Garrett v. SSA
Filing
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MEMORANDUM OPINION: The administrative decision should be affirmed. A separate judgment and order will be issued consistent with this opinion. Signed by Judge G. Wix Unthank on 4/19/2012.(SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CIVIL ACTION NO. 11-251-GWU
SHA-RON M. GARRETT,
VS.
PLAINTIFF,
MEMORANDUM OPINION
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
INTRODUCTION
Sha-ron Garrett brought this action to obtain judicial review of an
administrative denial decision on her applications for Disability Insurance Benefits
and for Supplemental Security Income. The case is before the court on crossmotions 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
The Administrative Law Judge (ALJ) concluded that Garrett, a 29-year-old
woman with a high school education and no past relevant work history, suffered
from impairments related to being status post total hip replacement secondary to
degenerative joint disease with a history of bilateral hip surgeries in childhood with
internal fixation on the right and a total hip replacement on the left in 2008, a major
depressive disorder, an anxiety disorder, and a polysubstance abuse disorder in
reported remission. (Tr. 28, 37). Despite the plaintiff’s impairments, the ALJ
determined that she retained the residual functional capacity to perform a restricted
range of light level work. (Tr. 31). Since the available work was found to constitute
a significant number of jobs in the national economy, the claimant could not be
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considered to be totally disabled. (Tr. 37-38). The ALJ based this decision, in large
part, upon the testimony of a vocational expert. (Tr. 38).
After review of the evidence presented, the undersigned concludes that the
administrative decision is supported by substantial evidence. Therefore, the court
must grant the defendant’s summary judgment motion and deny that of the plaintiff.
The hypothetical question presented to Vocational Expert Linda Taber initially
included such restrictions as a need for short rest breaks afer sitting, standing
and/or walking for short periods with no limitation in lifting or carrying objects. (Tr.
81-82). The ALJ then modified the question to include a 30 minute time restriction
on sitting, standing or walking before being required to rest. (Tr. 82). In addition,
the ALJ indicated that the individual would have a “good” ability to stay on attention
to perform simple and repetitive tasks and a “fair” ability to relate to other people
and tolerate the stress and pressures of daily work activity. (Id.). The individual
would also be limited to low stress work environments with occasional difficulty
relating to others such as supervisors, co-workers and the public.
(Id.).
In
response, the witness identified a significant number of other jobs at the light
exertional level which could still be done including gatekeeper and surveillance
monitor. (Tr. 83). The ALJ relied upon this information to support the administrative
denial decision. (Tr. 38).
The court finds no error with the ALJ’s framing of the physical factors of the
hypothetical question. Dr. Scott Beach of the Bluegrass Medical Group examined
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Garrett and diagnosed bilateral hip pain, depression and hypertension. (Tr. 489).
Dr. Beach indicated that the plaintiff would be able to “sit, walk, and/or stand for
short periods and then require breaks to rest due to hip pain.” (Id.). The doctor also
indicated that the claimant had no limitation in lifting and carrying objects. (Id.). The
physical factors of the hypothetical question were essentially consistent with this
opinion. The ALJ indicated that she relied upon Dr. Beach in formulating the
residual functional capacity. (Tr. 36). More severe physical restrictions than those
found by the ALJ were not indicated by such treating and examining sources as the
staff at Georgetown Community Hospital (Tr. 304-455), Dr. Padma Rao (Tr. 456485), the staff at Cardinal Hill Rehabilitation Hospital (Tr. 599-636), the staff at
Central Baptist Hospital (Tr. 637-733), Dr. Paul Nicholls (Tr. 734-761), the staff at
the Fayette County Health Department (Tr. 782-799), and the staff at the University
of Kentucky Medical Center (Tr. 805-844). These medical sources support the
administrative denial decision.
Dr. Kooros Sajadi, an examining consultant, indicated that Garrett would be
limited to light level work restricted from a full range by an inability to sit for more
than six hours a day with no more than four hours without interruption, stand for
more than one hour a day in 30 minute intervals and walk for more than one hour
a day in 30 minute intervals. (Tr. 850-851). The plaintiff would never be able to
stoop and should no more than occasionally climb, balance, kneel, crouch and
crawl.
(Tr. 853).
Environmental restrictions concerning unprotected heights,
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vibration and noise were also indicated. (Tr. 854). These are more extensive
physical limitations than those presented to the vocational expert (Tr. 81-82) or
found by the ALJ in his residual functional capacity assessment (Tr. 31). Dr.
Amanda Lange, a non-examining medical advisor, also reported the existence of
more severe postural and environmental restrictions than found by the ALJ and
presented to the vocational expert. (Tr. 590-598). However, these opinions were
offset by that of Dr. Beach. Furthermore, the claimant has not argued that the ALJ
erred by failing to include the additional restrictions identified by these sources
among her findings. Garrett specifically indicated that she did not challenge the
ALJ’s residual functional capacity assessment finding. Plaintiff’s Memorandum in
Support of Motion for Judgment, Docket Entry No. 16, p. 2. Therefore, the court
finds no error in omitting these additional physical restrictions.
The only argument presented by Garrett is that the ALJ erred by failing to
include all of the physical restrictions made in her residual functional capacity
assessment in the hypothetical question presented to the vocational expert. The
physical factors noted in the ALJ’s residual functional capacity finding were that the
plaintiff “has no limitation in her ability to lift or carry but can sit, stand and walk 30
minutes at a time each, then must take a break to rest.” (Tr. 31). By contrast, the
hypothetical question included an ability to sit, stand or walk for 30 minutes each.
(Tr. 82). The claimant asserts that there is a significant distinction between “and”
and “or.” She asserts that the ALJ’s residual functional capacity finding would
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require one to be able to walk around for 30 minutes in addition to sitting for 30
minutes and standing for 30 minutes and that this requirement would invalidate the
jobs of gatekeeper and surveillance monitor since they would require one to remain
stationary. Thus, the vocational testimony does not support the administrative
denial decision.
The court must reject Garrett’s argument. The undersigned notes that the
ALJ initially indicated to the vocational expert that she was directly incorporating all
of the physical restrictions noted by Dr. Beach into the hypothetical question, which
were specifically reported to include an ability to sit, walk and/or stand for short
periods. (Tr. 81-82, 489). As previously indicated, the ALJ stated in the decision
that she was basing her residual functional capacity finding on the opinion of Dr.
Beach. (Tr. 36). Since Dr. Beach clearly made an “and/or” finding rather than
merely an “and,” the ALJ appears to have made a typographical error in omitting the
“or” in the decision. This error would appear harmless and not justify a remand of
the action for further consideration.
With regard to Garrett’s mental status, the ALJ found that she had a good
ability to understand, retain and carry out instructions, a good ability for simple,
repetitive tasks, an occasional difficulty during an eight-hour day tolerating the
ordinary stress and pressures of day-to-day work activity, a limitation to low stress
environments and occasional difficulty during an eight-hour day interacting with
supervisors, co-workers and the general public. (Tr. 31). The mental factors found
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by the ALJ were consistent with those presented to the vocational expert. (Tr. 82).
These restrictions were based upon the opinion of psychologist Stuart Cooke, an
examining consultant. (Tr. 505). The claimant raises no issue with the ALJ’s
treatment of this issue.
The undersigned concludes that the administrative decision should be
affirmed. A separate judgment and order will be issued simultaneously consistent
with this opinion.
This the 19th day of April, 2012.
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