Hoskins v. SSA
Filing
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MEMORANDUM OPINION: The undersigned concludes that the administrative decision should be affirmed. A separate judgment and order will be entered simultaneously consistent with this opinion. Signed by Judge G. Wix Unthank on 07/12/2011.(MRS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
CIVIL ACTION NO. 10-290-GWU
JOHN W.M. HOSKINS,
VS.
PLAINTIFF,
MEMORANDUM OPINION
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
INTRODUCTION
John Hoskins brought this action to obtain judicial review of an unfavorable
administrative decision on his application for Supplemental Security Income. The
case is 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.
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
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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 Administrative Law Judge (ALJ) concluded that Hoskins, a 25-year-old
man with a “limited” education and no past relevant work history, suffered from
impairments related to a left shoulder injury, being status post motorcycle accident
with two broken arms, decreased lumbar flexion, kidney problems (only one
functioning) and depression/anxiety.
(Tr. 12, 17).
Despite the plaintiff’s
impairments, the ALJ determined that he retained the residual functional capacity
to perform a restricted range of light level work. (Tr. 14). Since the available work
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was found to constitute a significant number of jobs in the national economy, the
claimant could not be considered totally disabled. (Tr. 18). The ALJ based this
decision, in part, upon the testimony of a vocational expert. (Id.).
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.
Ralph Crystal testified at the second administrative hearing as a vocational
expert. Crystal noted that Hoskins had no past relevant work. (Tr. 29). The witness
indicated that higher stress level, unskilled work at the light and sedentary exertional
levels would require involvement with the general public, co-workers and
supervisors for simple exchange of information with the jobs often requiring one to
work outside. (Id.). Lower stress jobs at these exertional levels would not have
such requirements. (Tr. 30). The hypothetical question presented to Crystal
proposed a person of the plaintiff’s age, education and lack of work background,
limited to light level work restricted from a full range by (1) an inability to repetitively
use the left arm in fulfilling job responsibilities; (2) an inability to ever perform
overhead work with the left arm or hand; (3) a limitation to simple, routine job tasks
requiring only simple-type job instructions; and (4) a limitation to low stress,
unskilled work as previously defined. (Id.). In response, the expert identified a
significant number of jobs which could still be performed. (Tr. 31). Therefore,
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assuming that the vocational factors considered by Crystal fairly depicted the
claimant’s condition, then a finding of disabled status, within the meaning of the
Social Security Act, is precluded.
With regard to the framing of the physical restrictions of the hypothetical
question, the undersigned finds no error. Dr. Daniel Stewart examined Hoskins and
opined that his physical problems would not preclude employment beyond work
requiring heavy lifting. (Tr. 430). The ALJ’s findings were consistent with this
opinion. Dr. James Ramsey reviewed the record and indicated that the plaintiff had
no physical limitations. (Tr. 518-525). Such treating and examining sources as the
staff at Appalachian Regional Hospital (Tr. 212-215, 327-356), the Johnson City
Medical Center (Tr. 216-326), and Mary Breckinridge Healthcare (Tr. 357-401, 530559), did not identify the existence of more severe physical restrictions than those
found by the ALJ. These reports support the administrative denial decision.
Dr. P.D. Patel examined Hoskins and noted an impression of being status
post motor vehicle accident with laceration of the kidneys, chronic low back pain,
sternal pain, and a history of hepatitis B. (Tr. 582). Dr. Patel indicated that the
plaintiff would experience a number of serious limitations including an inability to
stand or walk for more than a total of three hours a day, sit for more than a total of
four hours a day, an inability to ever twist, an inability to more than occasionally
stoop, crouch or climb, and a need to avoid concentrated exposure to temperature
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extremes, wetness, humidity, noise, and environmental pollutants. (Tr. 573-575).
These were more severe limitations than those found by the ALJ. The ALJ
considered Dr. Patel’s opinion, but found that the objective medical data did not
support the existence of such severe limitations. (Tr. 16). Dr. Patel was a one-time
examiner whose opinion was offset by that of Dr. Stewart who also examined the
claimant and identified far less severe restrictions. (Id.). As noted by the ALJ, Dr.
Stewart found full upper extremity motor strength and good grip strength on physical
examination. (Tr. 16, 429). Therefore, the ALJ dealt properly with the evidence of
record relating to Hoskins’s physical condition.
