Doan v. Commissioner of Social Security
Filing
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MEMORANDUM OPINION & ORDER: It is ORDERED that Doan's 12 MOTION for Summary Judgment is DENIED. It is FURTHER ORDERED that the Commissioner's 13 MOTION for Summary Judgment is GRANTED. The Court will enter a separate judgment. Signed by Judge Jennifer B Coffman on August 31, 2011.(AWD) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
CIVIL ACTION NO. 10-107-JBC
MARY E. DOAN,
V.
PLAINTIFF,
MEMORANDUM OPINION AND ORDER
MICHAEL ASTRUE, COMMISSIONER
SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.
***********
This matter is before the court upon cross-motions for summary judgment on
Mary Doan’s appeal of the Commissioner’s denial of her application for Disability
Insurance Benefits and Social Security Income. (R.12, 13) The court will grant the
Commissioner’s motion and deny Doan’s motion because substantial evidence
supports the administrative decision.
Doan was a fifty-eight-year-old female with a high school education and
some college experience at the time of the alleged disability onset date. AR 11.
She alleged disability beginning December 1, 2006, due to heart problems and pain
in her wrist and back. AR 177. She filed her claims for DIB and SSI on May 29,
2008. AR 154; AR 159. Her claims were denied initially on August 20, 2008, and
upon reconsideration on September 16, 2008. AR 19. After a hearing on
September 15, 2009, Administrative Law Judge Don C. Paris determined that Doan
was not under a disability within the meaning of the Social Security Act. Id. At
Step 1, see Preslar v. Sec’y of Health & Human Servs., 14 F.3d 1107, 1110 (6th
Cir. 1994); 20 C.F.R. § 404.1520, the ALJ found that Doan had engaged in some
gainful activity since the alleged disability onset date; however, he did not rule on
whether the activity was substantial, choosing instead to continue through the
sequential analysis. AR 21. At Step 2, the ALJ found that Doan has severe
impairments of coronary artery disease, peripheral vascular disease, decreased grip
strength in right hand, and obesity. Id. The ALJ then determined at Step 3 that
Doan does not have an impairment or combination of impairments that meets or
medically equals a listing in the Listing of Impairments. AR 23. At Step 4, the ALJ
found that Doan is capable of performing past relevant work as a non-hazardous
security guard, mutuel clerk, money room clerk and office manager, and therefore
has not been under a disability, and denied her claims for DIB and SSI. AR 26. On
Janurary 25, 2010, the Appeals Council denied Doan’s request for review of the
ALJ’s decision, and Doan commenced this action.
Doan challenges the ALJ’s ruling on the following grounds: (1)
the ALJ was improperly predisposed to Doan’s past work; (2) the ALJ
mischaracterized Doan’s past relevant work; (3) the ALJ failed to find certain
impairments as severe and therefore did not properly consider them when
fashioning the RFC; (4) the ALJ failed to fully develop the record regarding Doan’s
depression; (5) the ALJ failed to include certain medical evidence in his decision; (6)
Doan’s due process rights were violated due to seemingly purposeful obscuring of
the hearing record by the ALJ; (7) the ALJ’s findings regarding Doan’s obesity and
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related pain are not supported by substantial evidence; and (8) the ALJ improperly
assessed Doan’s credibility.
The ALJ did not exhibit predisposition or bias regarding Doan’s prior work.
Doan suggests that the ALJ’s comments at the hearing that he was familiar with
the duties of a money clerk indicate that he was predisposed toward characterizing
her past work as relevant. Specifically, after Doan described her job duties when
she worked in the money room at the Keeneland race track, the ALJ stated that he
is familiar with the racetrack and that “I know exactly what you do.” Doan asserts
that these comments indicate that the ALJ prejudged the claim before Doan walked
into the room, but she has failed to present sufficient evidence to overcome the
presumption that the ALJ was unbiased. See Schweiker v. McClure, 456 U.S.
188, 195 (1982). A claimant can rebut this presumption by showing a conflict of
interest or some other specific convincing evidence of actual bias or prejudgment.
