United States District Court, E.D. Kentucky, Southern Division, London
DONNA P. HINES, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION & ORDER
A. INGRAM UNITED STATES MAGISTRATE JUDGE
Procedural History and ALJ Decision
April 30, 2014, Plaintiff Donna Hines protectively filed a
Title II application for disability insurance benefits and a
Title XVI application for supplemental security income. D.E.
11-1 at 102, 115, 116. The Social Security Administration denied
the claims initially and upon reconsideration. Id.
at 113, 129. On September 10, 2014, Plaintiff requested a
hearing, which occurred in Lexington, Kentucky, on January 6,
2016. Id. at 38, 145, 160. Administrative Law Judge
(“ALJ”) Davida H. Isaacs heard testimony from an
impartial vocational expert (“VE”), Joyce P.
Forrest, and from Plaintiff, who was represented by counsel.
Id. at 39, 195, 310.
20 C.F.R. §§ 404.1520 and 416.920, the ALJ conducts
a five-step analysis to evaluate a disability
claim. The ALJ followed these procedures in this
case. See D.E. 11-1 at 22-32.
first step, if a claimant is working at a substantial gainful
activity, she is not disabled. 20 C.F.R. § 404.1520(b).
In this case, the ALJ found that Plaintiff “has not
engaged in substantial gainful activity since January 2,
2013, the alleged onset date.” D.E. 11-1 at 24.
second step, if a claimant does not have any impairment or
combination of impairments which significantly limit her
physical or mental ability to do basic work activities, then
she does not have a severe impairment and is not disabled. 20
C.F.R. § 404.1520(c). The ALJ found that Plaintiff did
suffer the following significant impairments:
“obstructive sleep apnea (OSA), osteoarthritis, and
plantar fasciitis.” D.E. 11-1 at 24. The ALJ found that
Plaintiff did not have severe liver disease or a severe
mental impairment. Id. at 25.
third step, if a claimant's impairments meet the duration
requirement and meet or equal the listings in 20 C.F.R. Part
404, Subpart P, Appendix 1, then she is disabled. 20 C.F.R.
§ 404.1520(d). The ALJ found Plaintiff failed to meet
this standard. D.E. 11-1 at 27.
here, a claimant is not found disabled at step three, the ALJ
must determine the claimant's Residual Functional
Capacity (“RFC”), which is the most work she can
do despite her limitations. 20 C.F.R. §§
404.1520(e), 1545(a)(1). The ALJ determined that Plaintiff
had the RFC
[T]o perform light work as defined in 20 CFR 404.1567(b)
except the claimant can never climb ladders, ropes or
scaffolds and can no more than occasionally climb ramps and
stairs, stoop, kneel, crouch, crawl, or push/pull/handle
objects with the non-dominant left hand. The claimant cannot
perform any overhead reaching with the right, dominant arm.
The claimant must avoid more than frequent exposure to
wetness/humidity and avoid more than occasional exposure to
vibrations from machinery or hand tools. The claimant will
require one extra bathroom break per day for a total of five
11-1 at 27. Plaintiff argues that the RFC is not supported by
substantial evidence because the ALJ failed to properly
consider her depression and obesity and erred in weighing
opinion evidence when formulating the RFC. D.E. 13-1.
fourth step, if a claimant's impairments do not prevent
her from doing past relevant work (given the ALJ's
assessment of her residual functional capacity), she is not
disabled. 20 C.F.R. § 404.1520(f). The ALJ found that
Plaintiff did not meet this standard because she was able to
perform her past relevant work as a tour guide as it is
generally performed. D.E. 11-1 at 30.
fifth step, if a claimant's impairments (considering her
RFC, age, education, and past work) do not prevent her from
doing other work that exists in the national economy, she is
not disabled. 20 C.F.R. § 404.1520(g). Although the ALJ
found that Plaintiff was able to perform her past relevant
work, she proceeded to step 5 and made an alternative finding
that, based on Plaintiff's RFC, age, education, and past
work, “there are other jobs that exist in significant
numbers in the national economy that [Plaintiff] also can
perform.” D.E. 11-1 at 31. The ALJ explained that she
asked the VE at the hearing “whether jobs exist in the
national economy for an individual with the claimant's
age, education, work experience, and residual functional
capacity.” Id. She accepted the VE's
testimony that Plaintiff could perform the requirements of
representative occupations such as office helper and
inspector/tester. Plaintiff was therefore “not
disabled” as defined by the regulations. Id.
on March 10, 2016, the ALJ issued her decision, finding that
Plaintiff was not disabled, and was therefore ineligible for
disability insurance benefits and supplemental security
income. Id. at 31-32. The Appeals Council denied
Plaintiff's request for review on April 18, 2017.
