Reed v. SSA
Filing
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MEMORANDUM AND OPINION: Administrative decision should be affirmed. Signed by Judge G. Wix Unthank on 08/16/2011.(MRS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
CIVIL ACTION NO. 10-298-GWU
STEVE W. REED,
VS.
PLAINTIFF,
MEMORANDUM OPINION
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
INTRODUCTION
Steve Reed brought this action to obtain judicial review of an unfavorable
administrative decision on his application for Disability Insurance Benefits. 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 Reed, a 42-year-old
former torch cutter, equipment engineer, sales route driver, material handler and
school bus driver with a high school equivalent education, suffered from
impairments related to degenerative disc disease of the cervical spine, mild chronic
obstructive pulmonary disease, an anxiety disorder, borderline intellectual
functioning, and prescription medication abuse. (Tr. 13, 19). While the plaintiff was
found to be unable to return to his past relevant work, the ALJ determined that he
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retained the residual functional capacity to perform a restricted range of light level
work. (Tr. 15, 19). Since the available work was found to constitute a significant
number of jobs in the national economy, the claimant could not be considered totally
disabled. (Tr. 20). 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.
The hypothetical question presented to Vocational Expert A. Bentley Hankins
included an exertional restriction to light level work restricted from a full range by
such non-exertional restrictions as (1) an inability to turn the head in either direction
back over the shoulder all the way to look behind; (2) an inability to more than
occasionally reach overhead with the upper extremities; (3) a need to avoid
exposure to respiratory irritants such as fumes, odors, dust, gases, and poor
ventilation; (4) a limitation to simple, routine repetitive tasks not performed in a fastpaced production environment involving only simple work-related decisions and few
workplace changes; (5) an inability to perform work requiring negotiation with others
or to frequently engage in interaction with supervisors, (6) no more than superficial
interaction with co-workers; and (7) an inability to interact with the general public.
(Tr. 56-57). In response, Hankins identified a significant number of jobs which could
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still be performed in the national economy. (Tr. 57-58). Therefore, assuming that
the vocational factors considered by the expert fairly characterized Reed’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 factors of the hypothetical
question, the undersigned finds no error. Dr. Kirpal Sidhu, a treating source, opined
in November of 2008 that Reed would be able to sit, stand, lift and carry small
objects, handle light objects, hear, speak and travel.1 (Tr. 289). The ALJ’s findings
were essentially consistent with this opinion. Dr. James Bean examined the plaintiff
in November of 2008 and found no permanent impairment, imposed no long-term
physical restrictions and indicated that he could return to normal duty. (Tr. 292).
Dr. Barry Burchett examined the claimant in February of 2009 and also imposed no
long-term functional restrictions. (Tr. 319-326). Dr. David Swan reviewed the
record in February of 2009 and indicated that Reed’s alleged impairments
concerning his back, neck, hands, and knees were not severe either individually or
In September of 2008, Dr. Sidhu indicated that the plaintiff could not lift more
than 15 pounds or perform overhead work. (Tr. 469). These are more severe limitations
than those found by the ALJ. However, the doctor appears to have meant these as
temporary restrictions because he went on to add if such work was not available, then
the claimant should remain off work for three weeks at which point he could apparently
return without limitations. (Id.).
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in combination. (Tr. 327). These reports provide substantial evidence to support
the administrative decision.
Dr. Abdulkader Dahhan, another treating physician, imposed extremely
severe limitations on a February, 2010 assessment form including an inability to
stand, sit, or lift. (Tr. 476). Reed argues that this report supports his claim of
disabled status and the ALJ erred in rejecting this opinion of his treating source as
binding. The ALJ noted a number of reasons why Dr. Dahhan’s opinion should be
rejected including the lack of objective findings contained in the doctor’s own
treatment records. (Tr. 18). An MRI scan of the cervical spine in September of
2008 revealed disc bulging at C3-C4, and C4-C5 with osteophyte formation but no
disc herniation or focal cervical spinal cord signal abnormality. (Tr. 354-355). An
October, 2008 x-ray of the plaintiff’s right shoulder obtained by Dr. Dahhan was
negative. (Tr. 345). The ALJ indicated that Dr. Bean’s examination revealed no
sign of motor, sensory or reflex loss. (Tr. 17, 292). The modest findings of Dr.
Burchett were also cited and he reported that Reed was comfortable both sitting and
supine and walked with a normal gait. (Tr. 18, 322). Dr. Burchett also found no
evidence of tenderness or muscle spasm upon examination of the cervical spine.
(Tr. 323). Sensation was intact and reflexes within normal limits. (Id.). The severe
restrictions of Dr. Dahhan were also offset by the opinion of Dr. Sidhu who was also
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a treating source. Therefore, under these circumstances, the ALJ had good
reasons to discount the opinion of Dr. Dahhan.
Dr. Robert Johnson examined Reed in February of 2009 and opined that he
was totally disabled. (Tr. 464). This is an opinion reserved to the Commissioner
and would be not be binding on the ALJ under the federal regulations. 20 C.F.R.
404.1527(e)(1). The doctor also opined that the plaintiff should not look back over
his shoulder, avoid jarring and vibrations, and reaching or working overhead. (Id.).
