Phillips v. SSA
Filing
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MEMORANDUM OPINION: 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 9/15/11.(SYD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
CIVIL ACTION NO. 10-330-GWU
RONALD WAYNE PHILLIPS,
VS.
PLAINTIFF,
MEMORANDUM OPINION
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
INTRODUCTION
Ronald Phillips brought this action to obtain judicial review of the unfavorable
portion of a partially favorable administrative decision on his application for Disability
Insurance Benefits (DIB). 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 Phillips suffered from
impairments related to chronic obstructive pulmonary disease, a hernia, and
depression. (Tr. 18). However, none of these problems, alone or in combination,
significantly restricted the plaintiff’s ability to perform work-related activities during
the relevant time period, running from his alleged onset date of June 15, 2007
through December 31, 2007, the date he was last insured for the purposes of DIB
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on December 31, 2007. (Tr. 16, 18). Therefore, the claimant could not be
considered totally disabled. (Tr. 21).
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 ALJ properly determined that Phillips did not suffer from a severe
physical impairment during the relevant time period.
The medical evidence
pertaining to the relevant time frame is very sparse. Dr. Carlos Hernandez reviewed
the record and opined that it did not reveal the existence of a “severe” physical
impairment during the relevant time period. (Tr. 272). The ALJ gave this opinion
“great weight.” (Tr. 20). The administrative regulations recognize that state agency
medical reviewers are highly qualified experts in Social Security disability
determination.
20 C.F.R. § 404.1527(f)(2)(I).
These opinions can provide
substantial evidence to support an administrative denial decision. Social Security
Ruling(SSR) 96-6p.
No treating or examining physician of record identified the existence of
specific physical limitations which would support the existence of a “severe” physical
impairment. Neither Dr. Hoover Perry (Tr. 222-229, 250-257) nor Dr. Nancy West
(Tr. 203-216), each of whom treated Phillips on occasion during the relevant time
frame, made such findings. Since no treating or examining physician provided a
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contrary opinion, the ALJ had good reason to rely upon the opinion of the nonexamining medical reviewer.
Phillips submitted a number of medical records from before the relevant time
period, going back to July of 1983 including reports from Columbia Lake
Cumberland Hospital (Tr. 150-162, 176-202) and Dr. Dennis Lane (Tr. 163-175).
However, these reports also do not identify the existence of specific physical
restrictions during the relevant time frame. Dr. Daniel Yanicko (Tr. 217-221) saw
the plaintiff after the relevant time period, along with Dr. Perry (245-249), but did not
identify specific restrictions which would “relate back” to the pertinent time frame.
Therefore, these reports also do not support the plaintiff’s disability claim.
Dr. West opined in March of 2009 that Phillips was totally disabled. (Tr.
280). The ALJ rejected the disability opinion of the doctor because he did not
believe it was well-supported by objective medical data. (Tr. 20). The ALJ noted
that while Dr. West indicated that leg problems related to a past fracture caused
him major problems, the plaintiff had in fact worked for many years since
fracturing the leg. (Id.). This opinion was also issued almost 15 months after the
expiration of the claimant’s DIB-insured status, and, so, does not necessarily
“relate back” to the relevant time frame. Finally, the court notes that Dr. West’s
disability opinion was an issue reserved to the Commissioner under the federal
regulations and not binding on the ALJ. 20 C.F.R. § 404.1527(e)(1). Therefore,
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under these circumstances, Dr. West does not provide support to the plaintiff’s
disability claim.
The ALJ also dealt properly with the evidence relating to Phillips’s mental
status. Psychologists Christi Bruening (Tr. 231) and Jan Jacobson (Tr. 258) each
reviewed the record and opined that the plaintiff did not suffer from a “severe”
mental impairment. Bruening noted that the record revealed that the claimant was
not taking any medications for mental problems and had received no treatment for
mental health issues. (Tr. 243). The treatment records from Dr. West (Tr. 203216) and Dr. Perry (Tr. 222-229), who saw Phillips for his physical complaints, did
not indicate the existence of severe mental problems. Dr. West did not even
mention mental health problems in her March, 2009 disability opinion. (Tr. 280).
Therefore, the ALJ properly determined that the plaintiff’s mental problems were
not a “severe” impairment.
Phillips asserts that the ALJ erred by failing to consider the combined
effects of all of the impairments from which he suffers. The ALJ specifically
indicated that he had considered all of the impairments in combination. (Tr. 20).
He identified pulmonary difficulties, depression, a hernia and leg problems as
complaints of the plaintiff and noted reasons why these impairments were not
considered to be “severe.” (Tr. 20-21). An ALJ’s individual discussion of multiple
impairments does not imply that he failed to consider the effect of the impairments
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in combination in determining that the claimant does not meet the Listings. Loy
v. Secretary of Health and Human Services, 901 F.2d 1306, 1310 (6th Cir. 1990).
Therefore, the court must reject the claimant’s argument.
Phillips 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. 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, Phillips was properly found not to be suffering from
a “severe” physical or mental impairment. Therefore, he cannot meet even the
first prong of the so-called Duncan test. The ALJ noted despite the plaintiff’s
complaints of leg problems, leg swelling problems were only noted on the medical
record on one occasion after the expiration of his DIB-insured status. (Tr. 20,
229). While Phillips had a history of tibia and fibula fracture, these had occurred
in 1983, well before the relevant time period. (Tr. 20). Dr. Yanicko did not impose
physical restrictions relating to this problem even in November of 2008. (Tr. 217221). Despite complaints of pulmonary problems, treatment records of the
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claimant reported only mild sinus and coughing problems. (Tr. 215-216, 224).
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 the pain complaints of Phillips.
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 15th day of September, 2011.
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