Peck v. SSA
Filing
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MEMORANDUM AND OPINION: Undersigned concludes that the administrative decision must be reversed and the action remanded to Commissioner for further consideration. A separate judgment and order will be entered simultaneously with this opinion. Signed by Judge G. Wix Unthank on 8/30/2011.(KRS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at COVINGTON
CIVIL ACTION NO. 10-189-GWU
WANDA S. PECK,
VS.
PLAINTIFF,
MEMORANDUM OPINION
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
INTRODUCTION
Wanda Peck brought this action to obtain judicial review of the unfavorable
portion of a partially favorable administrative decision on her applications for
Disability Insurance Benefits (DIB) and for Supplemental Security Income (SSI).
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.
3.
The third step requires the Commissioner to determine
whether the claimant’s severe impairment(s) or combination of
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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,
then an award of benefits may, under certain circumstances, be had. E.g., Faucher
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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
contaminants . . . rote application of the grid [guidelines] is inappropriate . . . ."
Abbott v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990).
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If this non-exertional
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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
Peck filed applications for DIB and SSI on July 27, 2004 alleging a disability
onset date of January 31, 2004. (Tr. 185, 596). The claims were denied initially
and upon reconsideration and the claimant pursed administrative remedies. (Tr.
139-140, 601-602). Following two administrative hearings, an Administrative Law
Judge (ALJ) issued a partially favorable decision finding Peck disabled as of August
8, 2007 but not before.
(Tr. 120-132).
This decision became final for the
Commissioner when the Appeals Council found no reason for review on July 15,
2010. (Tr. 7-9).
In the partially favorable decision, the ALJ determined that, as of August 8,
2007, Peck, a 55-year-old former billing clerk, suffered from impairments related
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to obesity, degenerative disc disease of the lumbar spine, degenerative joint
disease of the knees and an anxiety disorder. (Tr. 122, 131-132). The plaintiff
would be limited to a restricted range of sedentary level work. (Tr. 129). Since she
would be precluded from returning to her past relevant work, Rule 201.06 of the
Medical-Vocational Guidelines would mandate a finding of disabled status. (Tr.
132). For the period prior to August 8, 2007, the ALJ concluded that the claimant’s
mental problems were not severe. (Tr. 123, 130). In the absence of these mental
problems, the ALJ determined that Peck would be able to perform her past relevant
work as a billing clerk and, so, she could not be considered totally disabled prior to
this date. (Tr. 131-132).
After review of the evidence presented, the undersigned concludes that the
unfavorable portion of the ALJ’s decision is not supported by substantial evidence.
However, the current record also does not mandate an immediate award of Social
Security benefits. Therefore, the court must grant the plaintiff’s summary judgment
motion in so far as it seeks a remand of the action for further consideration and
deny that of the defendant.
Peck alleged a disability onset date of January 31, 2004 on her applications
for DIB and SSI which she filed on July 27, 2004. (Tr. 185, 596). The time period
for consideration of the DIB claim extends from this alleged onset date to the
August 7, 2007 date just before the ALJ found the plaintiff to be totally disabled.
With regard to the SSI claim, the proper inquiry is whether the claimant was
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disabled on or after the application filing date. Casey v. Secretary of Health and
Human Services, 987 F.2d 1230, 1233 (6th Cir. 1993). Thus, the relevant time
period for the SSI claim runs from the July 27, 2004 filing date through August 7,
2007.
In determining that Peck could return to her past work as a billing clerk, the
ALJ relied heavily upon the information provided by Vocational Expert Micha Daoud.
The hypothetical question presented to Daoud included an exertional limitation to
sedentary level work, restricted from a full range by (1) an inability to more than
occasionally balance, stoop, kneel, crouch, crawl and climb ramps or stairs; (2) an
inability to ever climb ladders, ropes or scaffolds; and (3) a need to avoid exposure
to hazardous machinery and heights. (Tr. 705-706). The witness testified that the
job of billing clerk could still be performed. (Tr. 706). This job could still be
performed even if one needed a sit/stand option in intervals of 30 to 45 minutes.