To the extent that these are more severe physical restrictions than those found by
the ALJ, Dr. Johnson was a one-time examiner whose opinion was outweighed by
that of Dr. Sidhu, a treating source, and offset by that of Dr. Bean. Therefore, Dr.
Johnson’s opinion was properly rejected by the ALJ.
With regard to Reed’s mental condition, the court notes that Reed did not
seek treatment from a mental health professional. Dr. Sidhu, who treated him for
physical problems, reported that the plaintiff ‘s mental status was unremarkable in
November of 2008. (Tr. 288). This report does not suggest more severe mental
impairments than those found by the ALJ.
Psychologist Karen Grantz examined Reed in December of 2008 and
reported a diagnostic impression of an anxiety disorder. (Tr. 299). The plaintiff’s
Global Assessment of Functioning (GAF) was rated at 55. (Id.). Such a GAF
suggests the existence of “moderate” psychological symptoms according to the
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American Psychiatric Association’s Diagnostic and Statistical Manual of Mental
Disorders (4th Ed.--Text Revision), p. 34. Grantz opined that the plaintiff would be
“markedly” limited in his ability to tolerate stress, “moderately” limited in his ability
to respond appropriately to supervision, co-workers and work pressures, and
“slightly” impaired in his ability to deal with simple, repetitive tasks and maintaining
attention and concentration. (Tr. 299-300). The ALJ gave this opinion partial
weight, rejecting the examiner’s finding that the claimant would be “markedly” limited
in dealing with stress because of the GAF indicating only “moderate” symptoms,
and the psychologist’s statement that his prognosis for improvement was “fair” even
without treatment. (Tr. 18-19, 300). Psychologist Lea Perritt, a non-examining
reviewer, indicated that the limitation concerning stress tolerance should be given
little weight because it was not supported by evidence of record. (Tr. 303). The
claimant has not argued that the omission of this restriction was erroneous.
Perritt and Psychologist Jay Athy each reviewed the record and opined that
Reed would be “moderately” limited in dealing with detailed instructions, maintaining
attention and concentration for extended time periods, interacting with the general
public and responding to changes in the work setting. (Tr. 301-302, 442-443). The
hypothetical question did not include a restriction concerning maintaining attention
and concentration. However, the examiner Grantz thought this area would only be
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slightly impaired and the plaintiff has not raised this omission as an issue.
Therefore, the court finds no error.
Reed asserts that the ALJ erred by failing to consider the combined effect of
all of his impairments. The plaintiff has not presented specific examples of how the
ALJ erred on this point. The undersigned has already noted that the hypothetical
factors fairly characterized the claimant’s condition. Thus, the ALJ would seem to
have implicitly considered the combined effect of all of the claimant’s impairments.
Therefore, the court must reject Reed’s argument.
Reed argues that his medical problems would prevent him from maintaining
employment and, so, he could not meet the duration requirements for substantial
gainful activity. The plaintiff cites the Ninth Circuit Court of Appeals case of Gatliff
v. Commissioner of Social Security, 172 F.3d 690 (9th Cir. 1999). However, in
Gatliff, the record contained considerable evidence that the claimant would not be
able to maintain employment more than a couple of months and the ALJ had even
acknowledged this fact. Gatliff, 172 F.3d at 692. In the present action, Reed has
not identified similar evidence suggesting that he would not be able to maintain
employment. Therefore, the court must reject the plaintiff’s argument.
Reed argues that the ALJ did not properly evaluate his subjective pain
complaints. Pain complaints are to be evaluated under the standards announced
in Duncan v. Secretary of Health and Human Services, 801 F.2d 847, 853 (6th Cir.
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1986): there must be evidence of an underlying medical condition and (1) there
must be objective medical evidence to confirm the severity of the alleged pain
arising from the condition or (2) the objectively determined medical condition must
be of a severity which can reasonably be expected to give rise to the alleged pain.
In the present action, Reed was found to be suffering from a potentially
painful condition. However, even if he could be found to have satisfied the first
prong of the so-called Duncan test, the claimant does not meet either of the
alternative second prongs. (Tr. 18). As previously noted, Dr. Bean found no
physical impairments and released Reed to return to work. (Tr. 292). The doctor
found no sign of sensory, motor or reflex abnormalities. (Id.). Dr. Swan, the
medical reviewer, did not believe that the evidence supported the existence of a
“severe” physical impairment. (Tr. 328). Dr. Burchett also found no evidence of
tenderness or muscle spasm upon examination of the cervical spine and also
observed that sensation and reflexes were within normal limits. (Tr. 323). An MRI
scan of the cervical spine revealed no disc herniation. (Tr. 354-355). An x-ray of
the right shoulder was negative. (Tr. 345). Thus, the medical evidence does not
appear sufficient to confirm the severity of the alleged pain and objective medical
evidence would not appear to be consistent with the plaintiff's claims of disabling
pain. Therefore, the ALJ would appear to have properly evaluated Reed’s pain
complaints.
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The undersigned concludes that the administrative decision should be
affirmed. Therefore, the court must grant the defendant’s summary judgment
motion and deny that of the plaintiff. A separate judgment and order will be entered
simultaneously consistent with this opinion.
This the 16th day of August, 2011.
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