Ginn v. SSA
Filing
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MEMORANDUM AND OPINION; court finds pla has failed to carry her burden of showing that the new evidence warrants a remand for further consideration; decision will be affirmed and motion to remand will be denied. Signed by Judge G. Wix Unthank on 4/26/12.(SMT)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
CIVIL ACTION NO. 11-69-GWU
KRISTY N. GINN,
VS.
PLAINTIFF,
MEMORANDUM OPINION
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
INTRODUCTION
The plaintiff brought this action to obtain judicial review of an administrative
denial of her applications for Disability Insurance Benefits (DIB) and Supplemental
Security Income (SSI). The appeal is currently before the court on cross-motions
for summary judgment and motion to remand for consideration of new evidence.
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 plaintiff, Kristy N. Ginn, was found by an Administrative Law Judge (ALJ)
to have “severe” impairments consisting of diabetes mellitus, polyneuropathy, and
obesity. (Tr. 21). Nevertheless, based in part on the testimony of a Vocational
Expert (VE), the ALJ determined that the plaintiff retained the residual functional
capacity to perform her past relevant work, and therefore was not entitled to
benefits. (Tr. 23-27). The Appeals Council declined to review, and this action
followed.
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At the administrative hearing, the ALJ asked the VE whether a person of the
plaintiff’s age of 20, high school equivalency education, and work experience as a
cashier, could perform any jobs if she were capable of performing a full range of
“light” level work. (Tr. 60). The VE’s response is listed as being “inaudible” in the
court transcript. (Tr. 61). However, he identified other jobs that the person could
perform, and proceeded to give the numbers in which they existed in the state and
national economies, rendering the issue moot. (Tr. 60-61).
On appeal, the plaintiff does not allege any shortcomings with the ALJ’s
determination based on the evidence which was before him. She asserts only that
additional evidence submitted to the Appeals Council would “in all probability” have
resulted in a fully favorable decision and requests a remand in order for them to be
considered.
The new evidence consists of EMG and nerve conduction reports from
February 25, 2010 (Tr. 434-37), which was approximately one month before the ALJ
issued his decision on March 31, 2010 (Tr. 27). In addition, there is an office note
from the plaintiff’s treating family physician’s assistant, Darla Pickett, dated March
3, 2010, in which the test results are discussed and the plaintiff was advised to see
an orthopedist for carpal tunnel syndrome and a podiatrist for neuropathy. (Tr.
439). Finally, there is an office note from Dr. William Kumler, an orthopedist, dated
April 7, 2010, approximately a week after the ALJ issued his decision. (Tr. 443).
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Sixth Circuit case law is clear that evidence submitted after the date of the
ALJ’s decision cannot be considered by the District Court as part of its substantial
evidence review. It does have the power to remand a case for further administrative
proceedings in light of the evidence if the claimant can show (1) the evidence is new
and material, and (2) there was good cause for not presenting it in the prior
proceeding. Cline v. Commissioner of Social Security, 96 F.3d 146, 148-9 (6th Cir.
1996).
In the present case, the evidence is new, and the plaintiff argues that it is
material because the EMG and nerve conduction reports show objective evidence
of bilateral carpal tunnel syndrome in the plaintiff’s hands and peripheral sensory
neuropathy of her legs. (Tr. 434-37). The plaintiff points out that although the ALJ
noted the plaintiff had been diagnosed with polyneuropathy in March, 2009, the
diagnosis was based on her subjective complaints and not from objective testing
such as a nerve conduction study or EMG. (Tr. 24-25). Therefore, she reasons that
had the new evidence been available, the ALJ would have reached a favorable
decision.
The plaintiff’s assumption goes too far, however. While the tests cited were
positive, the physician conducting the reports noted that the plaintiff now had an
insulin pump and apparently good control of her blood sugars, and that once this
took place her symptoms of polyneuropathy should eventually get better, although
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she might experience worsening discomfort for as long as two years as the nerves
regenerated. (Tr. 436-37). Moreover, the mere diagnosis of a condition such as
neuropathy or carpal tunnel syndrome, without delineation of functional restrictions,
does not establish disability. Young v. Secretary of Health and Human Services,
925 F.2d 146, 151 (6th Cir. 1990). The ALJ found polyneuropathy to be a “severe”
impairment but noted that numerous examinations showed that the plaintiff’s
sensation and the rest of her neurological physical examinations were normal. (Tr.
25, 361, 393-402). This suggests little possibility of functional impairment.
Likewise, the new evidence, including the evaluation by Dr. Kumler, was
largely benign in terms of polyneuropathy in the lower extremities. (Tr. 443). He did
find positive Tinel’s signs in both wrists, indicative of carpal tunnel syndrome, but
did not assess functional restrictions. Neither he nor the plaintiff appeared to
consider the problem to be urgent, since he reported that she could wait “weeks or
months” to have carpal tunnel release surgery and the plaintiff stated that she was
currently in school and would like to finish classes. (Id.). Therefore, the new
evidence fails the materiality test.
The plaintiff has also failed to show good cause to failing to submit the
evidence earlier. As previously noted, the EMG and nerve conduction reports were
obtained over a month before the ALJ issued his decision but the plaintiff does not
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offer any explanation for not submitting them until more than a month had passed
after the ALJ’s decision.
The court finds that the plaintiff has failed to carry her burden of showing that
the new evidence warrants a remand for further consideration. The decision will be
affirmed, and the motion to remand will be denied.
This the 26th day of April, 2012.
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