Maynard v. SSA
Filing
12
MEMORANDUM AND OPINION; undersigned concludes that the adm. decision should be affirmed; a separate judgment and order will be entered simultaneously consistent with this opinion. Signed by Judge G. Wix Unthank on 6/22/11.(SMT)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
CIVIL ACTION NO. 10-110-GWU
LISA MAYNARD,
VS.
PLAINTIFF,
MEMORANDUM OPINION
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
INTRODUCTION
Lisa Maynard brought this action to obtain judicial review of an unfavorable
administrative decision on her applications for Disability Insurance Benefits (DIB)
and for Supplemental Security Income (SSI). The case is before the court on crossmotions for summary judgment.
APPLICABLE LAW
The Commissioner is required to follow a five-step sequential evaluation
process in assessing whether a claimant is disabled.
1.
Is the claimant currently engaged in substantial gainful activity?
If so, the claimant is not disabled and the claim is denied.
2.
If the claimant is not currently engaged in substantial gainful
activity, does he have any “severe” impairment or combination
of impairments--i.e., any impairments significantly limiting his
physical or mental ability to do basic work activities? If not, a
finding of non-disability is made and the claim is denied.
1
10-110 Lisa Maynard
3.
The third step requires the Commissioner to determine
whether the claimant’s severe impairment(s) or combination of
impairments meets or equals in severity an impairment listed
in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the Listing of
Impairments). If so, disability is conclusively presumed and
benefits are awarded.
4.
At the fourth step the Commissioner must determine whether
the claimant retains the residual functional capacity to perform
the physical and mental demands of his past relevant work. If
so, the claimant is not disabled and the claim is denied. If the
plaintiff carries this burden, a prima facie case of disability is
established.
5.
If the plaintiff has carried his burden of proof through the first
four steps, at the fifth step the burden shifts to the
Commissioner to show that the claimant can perform any other
substantial gainful activity which exists in the national
economy, considering his residual functional capacity, age,
education, and past work experience.
20 C.F.R. §§ 404.1520; 416.920; Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.
1984); Walters v. Commissioner of Social Security, 127 F.3d 525, 531 (6th Cir.
1997).
Review of the Commissioner's decision is limited in scope to determining
whether the findings of fact made are supported by substantial evidence. Jones v.
Secretary of Health and Human Services, 945 F.2d 1365, 1368-1369 (6th Cir.
1991). This "substantial evidence" is "such evidence as a reasonable mind shall
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, 745 F.2d at 387.
2
10-110 Lisa Maynard
In reviewing the record, the court must work with the medical evidence before
it, despite the plaintiff's claims that he was unable to afford extensive medical workups. Gooch v. Secretary of Health and Human Services, 833 F.2d 589, 592 (6th
Cir. 1987). Further, a failure to seek treatment for a period of time may be a factor
to be considered against the plaintiff, Hale v. Secretary of Health and Human
Services, 816 F.2d 1078, 1082 (6th Cir. 1987), unless a claimant simply has no way
to afford or obtain treatment to remedy his condition, McKnight v. Sullivan, 927 F.2d
241, 242 (6th Cir. 1990).
Additional information concerning the specific steps in the test is in order.
Step four refers to the ability to return to one's past relevant category of work.
Studaway v. Secretary, 815 F.2d 1074, 1076 (6th Cir. 1987). The plaintiff is said to
make out a prima facie case by proving that he or she is unable to return to work.
Cf. Lashley v. Secretary of Health and Human Services, 708 F.2d 1048, 1053 (6th
Cir. 1983). However, both 20 C.F.R. § 416.965(a) and 20 C.F.R. § 404.1563
provide that an individual with only off-and-on work experience is considered to
have had no work experience at all. Thus, jobs held for only a brief tenure may not
form the basis of the Commissioner's decision that the plaintiff has not made out its
case. Id. at 1053.
Once the case is made, however, if the Commissioner has failed to properly
prove that there is work in the national economy which the plaintiff can perform,
3
10-110 Lisa Maynard
then an award of benefits may, under certain circumstances, be had. E.g., Faucher
v. Secretary of Health and Human Services, 17 F.3d 171 (6th Cir. 1994). One of the
ways for the Commissioner to perform this task is through the use of the medical
vocational guidelines which appear at 20 C.F.R. Part 404, Subpart P, Appendix 2
and analyze factors such as residual functional capacity, age, education and work
experience.
One of the residual functional capacity levels used in the guidelines, called
"light" level work, involves lifting no more than twenty pounds at a time with frequent
lifting or carrying of objects weighing up to ten pounds; a job is listed in this category
if it encompasses a great deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls; by definition,
a person capable of this level of activity must have the ability to do substantially all
these activities. 20 C.F.R. § 404.1567(b). "Sedentary work" is defined as having
the capacity to lift no more than ten pounds at a time and occasionally lift or carry
small articles and an occasional amount of walking and standing. 20 C.F.R. §
404.1567(a), 416.967(a).
