Gill v. SSA
Filing
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MEMORANDUM OPINION: the decision will be affirmed. Signed by Judge G. Wix Unthank on 11/23/11.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CIVIL ACTION NO. 11-70-GWU
SCOTT GILL,
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 his application for Disability Insurance Benefits (DIB). The appeal is
currently before the court on cross-motions for summary judgment.
APPLICABLE LAW
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); Crouch v. Secretary of Health and Human Services, 909 F.2d 852, 855 (6th
Cir. 1990). 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. Crouch, 909 F.2d at 855.
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The regulations outline a five-step analysis for evaluating disability claims.
See 20 C.F.R. § 404.1520.
The step referring to the existence of a “severe” impairment has been held
to be a de minimis hurdle in the disability determination process. Murphy v.
Secretary of Health and Human Services, 801 F.2d 182, 185 (6th Cir. 1986). An
impairment can be considered not severe only if it is a “slight abnormality that
minimally affects work ability regardless of age, education, and experience.” Farris
v. Secretary of Health and Human Services, 773 F.2d 85, 90 (6th Cir. 1985).
Essentially, the severity requirements may be used to weed out claims that are
“totally groundless.” Id., n.1.
Step four refers to the ability to return to one's past relevant category of work,
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). 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 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
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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).
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);
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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. Ibid.
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, Scott Gill, was found by an Administrative Law Judge (ALJ) to
have “severe” impairments consisting of neuropathy in the right lower extremity
status post an anterior cruciate ligament (ACL) tear and arthroscopy; coronary
artery disease, status post stent placement and coronary artery bypass grafting; and
diabetes mellitus. (Tr. 56). Nevertheless, based in part on the testimony of a
Vocational Expert (VE), the ALJ determined that Mr. Gill retained the residual
functional capacity to perform a significant number of light and sedentary jobs
existing in the economy, and therefore was not entitled to benefits. (Tr. 58-63). The
Appeals Council declined to review, and this action followed.
At the administrative hearing, the ALJ asked the VE whether a person of the
plaintiff’s age of 41, high school education, and work experience as a produce
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manager and delivery driver could perform any jobs if he could lift 20 pounds
occasionally and 10 pounds frequently, was limited to standing and walking two
hours in an eight-hour day with the option of alternating sitting and standing every
hour, and also had the following non-exertional restrictions. He: (1) needed to avoid
kneeling and climbing ladders, ropes, and scaffolds; (2) could occasionally crouch
and crawl; (3) could frequently balance, stoop, and climb ramps and stairs; (4) could
occasionally push and pull with the right foot and leg; and (5) was limited on working
around whole body vibration, hazardous machinery, and dangerous heights. (Tr.
45). The VE testified that there were jobs as a cashier/counter clerk/counter
salesperson, bench assembler, and sorter and packager which such a person could
perform, and proceeded to give the numbers in which they existed in the state and
national economies. (Tr. 45-48).
On appeal, this court must determine whether the administrative decision is
supported by substantial evidence.
Mr. Gill alleged disability beginning March 6, 2006 due to a torn ACL and
muscle and nerve damage in his right leg, which had occurred when he was
crushed between two forklifts at work. (Tr. 18, 144). He also had undergone a
coronary artery bypass two months after the accident, and also suffered from
diabetes and high blood pressure. (Tr. 182). He admitted at the administrative
hearing before the ALJ that his heart problem had largely resolved, however. (Tr.
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23). He said it had been “tough” getting his blood sugar under control, but did not
describe any specific restrictions related to diabetes. (Tr. 24). Mr. Gill also asserted
that he was depressed and anxious and had been on medication (Tr. 182) but
apparently had no other specific treatment. His wife testified that he had moments
of depression with good and bad days, but these bad days occurred once a month
or every other month. (Tr. 38-39). Mr. Gill described spending most of the day in
a recliner, but he was able to attend church Wednesdays and Sundays and
volunteered to help in the sound department. (Tr. 24). Following his application,
he had broken his right ankle and right arm in a fall in the church bathroom. (Tr. 1920). He ascribed this to his lack of control over his right leg. (Tr. 21). He also had
low back pain. (Tr. 22).