See id.; Navistar Intern. Transp. Corp. v. U.S. EPA, 941 F.2d 1339, 1360 (6th Cir.
1991). Here, Doan’s allegation that the ALJ prejudged her case based on his
comments is not grounds for reversal, because it is mere speculation or inference,
see Navistar, 941 F.2d at 1360, as she fails to articulate any way that the ALJ’s
familiarity with the type of work Doan performed in the past reflects on his
determination of whether her impairments would prevent her from performing that
work in the future.
Whether the ALJ mischaracterized Doan’s former work as a money clerk is
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non-material, because the ALJ found that Doan could return to a number of her
former positions, of which a money clerk is only one. The ALJ determined that
Doan could return to her former work as a mutuel clerk, money clerk, security
guard, or office manager; if the ALJ erred in characterizing one of Doan’s past
positions, the error is harmless, because it does not invalidate his finding that she
could perform other past relevant work, and therefore is not grounds for reversal of
his decision.
Doan asserts that the ALJ failed to find certain impairments as severe and
therefore did not properly consider them when fashioning the RFC. At Step 2, the
ALJ found a number of severe impairments: coronary artery disease; peripheral
vascular disease; decreased grip strength of the right hand; and obesity. AR 21.
Because the ALJ found severe impairments, he was able to proceed in the
sequential evaluation. The Step 2 evaluation is a threshold analysis, and a finding
that an impairment is not severe at Step 2 does not preclude the ALJ from
considering it when fashioning the RFC. See Maziarz v. Sec’y of Health & Human
Servs., 837 F.2d 240, 244 (6th Cir. 1987).
In fact, the ALJ thoroughly considered Doan’s severe and non-severe
impairments, including her hypertension, chronic irritable bowel syndrome,
osteopenia, ganglion cysts, and degenerative disc disease, in fashioning the RFC.
An RFC assessment “is the adjudicator’s ultimate finding of ‘what you can do
despite your limitations.’” SSR 96-5p (1996). The ALJ considered the entirety of
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the medical record and Doan’s testimony in determining that she could perform
light work. AR 23. The ALJ noted that Doan’s hypertension and irritable bowel
syndrome are controlled with medications. Id. He discussed her history of recurring
ganglion cysts, noting that the surgeries to remove the cysts were uncomplicated
and that Doan did well with improvement in strength and range of motion. AR 25.
He included restrictions on right wrist movement in the RFC, AR 23, noting Doan’s
decreased grip strength related to residual irritation of the ulnar dorsal sensory
nerve. AR 22. The ALJ further noted that Doan’s osteopenia and degenerative
disc disease are relatively mild. AR 23. The ALJ took appropriate notice of these
impairments in creating the RFC based on the objective medical evidence in the
record. See 20 C.F.R. §§ 404.1529, 416.929; Walters v. Comm’r of Soc. Sec.,
127 F.3d 525, 531 (6th Cir. 1997). The ALJ properly considered plaintiff’s
testimony and noted that Doan’s testimony regarding the severity of these
impairments was not credible when considered in the context of her regular
activities, particularly regarding her continuing to work after the alleged disability
onset date. AR 25; Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir.
2003). The ALJ’s findings of fact regarding the severity of Doan’s impairments are
based on substantial evidence, and the ALJ correctly applied those facts in
determining Doan’s RFC. See Longworth v. Comm’r Soc. Sec. Admin., 402 F.3d
591, 595 (6th Cir. 2005).
Doan also asserts that the ALJ failed to develop the record regarding her
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depression. Doan presented no medical evidence of depression and testified that,
though she gets upset easily sometimes because of her physical limitations, she
probably wouldn’t seek mental health treatment even if it were recommended by a
doctor. AR 60. A claimant has the burden to prove a disability, see Richardson v.
