Mayton v. SSA

Filing 12

MEMORANDUM OPINION: The undersigned concludes that the administrative decision should be affirmed. A separate judgment and order will be entered simultaneously consistent with this decision. Signed by Judge G. Wix Unthank on 11/23/11.(SYD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON

CIVIL ACTION NO. 11-45-GWU

MITTIE LOIS MAYTON,

VS.

PLAINTIFF,

MEMORANDUM OPINION

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,

DEFENDANT.

INTRODUCTION
Mittie Mayton brought this action to obtain judicial review of an administrative
decision on her 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 Mayton, a 59-year-old
former histotechnologist with a high school education, suffered from impairments
related to an anxiety disorder. (Tr. 46, 50). While the plaintiff was found to be
unable to return to her past relevant work, the ALJ determined that she retained the
residual functional capacity to perform a restricted range of work at all exertional
levels. (Tr. 48, 50). Since the available work was found to constitute a significant
number of jobs in the national economy, the claimant could not be considered totally
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disabled. (Tr. 50-51). The ALJ based this decision, in large part, upon the
testimony of a vocational expert. (Tr. 50).
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 James Miller
included no exertional limitations but did include such non-exertional restrictions as
a (1) a limitation to jobs requiring only simple instructions in work settings requiring
no more than occasional changes of routines or work settings; (2) no more than
occasional and casual contact with other persons including coworkers and
supervisors; (3) no contact with the general public; and (4) an inability to perform
jobs requiring production rate or quota jobs. (Tr. 37-38). In response, Miller opined
that such a person could perform the job of hand packer (100,000 national jobs),
production worker (100,000 national jobs), food preparation worker (100,000
national jobs) and stock clerk (90,000 national jobs). (Tr. 38-39). Therefore,
assuming that the vocational factors considered by the expert fairly characterized
Mayton’s condition, then a finding of disabled status, within the meaning of the
Social Security Act, is precluded.
The ALJ properly determined that Mayton did not suffer from any physical
restrictions. In February of 2007, Dr. Laura Grima, a treating source, noted a history

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of chronic fatigue syndrome, Epstein-Barr Virus, allergic rhinitis, anxiety and
hypertension. (Tr. 216). However, Dr. Grima did not identify specific functional
limitations. (Tr. 205-248). Dr. Henry Broniak of Henry Ford Wyandotte Hospital
noted that the plaintiff suffered from many chemical allergies in March of 2007 but
also did not identify specific functional limitations. (Tr. 385). The mere diagnosis
of a condition does not prove its severity and its disabling effects must still be
shown. Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988). Thus, these reports do
not support the plaintiff’s claim of total disability.
Mayton moved to Kentucky from Michigan and began a treating relationship
with Dr. Lovie Stallworth of Appalachian Regional Healthcare. (Tr. 20, 36). Dr.
Stallworth opined in January of 2008 that Mayton did not suffer from physical
restrictions. (Tr. 283). This report does not support the plaintiff’s claim of total
disability.
In May of 2007, the staff at Associates of Neurology of Lexington, Kentucky
evaluated Mayton for her sensitivity to smell problem.

(Tr. 391).

The staff

concluded that this was not a neurological problem and recommended a psychiatric
consultation. (Tr. 393). Physical restrictions were not imposed. (Tr. 391-394).
Dr. Thomas Coury examined Mayton in April of 2008 and noted an
impression of fatigue, muscle weakness, anxiety and sensitivity to smells. (Tr. 325).
Dr. Coury specifically noted that the plaintiff would have no restriction with regard

