HASH v. ASTRUE

Filing 32

ORDER ADOPTING 28 REPORT AND RECOMMENDATIONS - We find that none of Mr. Hash's objections to the Magistrate Judge's Report and Recommendation has merit. There is no basis on which to conclude that the ALJ committed reversible error by failing to make an accurate residual functional capacity determination or to conclude that the ALJ failed to make a credibility determination that was supported by substantial evidence. Accordingly, the Plaintiff's objections to the Magistrate Judge's well-reasoned Report are OVERRULED and we ADOPT the recommendations set forth in the Magistrate Judge's Report and Recommendation. Signed by Judge Sarah Evans Barker on 9/23/2013. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

DANIEL L HASH,
Plaintiff,
vs.
CAROLYN W. COLVIN Acting
Commissioner of the Social Security
Administration,
Defendant.

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No. 1:12-cv-01077-SEB-MJD

ORDER OVERRULING PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION

This is an action for judicial review of the final decision of Defendant Commissioner of
Social Security (“Commissioner”) finding Plaintiff Daniel L. Hash (“Mr. Hash”) not entitled to
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Title II
and Title XVI of the Social Security Act. See 42 U.S.C. §§ 416(i), 423(d), & 1382c(a)(3). The
Administrative Law Judge (“ALJ”) found that Mr. Hash failed to qualify as disabled because he
was capable, even with his impairment, of performing other available work in the national and
local economy. R. at 28. After the Appeals Council denied his request for review on March 20,
2012, the Commissioner’s decision became final, and Mr. Hash timely exercised his right to
judicial review under 42 U.S.C. § 405(g). This case was referred for consideration to Magistrate
Judge Dinsmore, who on July 15, 2013 issued a Report and Recommendation that the
Commissioner’s decision be upheld because it was supported by substantial evidence and was

otherwise in accord with the law. This cause is now before the Court on Plaintiff’s Objections to
the Magistrate Judge’s Report and Recommendation.
Standard of Review
We review the Commissioner’s denial of benefits to determine whether it was supported
by substantial evidence or is the result of an error of law. Rice v. Barnhart, 384 F.3d 363, 368–
369 (7th Cir. 2004); Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).
“Substantial evidence means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). In
our review of the ALJ's decision, we will not “reweigh evidence, resolve conflicts, decide
questions of credibility, or substitute [our] own judgment for that of the Commissioner.”
Lopez, 336 F.3d at 539. However, the ALJ’s decision must be based upon consideration of “all
the relevant evidence,” without ignoring probative factors. Herron v. Shalala, 19 F.3d 329, 333
(7th Cir. 1994). In other words, the ALJ must “build an accurate and logical bridge” from the
evidence in the record to his or her final conclusion. Dixon, 270 F.3d at 1176. We confine the
scope of our review to the rationale offered by the ALJ. See SEC v. Chenery Corp., 318 U.S. 80,
93–95 (1943); Tumminaro v. Astrue, 671 F.3d 629, 632 (7th Cir. 2011).
When a party raises specific objections to elements of a magistrate judge’s report and
recommendation, the district court reviews those elements de novo, determining for itself
whether the Commissioner’s decision as to those issues is supported by substantial evidence or
was the result of an error of law. Fed. R. Civ. Pro. 72(b). The district court “makes the ultimate
decision to adopt, reject, or modify” the report and recommendation, and it need not accept any
portion as binding; the court may, however, defer to those conclusions of the report and

recommendation to which timely objections have not been raised by a party. See Schur v. L.A.
Weight Loss Ctrs., Inc., 577 F.3d 752, 759–761 (7th Cir. 2009).
Discussion
Mr. Hash raises two objections to the Report and Recommendation. First, he alleges that
Magistrate Judge Dinsmore mistakenly rejected his argument that the ALJ committed reversible
error by failing to make an accurate residual functional capacity (“RFC”) determination that
encompassed all of Plaintiff’s impairments. See Pl.’s Objections 2–5. Second, Mr. Hash contends
that the Magistrate Judge’s report wrongly rejected his argument that the ALJ failed to make a
credibility determination that was supported by substantial evidence. See Pl.’s Objections 5–8.
I.

