Quicksell v. SSA
Filing
8
MEMORANDUM OPINION & ORDER: The Court finds the ALJ's decision is supported by substantial evidence on the record. It is ORDERED that the Plaintiff's 6 MOTION for Summary Judgment is OVERRULED and the Dft's 7 MOTION for Summary Judgment is SUSTAINED. A judgment in favor of the Dft will be entered contemporaneously herewith. Signed by Judge Henry R. Wilhoit, Jr on August 16, 2011. (AWD) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
at LEXINGTON
Civil Action No. lO-337-HRW
JAMES FRANKLIN QUICKSELL,
v.
PLAINTIFF,
MEMORANDUM OPINION AND ORDER
lVIICHAEL J. ASTRUE
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. 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.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed his current application for disability insurance benefits on
November 13,2007, alleging disability beginning on July 1,2006, due to a heart
condition, swelling in his legs, shoulder pain and bone spurs (Tr. 140).
This application was denied initially and on reconsideration (Tr. 67. 81).
On February 23,2010, an administrative hearing was conducted by Administrative
Law Judge Don C. Paris (hereinafter "ALJ"), wherein Plaintiff, accompanied by
counsel, testified. At the hearing, Sally J. Moore, a vocational expert (hereinafter
"VB"), also testified.
At the hearing, pursuant to 20 C.F.R. § 416.920, the ALJ
performed the following five-step sequential analysis in order to determine
whether the Plaintiff was disabled:
Step 1: 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.F.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 1, 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.
2
· On March 5, 2010, the ALI issued his decision finding that Plaintiff was not
disabled (Tr. 19-27).
At Step 1 of the sequential analysis, the ALI found that Plaintiff had not
engaged in substantial gainful activity since the alleged onset date of disability
through the date last insured. December 31, 2008 (Tr. 21).
The ALI then determined, at Step 2, that Plaintiff suffers from obesity and
moderate cardiomyopathy with history of atrial fibrillation, which he found to be
"severe" within the meaning of the Regulations (Tr. 21-22).
At Step 3, the ALI found that Plaintiffs impairments did not meet or
medically equal any of the listed impairments (Tr. 22-23).
The ALI further found that Plaintiff could not return to his past relevant
work as a bus mechanic (Tr. 26) but determined that he has the residual functional
capacity ("RFC") to perform a significant range of light exertional work with
certain restrictions, as set forth in the hearing decision (Tr. 23-26).
The ALI finally concluded that these jobs exist in significant numbers in
the national and regional economies (Tr. 26-27).
Accordingly, the ALI 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
3
ALI's decision as the final decision of the Commissioner on August 7,2010 (Tr.
1-5).
Plaintiff thereafter filed this civil action seeking a reversal of the
Commissioner's decision. Both parties have filed Motions for Summary Judgment
[Docket Nos. 6 and 7] and this matter is ripe for decision.
III. ANALYSIS
A.
Standard of Review
The essential issue on appeal to this Court is whether the ALI'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 (6th Cir. 1984). If the Commissioner's decision is supported by
substantial evidence, the reviewing Court must affirm. Kirk v. Secretary ofHealth
and Human Services, 667 F.2d 524,535 (6th Cir. 1981), cert. denied, 461 U.S. 957
(1983). "The court may 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 (6th Cir. 1988). Finally, this Court must defer to the
Commissioner's decision "even if there is substantial evidence in the record that
4
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).
B.
Plaintiff's Contentions on Appeal
Plaintiff contends that the ALI's finding of no disability is erroneous
because: (1) the ALJ's finding that he did not meet or equal Listing 4.02 is not
supported by substantial evidence and (2) the ALJ did not properly evaluate his
credibility.
C.
Analysis of Contentions on Appeal
Plaintiffs first claim of error is that the ALJ's finding that he did not meet
or equal Listing 4.02 is not supported by substantial evidence.
The Sixth Circuit Court of Appeals stated in Her v. Commissioner ofSocial
Security, 203 F.3d 388,391 (6th Cir. 1999), "the burden of proof lies with the
claimant at steps one through four of the [sequential disability benefits analysis],"
including proving presumptive disability by meeting or exceeding a Medical
Listing at Step Three.
Thus, Plaintiff "bears the burden of proof at Step Three to demonstrate that
he has or equals an impairment listed in 20 C.F.R. part 404, subpart P, appendix
I." Arnold v. Commissioner ofSocial Security, 238 F.3d 419,2000 WL 1909386,
5
*2 (6th Cir. 2000 (Ky)), citing Burgess v. Secretary ofHealth and Human Services,
964 F.2d 524,528 (6 th Cir. 1992). If the Plaintiff "can show an impairment is listed
in appendix 1 ("the listings"), or is equal to a listed impairment, the ALl must find
the claimant disabled." Buress v. Secretary ofHealth and Human Services, 835
F.2d 139, 140 (6th Cir. 1987).
"The listing of impairments 'provides descriptions of disabling conditions
and the elements necessary to meet the definition of disabled for each
impairment." Arnold, at **2, quoting Maloney v. Commissioner, 211 F.3d 1269,
2000 WL 420700 (6 th Cir. 2000). In order for the Plaintiff "to qualify as disabled
under a listed impairment, the claimant must meet all the requirements specified in
the Listing." Id. This must be done by presenting specific medical findings that
satisfy the particular Listing. Sullivan v. Zebley, 493 U.S. 521, 530-532, (1990).