Medical records in the transcript confirm that Mr. Gill had a crush injury to his
right thigh and EMG/NCV testing in 2007 confirmed nerve injury and potential
muscle injury. (Tr. 210, 218-19). Dr. Stephen Ryan, a neurologist, said that the
nerve injury was non-surgical and recommended the medication Gabapentin,
although it appeared that Mr. Gill was not able to obtain it. (Tr. 209-10, 212).
Since an MRI of the right knee also showed a probable ACL tear, Dr. Darren
Johnson performed a reconstruction of the ligament in September, 2006. (Tr. 227).
On follow-up, Dr. Johnson commented that the knee was stable, but the main
concern was atrophy of the entire extremity as well as Mr. Gill’s overall
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cardiovascular fitness, since he had recently undergone bypass surgery. (Tr. 243).
He emphasized that Mr. Gill needed to work aggressively in therapy every day.
(Id.). A month later, on December 18, 2006, Dr. Johnson said that Mr. Gill was
making progress, but still had weakness in the entire lower extremity and still
needed to work aggressively. (Tr. 242). At Mr. Gill’s last visit to Dr. Johnson, on
April 16, 2007, the physician commented that he had been behind in therapy ever
since his surgery, was mostly non-compliant with his home exercise program, and
his leg was getting weaker and losing girth. (Tr. 240). He had “failed” physical
therapy and the physical therapist recommended that it be discontinued. Dr.
Johnson concluded that Mr. Gill was at maximum medical improvement for his
knee, and in terms of restrictions would have to seek an independent medical
examination from another source. (Id.).
It appears that the plaintiff obtained the independent medical examination
from Dr. Michael Heilig, an orthopedist, in May, 2007. His examination showed a
decreased range of motion of the right knee in comparison to the left and significant
quadriceps atrophy. (Tr. 306). There was pain across the interior aspect of the
knee along with numbness and decreased two point discrimination along the lateral
thigh correlating to the L5 nerve root. (Id.). Dr. Heilig stated that he agreed with Mr.
Gill’s “current work restrictions” of lifting no more than 15 pounds, no squatting, and
no prolonged standing without a break. (Tr. 307).
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In November, 2007, Mr. Gill was evaluated by Dr. Robert Hosey, in the
University of Kentucky Medical Center’s Sports Medicine Department, for
complaints of low back pain radiating down his right leg. (Tr. 238). Dr. Hosey’s
physical examination showed tenderness to palpation in the sciatic region on the
right side, but with full flexion and extension. There was significant quadriceps
weakness on the right and pain with straight leg raising, along with subjectively
decreased sensation over the quadriceps and thigh on the right. He could walk
without any significant problems. Dr. Hosey ordered an MRI of the lumbosacral
spine, which was obtained on December 3, 2007 and interpreted by the radiologist,
Dr. Steven Goldstein, as showing “mild” central canal and lateral recess stenosis,
most pronounced at L4-5, with no evidence of a disk herniation. (Tr. 237). On
follow-up, Dr. Hosey noted that Mr. Gill’s examination was unchanged, and
interpreted the MRI as showing “some small disk protrusions at L4-5 with some mild
stenosis at L4-5 as well,” but without any “large herniated disks.” He recommended
a consultation with a pain management clinic, but did not provide any functional
restrictions. (Tr. 239).
Dr. Heilig evaluated Mr. Gill again on January 7, 2008, and this time also
reviewed the December 3, 2007 MRI, which he described as showing “disk
protrusion at L4-5 with lateral restenosis bilaterally.” (Tr. 316). His physical
examination of the leg was largely unchanged, and he noted a positive straight leg
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raise on the right. (Id.). He reiterated the same limitations of lifting no more than
15 pounds, no squatting, and no standing without a break. (Tr. 317, 320).
The only other functional capacity assessment by an examining and/or
treating source was completed on April 15, 2009 by a physician with an illegible
signature. (Tr. 387-88). It merely states that the plaintiff’s ability to stand on his
ankle, walk, and lift was “limited” to an unspecified extent.
Dr. Carlos X. Hernandez, a non-examining state agency physician, had
reviewed the evidence as of November 28, 2007 and concluded that Mr. Gill could
perform “medium” level exertion with no climbing of ladders, ropes, or scaffolds and
occasional crouching and crawling. (Tr. 285-91). He indicated that there was no
treating or examination source statement regarding physical capacities in the file,
meaning that he did not have the opportunity to comment on Dr. Heilig’s restrictions,
or those of the illegible physician.
