Lord v. SSA

Filing 20

MEMORANDUM AND OPINION: The undersigned concludes that the administrative decision should be affirmed. A separate judgment and order will be entered consistent with this opinion. Signed by Judge G. Wix Unthank on 2/9/2012.(JMB)cc: COR

EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON

CIVIL ACTION NO. 10-345-GWU

LAWRENCE DARREN LORD,

VS.

PLAINTIFF,

MEMORANDUM OPINION

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,

DEFENDANT.

INTRODUCTION
Lawrence Lord brought this action to obtain judicial review of an
administrative denial 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
in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the Listing of
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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.
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 work-

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ups. 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
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
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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).

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);
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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 Lord, a 40-year-old
former welder, salvage worker, railroad car builder, maintenance worker, and
appliance installer with a high school education, suffered from impairments related
to degenerative changes of the lumbar spine and bilateral carpal tunnel syndrome.
(Tr. 13, 17). While the plaintiff was found to be unable to return to his past relevant
work, the ALJ determined that he retained the residual functional capacity to
perform a restricted range of light level work. (Tr. 14-16). 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. 17-18). The ALJ based this
decision, in large part, upon the testimony of a vocational expert. (Tr. 17).
After review of the evidence presented, the undersigned concludes that the
administrative decision is supported by substantial evidence. Therefore, the court
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must grant the defendant’s summary judgment motion and deny that of the plaintiff.
The hypothetical question initially presented to Vocational Expert William Ellis
included an exertional limitation to light level work, restricted from a full range by
such non-exertional restrictions as: (1) an inability to ever climb ladders, ropes or
scaffolds; (2) an inability to more than occasionally climb stairs and ramps, stoop,
kneel, crouch, or crawl; (3) an inability to more than frequently balance with a need
to exercise caution on uneven terrain; (4) a need to avoid exposure to work place
hazards such as exposure to unprotected heights and dangerous moving
machinery; and (5) a need to avoid exposure to vibrations.

(Tr. 52-53).

In

response, Ellis identified a significant number of jobs which could still be performed
including office helper (87,000 national jobs), rental clerk (181,000 national jobs),
and ticket taker (118,000 national jobs). (Tr. 53). The ALJ then added such
limitations as an inability to lift more than 15 pounds from the floor to waist level, an
inability to sit for more than 90 minutes without interruption, stand for more than 60
minutes without interruption, and an inability to more than occasionally perform
overhead work.1 (Id.). The witness testified that the sit/stand option would reduce
the available jobs numbers by 50 percent. (Tr. 54). Therefore, assuming that the
vocational factors considered by Ellis fairly depicted Lord’s condition, then a finding
of disabled status, within the meaning of the Social Security Act, is precluded.

1

These restrictions came from the opinion of Dr. Robert Hoskins. (Tr. 776-777).
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With regard to the framing of the physical factors of the hypothetical
question, the undersigned finds no error. Dr. William Lester, a treating source,
indicated in January of 2008 that Lord could return to light duty work with such
restrictions as a need to avoid lifting more than 30 pounds, pushing and pulling
more than 60 pounds and performing repetitive bending. (Tr. 725). The ALJ’s
findings were essentially consistent with this opinion. While the repetitive bending
restriction was not specifically included by the ALJ, the limitations concerning no
more than occasional stooping, kneeling, crouching and crawling would
accommodate this limitation since these are all progressive forms of bending. See
Social Security Ruling 85-15. Therefore, Dr. Lester’s opinion provides strong
support for the administrative denial decision.
Dr. Paul Boulos of Neurosurgery and Spine Consultants of East Tennessee,
also treated Lord and opined in May of 2008 that the plaintiff had reached maximum
medical improvement and would be restricted from lifting more than 30 pounds and
pushing or pulling more than 60 pounds. (Tr. 243). The ALJ’s findings were
compatible with this opinion.
Dr. Robert Brown reviewed the record in May of 2009 and opined that Lord
would be limited to light level work restricted from a full range by an inabilty to ever
climb ladders, ropes or scaffolds, an inability to more than occasionally stoop, kneel,
crouch, crawl and climb ramps or stairs, an inability to more than frequently balance,

