Watts v. SSA

Filing 15

MEMORANDUM OPINION: The decision will be affirmed. Signed by Judge G. Wix Unthank on December 30, 2011. (AWD) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

CIVIL ACTION NO. 11-09-GWU

JULIE M. WATTS,

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.
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, Julie Mae Watts, was found by an Administrative Law Judge
(ALJ) to have "severe" impairments consisting of hypertensive heart disease,
chronic obstructive pulmonary disease (COPD), and kidney disease. (Tr. 33).
Nevertheless, based in part on the testimony of a Vocational Expert (VE), the ALJ
determined that Mrs. Watts retained the residual functional capacity to perform a
significant number of jobs existing in the economy, and therefore was not entitled

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to benefits. (Tr. 36-41). The Appeals Council declined to review, and this action
followed.
At the administrative hearing, the ALJ asked the VE a series of hypothetical
questions. Ultimately, he asked whether a person of the plaintiff’s age of 46, high
school education, and work experience as an assembler and paint mixer could
perform any jobs if she could lift 20 pounds occasionally and 15 pounds frequently,
could stand and walk six hours out of an eight-hour day (no more than 30 minutes
at a time), and sit six hours in an eight-hour day (no more than 30 minutes at a
time), and also had the following non-exertional limitations. (Tr. 67-69). She: (1)
could never kneel or crawl; (2) could occasionally climb, balance, and stoop; (3)
could frequently balance; (4) could push and pull 15 pounds occasionally and 10
pounds frequently; (5) needed to avoid hazards such as machinery, temperature
extremes, chemicals, dust, and fumes; and (6) would be absent from work one day
a month. (Id.). The VE responded that there were jobs that such a person could
perform, and proceeded to give the numbers in which they existed in the state and
national economies. (Tr. 69-70).
On appeal, this court must determine whether the administrative decision is
supported by substantial evidence, or if there was an error of law.
Mrs. Watts alleged disability beginning November 1, 2007 due to heart failure
and chronic kidney disease. (Tr. 143). Medical records show that she was

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complaining of shortness of breath, chest pain, and edema, and a cardiac
catheterization in October, 2007 showed evidence of pulmonary hypertension. (Tr.
282-83). She eventually had mitral valve replacement in January, 2008. (Tr. 35961). As early as 2006, she had been diagnosed with chronic kidney disease, renal
insufficiency, and proteinuria (Tr. 210-12). Her treating nephrologist, Dr. Rizwan
Akhtar, reported that her specific condition was focal and segmental
glomerulosclerosis (FSGS) but she was significantly better on steroids. (Tr. 379).
In terms of functional restrictions, advanced registered nurse practitioners
(ARNP) Larry Hubbs and Paula Elliott, from the offices of the plaintiff's treating
family physician (see, e.g., Tr. 249-51, 255), completed insurance forms early in
2008, shortly after the mitral valve replacement surgery, indicating that the plaintiff
was unable to do any work for an indefinite period. (Tr. 583, 585, 590-92). Hubbs
also indicated that her condition would be reevaluated monthly and her condition
was expected to improve. (Tr. 583, 585). Dr. Akhtar completed insurance forms on
January 31, 2008, which did indicate that the plaintiff was "disabled for any
occupation," but he added that she was recovering from her open-heart surgery,
and limitations needed to be "set up by heart doctor." (Tr. 586-7, 589). He stated
that from a "kidney standpoint," his specialty, the plaintiff did not need restrictions.
(Tr. 589).

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Dr. Terri Postma conducted a consultative examination of the plaintiff on July
8, 2008, at which time the plaintiff reported that there had been a marked
improvement of her symptoms since the mitral valve replacement surgery and she
could now walk 650 feet without becoming short of breath, although she had some
occasional discomfort due to the surgery and hardware. (Tr. 438). Dr. Postma's
examination was largely normal, apart from a slightly elevated blood pressure and
a mechanical click from the replacement heart valve. (Tr. 439-40). There was no
physical evidence of congestive heart failure, and Mrs. Watts was not short of
breath during the examination. (Tr. 440). Dr. Postma found no evidence for
physical restrictions. (Id.).
A state agency physician, Dr. John Gedmark, reviewed the evidence as of
October 29, 2008 and concluded that Mrs. Watts could perform "light" level exertion,
along with the need to avoid concentrated exposure to extreme cold, heat, and
pulmonary irritants. (Tr. 575-81). These restrictions are consistent with the ALJ's
hypothetical question, although the ALJ added additional limitations. The ALJ
stated in his opinion that he gave some weight to the non-examining opinion. (Tr.
38). He apparently ascribed the disability form completed by Larry Hubbs to the
plaintiff's treating cardiologist, Dr. Asad Jadoon, but concluded that it should be
given little weight in light of "medical improvement and the duration factor." (Tr. 39).
He also stated that it was inconsistent with the other evidence of record, the