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to stooping, bending, reaching, sitting, standing, moving about, lifting, carrying,
handling objects, or traveling. (Id.). The physician also indicated that the claimant’s
sensitivity to smells would not limit her from usual customary occupational activities.
(Id.). This report does not support her claim of total disability.
Dr. Timothy Gregg reviewed the record in July of 2008 and opined that
Mayton’s impairments were not “severe.” (Tr. 366). Therefore, substantial evidence
supports the ALJ’s findings with regard to the plaintiff’s physical condition.
The ALJ also dealt properly with the evidence of record relating to Mayton’s
mental condition. Dr. Grima had noted a “moderate” level of anxiety in April of 2007
but did not identify specific mental limitations. (Tr. 222).
Dr. Joseph Csotty evaluated Mayton’s mental status in April of 2007. (Tr.
395-401). The plaintiff reported complaints concerning sensitivity to smells and
fatigue. (Tr. 398-399). Dr. Csotty diagnosed a generalized anxiety disorder. (Tr.
401). More severe mental limitations than those found by the ALJ were not
imposed. (Tr. 395-401).
In May of 2007, Mayton was seen at Ridge Behavioral Systems with
complaints of anxiety and weakness. (Tr. 256). A neurological work-up was
recommended. (Tr. 260). Specific mental limitations were not identified. (Tr. 249266).

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Mayton sought treatment for her mental complaints at the Cumberland River
Comprehensive Care Center. The plaintiff was initially found to suffer from a panic
disorder and later a generalized anxiety disorder. (Tr. 268, 331, 371, 438). The
Cumberland River staff indicated that the claimant’s interpersonal functioning would
be “slightly low.”

(Tr. 445).

The ALJ’s findings were consistent with this

assessment.
Psychologists Larry Freudenberger (Tr. 312-314) and Jane Brake (Tr. 362364) each reviewed the record and opined that Mayton would be “moderately”
limited in responding appropriately to changes in the work setting. (Tr. 363). The
ALJ indicated that he gave these opinions “great weight.” (Tr. 49). The hypothetical
question was essentially consistent with these opinions.
Psychologist Jeanne Bennett examined Mayton in March of 2008 and
diagnosed an anxiety disorder. (Tr. 295). Bennett opined that the plaintiff would be
“moderately” limited in tolerating the stress and pressures of day-to-day
employment. (Tr. 296). The claimant’s functioning would not be impaired in such
areas as understanding, remembering and carrying out simple, repetitive tasks,
sustaining attention and concentration for simple repetitive tasks, and responding
appropriately to supervision, co-workers and pressures in a work setting. (Id.). The
ALJ also indicated that he gave this opinion great weight. (Tr. 49).

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Mayton argues that the ALJ erred by failing to present Bennett’s “moderate”
restriction concerning tolerance of stress and work pressures to the vocational
expert despite alleging to give the opinion “great weight.” The defendant asserts
that the hypothetical question included a number of limitations such as the
restriction to simple instructions and the prohibition on quota rate and production
work which would essentially limit the available work to low stress employment
compatible with the doctor’s opinion.

The hypothetical question was also

compatible with the opinions of a treating source at Cumberland River and the
reviewers. The court finds that even if the ALJ erred, any error would be harmless.
Social Security Ruling (SSR) 85-15 states that when a claimant’s only impairment
is mental but not of Listing severity, then a finding of disabled status is only
appropriate if the there is a “substantial” loss of ability in one’s capacity to
understand, remember and carry out simple instructions, respond appropriately to
changes in the work setting, to respond appropriately to supervision, coworkers and
usual work situations or to deal with changes in a routine work environment. The
claimant’s mental condition has not been shown to be this severe. Therefore, the
court must reject the plaintiff’s argument.
Mayton also notes that the ALJ found that she suffered from “moderate”
difficulties in maintaining concentration, persistence and pace. (Tr. 48). This
restriction was not presented to the vocational expert which the plaintiff asserts was