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and a need to avoid all exposure to vibration and hazards. (Tr. 679-686). The
ALJ’s findings were essentially consistent with this opinion.
More severe physical restrictions than those found by the ALJ were not
identified by such treating and examining sources as the staff at Appalachian
Regional Healthcare (Tr. 197-221), Dr. Pramod Reddy (Tr. 251-258), the staff at the
Pineville Community Hospital (Tr. 687-689), Dr. Rahul Dixit (Tr. 696-703, 708-710),
Dr. William Brooks (Tr. 704-707), the staff at Tri-State Medical Clinic (Tr. 711-719),
the staff at the Baptist Regional Medical Center (Tr. 740-758), Dr. Aqeel
Mandviwala (Tr. 824-828), Dr. Alam Khan (Tr. 834-841) and the staff at St. Joseph
London (Tr. 840-843).

These reports provide additional support for the

administrative denial decision.
Lord argues that the ALJ erred in rejecting the opinion of Dr. Richard Carter,
his treating physician at the Barbourville Family Health Center. Dr. Carter made a
number of statements indicating that the plaintiff was disabled. (Tr. 767, 786, 789).
These opinions would go to the ultimate issue of disability and, so, would not be
binding on the ALJ under the federal regulations. 20 C.F.R. § 404.1527(e)(1).
Dr. Carter also submitted a statement in December of 2009, noting
diagnoses of chronic back pain/strain, mild to moderate depression, lumbar
radiculopathy and paresthesia. (Tr. 821). The doctor indicated that Lord’s pain and
other symptoms would frequently interfere with his attention and concentration for
even simple work tasks, he would be incapable of even “low stress” jobs and he
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would miss more than 4 days a month of work due to these problems. The ALJ felt
that these restrictions related to the physician’s diagnosis of depression. (Tr. 14).
The ALJ further indicated that the treatment history of Dr. Carter concerning the
plaintiff did not support the existence of such severe limitations since the doctor had
at most noted only the existence of “mild” depression and there was no history of
psychiatric hospitalizations or the use of psychotropic medications. (Id.). The
plaintiff concedes that these are good reasons for rejecting the mental restrictions
but asserts that the ALJ erred by failing to address the physical restrictions as
required in Wilson v. Commissioner of Social Security, 378 F.3d 541 (6thCir. 2004).
Docket Entry No. 15, p. 7. The defendant asserts that Dr. Carter’s restrictions relate
to his mental condition and did not offer an opinion concerning physical limitations.
The court agrees with the defendant that the restrictions noted by Dr. Carter appear
to relate primarily to his mental status. To the extent that they might not, the ALJ
did cite the opinions of Dr. Lester, Dr. Dixit, Dr. Brooks and Dr. Robert Hoskins,
none of whom identified such physical restrictions. (Tr. 15-16). Dr. Boulos also did
not mention these restrictions. These opinions offset that of Dr. Carter. Therefore,
the court finds no error with the ALJ’s handling of Dr. Carter’s opinion.
Lord also argues that the ALJ erred by relying upon the opinion of David
Jansen. Jansen completed the initial assessment when the plaintiff filed his
disability claim. (Tr. 671-678). Jansen is not an “acceptable medical source” under
the federal regulations at 20 C.F.R. 404.1513.
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The claimant notes that the