However, when a claimant suffers from an impairment "that significantly
diminishes his capacity to work, but does not manifest itself as a limitation on
strength, for example, where a claimant suffers from a mental illness . . .
manipulative restrictions . . . or heightened sensitivity to environmental
4
10-110 Lisa Maynard
contaminants . . . rote application of the grid [guidelines] is inappropriate . . . ."
Abbott v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990).
If this non-exertional
impairment is significant, the Commissioner may still use the rules as a framework
for decision-making, 20 C.F.R. Part 404, Subpart P, Appendix 2, Rule 200.00(e);
however, merely using the term "framework" in the text of the decision is insufficient,
if a fair reading of the record reveals that the agency relied entirely on the grid. Id.
In such cases, the agency may be required to consult a vocational specialist.
Damron v. Secretary, 778 F.2d 279, 282 (6th Cir. 1985). Even then, substantial
evidence to support the Commissioner's decision may be produced through reliance
on this expert testimony only if the hypothetical question given to the expert
accurately portrays the plaintiff's physical and mental impairments. Varley v.
Secretary of Health and Human Services, 820 F.2d 777 (6th Cir. 1987).
DISCUSSION
The Administrative Law Judge (ALJ) concluded that Maynard, a 57-year-old
former LPN with a high school education,1 suffered from impairments related to
degenerative disc disease of the lumbar spine, chronic obstructive pulmonary
disease and obesity. (Tr. 19, 24). Despite the plaintiff’s impairments, the ALJ
determined that she retained the residual functional capacity to perform a restricted
The ALJ stated in her findings that the vocational expert indicated that the
plaintiff had no past relevant work. (Tr. 24). However, this statement was inaccurate.
(Tr. 330).
1
5
10-110 Lisa Maynard
range of medium level work. (Tr. 20). Since the available work was found to
constitute a significant number of jobs in the national economy, the claimant could
not be considered totally disabled. (Tr. 24-25). The ALJ based this decision, in
large part, upon the testimony of a vocational expert. (Tr. 25).
The time period pertinent to this appeal is important. Maynard alleged a
disability onset date of February 18, 2007 on her DIB application. (Tr. 41). The
relevant time period for DIB consideration runs from this date through the May 21,
2009 date of the ALJ’s denial decision. With regard to SSI, the plaintiff filed her
application on April 3, 2007 and, so, the relevant time period runs from this date to
the May, 2009 date of the ALJ’s denial decision.2
After review of the evidence presented, the undersigned concludes that the
administrative decision is supported by substantial evidence. Therefore, the court
must grant the defendant’s summary judgment motion and deny that of the plaintiff.
The hypothetical question presented to Vocational Expert Melissa Glannon
included an exertional limitation to medium level work, restricted from a full range
by: (1) an inability to stand or walk for more than six hours total in an eight-hour day;
(2) an inability to sit for more than six hours total in an eight-hour day; and (3) a
need to avoid exposure to vibration, fumes, odors, gases, dust and poor ventilation.
The proper inquiry in an application for SSI benefits is whether the plaintiff was
disabled on or after her application date. Casey v. Secretary of Health and Human
Services, 987 F.2d 1230, 1233 (6th Cir. 1993).
2
6
10-110 Lisa Maynard
(Tr. 330). In response, the witness identified such jobs as linen clerk (65,000
national jobs), medium hand packer (104,000 national jobs), office clerk (164,000
jobs), and non-postal mail clerk (78,000 jobs).
(Id.).
The ALJ then added
restrictions concerning a need to be able to learn the work in one or two steps with
only routine changes in the work environment and no contact with the public. (Tr.
331). These restrictions would eliminate the office clerking positions previously
cited by Glannon. (Id.). The witness added the job of medium assembler (155,000
national jobs). (Id.). Therefore, assuming that the vocational factors considered by
the vocational expert fairly characterized Maynard’s condition, then a finding of
disabled status, within the meaning of the Social Security Act, is precluded.
With regard to the framing of the physical factors of the hypothetical
question, the undersigned finds no error. Dr. Rita Ratliff examined the plaintiff and
noted a history of chronic obstructive pulmonary disease, back pain, kidney stones
and hypertension. (Tr. 210). Dr. Ratliff indicated that the claimant would not be
impaired with regard to stooping, bending, reaching, sitting, standing, moving about,
lifting, carrying, handling objects or traveling.
(Id.).
This opinion was not
contradicted by another treating or examining source and, so, provides strong
support for the administrative denial decision.
7
10-110 Lisa Maynard
Dr. Sudhideb Mukherjee (Tr. 187) and Dr. David Swan (Tr. 243) each
reviewed the record and opined that Maynard did not suffer from a “severe” physical
impairment. The ALJ’s findings were compatible with these opinions.