Id. at 5.
20, 2017, Plaintiff initiated this civil action under 42
U.S.C. §§ 405(g) and 1383(c) to obtain judicial
review of the ALJ's decision denying her application for
disability insurance benefits. D.E. 2. Defendant, the
Commissioner of Social Security (“the
Commissioner”), filed an answer on September 8, 2017.
D.E. 11. On November 7, 2017, Plaintiff filed a motion for
judgment on the pleadings. D.E. 13. Plaintiff argues that the
RFC is not supported by substantial evidence because the ALJ
made multiple errors when formulating it, and that these
harmful errors warrant remand. D.E. 13-1. First, Plaintiff
argues that the ALJ failed to consider her depression when
formulating the RFC, despite being required under the
regulations to do so. Id. at 8. Consideration of her
depression, Plaintiff argues, would have reduced the number
of jobs available to her. Id. at 11. Second,
Plaintiff argues that the ALJ erred when she gave Dr. Thomas
Howard's opinion less weight because he was an examining
physician, saw Plaintiff the same amount as the consultative
examiner, and provided treatment notes consistent with the
record. Id. at 12. Giving Dr. Howard's opinion
greater weight, Plaintiff argues, would have put her at
sedentary work and, consequently, would have resulted in a
finding of disability under the regulations. Id.
Third, Plaintiff argues that the ALJ failed to mention or
consider her obesity when formulating the RFC, and therefore
the opinion was unsupported by substantial evidence and
warrants remand. Id. at 13-14. Commissioner
responded, and also moved for summary judgment. D.E. 17.
November 14, 2017, the parties filed a joint motion,
consenting to have the undersigned “conduct all
proceedings in this case including trial, the entry of final
judgment, and all post-trial proceedings.” D.E. 14.
District Judge Van Tatenhove referred the matter to the
undersigned “to conduct all proceedings and order the
entry of judgment in accordance with 28 U.S.C. § 636(c)
and Fed.R.Civ.P. 73.” D.E. 16.
Framework for Judicial Review
Social Security Act defines “disability” as
“the ‘inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.'”
Sorrell v. Comm'r of Soc. Sec., 656 Fed.Appx.
162, 169 (6th Cir. 2016) (quoting 42 U.S.C. §
423(d)(1)(A)). The burden is on Plaintiff to prove that she
is disabled within the meaning of the regulations.
Hernandez v. Comm'r of Soc. Sec., 644 Fed.Appx.
468, 473 (6th Cir. 2016) (citing Ealy v. Comm'r of
Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010)). Judicial
review of the denial of a claim for Social Security benefits
is limited to determining whether the ALJ's findings are
supported by substantial evidence and whether the correct
legal standards were applied. Cutlip v. Sec'y of
Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994) (citing Richardson v. Perales, 402 U.S. 389,
401 (1971)). “Substantial evidence” is
“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.”
Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241
(6th Cir. 2007) (internal quotation marks and citations
omitted). The substantial evidence standard
“presupposes that there is a zone of choice within
which the decisionmakers can go either way, without
interference by the courts.” Mullen v. Bowen,
800 F.2d 535, 545 (6th Cir. 1986) (en banc) (quoting
Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.
determining the existence of substantial evidence, courts
must examine the record as a whole. Id. at 545.
However, courts are not to conduct a de novo review,
resolve conflicts in evidence, or make credibility
determinations. Bradley v. Sec'y of Health &
Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988).
Rather, if the “evidence could reasonably support the
conclusion reached[, ]” then the ALJ's decision
must stand, even if the evidence could also support another
conclusion. Her v. Comm'r of Soc. Sec., 203 F.3d
388, 389-90 (6th Cir. 1999).
determinations often hinge on the claimant's credibility.
The ALJ must consider statements or reports from the
claimant. 20 C.F.R. § 404.1529(a). To determine whether
statements of a claimant are credible, the following two-part
test is used:
First, the ALJ will ask whether [ ] there is an underlying
medically determinable physical impairment that could
reasonably be expected to produce the claimant's
symptoms. Second, if the ALJ finds that such an impairment
exists, then he must evaluate the intensity, persistence, and
limiting effects of the symptoms on the individual's
ability to do basic work activities.
486 F.3d at 247 (citing 20 C.F.R. § 416.929(a) (internal
citations omitted). It is within the province of the ALJ,
rather than the reviewing court, to evaluate the credibility
of witnesses, including the claimant. Id. Even so,
the credibility determinations ...