(Id.). Daoud was later asked to consider the mental limitations of Psychologist
Robert Noelker in Exhibit 21F. (Tr. 707). These restrictions included a “marked”
limitation in responding appropriately to usual work situations and to changes in a
routine work setting, “moderate” limitations in such areas as making judgments on
simple to complex, work-related decisions, dealing with complex instructions,
interacting appropriately with the public, supervisors and co-workers, and “mild”
limitations in dealing with simple instructions. (Tr. 565-566). The expert reported
that while these mental restrictions would not be disabling by themselves, they
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would preclude performance of the claimant’s past relevant work. (Tr. 707). The
ALJ relied upon this information to support the administrative decision.
Peck argues that the ALJ erred in failing to find that she suffered from a
“severe” mental impairment during the time period relevant to this appeal. Noelker
did identify a severe mental impairment during his August 8, 2007 examination.
However, the examiner only gave a current Global Assessment of Functioning
(GAF) rating and did not attempt to “relate back” the condition for even the past
year. (Tr. 563). Under these circumstances, the ALJ’s finding that the mental
restrictions identified by Noelker began only on the day of the examination was
reasonable. Nevertheless, the report also does not eliminate the possibility that the
claimant’s mental problems were not severe prior to this date.
While Noelker’s report does not necessarily support Peck’s claim of being
disabled during the relevant time period prior to August 8, 2007, the record does
contain evidence which supports the existence of a “severe” mental impairment
during this time frame. Psychologist Terri Caudill examined the plaintiff in October
of 2004 and diagnosed an anxiety disorder and a depressive disorder. (Tr. 296).
Caudill rated the claimant’s GAF at 60. (Id.). Such a GAF suggests the existence
of “moderate” psychological symptoms according to the American Psychiatric
Association’s Diagnostic and Statistical Manual of Mental Disorders (4th Ed.--Text
Revision), p. 34. The examiner indicated that Peck would be “mildly to moderately”
impaired in her ability to interact with others and to respond to day-to-day work
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pressures. (Tr. 297). These limitations, while not as severe as those noted by
Noelker, still suggest the existence of a “severe” mental impairment.
These
restrictions could well preclude performance of Peck’s past semi-skilled work as a
billing clerk. The ALJ did not address these limitations in her denial decision. (Tr.
120-132).
Dr. Benjamin Kutnicki, Peck’s family physician, noted in November of 2006
that she suffered from depression and identified a number of very severe mental
limitations related to the condition. Among the restrictions were a “poor or none”
ability in such areas as relating to co-workers, dealing with the public, using
judgment, interacting with supervisors, dealing with work stresses, functioning
independently, maintaining attention and concentration, dealing with complex job
instructions, behaving in an emotionally stable manner, and relating predictably in
social situations and a “fair” ability in following work rules, dealing with detailed and
simple job instructions and demonstrating reliability. (Tr. 485-486). The ALJ gave
this opinion no weight because Dr. Kutnicki was not a psychiatrist, was not qualified
to comment upon mental limitations, and did not substantiate his opinion with
objective or clinical evidence. (Tr. 130-131). While these objections may tend to
support a finding that this opinion was not fully binding, the report at least provides
some support for the plaintiff’s claim that her mental problems were “severe” during
the relevant time period.
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Dr. David Randolph testified at the May, 2007 administrative hearing as a
medical advisor. (Tr. 654-687). While Dr. Randolph primarily addressed Peck’s
physical condition, he did express concern about her mental status. “I’m focusing
here on the last couple of years. I am disturbed by a number of factors here from
a medical perspective that there appears to be some form of emotional issue, but
it’s never been addressed by a mental health professional.”
(Tr. 669).
Dr.
Randolph indicated that Caudill noted significant mental symptoms during her
October, 2004 examination. (Id.). This statement supports the plaintiff’s assertion
that her mental problems were severe during the relevant time period.
