Hall v. SSA
Filing
13
MEMORANDUM OPINION: The administrative decision must be reversed and the action remanded to the Commissioner for further consideration. A separate judgment and order will be entered simultaneously consistent with this opinion. Signed by Judge G. Wix Unthank on 10/12/11.(SYD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
CIVIL ACTION NO. 10-323-GWU
BOBBY RAY HALL, JR.,
VS.
PLAINTIFF,
MEMORANDUM OPINION
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
INTRODUCTION
Bobby Ray Hall brought this action to obtain judicial review of the unfavorable
portion of a partially favorable administrative decision on his applications for
Disability Insurance Benefits and 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.
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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 Administrative Law Judge (ALJ) concluded that Hall, a former surface
coal mine loader/operator and night watchman, suffered from impairments related
to depression, a learning disorder, and a mild herniated nucleus pulposus at L5-S1
with an old healed fracture at T12. (Tr. 13, 18). Despite the plaintiff’s impairments,
the ALJ determined that he retained the residual functional capacity to perform light
level work, restricted from a full range by an inability to sit for long time periods, a
loss of fine dexterity, a need to avoid work at heights or around industrial hazards,
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a limitation to simple, 1-2-3 step instructions, an inability to tolerate frequent
changes in work routines, and a limitation to situations involving scant contact with
supervisors, co-workers and the general public. (Tr. 16-17). Since the claimant was
found able to return to his past relevant work, he could not be considered totally
disabled. (Tr. 18).
After review of the evidence presented, the undersigned concludes that the
administrative decision is not supported by substantial evidence. However, the
current record also does not mandate an immediate award of Social Security
benefits. Therefore, the court must grant the plaintiff’s summary judgment motion,
in so far as it seeks a remand of the action for further consideration, and deny that
of the defendant.
Hall argues that the ALJ erred in substituting his own opinion for that of the
treating and examining medical professionals.
Dr. P.D. Patel performed a
neuropsychiatric examination in June of 2008 and diagnosed depression secondary
to a chronic medical condition, a developmental learning disorder, chronic low back
pain, a history of a compression fracture, hypertension, cardiovascular heart
disease, gastroesophageal reflux disease, and hypercholesterolemia. (Tr. 411).
With regard to the mental condition, Dr. Patel rated the claimant’s Global
Assessment of Functioning (GAF) at 40. (Id.). Such a GAF suggests major
impairment in several areas of functioning according to the American Psychiatric
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Association’s Diagnostic and Statistical Manual of Mental Disorders (4th Ed.--Text
Revision), p. 34. The examiner opined that Hall would have a “poor” ability to carry
out detailed instructions, maintain attention and concentration for extended time
periods, perform activities within a schedule, maintain regular attendance and be
punctual, sustain an ordinary routine without special supervision, complete a normal
workday or workweek, perform at a consistent pace, accept instructions and
respond appropriately to criticism from supervisors, adhere to basic standards of
neatness and cleanness, travel in unfamiliar places or use public transportation, and
set realistic goals or make plans independently of others. (Tr. 402-403). The
plaintiff would have a “fair” ability in such areas as understanding and remembering
detailed instructions, working with or near others without being distracted by them,
making simple work decisions, interacting appropriately with the public, maintaining
socially appropriate behavior, and responding appropriately to changes in the work
setting. (Id.). These are far more severe mental limitations than those found by the
ALJ who acknowledged that these restrictions would be disabling. (Tr. 14).
The ALJ rejected the opinion because he did not believe it was wellsupported by the examination results or the overall record. (Tr. 17). However, Dr.
Patel’s findings were not contradicted by that of another treating or examining
mental health professional. The claimant sought treatment for his mental problems
at Kentucky River Comprehensive Care but the staff did not address the issue of
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specific mental limitations. (Tr. 260-279, 400-401). The record does not even
contain the opinion of a medical reviewer who was a mental health professional.
