Huskey v. Social Security Administration

Filing 14

MEMORANDUM OPINION AND ORDER affirming the decision of the Commissioner; and dismissing 2 Plaintiff's Complaint with prejudice. Signed by Magistrate Judge Joe J. Volpe on 8/21/2014. (srw)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
WESLEY HUSKEY

PLAINTIFF

V.

3:13CV00267-JJV

CAROLYN W. COLVIN,
Acting Commissioner,
Social Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff, Wesley Huskey, appeals the final decision of the Commissioner of the Social
Security Administration (the “Commissioner”) denying his claims for disability insurance benefits
(“DIB”) under Title II of the Social Security Act (the “Act”) and for supplemental security income
(“SSI”) benefits under Title XVI of the Act. For reasons set out below, the decision of the
Commissioner is AFFIRMED.
I.

BACKGROUND
On December 1, 2010, Mr. Huskey protectively filed for DIB and SSI benefits due to a heart

condition, depression, high blood pressure, and dizziness. (Tr. 143) His claims were denied initially
and upon reconsideration. At Mr. Huskey’s request, an Administrative Law Judge (“ALJ”) held a
hearing on August 8, 2012 where Mr. Huskey appeared with his lawyer. (Tr. 28) At the hearing,
the ALJ heard testimony from Mr. Huskey and a vocational expert (“VE”). (Tr. 29-52)
The ALJ issued a decision on August 28, 2012, finding that Mr. Huskey was not disabled
under the Act. (Tr. 11-22) The Appeals Council denied Mr. Huskey’s request for review, making
the ALJ’s decision the Commissioner’s final decision. (Tr. 1-3)
Mr. Huskey, who was forty-five years old at the time of the hearing, has a sixth grade
education. (Tr. 32-33) He has past relevant work experience as a maintenance machine repairer.

1

(Tr. 48)
II.

DECISION OF THE ADMINISTRATIVE LAW JUDGE1
The ALJ found that Mr. Huskey had not engaged in substantial gainful activity since

October 6, 2010, and he had the following severe impairments: peripheral vascular disease and
coronary artery disease. (Tr. 13) However, the ALJ found that Mr. Huskey did not have an
impairment or combination of impairments meeting or equaling an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1.2 (Tr. 14)
According to the ALJ, Mr. Huskey has the residual functional capacity (“RFC”) to do
sedentary work, except that he could only occasionally climb ladders, scaffolds, ramps or stairs, and
only occasionally balance, stoop, kneel, crouch or crawl. He also was limited to employment where
reading at the fourth grade level is sufficient. (Tr. 14) The VE testified that the jobs available with
these limitations were fishing reel assembler and inspecting work. (Tr. 50)
After considering the VE’s testimony, the ALJ determined that Mr. Huskey could perform
a significant number of other jobs existing in the national economy, and found that Mr. Huskey was
not disabled.
III.

ANALYSIS
A.

Standard of Review

In reviewing the Commissioner’s decision, this Court must determine whether there is

1

The ALJ followed the required sequential analysis to determine: (1) whether the claimant
was engaged in substantial gainful activity; (2) if not, whether the claimant had a severe impairment;
(3) if so, whether the impairment (or combination of impairments) met or equaled a listed
impairment; and (4) if not, whether the impairment (or combination of impairments) prevented the
claimant from performing past relevant work; and (5) if so, whether the impairment (or combination
of impairments) prevented the claimant from performing any other jobs available in significant
numbers in the national economy. 20 C.F.R. §§ 416.920(a)-(g) and 404.1520(a)-(g).
2

20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926.
2

substantial evidence in the record as a whole to support the decision.3 Substantial evidence is “less
than a preponderance, but sufficient for reasonable minds to find it adequate to support the
decision.”4
In reviewing the record as a whole, the Court must consider both evidence that detracts from
the Commissioner’s decision and evidence that supports the decision; but, the decision cannot be
reversed, “simply because some evidence may support the opposite conclusion.”5
B.

Mr. Huskey’s Arguments for Reversal

Mr. Huskey asserts that the Commissioner’s decision should be reversed because it is not
supported by substantial evidence. Specifically, Mr. Huskey contends that the opinion is in error
because the ALJ (1) failed to assess his peripheral artery disease, congestive heart failure, and
coronary artery disease; (2) failed to assess his non-exertional limitations; and (3) failed to consider
the VE’s opinion. (Doc. No. 11)
1.

Failure to Assess Listings

Mr. Huskey argues that the ALJ erred in not finding he met listings 4.00(A)(1)(b)(c),
4.00(B)(1-4), 4.00(D)(1)(a), and 4.00(G)(1) in 20 C.F.R. § 404(P), App. 1. (Id.) First, as the
Commissioner correctly points out, Mr. Huskey does not cite to any listed impairments, but cites to
the regulation’s general description of the cardiovascular system. Nevertheless, to meet or equal a
listing, he must prove that he met all of the specific medical criteria, and none of the alleged heart
conditions meet the listings.6 Mr. Huskey cited no evidence to support his position, and the ALJ’s

3

Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011); 42 U.S.C. § 405(g).

4

Id. (citing Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)).

5

Id. (citing Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006)).

