Lykins v. SSA
Filing
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MEMORANDUM AND OPINION: The administrative decision should be affirmed. A separate judgment and order will be entered simultaneously consistent with this opinion. Signed by Judge G. Wix Unthank on 11/3/11.(KSS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
CIVIL ACTION NO. 11-01-GWU
WILLIAM DANIEL LYKINS,
VS.
PLAINTIFF,
MEMORANDUM OPINION
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
INTRODUCTION
William Lykins brought this action to obtain judicial review of an
administrative decision denying his applications for Disability Insurance Benefits and
for Supplemental Security Income. The case is before the court on cross-motions
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.
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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.
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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,
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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
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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 Lykins, a former grocery
stocker, city laborer, lumber yard laborer and auto mechanic, suffered from
impairments related to asthma, left eye blindness, functional illiteracy, and anxiety.
(Tr. 13, 19). Despite the plaintiff’s impairments, the ALJ determined that he retained
the residual functional capacity to perform a restricted range of work at all exertional
levels. (Tr. 17). Since the claimant would still be able to perform his past relevant
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work as a grocery store stocker, as well as a significant number of other jobs, he
could not be considered totally disabled. (Tr. 19-20).
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.
In determining that Lykins could return to his past relevant work as a grocery
store clerk, the ALJ relied heavily upon the testimony of Vocational Expert Donald
Woolwine. The hypothetical question presented to Woolwine included an ability to
perform work at all exertional levels restricted by such non-exertional limitations as
(1) functional illiteracy; (2) a “moderate” limitation in understanding, remembering
and carrying out detailed instructions, maintaining attention and concentration for
extended time periods, interacting appropriately with the general public, and
responding appropriately to changes in the work setting; (3) a limitation to simple,
non-detailed tasks; (4) a limitation in maintaining attention and concentration for
two-hour segments; (5) a need to avoid work requiring depth perception or
peripheral vision to the left; and (6) a need to avoid environments containing
excessive dust, fumes or gases. (Tr. 55). The ALJ also indicated that the individual
would be able to complete a normal workday and workweek without excessive
interruptions from psychologically-based symptoms, demonstrate adequate
judgment to make decisions, respond appropriately to supervisors and coworkers
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in a setting that was task-oriented versus public-oriented and would be able to
maintain appropriate dress and hygiene suitable for the workplace. (Id.). In
response, Woolwine reported that such a person would be able to perform Lykins’s
past work as grocery stocker. (Tr. 56). The expert also identified a significant
number of other jobs which could still performed. (Tr. 56-57). Therefore, assuming
that the vocational factors considered by Woolwine fairly characterized the plaintiff’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. Barry Burchett, an examining
consultant, reported a diagnostic impression of asthma, chronic back pain with
intermittent radicular pain into the left thigh and a visual impairment of the left eye
in September of 2006. (Tr. 227). The physician did not address the issue of
functional limitations. (Tr. 224-230). The restrictions concerning no work involving
depth perception and the need to avoid exposure to environmental pollutants would
accommodate the plaintiff’s problems with asthma and the visual impairment. More
severe physical restrictions than those found by the ALJ were not indicated by such
treating and examining sources as Dr. Percival Pajel of Appalachian Regional
Healthcare (Tr. 190-215), Dr. Eiyad Alchureiqi of Appalachian Regional Healthcare
(Tr. 298-322), Dr. Laura Faughn of Appalachian Regional Healthcare (Tr. 399-424
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434-446), the staff at the St. Claire Medical Center (Tr. 270-292), the staff at Cave
Run Surgical Associates (Tr. 293-297), the staff at Central Baptist Hospital (Tr.
323-349), and the staff at the Morehead Clinic (Tr. 376-385). Dr. David Swan
reviewed the record and opined that the medical evidence did not reveal the
existence of a “severe” physical impairment. (Tr. 269). The ALJ’s findings with
regard to Lykins’s physical condition were consistent with these opinions.
Lykins asserts that the ALJ erred in rejecting the opinion of Melissa
Leuenberger, a treating source. Leuenberger identified extremely severe physical
restrictions including an inability to work for more than one hour a day. (Tr. 397398). The ALJ noted a number of reasons why the opinion of Leuenberger was
rejected including the fact that she appeared to rely upon the plaintiff’s subjective
complaints, had not performed a clinical examination, and the opinion was
inconsistent with the modest findings of the other medical sources of record. (Tr.
19). These are strong grounds to reject the opinion.
Furthermore, although the ALJ assumed that she was a physician (Id.),
Leuenberger appears to be a nurse-practitioner rather than a licensed medical
doctor and, so, would not be an “acceptable medical source” under the
administrative regulations whose opinion could be binding on the administration.
20 C.F.R. § 404.1513. The record does contain several references to Leuenberger
being a medical doctor. (Tr. 356-359, 364-367, 374, 425, 427-431). However, she
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is also listed as an Advanced Registered Nurse Practitioner (ARNP) at other times.
(Tr. 392, 447, 449). The Kentucky Board of Medical Licensure does not list a Dr.
Leuenberger as being a licensed physician in the Commonwealth of Kentucky.
Kentucky Board of Medical Licensure http://kbml.ky.gov/board/phys.htm, viewed
October 26, 2011. An internet search for Melissa Leuenberger reveals that a
Melissa N. Leuenberger, ARNP, practices in West Liberty, Kentucky.
http://www.healthgrades.com/provider/melissa-leuenberger-x4g79/, viewed October
26, 2011. The Appalachian Regional Hospital in West Liberty is where Leuenberger
treated Lykins. (Tr. 353). This is an additional factor militating against giving her
opinion controlling weight. Under these circumstances, the ALJ properly rejected
Leuenberger’s opinion.
