Fee v. SSA, No. 6:2012cv00096 - Document 11 (E.D. Ky. 2012)

Court Description: MEMORANDUM OPINION & ORDER: IT IS ORDERED: (1) that Plaintiff's Motion for Summary Judgment DE 9 is DENIED; and (2) that Defendant's Motion for Summary Judgment DE 10 is GRANTED. (3) that the Commissioners final decision be, and the same hereby is, AFFIRMED. Signed by Judge Joseph M. Hood on 12/26/2012.(KJA)cc: COR

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UNITED STATES DISTRICT COURT EASTERN DIVISION OF KENTUCKY SOUTHERN DIVISION at LONDON LILLIAN DARLENA FEE, ) ) ) ) ) ) ) ) ) ) Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant. Civil Case No. 6:12-cv-96-JMH MEMORANDUM OPINION & ORDER *** This matter is before the Court upon cross-motions for summary judgment Commissioner's insurance reviewed on denial her record appeal application [Tr. benefits. the of Plaintiff's 12 20].1 and being for The otherwise of the disability court, having sufficiently advised, will deny Plaintiff's motion and grant Defendant's motion, thereby affirming the Commissioner s final decision. I. OVERVIEW OF THE PROCESS AND THE INSTANT MATTER The Administrative Law Judge ("ALJ"), in determining disability, conducts a five-step analysis: 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. 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 disabled." steps 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." 2 Id. In the instant matter, the ALJ considered Plaintiff s claim in accordance evaluation process. with the [Tr. 12 20]. five-step sequential He first determined that Plaintiff did not engage in substantial gainful activity during the relevant time period under step one. [Tr. 14]. Under had step two, medically the ALJ determinable found that severe Plaintiff impairments, four including residuals of a torn medial meniscus with arthritis in the left knee, anxiety. a history of epilepsy, lumbar strain, and [Tr. 14]. 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 sedentary work as defined in 20 CFR § 404.1567(a). [Tr. 16]. 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. 19]. Thus, the ALJ determined that Plaintiff is not disabled under the Social Security Act. In this Commissioner s [Tr. 19 20]. appeal, decision Plaintiff is not 3 argues supported by that the substantial evidence of record. Specifically, Plaintiff argues that the ALJ did not consider the entire record when making his decision [D.E. 9, Pl. Br., at 8], did not pose an accurate hypothetical question to the vocational expert [D.E. 9, Pl. Br., at 9], and did not properly evaluate Plaintiff s complaints of pain when determining her credibility [D.E. 9, Pl. Br., at 9]. Plaintiff and The court has considered arguments by 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, 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, but less than a preponderance; 4 it is such relevant evidence as a reasonable adequate to support a conclusion." mind might accept as Cutlip, 25 F.3d at 286. III. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff is currently forty-two tenth-grade high school education. years [Tr. 31]. old a She has past work experience as a certified nursing assistant. 18]. with [Tr. Plaintiff filed for disability under Title II on March 2, 2010, alleging disability beginning on January 10, 2009. [Tr. 12]. The claim was denied both initially and upon reconsideration. [Tr. 12]. Plaintiff requested a hearing with the ALJ, which took place on January 25, 2011. [Tr. 12]. The ALJ issued an unfavorable decision denying disability on February 14, 2011. Plaintiff s medical [Tr. 20]. problems primarily stem from a January 2009 incident when Plaintiff fell at work, hurting her knees and back. [Tr. 32]. After Plaintiff s fall, she visited Dr. Jose Echeverria approximately twenty-five times between January 2009 and February 2010 complaining of pain associated with this fall. 393 94]. [See, e.g., Tr. 430 31; 361 62; Dr. Echeverria described Plaintiff s right knee and back pain as resolved on January 23, 2009. 434]. [Tr. Plaintiff underwent surgery on her left knee in December 2009, during which her surgeon, Dr. Kirpal Sidhu, 5 repaired a medial chrondoplasty. meniscus tear and performed shaving [Tr. 333]. On March 30, 2010, Plaintiff received an independent medical examination from Dr. Michael Best. [Tr. 538 53]. Dr. Best reported that Plaintiff had normal mobility, gait, motor strength, and range of motion in her knees. 544 47]. [Tr. Plaintiff did, however, have reduced strength in her quadriceps and hamstrings, which Dr. Best opined caused Plaintiff pain. Plaintiff go to return to work. [Tr. 549 50]. physical He therapy, and recommended stated she that could [Tr. 550 51]. Plaintiff visited Dr. David Muffly, M.D., in September 2010 for an orthopedic evaluation. [Tr. 709 11]. Dr. Muffly assessed Plaintiff with a four percent impairment due to her left knee injury and a five percent impairment due to her lumbar spine injury. 2010, Dr. lift [Tr. 711]. In December Muffly opined that Plaintiff could occasionally twenty pounds, frequently lift ten pounds, stand and/or walk two hours in an eight hour day, and sit for four hours in an eight hour day, so long as she is able to lie down. [Tr. 679]. a history of epilepsy. Notably, Plaintiff also complains of However, Plaintiff testified that she has not had a seizure for several years and is not currently on any medication for epilepsy. 6 [Tr. 37]. IV. Analysis Plaintiff s first argument is that the ALJ failed to consider the entire record in the case prior to denying her claim. Specifically, Plaintiff states in her brief that: [t]here are many factors in this case that reveal a decision that does not include all of the evidence submitted. Had all the evidence submitted been considered, the undersigned is confident a favorable decision would have been reached. It is imperative that one use all evidence available. This is necessary so that a reasonable mind can and does accept a decision. To accept the decision as one entered hereinabove would be contrary to the basic principles applied in Richardson v. Perales. [D.E. 9, Pl. Br., at 8]. As evidenced by this passage, which is Plaintiff s sole argument on this point, Plaintiff fails to point to any specific portion of the record that the ALJ failed to consider. Neither does Plaintiff describe how such specific evidence might have changed the ALJ s decision. This court is not required to formulate arguments on the Plaintiff s behalf or engage in an openended review of the entirety of the administrative record to determine . . . whether it might contain evidence that arguably is inconsistent with the Commissioner's decision. Hollon ex rel. Hollon v. Comm r of Soc. Sec., 447 F.3d 477, 491 (6th Cir. 2006). 