6

Marciniak v. Shalala, 49 F.3d 1350, 1353 (8th Cir. 1995).
3

determination was supported by substantial evidence. For example, in February 2011, Mr. Huskey
was encouraged exercise to preserve function, and a May 2011 echocardiogram revealed no
significant issues with his heart. (Tr. 238, 427-429) In December 2011 and June 2012, Mr. Huskey
denied chest pain and shortness of breath and had a normal blood pressure readings. (Tr. 387, 448)
Though it is “preferable that ALJs address a specific listing, failure to do so is not reversible error
if the record supports the overall conclusion . . . .”7
The ALJ’s opinion specifically addresses listings 4.11 (chronic venous insufficiency), which
captures the scope of Mr. Huskey’s impairments. (Tr. 14) Though the ALJ found that Mr. Huskey’s
peripheral vascular disease and coronary artery disease amounted to “severe” impairments, he
concluded these impairments did not meet or equal a listing. (Tr. 13, 15)
Listing 4.11 requires proof of chronic venous insufficiency of a lower extremity with
incompetency or obstruction of the deep venous system and one of the following:
A.

B.

Extensive brawny edema (see 4.00G3) involving at least two-thirds of the leg
between the ankle and knee or the distal one-third of the lower extremity
between the ankle and hip, or;
Superficial varicosities, stasis dermatitis, and either recurrent ulceration or
persistent ulceration that has not healed following at least 3 months of
prescribed treatment.8

Although Mr. Huskey clearly suffers from some limitation, the treatment records do not
support Mr. Huskey’s contention that this impairment met or equaled a listing.
2.

Non-extertional Limitations

Mr. Huskey argues that the ALJ failed to consider his non-exertional impairments of “chest
pain, dyspnea on exertion, chronic pain in both legs, depression, fatigue, and obesity. (Doc. No. 11)

7

Pepper ex rel. Gardner v. Barnhart, 342 F.3d 853, 855 (8th Cir. 2003).

8

20 C.F.R. § 404(P), App. 1, § 4.11.
4

Though Mr. Huskey listed depression on his disability form, there is no evidence in the
record that he sought treatment for his depression nor is he taking any depression medications.9
Additionally, there are neither allegations nor medical records to support a finding that Mr. Huskey’s
obesity in any way limited his ability to work.10 As for the other issues, the ALJ addressed each one,
and consistent with the medical evidence, he concluded that sedentary work would accommodate
Mr. Huskey’s nonexertional impairments.
3.

VE’s Opinion

Mr. Huskey contends that the ALJ failed to give the VE hypotheticals that encompassed all
of his limitations. (Doc. No. 11) To the contrary, the ALJ’s hypothetical included all limitations he
found credible. An ALJ need not include limitations for impairments that the he did not find
credible.11
Mr. Huskey contends that the ALJ should have questioned the VE about a worker who could
not stand or walk a total of two hours in a day and a worker who would need frequent breaks because
of fatigue; both instances would eliminate any qualifying jobs. (Tr. 51) Contrary to Mr. Huskey’s
position, the ALJ properly recognized several factors to support his conclusion that Mr. Huskey was
capable of sedentary work. As for Mr. Huskey’s activities of daily living, he walks around and visits
with neighbors, cooks meals every day, and does laundry and cleaning. (Tr. 161, 163) On his form,
he did not indicate this sitting caused issues with his impairments. (Tr. 166) Mr. Huskey also

9

Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir.2003) (An ALJ may weigh the credibility
of a claimant's subjective complaints of pain by considering multiple factors, including whether or
not the claimant seeks regular medical treatment.).
10

Thompson v. Astrue, 226 Fed. Appx. 617, 620-21 (8th Cir. 2007) (ALJ did not err in
discounting nonexertional impairment of obesity when a claimant “did not allege that his weight
interfered with his ability to work.”).
11

Howe v. Astrue, 499 F.3d 835, 842 (8th Cir. 2007) (holding that a hypothetical “need only
include impairments that are supported by the record and that the ALJ accepts as valid”).
5

indicated that he could stand or walk for up to thirty minutes before experiencing any pain. (Tr. 178)
In February 2011, his doctor encouraged him to exercise to preserve function.

(Tr. 238)

Additionally, a week after having stint surgery, Mr. Huskey was healthy enough to go fishing. (Tr.
433) The ALJ noted that “[a]lthough fishing and a disability are not necessarily mutually exclusive,
the claimant’s decision to go fishing tends to suggest that the alleged symptoms and limitations may
have been overstated.” (Tr. 19)
Additionally, the ALJ also noted that Mr. Huskey has not stopped smoking, even though the
habit directly exacerbates his condition and he repeatedly has been advised to stop.12 (Tr. 41-42,
229, 238, 379) In June 2012, he advised his doctors that he was not ready to quit smoking. (Tr.
449).
IV.

CONCLUSION
The Court has reviewed the entire record, including the briefs, the ALJ’s decision, the

transcript of the hearing, and the medical and other evidence. There is sufficient evidence in the
record as a whole to support the Commissioner’s decision.
Accordingly, the Commissioner’s decision is affirmed and Mr. Huskey’s Complaint is
dismissed with prejudice.
IT IS SO ORDERED this 21st day of August, 2014.

___________________________________
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE

12

Mouser v. Astrue, 5454 F.3d 634, 638 (8th Cir. 2008) (holding that “there is no dispute that
smoking has a direct impact on [claimant’s] pulmonary impairments. Thus, the ALJ appropriately
considered [his] failure to stop smoking in making his credibility determination.”).
6