Psychologists Edward Ross (Tr. 333) and Laura Cutler (Tr. 456) each
reviewed the record and opined that Peck did not suffer from a “severe” mental
impairment. Ross, who saw the record in November of 2004, merely stated that he
was giving the opinion of Caudill “proportionate weight” without articulating any
reasons why he rejected the findings of the examining source. (Tr. 346). Cutler,
who saw the record in February of 2005, only indicated that she was affirming the
opinion of Ross without addressing the record. (Tr. 469). Neither reviewer had the
opportunity to see and comment upon the assessment of Dr. Kutnicki.
The
administrative regulations provide that “generally, we give more weight to the
opinion of a source who has examined you than to the opinion of a source who has
not examined you.” 20 C.F.R. § 404.1527(d)(1). Therefore, these opinions are not
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sufficient to support the administrative decision and a remand of the action for
further consideration is required.
The ALJ also erred in evaluating Peck’s physical condition. This error
provides a second ground to remand the action to the Commissioner for further
consideration.
In September of 2005, Dr. Kutnicki indicated that Peck would be unable to
lift more than 5 pounds, stand or walk for more than 30 minutes, sit for more than
four hours a day, or ever perform postural activities.1 (Tr. 481-482). The ALJ noted
a number of reasons for rejecting this opinion. The ALJ noted that in February of
2005, Dr. Kutnicki identified significantly less severe physical restrictions including
an ability to lift up to 20 pounds. (Tr. 129, 401). Significantly, the doctor failed to
cite what objective medical data supported the severe decline in her physical
abilities by September of 2005. (Tr. 129). The ALJ also cited the testimony of Dr.
Randolph, the medical advisor, who did not think that Dr. Kutnicki’s severe
limitations were well-supported in the medical record. (Tr. 129, 668). The lack of
documented neurological compression in the medical record was a major factor in
the physician’s opinion. (Tr. 668). The court finds that ALJ did have sufficient
Dr. Kutnicki indicated in December of 2004 that the plaintiff was disabled. (Tr.
364). The doctor again noted that the claimant was disabled in June of 2006. (Tr. 532).
This conclusory opinion would not be binding on the ALJ under the federal regulations at
20 C.F.R. § 404.1527(e)(1).
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reason to reject the opinion of Dr. Kutnicki as binding. Nevertheless, the opinion
does not provide support for the administrative denial decision either.
Dr. Michael Grefer, another treating physician, identified similar severe
physical limitations in May of 2007. (Tr. 554-556). The ALJ rejected the opinion
of this physician because it did not appear to be well-supported by objective medical
data. (Tr. 128-129). The ALJ relied heavily upon Dr. Randolph for this finding who
again noted that the lack of evidence of neurological compression was an important
factor in his discounting the physical restrictions of Dr. Grefer. (Tr. 129, 665). Dr.
Grefer’s tendency to dictate the x-ray results into his office notes rather than provide
separate x-ray reports made evaluation of his findings difficult for the expert. (Tr.
683). While the ALJ had good reasons to discount the opinion of Dr. Grefer, this
opinion also did not support the administrative denial decision.
While Dr. Randolph did not fully credit the functional restrictions imposed by
the treating sources, the doctor also noted that both physicians had documented a
number of subjective complaints which had some objective support. (Tr. 669). An
x-ray of the lumbar spine obtained by Dr. Grefer revealed multilevel disc disease
with a mild bulge at L4-L5 and some flattening of the thecal sac and mild to
moderate narrowing at L5. (Tr. 518, 656). Dr. Randolph noted there was no sign
of neurological compression. (Tr. 656). An EMG of the lower extremities indicated
possible L5 or S1 radiculopathy. (Tr. 519, 657). Dr. Grefer also indicated significant
range of motion abnormalities of the cervical and lumbar spine in February of 2005.
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(Tr. 523, 665). X-rays of the knees, obtained by Dr. Kutnicki in January of 2005,
revealed some degenerative changes on both sides. (Tr. 355-356, 657). The
medical advisor also did not identify his own functional limitations which would offset
those of the treating sources. (Tr. 684). Therefore, Dr. Randolph’s opinion also
does not fully support the administrative decision.