Heckler, 750 F.2d 506, 509 (6th Cir. 1984); 42 U.S.C. § 423(d)(5)(2010), and
because Doan presented no medical evidence of depression, the ALJ appropriately
found that Doan has no medically determinable mental impairments. AR 23. Doan
asserts that the ALJ had a responsibility to “investigate the facts and develop the
arguments both for and against granting benefits,” Sims v. Apfel, 530 U.S. 103,
120 (2000), but the ALJ is not required to develop Doan’s arguments – particularly
those she has explicitly chosen not to pursue – or to produce evidence on her
behalf. See Born v. Sec’y of Health & Human Servs., 923 F.2d 1168, 1172 (6th
Cir. 1990); Duncan v. Sec’y of Health & Human Servs., 801 F.2d 847, 856 (6th
Cir. 1986). Though Doan’s counsel suggested at the hearing that a consultative
examination be ordered to investigate Doan’s mental health, the ALJ properly
denied the suggestion because the ALJ had sufficient evidence on the subject to
render a decision. See 20 C.F.R. §§ 404.1517, 416.917.
Doan incorrectly asserts that the ALJ failed to consider or even mention the
nerve damage to her right wrist. As discussed above, the ALJ at Step 2
determined that Doan suffered from “decreased grip strength of the right hand,” AR
21, “that is consistent with residual irritation of ulnar dorsal sensory nerve.” AR 22.
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The ALJ properly integrated Doan’s wrist impairments into the RFC, noting that
Doan can perform “no more than frequent handling with the right hand.” AR 23.
Doan also asserts that she was denied her due process rights because the
ALJ “was rubbing the microphone during a portion of the hearing and obscuring the
record with the sound of his rubbing.” Doan cites no authority for this argument
and does not explain how this rubbing would violate her due process rights. She
does not allege that the ALJ did not actually hear or take into account parts of her
testimony, only that the record was obscured. The Commissioner’s brief points out
that there are only three instances in the record that are marked “inaudible” and
that, each time, follow-up questions and responses clarifying the substance of
Doan’s testimony were fully transcribed. See AR 33-34, 47, 55-56. Doan’s due
process rights were not violated during the hearing.
Doan also presents an argument, based largely on hypothetical reasoning,
that the ALJ failed to factor her obesity into his analysis; however, the ALJ
extensively documented his consideration of Doan’s obesity. AR 22. Indeed, the
ALJ found that Doan’s obesity was a severe impairment. AR 21. Doan asserts
that the ALJ’s analysis of her obesity is “too abbreviated” and seems to insist that
the ALJ should have considered the compounding effects that Doan’s obesity
would have on all of her various impairments beyond that presented in the objective
medical evidence of record. The investigation that Doan suggests is outside the
scope of the ALJ’s authority–“the ALJ is not to make assumptions about the
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severity or functional effects of obesity combined with other impairments.” SSR
02-1p, 67 Fed. Reg. 57859 (2000). The ALJ specifically discussed the
requirements of SSR 02-1p in evaluating Doan’s obesity. AR 23. The ALJ
appropriately considered Doan’s obesity and related pain in his consideration of the
medical evidence of record and Doan’s testimony, and his findings are supported by
substantial evidence.
Finally, Doan asserts that the ALJ erred in assessing her credibility regarding
her pain. She claims that her long-term efforts to obtain pain relief enhance her
credibility. Doan fails to cite any medical evidence indicating such efforts. The
ALJ properly considered the medical evidence of record and found that there was
insufficient evidence to support the extent of Doan’s symptoms as alleged,
particularly in the context of Doan’s testimony regarding her regular daily activities.
AR 25. The ALJ’s credibility finding factors greatly into his assessment of Doan’s
subjective pain, and his finding here is based on sufficient evidence. See Houston
v. Sec’y of Health and Human Servs., 736 F.2d 365, 367 (6th Cir. 1984).
The ALJ having properly applied the relevant legal standards and his decision
being supported by substantial evidence,
IT IS ORDERED that Doan’s motion (R.12) is DENIED.
IT IS FURTHER ORDERED that the Commissioner’s motion (R.13) is
GRANTED.
The court will enter a separate judgment.
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Signed on August 31, 2011
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