Plaintiff s finding her incredible, as he also based his credibility finding on the 16 fact that the objective medical evidence fails to support her claim that she is incapable of light work. Generally, throughout Plaintiff s [Tr. 30]. entire argument, she continuously comes back to her primary complaint that the ALJ overanalyzed whether she had demyelinating syndrome instead of deciding the case on the entire record. However, Plaintiff ignores the rather obvious fact that the ALJ spent a significant amount of time on demyelinating syndrome because whether or not she actually had the disease appears to have been the deciding factor in the ALJ s determination of whether or not Plaintiff is disabled within the meaning of the Social Security Act. Through Plaintiff s ability to engage in daily activities, she has demonstrated that her remaining physical impairments residual injuries from her car accident, osteoarthritis, osteoporosis, and cardiac condition do not prevent her from engaging in light work. supports this conclusion. Objective medical evidence Indeed, none of the doctors that have examined Plaintiff have claimed that she is entirely incapable of working based on these other physical impairments; rather, it has always been the combination of impairments along with demyelinating syndrome that has led some of the physicians to conclude that she is incapable of working. [Tr. 681 94; 704 06]. 17 Furthermore, Plaintiff s psychological examination revealed that she is capable of doing simple tasks, tolerating mildly stressful situations, and completing work-related activities. [Tr. 29]. Therefore, the ALJ did not err by engaging in a detailed analysis of whether Plaintiff has demyelinating syndrome, since Plaintiff s case turned upon the correctness or incorrectness of the diagnosis. In conclusion, the objective evidence in this case did not establish that Plaintiff is disabled within the meaning of the Social Security Act, and substantial evidence supports the ALJ s decision. 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. (3) that the Commissioner s final decision be, and the same hereby is, AFFIRMED. This the 26th day of December, 2012. 18

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