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claimant's fairly extensive activities of daily living, and, in any case, an opinion of
total disability was "reserved to the Commissioner." (Id.).
The plaintiff raises three objections on appeal.
First, the plaintiff notes that the ALJ and her counsel were on the record as
discussing adding an additional document to the file as Exhibit 17F (Tr. 48) but it
was not included in the record or considered by the ALJ. The plaintiff has submitted
the proposed exhibit, which does appear to have been faxed on the day of the
hearing.

Docket Entry #11-1.

It is a document headed "Medical Statement

Regarding Chronic Renal Disease for Social Security Disability Claim," completed
by Dr. Akhtar on October 26, 2009. The form indicates that the plaintiff has fatigue,
dyspnea, muscular twitches and muscle cramps. Next to a section asking the
source to indicate how long the plaintiff could stand and sit at one time, lift
occasionally and frequently, and the number of hours she could work per day, Dr.
Akhtar wrote "tests not able + to be perform." He summarized her condition as
having FSGS but with no signs of end-stage renal disease ("ESRD"), along with
shortness of breath from primary cardiac issues.

He concluded: "For more

information get medical records."
The plaintiff suggests that this document shows that she was in such poor
condition that she was not able to complete a functional capacity evaluation, but it
is not clear whether Dr. Akhtar meant that. His comment could also be interpreted

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as indicating that he could not or did not perform such testing. Moreover, he had
previously indicated, as described above, that she had no limitations from her
kidney disease, and that her cardiologist should be consulted for her restrictions due
to her heart condition. Under the circumstances, even if the court found "good
cause" for failing to submit the evidence, its materiality is doubtful since it would be
unlikely to change the outcome of the case. Cline v. Commissioner of Social
Security, 96 F.3d 146, 148-9 (6th Cir. 1996). Therefore, the requirements for a
remand under Sentence Six of 42 U.S.C. § 405(g) have not been met.
Second, the plaintiff argues that the ALJ did not provide a proper rationale
for rejecting the opinions of her treating physicians, Drs. Jadoon and Akhtar. As
previously noted, the court agrees with the defendant that the forms ascribed to Dr.
Jadoon by the plaintiff and the ALJ were actually completed by the registered nurse
practitioner Larry Hubbs. A registered nurse practitioner is not an acceptable
medical source under 20 C.F.R. §§ 404.1513; 416.913. As also previously noted,
the forms were unadorned disability opinions which reach a vocational conclusion,
not a medical conclusion, and as such have no binding effect. 20 C.F.R. §§
404.1527(e)(2); 416.927(e)(2). Finally, the opinion of Dr. Akhtar clearly stated that
the plaintiff had no limitations due to her kidney condition. Thus, the plaintiff’s
second argument is also unavailing.

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Finally, the plaintiff correctly notes that the ALJ's functional capacity
assessment as set out in his opinion (Tr. 36-37) omits any limitation on sitting.
However, the actual hypothetical question (Tr. 67-69) does include a sitting
limitation to no more than 30 minutes at a time. No treating, examining, or nonexamining medical source indicated that there would be greater restrictions on
sitting, and the plaintiff herself testified somewhat imprecisely that she could sit
between 20 and 30 minutes before she would need to get up. (Tr. 54-55). The
sitting limitation in a hypothetical question is clearly supported by substantial
evidence. Therefore, there would be no useful purpose served in remanding the
case merely to correct the formal omission of a sitting limitation in the decision.
The decision will be affirmed.
This the 30th day of December, 2011.

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