In discussing the evidence, the ALJ stated that while he took Dr. Heilig’s
assessment into consideration, he would give it only limited weight “as it appears
to be partly based on an interpretation of an MRI to show a back injury that is not
documented in the MRI report prepared by Dr. Goldstein.” (Tr. 60). The ALJ
discounted the other functional assessment because of the anonymity of the
physician in the absence of evidence that Mr. Gill’s ankle injury affected him for the
minimum twelve-month period. (Id.). He went on to criticize the plaintiff’s credibility
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because of a pattern of non-compliance with medical treatment and found that his
activities of attending church and working in the sound department, performing
some child care activities, and living in a house which required him to climb stairs
to the bedrooms were inconsistent with his allegations. (Tr. 61).
The plaintiff takes issue with a number of the ALJ’s findings. First, he asserts
that it was error not to find his depression, back pain, neuropathy, and right ankle
injury to be “severe” impairments, although much of the evidence that he cites in
support was submitted to the Appeals Council and not even available to the ALJ.
In any case, the Sixth Circuit has held that it is not reversible error to omit a finding
that certain impairments are “severe,” where other impairments have been found
and the ALJ goes on to consider all of the evidence. Maziarz v. Secretary of Health
and Human Services, 837 F.2d 240, 244 (6th Cir. 1987).
The plaintiff also makes a general argument that he would meet the
Commissioner’s Listings of Impairment 1.02A, 9.08 and 4.04C. However, as
discussed in the defendant’s brief, he failed to present specific medical findings that
satisfy all of the criteria of the Listings as required by Sullivan v. Zebley, 493 U.S.
521, 530-32 (1990). Commissioner’s Motion for Summary Judgment, Docket Entry
No. 11 at 9-12.
Finally, the plaintiff asserts that the ALJ erroneously rejected the opinion of
Dr. Heilig. He notes with some justification that the ALJ’s assertion that there was
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no support for Dr. Heilig’s interpretation of the lumbar MRI scan, as showing a disk
protrusion, may be somewhat questionable in light of Dr. Hosey’s similar
interpretation of the same report.1 The plaintiff is also critical of the ALJ’s summary
of his daily activities as being one-sided. The problem for the plaintiff, however, is
that no physician indicated greater restrictions than Dr. Heilig, and even if this
source were given controlling weight, there is nothing in his assessment to preclude
the plaintiff’s performance of the sedentary level jobs identified by the VE.
Sedentary work is defined as lifting no more than 10 pounds at a time with periods
of standing and walking of no more than about two hours in an eight-hour day and
sitting no more than six hours in an eight-hour day. Social Security Ruling (SSR)
83-10, at *5. Moreover, postural restrictions related to such activities as climbing
ladders, ropes, or scaffolds, balancing, kneeling, crouching, or crawling would not
usually erode the occupational base for the full range of unskilled or sedentary work.
SSR 96-9p, at *7. While neither the ALJ nor SSR 96-p specifically mentions
“squatting,” which is ruled out in Dr. Heilig’s assessment, there is nothing in the
Dictionary of Occupational Titles (DOT) Sections 726.684-110, concerning bench
assembler, or 920.687-010, concerning packaging occupations, that would indicate
The plaintiff also cites to another physician with a similar interpretation, but these
records were submitted to the Appeals Council (Tr. 424) and not part of the court’s
substantial evidence review on appeal. Cline v. Commissioner of Social Security, 96
F.3d 146, 148-9 (6th Cir. 1996).
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that squatting was necessary; both sections state that stooping, kneeling, crouching,
and crawling are not present.
Ultimately, despite his significant injuries, the plaintiff has simply failed to
provide medical evidence of physical restrictions that would prevent the
performance of the sedentary work identified by the VE.
Finally, the ALJ’s determination that Mr. Gill’s depression was not even a
“severe” impairment is supported by the failure of any source, including state
agency reviewing psychologists, to find any restriction from this cause . (Tr. 270,
292).
The decision will be affirmed.
This the 23rd day of November, 2011.
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