Preston v. SSA, No. 5:2010cv00082 - Document 13 (E.D. Ky. 2011)

Court Description: MEMORANDUM OPINION & ORDER: Court finds ALJ's decision is supported by substantial evidence on the record; pltf's 11 motion for summary judgment is SUSTAINED; judgment in favor of dft will be entered contemporaneously herewith. Signed by Judge Henry R. Wilhoit, Jr on 03/22/2011.(RJD)cc: COR

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON Civil Action No. lO-82-HRW JOHN W. PRESTON, v. PLAINTIFF, MEMORANDUM OPINION AND ORDER MICHAEL J. ASTRUE COMMISSIONER OF SOCIAL SECURITY, DEFENDANT. Plaintiff has brought this action pursuant to 42 U.S.C. §405(g) to challenge a final decision of the Defendant denying Plaintiffs application for disability insurance benefits. The Court having reviewed the record in this case and the dispositive motions filed by the parties, and being otherwise sufficiently advised, for the reasons set forth herein, finds that the decision of the Administrative Law Judge is supported by substantial evidence and should be affirmed. II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Plaintiff filed his application for disability insurance benefits on January 15, 2007, alleging disability beginning on July 21, 2006, due to heart problems, high blood pressure, chest pain and problems with walking and sitting (Tr. 41-44). This application was denied initially and on reconsideration. On April 29, 2008, an administrative hearing was conducted by Administrative Law Judge Don C. Paris (hereinafter "ALJ"), wherein Plaintiff, accompanied by counsel, testified. At the hearing, Joyce P. Forrest, a vocational expert (hereinafter "VB"), also testified. At the hearing, pursuant to 20 C.F.R. § 416.920, the ALJ performed the following five-step sequential analysis in order to determine whether the Plaintiff was disabled: Step 1: If the claimant is performing substantial gainful work, he is not disabled. Step 2: If the claimant is not performing substantial gainful work, his impairment(s) must be severe before he can be found to be disabled based upon the requirements in 20 C.F.R. § 416.920(b). Step 3: If the claimant is not performing substantial gainful work and has a severe impairment (or impairments) that has lasted or is expected to last for a continuous period of at least twelve months, and his impairments (or impairments) meets or medically equals a listed impairment contained in Appendix 1, Subpart P, Regulation No.4, the claimant is disabled without further inquiry. Step 4: If the claimant's impairment (or impairments) does not prevent him from doing his past relevant work, he is not disabled. Step 5: Even if the claimant's impairment or impairments prevent him from performing his past relevant work, if other work exists in significant numbers in the national economy that accommodates his residual functional capacity and vocational factors, he is not disabled. 2 On June 17,2008, the ALJ issued his decision finding that Plaintiff was not disabled. Plaintiffwas 53 years old at the time of the hearing decision. He has an eighth grade education and his past relevant work experience consists of work as a drill press operator, forklift operator and route salesman. At Step 1 of the sequential analysis, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of disability (Tr.24). The ALJ then determined, at Step 2, that Plaintiff suffers from ischemic heart disease with peripheral vascular disease and paroxysmal atrial fibrillation, which he found to be "severe" within the meaning of the Regulations (Tr. 24-25). At Step 3, the ALJ found that Plaintiff's impairments did not meet or medically equal any of the listed impairments (Tr. 25). The ALJ further found that Plaintiff could not return to his past relevant work (Tr. 27) but determined that he has the residual functional capacity ("RFC") to perform a range of light work with certain restrictions, as set forth in the hearing decision (Tr. 25-27). 