The ALJ’s RFC Determination
The ALJ found that Mr. Hash had the RFC to perform less than the full range of light

work as defined in 20 CFR 404.1567(b) and 416.967(b). R. at 18–19. Specifically, the ALJ
found that Mr. Hash can lift, carry, push, and pull up to 20 pounds occasionally and 10 pounds
frequently; sit and stand for 8 hours total each and can walk up to 4 hours; frequently stoop,
crouch, crawl, kneel, climb ramps and stairs; continuously balance; should not climb ladders,
ropes, or scaffolds; and that Mr. Hash can perform frequent bilateral handling and fingering and
continuous feeling. Id. Additionally, the ALJ found that Mr. Hash should not perform overhead
work bilaterally; there should be no more than occasional full extension of the arms bilaterally;
and Mr. Hash is limited to frequent exposure to hazards such as unprotected heights or
unguarded dangerous moving machinery. Id.
Mr. Hash bases his objections to the accuracy of these findings on three points. First, he
objects to the ALJ’s reliance upon the report of the consultative examiner, Dr. Gibson. Pl.’s
Objections 2. Second, he argues that the ALJ failed to properly consider his bilateral hand

impairments in making the RFC determination. Pl.’s Objections 3. Third, Mr. Hash argues that
the ALJ’s finding that he could walk up to four hours per day precludes him from performing
work at the “light,” rather than “sedentary” exertion level. Pl.’s Objections 4. For the following
reasons, the Court rejects each of these arguments and affirms the ALJ’s RFC determination.
First, Mr. Hash objects to the ALJ’s reliance upon the examination and report of the
consultative examiner, Dr. Gibson, over the treating physician, Dr. Neucks, in making the RFC
determination. Pl.’s Objections 2. However, the law does not require an ALJ to accord a treating
physician’s opinion more weight than a consulting physician's opinion. Mont v. Chater, 114 F.3d
1191 (7th Cir. 1997). The treating physician’s opinion will only be given controlling weight
“‘when that opinion is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the] . . . record . . . .’”
Id. (quoting 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2)).
The ALJ properly articulated his reasoning for according great weight to Dr. Gibson’s
assessment and little weight to the assessment of the treating physician, Dr. Neucks. R. at 26.
Specifically, the ALJ explained that Dr. Gibson’s examination was supported by the entire
medical evidence of record. Id. In contrast, the ALJ determined that Dr. Neucks’ opinions were
inconsistent with Exhibits 2F, 3F, and 5F, which included x-ray findings that Dr. Neucks failed
to include in his records of evidence. Id. Additionally, Dr. Neucks’ records contained “no
evidence of diagnostic tests, laboratory findings, or any other objective medical testing to
support his opinion.” Id. Therefore, the Court concludes that it was not error for the ALJ to rely
upon Dr. Gibson’s examination and report.
Next, Mr. Hash objects to the ALJ’s determination that he could engage in bilateral
manual dexterity “frequently,” arguing that the ALJ failed to properly consider his bilateral hand

impairments. Pl.’s Objections 3. His argument involves the presentation of evidence that he
claims the ALJ did not consider. The Court finds no merit in this objection, as the ALJ properly
considered contradictory evidence from multiple doctors concerning Mr. Hash’s hand
impairments, including many of the specific pieces of evidence Mr. Hash presents in his
objection.
Mr. Hash mentions “long-time treatment” for Trichorhinophalangeal Syndrome (TRPS),
finger deformity, and pain. Pl.’s Objections 2–3. It is clear that the ALJ considered this evidence,
as it is mentioned in his decision. R. at 20. Mr. Hash also points to evidence from physical
examinations, where he was determined to have wrist extension ability of “functionally fair,” and
finger abduction ability of “functionally poor.” Pl.’s Objections 2–3. The ALJ also discussed this
evidence in his decision. R. at 21. Mr. Hash argues that his hands “lock” and that he “explained
to the Judge that he is unable to put his fingers together and that some days, his hands will
tighten into a fist and stay like that for the rest of the day.” This, too, was considered by the ALJ
and mentioned in his decision. R. at 20.
The ALJ’s decision incorporates testimony from multiple doctors, some of which
contradicts the evidence Mr. Hash relies upon in his objection. R. at 20. Specifically, in an
evaluation at Wishard Memorial Hospital Rheumatology Clinic, joint examinations found no
“synovitis of the metacarpophalangeal, proximal interphalangeal, or distal interphalangeal
joints.” Id. Dr. Gibson’s report also contradicted the evidence Mr. Hash relies upon. While Dr.
Gibson found “angular deformity in the fingers of both hands,” his impression was that Mr.
Hash’s restriction of motion was voluntary. R. at 22. The ALJ articulated his reasoning for
according some evidence greater weight and provided a logical bridge from the evidence to his