(Tr. 1-3A). Rather than act as fact-finder, the ALJ impermissibly substituted his own
lay opinion for that of the medical professional. Balsamo v. Chater, 142 F.3d 75,
81 (2nd Cir. 1998) citing McBrayer v. Secretary of Health and Human Services, 712
F.2d 795, 799 (2nd Cir. 1983). The ALJ was not required to accept the opinion of
Dr. Patel if he had doubts about its validity but should have at least sought the
advice of a medical advisor.
As previously noted, the ALJ thought that Dr. Patel’s mental restrictions
would be disabling. (Tr. 17). They would at least have precluded Hall’s past
relevant work. Therefore, since the claimant could not return to his past relevant
work, the action must be remanded for further consideration of the evidence relating
to the plaintiff’s mental condition.
The ALJ also did not properly evaluate the evidence of record relating to
Hall’s physical condition. Dr. Roy Varghese, the plaintiff’s treating physician,
indicated in February of 2008 that he would be limited to light level work, restricted
from a full range by an inability to sit for more than two hours a day, an inability to
stand or walk for more than two hours a day, an inability to more than occasionally
twist, stoop, crouch, or climb stairs, and an inability to ever climb ladders. (Tr. 284286). The severe restrictions concerning sitting and standing would preclude full-
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time work. Dr. Patel also identified very severe physical restrictions including an
inability to stand or walk for more than two hours a day and sit for more than a total
of three hours a day which would also preclude full-time work. (Tr. 405-407). The
ALJ rejected these opinions as binding because he did not believe that they were
well-supported by objective medical data. (Tr. 17). However, an MRI scan of the
lumbar spine from November, 2007 suggested the existence of a herniated nucleus
pulposus at L5-S1. (Tr. 289). Thus, at least some objective evidence supports the
plaintiff’s claim.
In assessing Hall’s physical condition, the ALJ relied heavily upon the
opinions of Dr. Carlos Hernandez (Tr. 134) and Dr Parandhamulu Saranga (Tr.
151), the non-examining medical reviewers. An ALJ may rely upon the opinion or
a non-examiner over that of an examining source when the non-examiner clearly
states the reasons for his differing opinion. Barker v. Shalala, 40 F.3d 789, 794 (6th
Cir. 1994). In the present action, the reviewers saw the record in August of 2007
(Tr. 135) and October of 2007 (Tr. 151). They had no opportunity to see and
comment upon the opinions of Dr. Varghese, issued in February of 2008 or Dr.
Patel, issued in June of 2008 or the other evidence such as the November, 2007
MRI scan which came into the record later. Again, the ALJ should at least have
sought the advice of a medical advisor who had seen a complete record.
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Therefore, a remand of the action is necessary for further consideration of the
claimant’s physical condition.
Hall also argues that the ALJ erred by failing to cite specific reasons for
finding that he was not fully credible. However, the ALJ noted a general lack of
objective findings in the treating notes of the plaintiff’s various physicians and his
demeanor and appearance at the hearing. (Tr. 16-17). Therefore, the ALJ did cite
specific reasons for this finding and, so, the court must reject this argument of the
claimant.
The defendant asserts that Hall’s memorandum in support of his motion for
summary judgment does not comply with the requirements of Standing Scheduling
Order 09-13 entered as Docket Entry No. 9 regarding page citations. However, this
citation requirement is not jurisdictional but is prudential in order to help the court
understand and follow the arguments of the parties. The order only states that
failure to comply may be a ground to deny the summary judgment motion. In the
present action, while the claimant might have done a better job of citing to the
record in support of his claims, the court was easily able to follow the argument and
find the sections of the administrative record which supported it. Therefore, the
court must reject the defendant’s argument.
After review of the evidence presented, the undersigned concludes that the
administrative decision must be reversed and the action remanded to the
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Commissioner for further consideration. A separate judgment and order will be
entered simultaneously consistent with this opinion.
This the 12th day of October, 2011.
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