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McGaha v. Colvin

United States District Court, E.D. Kentucky, Northern Division, Covington

June 20, 2014

MICHAEL McGAHA, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


JOSEPH M. HOOD, Swnior District Judge.

This matter is before the Court upon cross-motions for summary judgment [DE 12 and 13] on Plaintiff's appeal of the Commissioner's denial of his application for disability insurance benefits (DIB) and supplemental security income (SSI). Plaintiff has also filed a Reply [DE 14] in further support of his appeal.[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.


Plaintiff filed his application for DIB and SSI in May 2010. [Administrative Record ("AR") at 187-194]. Having been denied by the Commissioner, Plaintiff requested a hearing. An Administrative Law Judge (ALJ) held a hearing on December 2, 2011. [AR at 45-87]. Pursuant to 20 C.F.R. §§ 404.1520, 416.920, the ALJ is responsible for conducting a five-step analysis to determine disability: (1) claimant must prove that he is not engaged in any "substantial gainful activity" when he seeks disability benefits; (2) claimant must demonstrate that he suffers from a "severe impairment, " meaning "one which significantly limits... physical or mental ability to do basic work"; (3) if the claimant is not working, has a severe impairment "that is expected to last at least twelve months, " and the "impairment meets a listed impairment, " then the claimant is presumed disabled; (4) if claimant's impairment does not prevent him from performing his past work, then he is not disabled; and (5) even if claimant's impairment prevents him from performing his past work, if "other work exists in the national economy" that the claimant can do, then the claimant is not disabled. Peterson v. Comm'r of Soc. Sec., 552, F.Appx. 533, 538 (6th Cir. 2014)(citing 20 C.F.R. §416.920 (2012)); Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001)(citing 20 C.F.R. § 404.1520 (2012)). The burden of proof "lies with the claimant to prove [he] is disabled" in the first four steps. Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001)(citing 20 C.F.R. § 404.1520 (2012); Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)). However, at the fifth step the burden of proof shifts to the Commissioner to "establish the claimant's ability to do work." Foster v. Halter, 279 F.3d at 354 (citing Tyra v. Sec'y of Health & Human Servs., 896 F.2d 1024, 1028 (6th Cir. 1990)).

On December 16, 2011, the ALJ issued a decision that was unfavorable to Plaintiff [AR at 27-44]. Appeals Council denied Plaintiff's request for review. Therefore, the Plaintiff's appeal is now eligible for review by this Court pursuant to 42 U.S.C. § 405(g).

At the time of the hearing, Plaintiff was 35 years old, had a 9th grade education, and had previously worked as a shelfstocker, water damage technician, and dishwasher, among other things. [AR at 52-54, 195-199, 208]. Plaintiff alleged that he became disabled on February 11, 2010, due to depression, anxiety, and back and neck pain. [AR at 187-194, 209-215, 285-296, 382-390]. Following the hearing, the ALJ determined that Plaintiff is capable of performing light work, and, thus, is not disabled under the Social Security Act. [AR at 27-40]. Specifically, considering Plaintiff's "age, education, work experience, and residual functional capacity, " the ALJ concluded that there are a number of jobs that "exist in significant numbers in the national economy" that Plaintiff can perform. [AR at 38].


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 evidence and was made pursuant to proper legal standards." Louden v. Comm'r of Soc. Sec., 507 F.Appx. 497, 498 (6th Cir. 2012)(internal quotation marks and citation omitted). "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Brooks v. Comm'r of Soc. Sec., 531 F.Appx. 636, 641 (6th Cir. 2013) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)) (internal quotation marks omitted). In other words, as 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 v. Comm'r of Soc. Sec., 560 F.3d 601, 604-05 (6th Cir. 2009) (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 to support a different conclusion").


Plaintiff argues that the ALJ made two errors: (1) "[t]he ALJ gave insufficient weight to consultative examiner Dr. Ellen Yass-Reed's opinion, " and (2) "[t]he ALJ improperly found that Plaintiff's inability to afford mental health treatment indicated his impairments were not very limiting." [Pl.'s Mot. at 7, 9].

