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Case: 6:12-cv-00092-HRW Doc #: 21 Filed: 09/20/13 Page: 1 of 18 - Page ID#: 596

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY


SOUTHERN DIVISION


at LONDON

Civil Action No. 12-92-HRW


RICHARD RAY BAIRD,

PLAINTIFF,


v.

MEMORANDUM OPINION AND ORDER

MICHAEL J. ASTRUE

COMMISSIONER OF SOCIAL SECURITY,

DEFENDANT.


Plaintiff has brought this action pursuant to 42 U.S.C. §405(g) to challenge

a final decision of the Defendant denying Plaintiff's application for disability

insurance benefits and supplemental security income benefits. The Court having

reviewed the record in this case and the dispositive motions filed by the parties,

and being otherwise sufficiently advised, for the reasons set forth herein, finds that

the decision of the Administrative Law Judge is supported by substantial evidence

and should be affirmed.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff filed his current application for disability insurance benefits and

supplemental security income benefits on April 29, 2009, alleging disability

beginning on March 11, 2008 due to bipolar disorder, anxiety, depression, panic

attacks, shoulder pain, migraines, neuropathy and breast cancer (Tr. 148). This

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application was denied initially and on reconsideration (Tr. 47-50, 68-79). An

administrative hearing was convened. At the hearing, pursuant to 20 C.F .R. §

416.920, the ALJ performed the following five-step sequential analysis in order to

determine whether the Plaintiff was disabled:

Step 1: If the claimant is performing substantial gainful work, he is not
disabled.

Step 2: Ifthe claimant is not performing substantial gainful work, his
impairment(s) must be severe before he can be found to be disabled based
upon the requirements in 20 C.F .R. § 416.920(b).

Step 3: If the claimant is not performing substantial gainful work and has a
severe impairment (or impairments) that has lasted or is expected to last for
a continuous period of at least twelve months, and his impairments (or
impairments) meets or medically equals a listed impairment contained in
Appendix 1, Subpart P, Regulation No.4, the claimant is disabled without
further inquiry.

Step 4: Ifthe claimant's impairment (or impairments) does not prevent him
from doing his past relevant work, he is not disabled.

Step 5: Even if the claimant's impairment or impairments prevent him from
performing his past relevant work, if other work exists in significant
numbers in the national economy that accommodates his residual functional
capacity and vocational factors, he is not disabled.

On August 6, 2010, the ALJ issued his decision finding that Plaintiff was

not disabled (Tr. 51-67).

Plaintiff was 52 years old at the time of the hearing decision. He has a high

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school education and his past relevant work experience consists of work as a

machine repairman, machinist / millwright, cabinet maker, machine offbearer and

furniture assembler (Tr. 26-27).

At Step 1 of the sequential analysis, the ALl found that Plaintiff had not

engaged in substantial gainful activity since the alleged onset date of disability.

The ALl then determined, at Step 2, that Plaintiff suffers from bipolar disorder.

Social anxiety and has a history of polysubstance abuse, which he found to be

"severe" within the meaning ofthe Regulations (Tr. 56). At Step 3, the ALJ

found that Plaintiff's impairments did not meet or medically equal any of the listed

impairments (Tr. 56). The ALl further found that Plaintiff could not return to his

past relevant work (Tr. 60-61) but determined that he has the residual functional

capacity ("RFC") to:

perform a full range of work at all exertionallevels but with the
following non-exertionallimitations. The claimant is limited to
simple, routine, repetitive tasks not performed in fast-paced
production environment, involving only simple[] work-related
decisions, and[,] in general, relatively few work place changes.
He is limited to occasional interaction with supervisors and
occasional and superficial interaction with coworkers. He
cannot have any contact with the general public ..

(Tr.57). The ALl finally concluded that jobs of this type exist in significant

numbers in the national and regional economies, as identified by a vocational

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expert (Tr. 60-61).