conclusion that Mr. Hash “can perform frequent bilateral handling and fingering and continuous
feeling.”
Finally, Mr. Hash argues that the ALJ committed reversible error by finding that Mr.
Hash was capable of performing “light” rather than “sedentary” work, arguing that the ALJ’s
finding that Mr. Hash could walk up to 4 hours per day precludes him from performing light
work. Mr. Hash argues that Magistrate Judge Dinsmore incorrectly interpreted Social Security’s
Definition of light work, and thus incorrectly affirmed the ALJ’s classification of Mr. Hash’s
exertion level as “light.” Pl.’s Objections 4. The Court disagrees.
Mr. Hash incorrectly states that “according to the definition of ‘light’ work, found in 20
C.F.R. § 404.1567, a person who is capable of performing ‘light’ work must be able to stand up
to 6 hours in an 8-hour work-day.” Pl.’s Objections 3–4. Those Regulations provide no such
specification. Instead, Social Security Ruling 83-10 explains that because "frequent" means
occurring up to two-thirds of the time, “the full range of light work requires standing or walking,
off and on, for a total of approximately 6 hours of an 8-hour workday.” SSR 83-10, 1983 WL
31251 (Jan. 1, 1983).
The regulations provide that work is classified as “light” when it requires, in relevant
part, “a good deal of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide
range of light work, you must have the ability to do substantially all of these activities.” 20
C.F.R. 404.1567.
The ALJ committed no error in finding that Mr. Hash was capable of performing light
work. Both the broad definition of light work found in the Federal Regulations and the more
specific explanation of light work provided in the Social Security Ruling are satisfied. The ALJ

found that Mr. Hash is able to “sit and stand for 8 hours total each,” meaning Mr. Hash can both
sit for 8 hours and stand for 8 hours. R. at 18. This finding satisfies “a good deal of walking or
standing,” 20 C.F.R. 404.1567, as well as “standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour workday.” SSR 83-10, 1983 WL 31251 (Jan. 1, 1983). Mr.
Hash’s limitations on walking do not affect the analysis, as both definitions are satisfied by either
walking or standing.
II.

The ALJ’s Credibility Determination
Mr. Hash also argues that the ALJ failed to make a credibility determination that was

supported by substantial evidence. See Pl.’s Objections 5–8. As the Magistrate Judge recognized,
Mr. Hash’s argument consists merely of pointing to evidence that he contends could support a
finding of disability, including his subjective complaints of pain. Id. He argues that such
subjective testimony can be sufficient to support a finding of disability. Pl.’s Objections 6.
However, Mr. Hash misunderstands the Court’s standard of review. The standard is not whether
there may be substantial evidence to support a finding of disability, such as his subjective
complaints of pain, but whether there is substantial evidence to support the ALJ’s decision.
Dixon, 270 F.3d at 1176.
Mr. Hash argues that his “medical records clearly document his on-going severe pain”
and that he “sought various medical treatments to relieve some of his pain.” Pl.’s Objections 7.
The ALJ considered and presented the evidence of Mr. Hash’s pain and pain management
treatments, R. at 20–23, but there was also substantial evidence showing that Mr. Hash’s pain
medication has been effective in controlling his pain, R. at 23, and that Dr. Gibson did not find
Mr. Hash’s pain disabling. R. at 338–49.

While Mr. Hash states that he “does not argue that the Court should reweigh the
evidence,” Pl.’s Objections 5, his argument amounts to just that; it consists of presenting
evidence that could support of a finding of disability. See Pl.’s Objections 5–8. He has failed to
show that the ALJ’s decision was not supported by substantial evidence.
The Court finds that the ALJ based his credibility determination on substantial evidence
in the record, properly articulated his reasoning, and provided a logical bridge from the evidence
to his conclusion.
Conclusion
For the foregoing reasons, we find that none of Mr. Hash’s objections to the Magistrate
Judge’s Report and Recommendation has merit. There is no basis on which to conclude that the
ALJ committed reversible error by failing to make an accurate residual functional capacity
determination or to conclude that the ALJ failed to make a credibility determination that was
supported by substantial evidence. Accordingly, the Plaintiff’s objections to the Magistrate
Judge’s well-reasoned Report are OVERRULED and we ADOPT the recommendations set forth
in the Magistrate Judge’s Report and Recommendation.
IT IS SO ORDERED.

09/23/2013
Date: _____________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Kelie C. Schneider
[e-mail]
Frederick J. Daley, Jr.
DALEY DEBOFSKY & BRYANT
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY’S OFFICE
[e-mail]