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reversible error. However, the ALJ made this particular finding as part of the
Psychiatric Review Technique (PRT) assessment concerning whether the claimant’s
mental condition met the requirements of one of the Listings of Impairments. (Tr.
47-48). As noted by the defendant, this was not part of his residual functional
capacity assessment under the administrative regulations. SSR 96-8p. The Sixth
Circuit Court of Appeals in Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001) found
that ALJs were not required to include such PRT findings in their residual functional
capacity assessment. Therefore, the court must reject the plaintiff’s argument.
Mayton argues that the ALJ erred in rejecting her credibility without a
sufficient explanation. The ALJ indicated that the plaintiff’s continued cigarette
smoking habit was inconsistent with her claims of odor sensitivity since it exposed
her to chemicals, such as formaldehyde, she indicated were problems for her. (Tr.
49). The court believes that this is actually a strong ground to question her
credibility. Furthermore, this was not the only reason the claimant was found not
to be credible. The ALJ also noted that neither Dr. Stallworth, a treating source, nor
Dr. Coury, the examining consultant, thought that her alleged sensitivity to odors
would impose work-related limitations. (Tr. 46). The ALJ found that the claimant’s
physical problems were not a “severe” impairment and the undersigned found that
this finding was supported by substantial evidence. Pain or complaints of other
symptoms are to be evaluated under the standards announced in Duncan v.

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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 symptoms 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 symptoms.
In the present action, Mayton has not met this standard to demonstrate an
underlying physical problem.

Therefore, the court must reject the claimant’s

argument.
Finally, Mayton asserts that the job numbers cited by the vocational expert
were not a significant number of other jobs in the economy as required by 20 C.F.R.
§ 404.1560(c)(1). The Sixth Circuit Court of Appeals has noted that it is impossible
to “set forth one special number which is to be the boundary between a ‘significant
number’ and an insignificant number of jobs.” Hall v. Bowen, 837 F.2d 272 (6th Cir.
1988). It has instructed that a judge:
should consider many criteria in determining whether work exists in
significant numbers, some of which might include: the level of
claimant’s disability; the reliability of the vocational expert’s testimony;
the reliability of the claimant’s testimony; the distance claimant is
capable of traveling to engage in the assigned work; the isolated
nature of the jobs; the types and availability of such work, and so on.
The decision should ultimately be left to the trial judge’s common
sense in weighing the statutory language as applied to a particular
claimant’s factual situation.
Id.

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In the present action, the plaintiff asserts that the 300,000 national jobs and 3,500
statewide positions cited by Miller were not a sufficient number of jobs. The actual
number of jobs cited by the expert was 390,000 national and 5,100 statewide
positions, a considerably larger number of positions.1 (Tr. 38-39). These job
numbers are far less borderline than those alleged by the plaintiff. The ALJ appears
to have implicitly considered many of the Hall factors in his denial decision. The
ALJ relied upon Miller’s testimony and, so, he clearly found the vocational expert to
be reliable. (Tr. 50-51). The ALJ did not find the claimant to be fully credible and
the court found this decision to be supported by substantial evidence. (Tr. 49).
With regard to the level of her disability, Mayton was found to suffer only from rather
modest mental restrictions. (Tr. 48). As found by the ALJ, neither Dr. Stallworth nor
Dr. Coury imposed physical restrictions which would prevent the plaintiff from
traveling to work. (Tr. 46). Dr. Coury specifically stated that there was no traveling
limitation. (Tr. 325). Thus, the distance Mayton is capable of traveling to reach
work is not in issue. The cited jobs appear to be offered by Miller as specific
examples of positions that could be performed rather than as an exhaustive list of
all the jobs that could be performed.

(Tr. 38-39).

Therefore, under these

The plaintiff overlooked the job of stock clerk/order filler with 90,000 national and
1,600 statewide positions. (Tr. 37-38). However, Miller clearly cited it in response to the
first hypothetical question and did not reduce the numbers for this position when
additional mental restrictions were presented for consideration. (Tr. 38-39). This
mistake was also made by the ALJ in his denial decision. (Tr. 50-51).
1

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circumstances, the job numbers appear to the undersigned to be significant and the
claimant’s argument must be rejected.
The undersigned concludes that the administrative decision should be
affirmed. A separate judgment and order will be entered simultaneously consistent
with this decision.
This the 23rd day of November, 2011.

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