3 The ALJ finally concluded that these jobs exist in significant numbers in the national and regional economies, as identified by the VB (Tr. 28). Accordingly, the ALJ found Plaintiff not to be disabled at Step 5 of the sequential evaluation process. The Appeals Council denied Plaintiffs request for review and adopted the ALI's decision as the final decision of the Commissioner on January 29,2010 (Tr. 2-5). Plaintiff thereafter filed this civil action seeking a reversal of the Commissioner's decision. Both parties have filed Motions for Summary Judgment [Docket Nos. 11 and 12] and this matter is ripe for decision. III. ANALYSIS A. Standard of Review The essential issue on appeal to this Court is whether the ALI's decision is supported by substantial evidence. "Substantial evidence" is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion;" it is based on the record as a whole and must take into account whatever in the record fairly detracts from its weight. Garner v. Heckler, 745 F.2d 383,387 (6 th Cir. 1984). lfthe Commissioner's decision is supported by substantial evidence, the reviewing Court must affirm. Kirk v. Secretary ofHealth 4 and Human Services, 667 F.2d 524,535 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). "The court may not try the case de novo nor resolve conflicts in evidence, nor decide questions of credibility." Bradley v. Secretary ofHealth and Human Services, 862 F.2d 1224, 1228 (6th Cir. 1988). Finally, this Court must defer to the Commissioner's decision "even if there is substantial evidence in the record that would have supported an opposite conclusion, so long as substantial evidence supports the conclusion reached by the ALJ." Key v. Callahan, 109 F.3d 270,273 (6th Cir.1997). B. Plaintiff's Contentions on Appeal Plaintiff contends that the ALJ's finding of no disability is erroneous because: (1) the ALJ failed to give appropriate weight to the opinion of a treating physician and (2) the ALJ did not consider his impairments in combination. C. Analysis of Contentions on Appeal Plaintiff s first claim of error is that the ALJ failed to give appropriate weight to the opinion of a treating physician. In order to be given controlling weight, the opinions of a treating source on issues involving the nature and severity of a claimant's impairments must be well supported by medically acceptable clinical and laboratory diagnostic techniques, and be consistent with other substantial evidence in the case record. 20 C.F.R. § 5 416.927(d)(2). Such opinions receive deference only if they are supported by sufficient medical data. Harris v. Heckler, 756 F.2d 431,435 (6 th Cir. 1985). The only physician named is Plaintiffs brief is Dr. Sarah Parrish. Dr. Parrish completed a Physical Residual Functional Capacity Questionnaire on April 10,2007 (Tr. 567-571). The ALl gave little weight to the overly-restrictive findings of Dr. Parrish, specifically stating that the extreme limitation suggested therein was inconsistent with Dr. Parrish's treatment records as well as the other medical evidence of record. The Court finds no error in this regard. Plaintiff s second claim of error is that the ALl did not consider his impainnents in combination. A review of the hearing decision reveals that the ALl considered Plaintiffs impainnents in combination at various stages in his evaluation. The ALl discussed Plaintiff s impainnents, both physical and mental, both severe and non severe, at Step 3 of the sequential evaluation process, and specified that he considered the same, alone and "in combination" (Tr. 25). Such articulations have been found to be sufficient upon review. See Gooch v. Secretary ofHealth and Human Services, 833 F.2d 589, 592 (6 th Cir. 1987). Indeed, the Sixth Circuit Court of Appeals stated in Loy v. Secretary ofHealth and Human Services, "[a]n ALl's individual discussion of mUltiple impainnents does not imply that he failed 6 to consider the effect of the impairments in combination, where the ALJ specifically refers to a 'combination of impairments' in finding that the plaintiff does not meet the listings." Loy v. Secretary ofHealth and Human Services, 901 F.2d 1306, 1310 (6th Cir. 1990). The Court finds that the ALI's approach in this case passes Gooch and Loy muster and that Plaintiffs argument in this regard is without merit. Plaintiff makes a final, cursory claim that the ALJ failed to consider his testimony. However, Plaintiff does not specificy which portions of his testimony should have been deemed more credible. "Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to ... put flesh on its bones. "', McPherson v. Kelsey, 125 F.3d 989,995-996 (6th Cir. 1997) (citations omitted). See also, United States v. Phibbs, 999 F.2d 1053, 1080 n. 12 (6th Cir. 1993)(noting that "it is not our function to craft an appellant's arguments"). III. CONCLUSION The Court finds that the ALJ's decision is supported by substantial evidence on the record. Accordingly, it is HEREBY ORDERED that the Plaintiffs Motion for Summary Judgment be OVERRULED and the Defendant's Motion 7 for Summary Judgment be SUSTAINED. A judgment in favor of the Defendant will be entered contemporaneously herewith. This -z,~day of March, 2011. Henry 8 f~!~.,1nior Judge

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