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Gates v. Berryhill

United States District Court, E.D. Kentucky, Southern Division

August 4, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Christopher Gates brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of an administrative decision of the Commissioner of Social Security. The Court, having reviewed the record, will AFFIRM the Commissioner's decision, as it is supported by substantial evidence.


         Judicial review of the Commissioner's decision is limited to determining whether it is supported by substantial evidence and was made pursuant to proper legal standards. Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). “Substantial evidence” is defined as “more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. Courts are not to conduct a de novo review, resolve conflicts in the evidence, or make credibility determinations. Id. Rather, we are to affirm the Commissioner's decision, provided it is supported by substantial evidence, even if we might have decided the case differently. See Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).

         The ALJ, in determining disability, conducts a five-step analysis. See Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). Step One considers whether the claimant is still performing substantial gainful activity; Step Two, whether any of the claimant's impairments are “severe”; Step Three, whether the impairments meet or equal a listing in the Listing of Impairments; Step Four, whether the claimant can still perform his past relevant work; and Step Five, whether significant numbers of other jobs exist in the national economy which the claimant can perform. As to the last step, the burden of proof shifts from the claimant to the Commissioner. Id.; see also Preslar v. Sec'y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).


         On September 26, 2006, Plaintiff filed a Title II application for a period of disability and disability insurance benefits and a Title XVI application for supplemental security income (“SSI”), alleging disability as of March 6, 2006. [TR 238-40, 242-49]. Plaintiff's claims were denied initially and on reconsideration. [TR 146-49]. Plaintiff then requested a hearing on the matter.

         [TR 144-45]. An Administrative Law Judge (“ALJ”) reviewed the evidence of record and issued a fully favorable written decision without holding a hearing. [TR 127-31]. Attorney Eric C. Conn represented Plaintiff throughout this disability determination process. [Id.].

         The Office of the Inspector General later notified the Social Security Administration (“SSA”) that there was reason to believe that fraud was involved in certain cases submitted to the SSA by Eric C. Conn, which included faulty evidence submitted by Bradley Adkins, Ph. D., Srinivas Ammisetty, M.D., Frederic Huffnagle, M.D., and/or David P. Herr, D.O., between January 2007 and May 2011. [TR 157-60]. Because Plaintiff was represented by Eric C. Conn during the aforementioned time period, and because his case included evidence obtained from one or more of the aforementioned medical providers, the SSA had to redetermine his eligibility for benefits. [Id.].

         In redetermining Plaintiff's claim for benefits, the Appeals Council (“AC”) was obliged to disregard all evidence obtained from the aforementioned medical providers. [TR 132-136]. On August 17, 2015, the AC found that the ALJ's decision was not supported by the remaining evidence. [Id.]. It then remanded the case to ALJ John M. Dowling for a new hearing and further redetermination proceedings. [Id.].

         On March 22, 2016, ALJ Dowling held a video hearing. [TR 65-100]. Plaintiff, now represented by attorney Michael Taylor, participated in the hearing, along with impartial vocational expert Julie Bose. [Id.]. Consistent with the AC's instructions, ALJ Dowling disregarded evidence obtained from the aforementioned medical providers and “determine[d] whether the beneficiary was entitled to and eligible for benefits on April 4, 2007, the date SSA initially allowed the claim.” [TR 47].

         At Step One of the disability determination analysis, ALJ Dowling found that Plaintiff had not engaged in substantial gainful activity between the alleged onset date and April 4, 2007. [TR 51]. At Step Two, he concluded that Plaintiff had the following severe impairments: cervical degenerative disc disease, status post ACDF at ¶ 5-C6, cervical congenital fusion at ¶ 6-C7, and hypertension. [Id.].

         At Step Three, ALJ Dowling determined that Plaintiff did not have an impairment or combination of impairments listed in, or medically equal to, an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [TR 53]. In reaching this conclusion, ALJ Dowling found that “Listing 1.04 is not met because the record does not demonstrate compromise of a nerve root or the spinal cord with additional findings of nerve root compression, evidence of spinal arachnoiditis, or lumbar spinal stenosis resulting in pseudoclaudication.” [Id.]. He also noted that, “[c]oncerning Listing 11.14 for peripheral neuropathies, the record fails to demonstrate any significant and persistent disorganization of motor function in two extremities that have resulted in sustained disturbance of gross and dexterous movements or gait and station in spite of prescribed treatment.” [Id.].

         At Step Four, ALJ Dowling found that Plaintiff had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b), except that Plaintiff “could not climb ladders, ropes or scaffolds.” [TR 53]. “He could occasionally stoop, kneel, crouch, and crawl” and “could occasionally reach overhead bilaterally.” [Id.]. However, “[h]e needed to avoid concentrated exposure to extreme cold and excessive vibration” and “all exposure to unprotected heights and hazardous machinery.” [Id.]. ALJ Dowling then concluded that Plaintiff was capable of performing past relevant work as a purchasing agent, shipping clerk, and truck parts counterman. [TR 57].

         Nevertheless, ALJ Dowling proceeded to the final step of the sequential evaluation and determined that there were a significant number of other jobs in the national economy that Plaintiff could perform. [Id.]. ALJ Dowling based this conclusion on testimony from a vocational expert (“VE”), in response to a hypothetical question assuming an individual of Plaintiff's age, education, work experience, and RFC. [Id.]. The VE testified that such an individual could find work as a call out operator (47, 100 national) or document preparer (29, 400 national). [TR 58]. Thus, he concluded that Plaintiff was not under a “disability, ” as defined by the Social Security Act, from March 6, 2006, through April 4, 2007, the date of the prior decision. [Id.].

         On December 2, 2016, the AC denied Plaintiff's request for review of ALJ Doyle's administrative decision. [TR 8-14]. Plaintiff filed the instant action on January 31, 2017. [DE 2]. Consistent with the Court's Standing Scheduling Order, the parties have submitted cross motions for summary judgment, which are now ripe for review. [DE 13, 14]. Plaintiff essentially advances three arguments on appeal. First, he contends that the ALJ erred in finding that his Chiari malformation, obesity, and depression were non-severe impairments. Second, he takes issue with the ALJ's consideration of treating source opinions rendered by Drs. Brooks, Khan, El-Naggar, and Dixit. Third, Plaintiff insists that the ALJ erred in assessing his credibility. The Court will address each of these arguments in turn.[1]


         A. Severity of Impairments [2]

         At Step Two of the disability determination process, the ALJ must consider the medical severity of the claimant's impairments. 20 C.F.R. § 404.1520(a)(4)(ii); Soc. Sec. Rul. 96-3p, 1996 WL 374181 at *1 (July 2, 1996). An impairment is severe if it “significantly limits an individual's physical or mental ability to perform basic work activities, ” which include the following: (1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for hearing, seeing and speaking; (3) understanding, carrying out and remembering simple instructions; (4) use of judgment; (5) responding ...

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