Accordingly, the ALJ found Plaintiff not to be disabled

at Step 5 of the sequential evaluation process.

The Appeals Council denied Plaintiffs request for review and adopted the

ALl's decision as the final decision of the Commissioner on February 3,2012 (Tr.

35-40).

Plaintiff thereafter filed this civil action seeking a reversal of the

Commissioner's decision. Both parties have filed Motions for Summary Judgment

[Docket Nos. 1 7 and 19] and this matter is ripe for decision. I

II. ANALYSIS

A.

Standard of Review

1 Plaintiff initially sought a remand pursuant to Sentence

Six of 42 U.S.C. § Section 405(g), contending that a subsequent
favorable decision warranted reconsideration, at the
administrative level, of this application for benefits. However,
the subsequent favorable determination was based on
impairments and limitations that were not documented in the
evidence before the ALl in the present matter, and thus the later
decision is not germane to the ALl's determination of disability
in this case. See Allen v. Comm'r ofSoc. Sec., 561 F .3d 646, 653
(6th Cir. 2009) (explaining that subsequent favorable decision
alone is not material evidence that merits remand under sentence
six of 42 U.S.C. § 405(g)).

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The essential issue on appeal to this Court is whether the ALl's decision is

supported by substantial evidence. "Substantial evidence" is defined as "such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion;" it is based on the record as a whole and must take into account

whatever in the record fairly detracts from its weight. Garner v. Heckler, 745 F.2d

383,387 (6th Cir. 1984). If the Commissioner's decision is supported by

substantial evidence, the reviewing Court must affirm. Kirk v. Secretary ofHealth

and Human Services, 667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957

(1983). "The court may not try the case de novo nor resolve conflicts in evidence,

nor decide questions of credibility." Bradley v. Secretary ofHealth and Human

Services, 862 F.2d 1224, 1228 (6th Cir. 1988). Finally, this Court must defer to the

Commissioner's decision "even if there is substantial evidence in the record that

would have supported an opposite conclusion, so long as substantial evidence

supports the conclusion reached by the ALJ." Key v. Callahan, 109 F.3d 270,273

(6th Cir.1997).

B.

Plaintiff's Contentions on Appeal

On appeal, Plaintiff argues that the ALJ improperly discounted the opinion

of his treating psychiatrist Alan Myers, M.D. Plaintiff also contends that he

qualifies for presumptive disability pursuant to Listing 12.04.

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C.

Analysis of Contentions on Appeal

Plaintiff's first claim of error is that Plaintiff argues that the ALJ improperly

discounted the opinion of his treating psychiatrist Alan Myers, M.D.

In order to be given controlling weight, the opinions of a treating source on

issues involving the nature and severity of a claimant's impairments must be well

supported by medically acceptable clinical and laboratory diagnostic techniques,

and be consistent with other substantial evidence in the case record. 20 C.F.R. §

416.927( d)(2). Such opinions receive deference only if they are supported by

sufficient medical data. Harris v. Heckler, 756 F.2d 431,435 (6th Cir. 1985). The

ALJ concluded that Dr. Myers' assessment did not qualify. As the ALJ pointed

out, Plaintiff's treatment history is inconsistent with Dr.Myers' assessment and

Plaintiff's claim of disabling mental impairments since March of2008 (Tr. 59,

401-02). Although Plaintiff had a history of depression and anxiety with alcohol

and drug abuse, the record reflects no hospitalizations for mental health treatment

after November 1,2007, five months before the alleged onset date (Tr. 59,

241-58). During the relevant period, Plaintiff attended mainly routine

follow up appointments for medication management and scheduled therapy

sessions, and, during his period of sobriety, he was noted to be stable or making

some progress. Further, despite alleging disability beginning on March 11, 2008,

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the record reflects that Plaintiff did not seek treatment for any mental impairment

between February of2008 and March of 2009 . See McGuire v. Comm'r a/Soc.

