Casey v. SSA
Filing
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MEMORANDUM OPINION & ORDER, 10 MOTION for Summary Judgment by Tony Casey be overruled; and the. 11 MOTION for Summary Judgment by Commissioner of SSA be sustained; a judgment in favor of dft will be entered herewith. Signed by Judge Henry R. Wilhoit, Jr on 9/24/15.(SMT)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
at ASHLAND
Civil Action No. 14-73-HRW
PLAINTIFF,
TONY CASEY
v.
MEMORANDUM OPINION AND ORDER
CAROLYN COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
Plaintiff has brought this action pursuant to 42 U.S. C. §405(g) to challenge a final
decision of the Defendant denying Plaintiffs application for disability insurance benefits and
supplemental security income benefits. The Court having reviewed the record in this case and
the dispositive motions filed by the parties, and being otherwise sufficiently advised, for the
reasons set forth herein, finds that the decision of the Administrative Law Judge is supported by
substantial evidence and should be affirmed.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed his current application for disability insurance benefits and supplemental
security income benefits on April 14, 2010, alleging disability beginning on Janumy 8, 2008, due
to neck and back pain (Tr. 212). This application was denied initially and on reconsideration.
Thereafter, upon request by Plaintiff, an administrative hearing was conducted by Administrative
Law Judge Andrew Chwalibog (hereinafter "ALJ"), wherein Plaintiff, accompanied by counsel,
testified. At the hearing, Leah Salyers , a vocational expett (hereinafter "VE"), also testified. At
the close of testimony, the ALJ stated: "[I]fl feel that it's necessary that I get additional evidence
after the hearing, I [will] get that evidence. [I] [w]ant to get as much information as I can before I
make my decision" (Tr. 44). The ALJ then obtained written interrogatory responses from a medical
expert, Ronald Kendrick, M.D. Additional medical evidence was also submitted by Plaintiff.
Thereafter, a supplement hearing was convened during which the VE provided additional testimony.
At the supplemental hearing, pursuant to 20 C.P.R. § 416.920, the ALJ performed the
following five-step sequential analysis in order to determine whether the Plaintiff was disabled:
Step I : If the claimant is performing substantial gainful work, he is not disabled.
Step 2: If the claimant is not performing substantial gainful work, his impairment(s) must
be severe before he can be found to be disabled based upon the requirements in 20 C.P.R.
§ 416.920(b).
Step 3: If the claimant is not performing substantial gainful work and has a severe
impairment (or impairments) that has lasted or is expected to last for a continuous period
of at least twelve months, and his impairments (or impairments) meets or medically
equals a listed impairment contained in Appendix I, Subpart P, Regulation No.4, the
claimant is disabled without further inquiry.
Step 4: If the claimant's impairment (or impairments) does not prevent him from doing
his past relevant work, he is not disabled.
Step 5: Even if the claimant's impairment or impairments prevent him from performing
his past relevant work, if other work exists in significant numbers in the national
economy that accommodates his residual functional capacity and vocational factors, he is
not disabled.
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The ALJ issued a decision finding that Plaintiff was not disabled (Tr. 9-17). Plaintiff was
31 years old and pursing aGED at the time of the hearing decision. His past relevant work
experience consists of work as a coal miner , landscaper and rock quany worker.
At Step 1 of the sequential analysis, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since the alleged onset date of disability (Tr. 11).
The ALJ then determined, at Step 2, that Plaintiff suffers from cervical spondylosis and
cervical sprain, which he found to be "severe" within the meaning of the Regulations (Tr. 11-12).
At Step 3, the ALJ found that Plaintiff's impairments did not meet or medically equal any
of the listed impairments (Tr. 12). In doing so, the ALJ specifically considered Listings 1.00,
1.02 and 1.04 (Tr. 12).
The ALJ fmther found that Plaintiff could not return to his past relevant work (Tr. 16) but
determined that he has the residual functional capacity ("RFC") to perform a range of light work
as defined in 20 C.F.R. 404.1567 (Tr. 12-14).
The ALJ finally concluded that these jobs exist in significant numbers in the national and
regional economies, as identified by the VE (Tr. 16).
Accordingly, the ALJ found Plaintiff not to be disabled at Step 5 of the sequential
evaluation process.
The Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision
as the final decision of the Commissioner. Plaintiff thereafter filed this civil action seeking a
reversal of the Commissioner's decision. Both parties have filed Motions for Summmy
Judgment [Docket Nos. 10 and 11] and this matter is ripe for decision.
