Hiatt v. SSA
Filing
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MEMORANDUM OPINION & ORDER: Administrativve decision will be AFFIRMED by separate Judgment entered this same date. Signed by Judge G. Wix Unthank on 12/30/2011.(RBB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
CIVIL ACTION NO. 11-89-GWU
MARY HIATT,
VS.
PLAINTIFF,
MEMORANDUM OPINION
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
INTRODUCTION
Mary Hiatt brought this action to obtain judicial review of an administrative
denial decision on her 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 Hiatt, a former cashier
and fast food restaurant manager and assistant manager, suffered from
impairments related to obesity, chronic headaches of undetermined origin in the
right temporal and right parietal region, non-critical coronary artery disease, and
right facial hyperalgesia. (Tr. 20, 27). Despite the plaintiff’s impairments, the ALJ
determined that she retained the residual functional capacity to perform a restricted
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range of light level work. (Tr. 23-24). Since the claimant would be able to return to
her past relevant work, she could not be considered totally disabled. (Tr. 27).
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.
In determining that Hiatt could still perform her past work, the ALJ relied
heavily upon the testimony of Vocational Expert Joyce Forrest. Forrest testified that
the plaintiff’s past work as a cashier was classed as light in exertion and unskilled
while the fast food managerial work had been light and skilled. (Tr. 72). The
hypothetical question presented by the ALJ included an exertional limitation to light
level work, restricted from a full range by such non-exertional restrictions as: (1) an
inability to more than occasionally stoop, kneel, crouch, and climb ramps or stairs;
(2) an inability to ever crawl and climb ladders, ropes or scaffolds; (3) a need to
avoid concentrated exposure to extreme cold; and (4) a need to avoid moderate
exposure to extreme heat, humidity, full-body vibration, fumes, odors, dust, gases
and hazards such as unprotected heights or dangerous machinery. (Tr. 72-73). In
response, the witness reported that the claimant’s past relevant cashiering and
managerial work could still be performed. (Tr. 73). Therefore, assuming that the
vocational factors considered by Forrest fairly characterized Hiatt’s condition, then
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a finding of disabled status, within the meaning of the Social Security Act, is
precluded.
The hypothetical question fairly depicted Hiatt’s physical condition as
required by Varley. Dr. Sudhideb Mukherjee (Tr. 331-338) and Dr. Allan Dawson
(Tr. 392-399) each reviewed the record and opined that the plaintiff would be limited
to light level work, restricted from a full range by inability to more than occasionally
climb ladders, ropes or scaffolds, a need to avoid moderate exposure to extreme
heat, humidity, vibration, environmental pollutants, or hazards and a need to avoid
concentrated exposure to extreme cold.
The extensive restrictions of the
hypothetical question were consistent with these opinions. No treating or examining
source, including the staff at Medical Specialists of Kentucky (Tr. 239-306, 416430), the staff at the Annville Medical Clinic (Tr. 307-311, 408-415), Dr. Alam Khan
(Tr. 312-323, 339-350), and Dr. Tarvez Tucker (Tr. 324-330, 351-356, 400-407,
431-437) identified the existence of more severe physical limitations than those
found by the ALJ. These reports provide substantial evidence to support the
administrative decision.
The ALJ properly determined that Hiatt did not suffer from a “severe” mental
impairment. Psychologist Cristi Hundley examined the plaintiff and diagnosed a
depressive disorder versus a seasonal affective disorder. (Tr. 362). The examiner
imposed no specific mental limitations and noted that “her presentation during this
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evaluation did not suggest a mental health reason which would prevent her from
being employed.” (Tr. 363). Psychologists Ilze Sillers (Tr. 364) and Jan Jacobson
(Tr. 378) each reviewed the record and opined that the claimant did not suffer from
a “severe” mental impairment. Therefore, the evidence of record does not support
the existence of a “severe” mental impairment.
Hiatt asserts that the ALJ erred in evaluating her 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, Hiatt was found to be suffering from a potentially
painful condition. However, even if she 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. The ALJ indicated that headaches were the claimant’s
main problem. (Tr. 24, 229). The ALJ noted that an MRI scan had revealed a “little
bit of left frontal white matter abnormalities” which were said to be non-specific. (Tr.
24, 404). Dr. Tucker reported that a CT scan had been normal. (Tr. 24, 328). The
claimant denied migraine headache symptoms such as photophobia, phonophobia,
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osmophobia, nausea or vomiting. (Tr. 24, 354). Dr. Khan reported only an
“incidental” left frontal gliosis with no correlation with current symptoms. (Tr. 24,
322). The ALJ also reported that while Hiatt’s condition caused her to take longer
to complete her daily activities, she still reported getting her husband up and off to
work, assisting her granddaughter with school projects, sewing, caring for family
pets, going out to eat occasionally, performing general housework such as doing the
laundry and washing the dishes, cooking small meals and shopping for groceries.
(Tr. 25-26, 53-59, 61-62, 195-199). As previously noted, no physician of record
reported the existence of more severe physical restrictions than those found by the
ALJ. 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 Hiatt’s pain complaints.
Hiatt also argues that the ALJ erred by failing to consider the combination of
her impairments. However, the plaintiff has failed to specify how the ALJ erred on
this point. The court has already found that the hypothetical factors fairly depicted
the claimant’s condition.
Thus, the ALJ implicitly considered all of Hiatt’s
impairments in proper combination.
Finally, Hiatt asserts that her medical problems would prevent her from
maintaining employment and, so, she could not meet the duration requirements for
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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, Hiatt has not identified similar evidence suggesting that she would not be
able to maintain employment. Therefore, the court must reject the plaintiff’s
argument.
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 30th day of December, 2011.
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