The ALJ also dealt properly with the evidence of record relating to Hoskins’s
mental status. Psychologist Jeanne Bennett examined the plaintiff and noted a
diagnostic impression of an intermittent explosive disorder. (Tr. 406). Bennett
opined that the claimant would be “moderately” limited in such areas as responding
to supervision, co-workers and work pressures and tolerating stress. (Tr. 407). The
mental factors of the hypothetical question were essentially consistent with all of
these restrictions.
Hoskins was treated for his mental problems at the Kentucky River
Comprehensive Care Center between February and December of 2008. More
severe mental restrictions than those found by the ALJ were not identified by the
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Kentucky River staff. (Tr. 560-572). Thus, this report provides support for the
administrative denial decision.
Hoskins was hospitalized at the Hazard Psychiatric Center in June and July
of 2008. Upon admission, the plaintiff was noted to suffer from opiate dependence
and a substance-induced mood disorder. (Tr. 452). His Global Assessment of
Functioning (GAF) was rated at 30. (Id.). Such a GAF suggests an inability to
function in almost all areas according to the American Psychiatric Association’s
Diagnostic and Statistical Manual of Mental Disorders (4th Ed.--Text Revision), p.
34. However, upon discharge, the claimant’s GAF was reported at 60, suggesting
the existence of “moderate” psychological symptoms compatible with the ALJ’s
findings. (Id.). Significantly, the Hazard staff did not identify the existence of more
severe mental limitations than those found by the ALJ. (Tr. 447-499). The court
notes that Public Law 104-121 bars a finding of disabled status if drug or alcohol
abuse is a “material” factor contributing to the determination of disabled status. 42
U.S.C. § 423(d)(2)(C). Since any long-term mental problems found by the Hazard
staff would relate to substance abuse issues, reliance upon them for a disability
finding would be problematic for the claimant. Therefore, the Hazard report also
does not support the plaintiff’s disability claim.
Dr. Patel also evaluated Hoskins’s mental status and noted an impression
of an intermittent explosive disorder, a mood disorder and a history of substance
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abuse. (Tr. 582). The examiner rated the plaintiff’s ability as either “poor” or “fair”
in most areas of mental functioning. (Tr. 576-577). The ALJ rejected the opinion
of Dr. Patel in favor of that of Bennett, another examining mental health
professional. (Tr. 17). The court finds no error.
Psychologists Jan Jacobson (Tr. 423-424) and Edward Stodola (Tr. 514-515)
each opined that Hoskins would be “moderately” limited in his ability to complete a
normal workday or workweek without interruption from psychologically-based
symptoms and perform at a consistent pace without an unreasonable number and
length of rest periods, interact appropriately with the general public, and respond
appropriately to changes in the work setting. Stodola also indicated that the
claimant would be “moderately” limited in working in coordination with others without
being distracted by them. (Tr. 514). To the extent that these restrictions might be
regarded as more severe than those found by the ALJ, the court notes that they
were outweighed by the opinion of Bennett, an examining source.
The
administrative regulations provide that “generally, we give more weight to the
opinion of a source who has examined you than to the opinion of a source who has
not examined you.” 20 C.F.R. § 404.1527(d)(1). Therefore, these reports do not
support the plaintiff’s disability claim.
Hoskins argues that the ALJ erred by failing to cite specific reasons why his
testimony concerning his complaints was not credible. However, the court notes
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that the ALJ actually noted a number of reasons for this determination. Among the
reasons cited by the ALJ were a June, 2004 CT scan of the head which revealed
no acute intracranial abnormality (Tr. 16, 257), a CT scan of the cervical spine
revealing no acute traumatic skeletal abnormality (Id.), Dr. Stewart’s finding of no
evidence of radiculopathy and finding of only “mildly” decreased range of motion of
the left shoulder (Tr. 16, 430), and Dr. Stewart’s findings of intact sensation at all
levels and normal straight leg raising. (Tr. 16, 429). The ALJ also observed that
despite the claimant’s alleged kidney problems, the record reveals only modest
medical treatment relating to this condition. (Tr. 16, 327-401). Therefore, the court
must reject the plaintiff’s argument.
The undersigned concludes that the administrative decision should be
affirmed. A separate judgment and order will be entered simultaneously consistent
with this opinion.
This the 12th day of July, 2011.
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