Sec., 178 F.3d 1295 (table), 1999WL196508 at *7 (6th Cir. 1999) (noting that

where claimant saw doctor only four times in one year, gap in treatment could

"reasonably be viewed as inconsistent with a claim of debilitating symptoms").

In addition, the treatment notes of various medical sources are at odds with

Dr. Myers' opinion and support the ALJ's findings. On February 19,2008,

Plaintiff told Brian E. Ellis, M.D. that he was "doing much better as long as he

[took] his Paxil and Lithium" (Tr. 265). Plaintiff was "in good spirits" and "doing

well" on his medications, though no clinical findings were noted (Tr. 265). On

March 11,2008, his alleged onset date, Plaintiff complained of back and shoulder

pain after a fall, but there was no mention of a mental condition, nor any clinical

findings related to a mental impairment (Tr. 266).

Another therapist assessed Plaintiff as only moderately depressed with

mild signs of anxiety (Tr. 300) and, in April 2009, noted Plaintiff was focused and

alert, friendly and cooperative, in a good mood, and had clear and coherent

thoughts and good insight and judgment, though he reported having bad long-term

memory (Tr. 285).

During a psychological evaluation performed by Dr. Catherine Miller,

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Plaintiff reported having difficulty retaining information and having panic attacks

at work, but his mood swings were better and he reported his medications helped

(Tr.278-79). His appearance was neat and clean; his ability to relate was good;

and his cooperation with Dr. Miller was excellent (Tr. 279). Plaintiff reported his

mood was "ok," his thoughts were logical and goal-oriented, his memory was

described as "+/-," and his insight and judgment were fair to good (Tr. 279). Dr.

Miller diagnosed Plaintiff with bipolar disorder, assessed his mood as 55 on the

Global Assessment of Functioning (GAF) scale and prescribed medications (Tr.

280).

The record demonstrates that Plaintiff attended medication management and

therapy appointments at Adanta through March of 20 1 0, at which providers

consistently noted he was cooperative and stable or making some progress (Tr.

382-89,392-99,413-16,418-57).

In June of 2009, Plaintiff reported increased anxiety after receiving a court

summons, but the therapist noted his depressive symptoms had decreased and his

anxiety symptoms were stable, and she indicated he was cooperative, had a bright

affect, and was making some progress (Tr. 386).

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The following month, Plaintiff related that the severity of his panic attacks

had decreased due to his use of positive self-talk, and the therapist observed that

although he was fidgety, a sign of anxiety, Plaintiff's mood was bright and his

attitude was positive and hopeful (Tr. 431).

On August 12,2009, a nurse practitioner, Amy Perry, noted Plaintiff

reported he was having some mood swings, had a flat affect, and felt "a little sad,"

but he was "sleeping pretty good," denied suicidal ideation, reported doing well

and having an "ok" mood, was cooperative though quiet and withdrawn, and was

still showing some progress (Tr. 430). Plaintiff related that he did not like to be

around people, but he did go to Kroger and other places (Tr. 430).

In September, Plaintiff reported he was not doing well; he felt irritable and

dizzy, and he reported he had no energy and did not feel like doing as many things

as he previously did (Tr. 429). Ms. Perry noted Plaintiff was not taking one of his

prescribed medications and had unilaterally restarted another medication (Tr. 429).

By the following month, Plaintiff returned to making some progress, and the

therapist noted that his anxiety had mildly decreased, his affect was bright, and he

was cheerful (Tr. 428). Plaintiff reported he was getting out more, even planning

to attend a car show, and that his anxiety was decreased when he went out in

public with a friend (Tr. 428).

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In October of 2009, Ms. Perry thought Plaintiff appeared sad, but he denied

feeling depressed, and the following month, Plaintiff reported that he was going

out in public more with a new friend and experienced a decrease in his anxiety

symptoms (Tr. 426-27).