An impairment that manifests only some of the criteria in a particular Listing, "no
matter how severely, does not qualify." Sullivan, at 530.
Listing 4.02 states in relevant part:
Chronic heartfailure while on a regimen of prescribed
treatment, with symptoms and signs described in 4.00D2
The required level of severity for this impairment is met
when the requirements in both A and B are satisfied.
A. Medically documented presence of one of the
following:
6
1. Systolic failure (see 4.00D 1a(i)), with left
ventricular end diastolic dimensions greater than 6.0 cm
or ejection fraction of 30 percent or less during a period
of stability (not during an episode of acute heart failure);
AND
B. Resulting in one of the following:
1. Persistent symptoms of heart failure which very
seriously limit the ability to independently initiate,
sustain, or complete activities of daily living in an
individual for whom [a medical consultant], preferably
one experienced in the care of patients with
cardiovascular disease, has concluded that the
performance of an exercise test would present a
significant risk to the individual;
20 C.F.R. pt. 404, subpt. P, app. 1, § 4.02.
Plaintiff failed to show that his impairments met or
equaled subsection A of Listing 4.02. He argues that an
echocardiogram indicated he had an ejection fraction of twenty-five to thirty
percent. However, that test was performed during hospitalized for acute heart
failure in August 2006 (Tr. 444). Thus, the results upon which Plaintiff relies
were not obtained during a period of stability, as required by subsection Al of
Listing 4.02. Nor Plaintiff does not cite any evidence
that his ejection fraction was thirty percent of less during a
period of stability. Moreover, echocardiograms in January 2007 and March 2008
7
reveal that he had an ejection fraction of forty to forty-five percent (Tr. 648, 649,
714, 715). Based upon the record, Plaintiffs impairments did not meet or equal
subsection Al of Listing 4.02.
Plaintiff also failed to show that his impairments met or
equaled subsection B of Listing 4.02. The records does not establish that Plaintiff
had persistent symptoms of heart failure. Nor does the record establish that his
symptoms limit his
ability to independently initiate, sustain, or complete activities
of daily living. To the contrary, the record indicates Plaintiff performed numerous
activities without serious limitations (Tr. 24-25, 49-60, 147-55, 159-60). In
addition, Plaintiff was advised upon discharge in August 2006 to resume normal
activities (Tr. 714, 716). Based upon the record, Plaintiffs impairments did not
meet or equal subsection B of Listing 4.02.
Notably, Plaintiff does not even argue that he had chronic heart failure
while on a regimen of prescribed treatment or that he had the symptoms and signs
necessary to satisfy the requirements of the introductory paragraph of Listing 4.02.
Based upon the record, the Court finds that the Plaintiff has not met her
burden of presenting specific medical findings that satisfy Listing 4.02. To the
contrary, the Court finds that the ALl's conclusion that Plaintiff does not meet the
8
listing is based upon substantial evidence.
Plaintiff's second claim of error is that the ALJ did not properly evaluate his
credibility. However, he does no more than make a cursory argument in this
regard. This is not sufficient.
The United States Court of Appeals for the Sixth Circuit has
decline[d] to formulate arguments on [a claimant's]
behalf, or to undertake an open-ended review of the
entirety of the administrative record to determine (i)
whether it might contain evidence that arguably is
inconsistent with the Commissioner's decision, and (ii) if
so, whether the Commissioner sufficiently accounted for
this evidence. Rather, we limit our consideration to the
particular points that [a claimant] appears to raise in [his
/her] brief on appeal.
Hollon ex reI. Hollan v. Commissioner a/Social Security, 447 F.3d 477,491 (6 th
Cir.2006). In Hollan, the court also refused to consider claimant's generalized
arguments regarding the physician's opinions of record:
[Claimant] has failed to cite any specific opinion that the
ALJ purportedly disregarded or discounted, much less
suggest how such an opinion might be impermissibly
inconsistent with the ALJ's findings. In the absence of
any such focused challenge, we decline to broadly
scrutinize any and all treating physician opinions in the
record to ensure that they are properly accounted for in
the ALJ's decision.
Id. See also, McPherson v. Kelsey, 125 F.3d 989,995-996 (6th Cir. 1997) (" ,
9
[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived. It is not sufficient for a party to
mention a possible argument in the most skeletal way, leaving the court to ... put
flesh on its bones."') (citations omitted); United States v. Phibbs, 999 F.2d 1053,
1080 n. 12 (6th Cir. 1993)(noting that "it is not our function to craft an appellant's
arguments").
III. CONCLUSION
The Court finds that the ALJ's decision is supported by substantial evidence
on the record. Accordingly, it is HEREBY ORDERED that the Plaintiff s
Motion for Summary Judgment be OVERRULED and the Defendant's Motion
for Summary Judgment be SUSTAINED. A judgment in favor of the Defendant
will be entered contemporaneously herewith.
This 16th day of August, 2011.
Henry R. Wilhoit, Jr., Senior Judge
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?