United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION AND ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE
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
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).
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).
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.
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.].
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.].
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
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].
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.].
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.].
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].
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.].
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.
Severity of Impairments 
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