Based upon these medical reports, and contrary to Plaintiff s argument, the

diagnoses various practitioners assigned to Plaintiff and occasional abnormal

clinical findings do not support Dr. Myers' opinion that Plaintiff was markedly

limited in several areas and thus precluded from all work (Tr. 401-02). See Turner

v. Comm 'r a/Soc. Sec., No. 07-5235,2008 WL 582603, at *5 (6th Cir. Mar. 4,

2008) (holding substantial evidence supported ALl's rejection of physician

opinion as unsupported by medical evidence where findings were only

occasionally abnormal). Rather, the records from other sources support the ALl's

finding that Plaintiff could perform work that was simple, routine, and repetitive;

not performed in a fast-paced production environment; involved simple decisions

and relatively few changes; and allowed for occasional interaction with

supervisors, occasional and superficial contact with coworkers, and no contact

with the public (Tr. 57).

Further, Dr. Myers' own treatment notes are inconsistent with and fail to

provide support for the marked limitations he assessed (Tr. 59,401-02,419,422,

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424). For example, in January of2010, Dr. Myers noted Plaintiff reported he was

taking his medication regularly and his sleep was variable, but Dr. Myers recorded

no clinical findings other than that Plaintiff was cooperative and making some

progress and denied medication side effects (Tr. 422).

Dr. Myers next saw Plaintiff on March 23, 2010, the date he completed the

questionnaire (Tr. 401-02, 419). Plaintiff reported "doing about the same" and

denied suicidal ideation, though he reported experiencing severe back pain (Tr.

419). Though another therapist, Dianne Neal, M.Ed. MHE, indicated on the same

day that Plaintiff was quiet and almost lethargic with a blunt affect, Dr. Myers

noted that Plaintiff was cooperative and stable with a bright affect, and Ms. Neal

did note Plaintiffs anxiety and panic had decreased (Tr. 418-19). Dr. Myers noted

few clinical findings that would support his restrictive assessment of Plaintiffs

RFC (Tr. 401-02,419,422,424). While Dr. Myers' treatment notes, including his

mild clinical findings, bolster the ALl's finding that Plaintiff could perform work

that accommodated his mental impairments, they do not support his opinion (Tr.

57,401-02,419,422,424).

It is important to note that the ALJ's determination that the opinions of state

agency medical consultants were entitled to only some weight does not alter the

assessment of Dr. Myers' opinion (Tr. 59). Pl.'s Br. 16. Indeed, in this case, the

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state agency reviewing consultants concluded that Plaintiff was less limited than

the ALJ ultimately determined found (Tr. 57,319,347). Given that Dr. Meyers'

opinion is not supported by his own treatment notes or the other medical evidence

of record, the Court finds no error in the ALl's assessment if that opinion.

Plaintiff s cursory argument that he qualifies for presumptive disability

pursuant to Listing 12.04 is without merit as well. The Sixth Circuit Court of

Appeals stated in Her v. Commissioner ofSocial Security, 203 F.3d 388,391 (6th

Cir. 1999), "the burden of proof lies with the claimant at steps one through four of

the [sequential disability benefits analysis]," including proving presumptive

disability by meeting or exceeding a Medical Listing at step three. Thus, Plaintiff

"bears the burden of proof at Step Three to demonstrate that he has or equals an

impairment listed in 20 C.F .R. part 404, subpart P, appendix 1." Arnold v.

Commissioner ofSocial Security, 238 F.3d 419,2000 WL 1909386, *2 (6th Cir.

2000 (Ky», citing Burgess v. Secretary ofHealth and Human Services, 964 F.2d

524,528 (6th Cir. 1992). If the Plaintiff "can show an impairment is listed in

Appendix 1 ("the listings"), or is equal to a listed impairment, the ALJ must find

the claimant disabled." Buress v. Secretary ofHealth and Human Services, 835

F.2d 139,140 (6th Cir. 1987). "The listing of impairments 'provides descriptions of

disabling conditions and the elements necessary to meet the definition of disabled

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for each impainnent." Arnold, at **2, quoting Maloney v. Commissioner, 211 F.3d

1269,2000 WL 420700 (6th Cir. 2000). In order for the Plaintiff "to qualify as

disabled under a listed impairment, the claimant must meet all the requirements

specified in the Listing." Id. This must be done by presenting specific medical

findings that satisfy the particular Listing. Sullivan v. Zebley, 493 U.S. 521, 530­

532, (1990). An impainnent that manifests only some of the criteria in a particular

Listing, "no matter how severely, does not qualify." Sullivan, at 530.