Dr. Timothy Gregg (Tr. 298-307) and Dr. J.E. Ross (Tr. 472-479) each
reviewed the record and opined that Peck could perform a restricted range of light
level work. However, these reviewers saw the record in November of 2004 and
February of 2005. Neither had the opportunity to see and comment upon the vast
bulk of the medical evidence which was submitted into the record after these dates
including the functional capacity assessments of Dr. Grefer and Dr. Kutnicki. Thus,
these reports would not be sufficient to offset the opinions of the actual examining
sources as provided by Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994) and
Social Security Ruling (SSR) 96-6p. Therefore, a remand for further consideration
of the plaintiff’s mental condition is also required.
Peck asserts that the ALJ erred in evaluating her obesity. Obesity was found
to be a “severe” impairment for the relevant time period but it was not found to be
totally disabling either alone or in combination with other factors. (Tr. 122). The
ALJ found that a number of other problems relating to this condition would improve
if she followed prescribed treatment to lose weight such as diet, exercise and
consultation with a bariatric surgeon. (Tr. 123). However, SSR 02-1p indicates that
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the administration should only consider the issue of compliance with prescribed
treatment if obesity is first found to be a disabling condition. Therefore, this error
provides another ground to remand the action.
Peck raises a number of arguments with which the undersigned does not
agree. The plaintiff notes that the ALJ erred in the finding that she had a high
school education. (Tr. 131). The claimant actually indicated that tenth grade was
her last year of school placing her in the “limited” education category. (Tr. 635).
This error would be significant if the ALJ had decided the case at step five of the
sequential evaluation process because Rules 201.02 and 201.10 of the MedicalVocational Guidelines mandate a finding of disabled status for one of her age, true
educational level and work background. However, as previously noted, Peck was
found capable of returning to her past relevant work during the relevant time period.
(Tr. 131). This means the ALJ decided the case at step four and did not reach step
five, at which point the Medical-Vocational Guidelines would become a factor. (Tr.
122). Therefore, this error was harmless.
Peck argues that the ALJ erred in finding that her condition did not meet or
equal Sections 1.02A or 1.00B2b of the Listing of Impairments. Dr. Grefer indicated
that these sections, as well as 1.04(A), were met or equaled in a May, 2007 letter.
(Tr. 552). The defendant notes that under the federal regulations, the determination
concerning whether a claimant meets or equals a Listing Impairment is an issue
reserved to the Commissioner and, so, Dr. Grefer’s opinion on this question would
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not be binding. 20 C.F.R. § 404.1527(e)(2).2 The doctor did not specify how these
Listing sections had been met or equaled. Dr. Randolph, the medical reviewer,
noted the physician’s statement and opined that the evidence did not support a
finding that any Listing section had been met or equaled. (Tr. 666-667). The ALJ
cited the lack of neurological findings in Dr. Grefer’s treatment notes as a reason
to reject his findings in addition to the testimony of Dr. Randolph in determining that
none of these Listing sections had been met. (Tr. 127-128). Therefore, based on
the current record before the ALJ, the court finds no error.
Finally, Peck asserts that Dr. Randolph, as an occupational medicine
specialist, was not qualified to comment on her psychological, orthopedic or primary
care medical problems which were outside his area of expertise. According to an
article by Dr. Thomas McClure, M.D., published on the website of the San Francisco
Medical Society, an occupational medicine specialist deals with the prevention and
management of injuries for workers in the workplace and the field involves a great
deal of overlap with other specialities including those dealing with musculoskeletal
problems, pulmonary problems and toxicological problems. See San Francisco
Medical Society/What is Occupational Medicine and What do Occupational
Medicine Specialists Do?, www.sfms.org, (viewed August 19, 2011).
An
occupational medicine specialist would appear to the court to be well-qualified to
The doctor also indicated that the plaintiff would be totally disabled. (Tr. 552).
This conclusory opinion would not binding on the ALJ. 20 C.F.R. § 404.1527(e)(1).
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assess the vocational implications of orthopedic and other health problems of a
worker seeking disability. Therefore, the court must reject this particular argument
of the claimant.
The undersigned concludes that the administrative decision must be
reversed and the action remanded to the Commissioner for further consideration.
A separate judgment and order will be entered simultaneously consistent with this
opinion.
This the 30th day of August, 2011.
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