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II. ANALYSIS
The essential issue on appeal to this Court is whether the ALJ's decision is supported by
substantial evidence. "Substantial evidence" is defined as "such relevant evidence as a
reasonable mind might 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
v. Heckler, 745 F.2d 383, 387 (6'h Cir. 1984). If the Commissioner's decision is suppotted by
substantial evidence, the reviewing Court must affirm. Kirk v. Secretary ofHealth and Human
Services, 667 F.2d 524,535 (6'h Cir. 1981), cert. denied, 461 U.S. 957 (1983). "The couttmay
not try the case de novo nor resolve conflicts in evidence, nor decide questions of credibility."
Bradley v. Secretary ofHealth and Human Services, 862 F.2d 1224, 1228 (6'h Cir. 1988).
Finally, this Court must defer to the Commissioner's decision "even if there is substantial
evidence in the record that would have supported an opposite conclusion, so long as substantial
evidence supports the conclusion reached by the ALJ." Key v. Callahan, 109 F.3d 270, 273 (6th
Cir.1997).
Plaintiffs sole contention on appeal is that his due process rights were violated when the
ALJ obtained a medical expert's opinion through interrogatories but did not (I) provide him with a
copy of the interrogatories more than 10 days in advance of the supplemental hearing or (2) include
in the administrative record the letter that the ALJ transmitted to the medical expert with the
interrogatories, both of which he claims violate the Hearings, Appeals, and Litigation Law Manual
(HALLEX) and his due process rights.
Plaintiffs argument is without merit. After obtaining the interrogatories and, pursuant to
the HALLEX, the ALJ held a supplemental hearing on May 24, 2012 (Tr. 23-41 ).2 See HALLEX 1-2-
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5-42, 1994 WL 637376. At that hearing, the ALJ stated that he had sent Plaintiff's medical record to
orthopedic surgeon Dr. Kendrick, who completed a written report (Tr. 25). The ALJ then asked
Plaintiff counsel: "[H]ave you had the opportunity to go through the exhibit file? We're currently ...
up to- the F Section is now up to 18F [Dr. Kendrick's interrogatories]" (Tr. 25). Plaintiff's counsel
responded "Yes, Your Honor" and, when asked if he had any objections to the additional exhibits,
responded "No objections, Your Honor" (Tr. 25). Those additional exhibits, including Dr.
Kendrick's interrogatories, were then admitted to the record (Tr. 25). The ALJ proceeded to take
additional testimony from Plaintiff and the vocational expert in light of Dr. Kendrick's interrogatory
responses (Tr. 25-41 ). The ALJ held the record open for 30 days after the supplemental hearing so
that Plaintiff could submit additional evidence (Tr. 41 ), and Plaintiff or his counsel did not raise any
concerns with Dr. Kendrick's interrogatories during that time period.
During the nearly two years which elapsed between having notice of the interrogatories
and the Appeal's Council review of the ALJ's decision, Plaintiff never expressed and concem in
this regard. Rather, this appeal is the first mention of it and, as such, it rings hollow.
Second, Plaintiff claims that the ALJ violated HALLEX provision 1-2-5-42( c), which
states that, when sending interrogatories to the medical expert, ALJs should "mark one copy of the
[transmittal] letter as an exhibit and place it in the CF [presumably, claimant's file]." 1994 WL
637376. The transmittal letter is admittedly absent from the record in this case. However, even if the
undersigned were to regard this as error, Plaintiff has not demonstrated any harm in the fact that the
transmittal letter is not included in the record, when Dr. Kendrick's interrogatory responses are
contained in the record. See Shinseki v. Sanders, 129 S. Ct. 1696, 1706 (2009) ("the burden of
showing that an error is harmful normally falls upon the party attacking the agency's determination"
(citations omitted).
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III. CONCLUSION
The Comi finds that the ALI's decision is supp01ied by substantial evidence on the
record. Accordingly, it is HEREBY ORDERED that the Plaintiffs Motion for Summary
Judgment be OVERRULED and the Defendant's Motion for Summa1y Judgment be
SUSTAINED. A judgment in favor of the Defendant will be entered contemporaneously
herewith.
Thiscd~~y o~, 2015.
Signed By:
Henrv R. Wilhoit. Jr.
United States Dletrlct Judge
Henry R. Wilhoit, Jr., Senior Judge
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