Listing 12.04 provides:

Affective Disorders: Characterized by a
disturbance of mood, accompanied by a full
or partial manic or depressive syndrome.
Mood refers to a prolonged emotion that
colors the whole psychic life; it generally
involves either depression or elation.

The required level of severity for these
disorders is met when the requirements in
both A and B are satisfied ....

A. Medically documented persistence,
either continuous or intennittent, of one of
the following:

1. Depressive syndrome characterized by at
least four of the following:

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a. Anhedonia or pervasive loss of interest in
almost all activities; or

b. Appetite disturbance with change in
weight; or

c. Sleep disturbance; or

d. Psychomotor agitation or retardation; or

e. Decreased energy; or

f. Feelings of guilt or worthlessness; or

g. Difficulty concentrating or thinking; or

h. Thoughts of suicide; or

1. Hallucinations, delusions or paranoid
thinking; or

2. Manic syndrome characterized by at least
three of the following:

a. Hyperactivity; or

b. Pressure of speech; or

c. Flight of ideas; or

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d. Inflated self-esteem; or

e. Decreased need for sleep; or

f. Easy distractability; or

g. Involvement in activities that have a high
probability of painful consequences which
are not recognized; or

h. Hallucinations, delusions or paranoid
thinking; or

3. Bipolar syndrome with a history of
episodic periods manifested by the full
symptomatic picture of both manic and
depressive syndromes (and currently
characterized by either or both syndromes);

AND

B. Resulting in at least two of the
following:

1. Marked restriction of activities of daily
living; or

2. Marked difficulties in maintaining social
functioning; or

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3. Marked difficulties in maintaining
concentration, persistence or pace; or

4. Repeated episodes of decompensation,
each of extended duration;

OR

C. Medically documented history of a chronic

affective disorder of at least 2 years' duration that

has caused more than a minimal limitation of ability to do

basic work activities, with symptoms or signs currently

attenuated by medications or psychological support,

and one of the following:

1. Repeated episodes of decompensation, each of

extended duration; or

2. A residual disease process that has resulted in such

marginal adjustment that even a minimal increase

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in mental demands or change in the environment would

be predicted to cause the individual to decompensate; or

3. Current history of 1 or more years' inability to

function outside a highly supportive living arrangement,

with an indication of continued need for such an

arrangement.

20 C.F.R. Ch. III, Pt. 404, Subpt. P. App. 1, 12.04

Plaintiff relies on Dr. Myers' assessment to support his argument;

however, as explained, supra, the ALl appropriately discounted Dr. Myers'

opinion (Tr. 59,401-02). Moreover, Dr. Myers' opinion does not "fulfill Part B of

this [L]isting," as Plaintiff alleges. Specifically, Dr. Myers' assessment is silent

as to Plaintiffs activities of daily living, indicates only moderate limitations in

social functioning, and makes no mention of any periods of decompensation (Tr.

401-02). Thus, Dr. Myers', even if deemed credible, opinion could not form a

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basis for presumptive disability pursuant to Listing 12.04.

III. CONCLUSION

The Court finds that the ALJ's decision is supported by substantial evidence

on the record. Accordingly, it is HEREBY ORDERED that the Plaintiffs

Motion for Summary Judgment be OVERRULED and the Defendant's Motion

for Summary Judgment be SUSTAINED. A judgment in favor of the Defendant

will be entered contemporaneously herewith.

This 20th day of September, 2013.

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