The ALJ also dealt properly with the evidence of record relating to Lykins’s
mental condition. Psychologist William Rigby examined the plaintiff and diagnosed
an anxiety disorder, disorders in reading and mathematics and mild mental
retardation. (Tr. 221-222). Rigby opined that the claimant would have a “fair” ability
to deal with simple instructions, relate to others including fellow workers and
supervisors, and tolerate stress and work pressures. (Tr. 222). These restrictions
are essentially compatible with those presented in the hypothetical question.
Psychologists Ilze Sillers (Tr. 231-232) and Jane Brake (Tr. 263-264) each
examined the record and opined that Lykins would be “moderately” limited in
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dealing with detailed instructions, maintaining attention and concentration for
extended time periods, interacting appropriately with the general public and
responding to changes in the work setting. Sillers indicated that, despite these
restrictions, Lykins would be able to understand, remember and carry out simple
tasks, complete a normal workweek without interruption from psychologically-based
symptoms, demonstrate adequate judgment and make adequate decisions,
respond appropriately to supervisors and co-workers in a task-oriented versus
public-oriented setting, maintain adequate hygiene and dress appropriate for the
work place, adapt to routine changes and avoid work hazards on a sustained basis.
(Tr. 233). The ALJ’s findings were consistent with these opinions as well. Thus, the
hypothetical question fairly depicted the plaintiff’s condition.
Lykins argues that the ALJ erred in concluding that he did not meet the
requirements of Section 12.05C of the Listing of Impairments concerning mental
impairments.
This Listing requires a claimant to produce “a valid verbal,
performance, or full scale IQ of 60 through 70 and a physical or other mental
impairment imposing an additional and significant work-related limitation of
function.” 20 C.F.R., Part 404, Subpart P, App. 1, § 12.05C. The regulations
further provide that “mental retardation refers to a significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially manifested during
the developmental period; i.e. the evidence supports onset of the impairment before
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age 22." 20 C.F.R., Part, 404, Subpart P, App. 1, § 12.05. To meet the Listing, a
claimant must produce a valid IQ score within Listing range, demonstrate the
existence of another mental or physical impairment imposing significant workrelated limitations and show that the deficit in adaptive functioning manifested itself
before the age of 22.
In the present action, intelligence testing administered by Rigby produced a
Verbal IQ score of 66, a Performance IQ score of 63, and a Full-Scale IQ score of
62, all scores within Listing range. (Tr. 221). The examiner indicated that Lykins
gave good effort during the testing and, so, these scores would appear valid. (Id.).
The plaintiff’s problems with asthma, left eye blindness, and anxiety, all found to be
“severe” impairments by the ALJ, satisfy the requirement for another mental or
physical impairment imposing significant work-related restrictions. The only real
issue concerns whether these deficits in adaptive functioning were manifested prior
to the age of 22.
Lykins argues that a number of factors show that he satisfies the Listing
requirement demonstrating deficits in adaptive functioning prior to the age of 22.
Achievement testing administered by Rigby and noted to be valid indicated that the
plaintiff functioned at the second grade level in reading and spelling and at the third
grade level in arithmetic. (Tr. 220). The ALJ himself found the claimant to be
functionally illiterate. (Tr. 13). School records from Morgan County indicate that
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Lykins was failing all his classes at the age of 15. (Tr. 184-185). However, the ALJ
noted that the vocational expert testified that the plaintiff’s auto mechanic work had
been skilled. (Tr. 14, 54). The claimant also testified that he had passed a written
driver’s test.1 (Tr. 14, 28). These factors influenced the ALJ in determining that the
required deficits in adaptive functioning had not been proven. (Tr. 14).
The undersigned agrees with the ALJ that performance of skilled work is not
consistent with a finding of lifelong mental retardation.
The Diagnostic and
Statistical Manual for Mental Disorders (4th Ed.--Text Revision) (DSM-IV-TR)
indicates that a history of unskilled and even semiskilled work can be compatible
with a diagnosis of mild mental retardation. DSM-IV-TR, p. 43. Significantly, a
history of skilled work is not mentioned as being consistent with a history of lifelong
mild mental retardation. While Rigby diagnosed mild mental retardation (Tr. 222),
the claimant did not tell the examiner about his history of performing this type of
work. (Tr. 219). He only mentioned his employment as a city worker and at a
lumber yard and denied employment for the past six years. (Id.). Yet, the Work
History Report reveals his employment as a self-employed mechanic between June,
2003 and December, 2005. (Tr. 123). He actually stopped working less than a year
prior to Rigby’s August, 2006 examination. (Tr. 216). During the hearing, the
claimant reported he stopped performing this work because of breathing difficulty
1
The plaintiff indicated that he took the test a number of times. (Tr. 28).
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related to his asthma condition rather than an inability to perform the work because
it was beyond his mental capacity. (Tr. 31, 34). Lykins stated that he could do
body work, brake jobs, perform tune ups and “pretty much fix anything and
everything” on a car. (Tr. 29-30). Finally, Sillers, the reviewer, indicated that she
did not believe that Rigby’s diagnosis of mild mental retardation was well supported.
(Tr. 233). Therefore, under these circumstances, the court must reject the plaintiff’s
argument.
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 3rd day of November, 2011.
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