Dr. Abbe Cassity was the only other physician of record to examine Maynard
during the relevant time period. Dr. Cassity’s treatment records from August, 2008
reveal that a hepatobiliary scan showed a normal gallbladder ejection fraction. (Tr.
255). More severe physical restrictions than those found by the ALJ were not
imposed. (Tr. 250-256). Therefore, this opinion also supports the administrative
decision.
The ALJ found that Maynard’s mental problems did not constitute a “severe”
impairment. (Tr. 20). The undersigned finds no reversible error with the ALJ’s
handling of the evidence of record relating to the plaintiff’s mental condition.
Psychologist Stuart Cooke examined Maynard and diagnosed a depressive
disorder. (Tr. 206). The claimant’s Global Assessment of Functioning (GAF) was
rated at 65. (Id.). Such a GAF suggests the existence of only “mild” psychological
symptoms according to the American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders (4th Ed.--Text Revision), p. 34. Cooke
opined that the plaintiff would have a “fair” ability to maintain attention to perform
simple, repetitive tasks and to tolerate stress and work pressures. (Tr. 207). Even
though the ALJ did not find that the claimant’s mental problems were “severe,” she
8
10-110 Lisa Maynard
did include mental limitations in the alternative hypothetical question which were
compatible with those of Cooke.
(Tr. 331). Since a significant number of jobs
could still be performed, any error in failing to find that the plaintiff suffered from a
severe mental impairment would be harmless. Therefore, this opinion does not
support Maynard’s disability claim. Psychologists Laura Cutler (Tr. 189) and Jane
Brake (Tr. 216) each reviewed the record and opined that it did not reveal the
existence of a “severe” mental impairment. The ALJ’s findings were consistent with
these opinions.
Maynard argues that the ALJ erred by failing to consider all of the evidence
presented as required by 20 C.F.R. § 404.1520(a)(3). The plaintiff notes that the
ALJ left the record open after the hearing in order for her to obtain medical records
from Dr. Angela Lewis, a treating source. (Tr. 332). These records were obtained
and submitted after the hearing as Exhibit 25F. (Tr. 271-302). However, the ALJ
failed to mention this evidence in her denial decision. (Tr. 17-25). The claimant
asserts that this omission indicates that the ALJ failed to consider this evidence,
prejudicing her rights under the administrative regulations. The court does not
agree with Maynard’s argument.
The defendant notes that the ALJ indicated that she had considered all the
evidence before her. (Tr. 17, 24). The defendant asserts that the ALJ was not
required to mention each and every piece of evidence in the record, only fairly
9
10-110 Lisa Maynard
develop the record. Miller v. Shalala, 8 F.3d 611, 613 (8th Cir. 1993). In giving the
plaintiff time to obtain the records of Dr. Lewis, the ALJ was attempting to fairly
develop the record.
The records from Dr. Lewis were dated between May of 2000 and June of
2005. (Tr. 271-302). This was well before the claimant’s alleged onset date of
February 18, 2007 and during a time period when she was still employed as an
LPN. (Tr. 113, 318). Thus, this exhibit was of limited relevance to Maynard’s
condition during the pertinent time frame and provides information primarily of her
medical history.
The defendant also notes that Dr. Lewis did not submit an opinion with
regard to Maynard’s ability to engage in work-related activities which was contrary
to the ALJ’s findings and, so, this report does not support her disability claim. The
Sixth Circuit Court of Appeals has found that a report from a treating physician
containing only medical history from a time period before the alleged onset date
would not outweigh the opinion of a doctor who actually examined the claimant
during the relevant time frame. Heston v. Commissioner of Security, 245 F.3d 528,
536 (6th Cir. 2001). In Heston, while the court thought that the ALJ should at least
have mentioned the report, any error was harmless. Id.
The undersigned notes that Wilson v. Commissioner of Social Security, 378
F.3d 541, 544 (6th Cir. 2004), requires an ALJ to cite good reasons why the opinion
10
10-110 Lisa Maynard
of a treating source was rejected. However, in this action, Dr. Lewis did not provide
an opinion which the AL rejected and, so, no violation occurred.
Finally, Maynard notes that these records contain objective evidence of back
pain such as decreased deep tendon reflexes in the left lower extremity and a report
of a need for a referral to a neurosurgeon. (Tr. 289-290, 294). Nevertheless,
specific functional restrictions were not imposed and she continued to pursue
employment until February, 2007.
Therefore, the court rejects the plaintiff’s
argument with regard to the treatment notes of Dr. Lewis.
The undersigned concludes that the administrative decision should be
affirmed. A separate judgment and order will be entered simultaneously consistent
with this opinion.
This the 22nd day of June, 2011.
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?