With respect to Plaintiff's first argument, generally, the opinion of an examining physician is given more weight than the opinion of a non-examining physician. However, an ALJ may give the opinion of a non-examining physician greater weight than the opinion of an examining physician "when the non-examining physician clearly states the reasons that his opinions differ from those of the examining physicians." Lyons v. Soc. Sec. Admin., 19 F.Appx. 294, 302 (6th Cir. 2001) (citing Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994)); see also Dragon v. Comm'r of Soc. Sec., 470 F.Appx. 454, 463-64 (6th Cir. 2012) (citing 20 C.F.R. § 404.1527(d)(3)). One such factor in evaluating medical opinions is "whether an opinion is consistent with the record as a whole or supported by relevant evidence." Dragon v. Comm'r of Soc. Sec., 470 F.Appx. at 463-64 (citing 20 C.F.R. § 404.1527(d)(3)-(4)).

Here, the Global Assessment of Functioning (GAF) score given by the examining physician, Dr. Yass-Reed, indicates serious impairment in functioning; however, according to the ALJ and non-examining physician, Dr. Lea Perritt, this score is inconsistent with Dr. Yass-Reed's own evaluation, which noted that Plaintiff's "judgment and memory were intact, " and that Plaintiff is capable of performing everyday activities, such as handling finances and grocery shopping, by himself. [AR at 37]. The State Agency Mental Residual Functional Capacity (RFC) and Psychiatric Review Technique prepared by the non-examining reviewer, Dr. Perritt, indicated that Plaintiff has moderate mental limitations but is still capable of performing some daily activities, such as understanding and remembering simple instructions. [AR at 37-38, 395-415]. The ALJ explains that the opinion of Dr. Perritt was given more weight because, unlike the opinion of Dr. Yass-Reed, the conclusion drawn in the state agency evaluation prepared by Dr. Perritt was "generally consistent with the medical record [including Dr. Yass-Reed's observations] as a whole." [AR at 38]. Further, argues the Commissioner, because he cited what she viewed as inconsistencies contained within Dr. Yass-Reed's opinion, Dr. Perritt provided a clear and thorough explanation for why her opinion differed from that of Dr. Yass-Reed's opinion. [AR at 37-38].

Plaintiff argues that the ALJ did nothing more than repeat what the non-examining reviewer said and, thus, ignored Dr. Yass-Reed's additional specific conclusions that Plaintiff is vulnerable to intrusion of information and has difficulty manipulating information and working memory; that his sustained concentration is moderately-to-severely impaired; and that his ability to be reliable and consistent in a work-like setting was severely impaired. Plaintiff ignores the fact that the ALJ also considered treatment notes from other providers concerning normal mood and affect, speech pattern, orientation, and consciousness; records concerning control of Plaintiff's anxiety; and observations concerning Plaintiff's behaviors and statements concerning maintaining personal relationships, personal hygiene, care of his home and self, and his family gleaned from the record and from Plaintiff's testimony. [AR at 36-37]. This is more than parroting a bare-bones opinion of a non-examining consultative examiner. As a result, while there may be evidence which would support Plaintiff's preferred conclusion, there is equally evidence of record to support the conclusion reached by the ALJ in giving less weight to the opinion of Dr. Yass-Reed and more to that of Dr. Perritt. Thus, the ALJ was justified in giving more weight to the non-examining physician than the examining physician in this case.

Next, Plaintiff relies on the Sixth Circuit case of McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990), to argue that the ALJ improperly penalized Plaintiff for "fail[ure] to seek treatment he cannot afford." [Pl.'s Mot. at 9-11]. Plaintiff specifically points to the ALJ's finding that "medical evidence establishes a history of major depressive disorder and generalized anxiety disorder, yet the claimant has not undergone ...

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