7 A brief review of Plaintiff s factual section in her brief [D.E. 9, Pl. Br., at 2 8], the ALJ s decision [Tr. 12 20], and Plaintiff s hearing [Tr. 28 57] demonstrates, however, that the ALJ considered all of the evidence before him when making his decision. For example, he considered Plaintiff s primary injury, her fall in the workplace that injured her back and knees, in detail. [Tr. 16]. He recounted Plaintiff s medical records from Drs. Echeverria, Best, Sidhu, Plaintiff s lumbar and Muffly. anxiety strain. [Tr. disorder, [Tr. Plaintiff s testimony activities. [Tr. 18]. 17]. history 17 18]. and her He of He addressed epilepsy, also and considered involvement in daily Quite frankly, the ALJ followed the legal framework required of him, and the mere fact that the [c]laimant disagrees with the decision of the ALJ is wildly insufficient to justify a reversal of his decision. [D.E. 9, Pl. Br., at 8]. In the same brief and perfunctory manner, Plaintiff argues that the ALJ s hypothetical question posed to the vocational Plaintiff rather, expert does she (VE) not states was erroneous. exactly in her articulate brief To be this that it clear, argument; is the Commissioner s burden to prove that there is available work for her in the economy, and follows with the correctly8 stated rule that an ALJ can rely on a VE s opinion to show work is available so long as the hypothetical question posed to him accurately portrays the claimant s physical and mental impairments. Again, [D.E. 9, Pl. Br., at 9]. Plaintiff fails to articulate any specific element that the ALJ left out of his hypothetical question. Nor does she put forth even a hint of an argument as to how a different hypothetical question different result in her case. hypothetical question, it may have led to a Upon review of the ALJ s appears to accurately reflect Plaintiff s impairments according to the objective medical evidence. job to [Tr. 54].1 articulate Once again, it is not this court s the Hollon, 447 F.3d at 491. Plaintiff s arguments for her. Without a more specific argument about what part of this hypothetical fails to represent Plaintiff s characteristics, particularly when it appears to be an accurate portrayal, the court will go no further. 1 The ALJ s most restrictive hypothetical reads as follows: Assume an individual of the same age, education and work background as the claimant. Individual is limited to lifting 20 pounds occasionally, 10 pounds frequently. Standing and walking is limited to two hours total in a workday, no longer than 15 minutes without interruption. With no climbing, kneeling, or crawling. Also, no exposure to unprotected heights, or to more than occasional vibration. Would there be jobs? [Tr. 54]. 9 Plaintiff s final contention, that the ALJ improperly discounted slightly Plaintiff s better than credibility, was remainder Plaintiff s the of articulated above arguments, as Plaintiff specifically argues that the ALJ improperly disregarded her complaints of pain. Pl. Br., at 9]. [D.E. 9, However, this final argument also falls short. While an ALJ must consider a plaintiff s statements about her pain when determining whether she is disabled, [d]iscounting appropriate credibility where an ALJ to finds a certain degree contradictions is 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) (citing Bradley v. Sec y of Health & Human Servs., 862 F.2d 1224, 1227 (6th Cir. 1988)). 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 witness s demeanor and credibility. duty of observing a Id. at 531 (citing Villareal v. Sec y of Health & Human Servs., 818 F.2d 461, 463 (6th explained Cir. that 1987)). In this he partially case, the discounted ALJ clearly Plaintiff s credibility because the pain and symptoms that she alleged are inconsistent with both Plaintiff s testimony and the 10 objective medical evidence in the record. [Tr. 18]. For example, while Plaintiff claims on one hand that she has such pain that she cannot engage in any type of work whatsoever, she also readily admits to taking care of her toddler on her cleaning her own, house, preparing driving, meals, shopping doing for clothing, and attending church services. laundry, groceries [Tr. 18]. and The ALJ appropriately discounted Plaintiff s credibility to the extent that her involvement in these daily activities are inconsistent with her complaints of pain. F.3d at 532 (citing Blacha v. Sec y See Walters, 127 of Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990); Crisp v. Sec y of Health & Human Servs., 790 F.2d 450, 453 (6th Cir. 1986) ( An ALJ may also consider household and social activities engaged in by the claimant in evaluating a claimant s assertions of pain or ailments. )). Moreover, any contention that Plaintiff is completely incapable medical of work is evidence. administrative inconsistent Quite record with persuasively, does any the objective nowhere physician, in treating the or otherwise, claim that Plaintiff is completely incapable of work. Indeed, both Drs. Sidhu and Best indicated that Plaintiff activity. is capable of performing [Tr. 474; 551]. some type of work Moreover, Dr. Muffly, whose 11 opinion Plaintiff seems to primarily rely on, never opines that Plaintiff is completely incapable activities. [Tr. 679 70; 709 11]. Plaintiff s assertions, the Plaintiff s credibility in ALJ this of work-related Therefore, contrary to appropriately matter in evaluated light of the entire administrative record. 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 9] is DENIED; and (2) that Defendant s Motion for Summary Judgment [DE 10] is GRANTED. (3) that the Commissioner s final decision be, and the same hereby is, AFFIRMED. This the 26th day of December, 2012. 12

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