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Programs Operations Manual System (POMS) indicates that the opinion of such
a source is entitled to no weight. POMS at DI24510.05. While the ALJ did cite this
opinion in support of the denial decision (Tr. 15), the opinion of Dr. Brown, medical
reviewer at the reconsideration level, as well as the opinions of Dr. Lester, Dr.
Hoskins, Dr. Dixit and Dr. Brooks were also cited. (Tr. 15-16). Dr. Brown, Dr.
Lester, Dr. Hoskins, Dr. Dixit and Dr. Brooks are all “acceptable medical sources”
under the federal regulations. 20 C.F.R. § 404.1513. Dr. Boulos also provides
support for the administrative decision. Therefore, the court finds any error in citing
Jansen to be harmless.
Lord asserts that the ALJ indicated that he was going to adopt all of the
physical restrictions reported by Dr. Hoskins but erred by omitting significant
limitations noted by the physician concerning repetitive stooping, the need to stand
and walk for 10 to 15 minutes after 90 minutes of continuous sitting and the need
to sit for 10 to 15 minutes after standing or walking for 60 continuous minutes. (Tr.
776-777). However, the undersigned does not agree with the plaintiff that the ALJ
intended to adopt all the restrictions noted by Dr. Hoskins. The ALJ noted that he
was adopting limitations indicated by Dr. Hoskins such as the 30 pound lifting
restriction with a 15 pound lifting limitation below the waist, the inability to perform
repetitive or prolonged overhead work, no more than 90 minutes of continuous
sitting, no more than 60 minutes of continuous standing or walking, an inability to
perform repetitive stooping or crouching, a need to avoid heavy pushing, pulling or
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carrying, an inability to perform work exposing him to vibrations, and a need to avoid
sustained posturing. (Tr. 16). However, the ALJ only indicated he was adopting
these restrictions. (Tr. 15-16). He did not cite the restrictions concerning the need
to stand and walk for 10 to 15 minutes after 90 minutes of continuous sitting and the
need to sit for 10 to 15 minutes after standing or walking for 60 continuous minutes.
The defendant has asserted that the ALJ’s limitation concerning occasional
stooping covers Dr. Hoskins’s limitation concerning no repetitive stooping. The
plaintiff cites Hensley v. Commissioner of Social Security, 573 F.3d, 263, 265 (6th
Cir. 2009) for the proposition that the term “occasional” in the context of a Social
Security disability case is a term of art and indicates that one may only perform the
action up to one-third of the working day.

In Hensley, the treating source had

stated that the claimant could not perform repetitive pushing and pulling with the
hands while an examining consultant had noted that the plaintiff was not limited in
this area. Hensley, 573 F.3d at 265. The ALJ found that the plaintiff could perform
“repetitive pushing and pulling with the hands occasionally,” essentially splitting the
difference between the two opinions, without indicating why the opinion of the
treating source had been rejected and this was the ALJ’s error. Hensley, 573 F.3d
at 265. In the present action, the limitation to no more than occasional stooping
would, by limiting the action to one-third of the day, preclude “repetitive” stooping.
Furthermore, Dr. Hoskins was an examining physician rather than a treating
source. His opinion is outweighed by that of Dr. Lester, a treating physician, who
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identified far fewer physical limitations since the administrative regulations provide
that treating sources are entitled to more weight. 20 C.F.R. § 404.1527(d)(2). As
previously noted, Dr. Lester was also cited in support of the administrative denial
decision. Therefore, the court finds no error.
Finally, Lord argues that the ALJ erred by failing to properly analyze the
evidence concerning whether his physical problems met the requirements of
Section 1.04 of the Listing of Impairments concerning disorders of the spine. The
ALJ found that this Listing was not met because the record did not indicate that the
claimant’s back pain was caused by nerve root compression, arachnoiditis, or
lumbar stenosis. (Tr. 14). The plaintiff notes that the record reveals the existence
of nerve root compression with such a finding made on an August, 2007 MRI scan.
(Tr. 694). However, to meet the requirements of Section 1.04A, one must also
show “neuro-anatomic distribution of pain, limitation of motion of the spine, motor
loss (atrophy with associated muscle weakness or muscle weakness) accompanied
by sensory or reflex loss and, if there is involvement of the lower back, positive
straight leg raising test (sitting and supine).” 20 C.F.R. Chapter III, Part 404,
Subpart P, Appendix 1, Section 1.04A.2 However, the ALJ did note that Dr. Michael
Webb of Neurosurgical Associates found no L5-radiculopathy and indicated that
sensation was intact throughout the lower extremities. (Tr. 15, 694).

Dr. Dixit

The plaintiff does not assert that he would meet either 1.04B concerning spinal
arachnoiditis or Section 1.04C concerning lumbar spinal stenosis.
2

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found a normal neurological examination and reported a negative straight leg raising
test. (Tr. 15, 698). Dr. Brooks also noted a negative straight leg raising and
indicated that the plaintiff’s strength was excellent and he had no reflex asymmetry
or sensory loss. (Tr. 16, 706). Therefore, the ALJ did consider the factors required
to meet Section 1.04A and properly found that this Listing section was not met.
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 9th day of February, 2012.

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