Kilburn v. SSA
Filing
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MEMORANDUM OPINION: The undersigned concludes that 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 5/11/2012.(JMB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
CIVIL ACTION NO. 11-205-GWU
MISTY KILBURN,
VS.
PLAINTIFF,
MEMORANDUM OPINION
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
INTRODUCTION
Misty Kilburn brought this action to obtain judicial review of an administrative
denial decision on her applications for Child’s Insurance Benefits (CIB) and for
Supplemental Security Income. The case is before the court on cross-motions for
summary judgment.
CHILD’S DISABILITY INSURANCE
An individual who becomes disabled as defined by 42 U.S.C. § 423(d) before
attaining the age of twenty-two, who is the dependent child of a person entitled to
old age or disability insurance benefits or fully insured at the time of his/her death,
and who is unmarried at the time of application, is entitled to CIB. 42 U.S.C. §
402(d)(1).
CIB benefits employ the same disability standards as are used to determine
disability in adults. 42 U.S.C. § 423(d).
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ADULT’S SUPPLEMENTAL SECURITY INCOME
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
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).
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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 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
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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
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
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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);
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 Kilburn, prior to the age
of 22, suffered from impairments related to a seizure disorder. (Tr. 12). Despite the
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plaintiff’s impairments, the ALJ determined that she retained the residual functional
capacity to perform a restricted range of work with an inability to lift more than 30
pounds at a time, sit for more than two hours in an eight-hour day, an inability to
more than occasionally climb ramps and stairs, an inability to ever climb ladders,
ropes or scaffolds, a need to avoid exposure to unprotected heights and moving
machinery, and an inability to work alone. (Tr. 13). 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. 15-16). The ALJ based this decision,
in large part, upon the testimony of a vocational expert. (Tr. 15).
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 initially presented to Vocational Expert Tina
Stambaugh included such factors as one of Kilburn’s age, education and vocational
history, with no exertional restrictions, restricted by such non-exertional limitations
as: (1) an inability to operate heavy machinery; (2) a need to avoid exposure to
hazards such as machinery and unprotected heights; (3) an inability to more than
occasionally climb ramps and stairs; and (4) an inability to ever climb ladders, ropes
or scaffolds. (Tr. 39). In response, the witness identified such light exertional level
jobs as inspector (128,000 national jobs) and hand packer (318,000 national jobs)
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as remaining available.1 (Tr. 40-41). The ALJ later presented a hypothetical
question including such restrictions as an inability to lift, push, pull and carry more
than 30 pounds, stand or walk for six hours in an eight-hour day in intervals of 30
minutes at a time, sit for more than two hours at a time in an eight-hour day, a need
to avoid exposure to unprotected heights and heavy machinery and an inability to
drive or work alone. (Tr. 41). Stambaugh testified that the previously cited light level
jobs could still be performed but with a reduction in numbers of approximately 50
percent. (Tr. 41-42). Therefore, assuming that the vocational factors considered by
Stambaugh fairly characterized the plaintiff’s condition prior to the age of 22, she
could not be considered to be totally disabled.
The hypothetical factors fairly characterized Kilburn’s physical condition. The
only physical restrictions indicated by Dr. Timothy Gregg, a non-examining medical
reviewer, were an inability to ever climb ladders, ropes and scaffolds, an inability to
more than occasionally climb ramps and stairs and a need to avoid exposure to
hazards such as machinery and heights. (Tr. 320-327). These restrictions were
presented to the vocational expert. The staff at the Commission for Children with
Special Health Care Needs, a treating source, did not identify the existence of more
severe physical restrictions than those found by the ALJ. (Tr. 284-311, 328-378).
The witness also identified a number of medium level positions but these would
not be consistent with ALJ’s ultimate finding that the plaintiff was restricted from lifting
over 30 pounds. (Tr. 40).
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The plaintiff herself testified that she could lift up to 30 pounds and could sit for two
hours at a time. (Tr. 32). She denied limitations with regard to bending, stooping,
squatting and using her hands. (Tr. 31-32). The ALJ’s findings were consistent with
this testimony. Therefore, substantial evidence supports the administrative denial
decision.
Dr. Roy Varghese, a treating physician at Mary Breckinridge Healthcare,
noted Kilburn’s problem with seizures and opined that she would be unable to
perform sustained work activity with her hands, perform sustained clerical work
standing for six to eight hours, do sustained lifting and carrying for six to eight hours,
perform lifting and carrying of items weighing more than 10 pounds, driving a motor
car, standing and working with the arms and hands, operating hand and/or foot
controls, relating to co-workers and dealing with work stress. (Tr. 421). These are
far more severe restrictions than those found by the ALJ. When these limitations
were presented to the vocational expert, she could not cite any jobs which would
remain available. (Tr. 41).
The ALJ noted a number of good reasons for rejecting the opinion of Dr.
Varghese. The ALJ found that while the doctor indicated that frequent seizures were
the basis for the limitations, the medical record revealed long periods of time,
sometimes over two years, where no seizure activity was reported. (Tr. 14). Kilburn
herself testified at the March, 2010 hearing that she had not had a seizure since
December of 2008. (Tr. 31). At the time of this December, 2008 seizure, the plaintiff
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was reported to have had her last seizure the previous June. (Tr. 396). The ALJ
opined that many of the noted restrictions did not appear to have a close relationship
to a seizure disorder. (Tr. 14). Dr. Varghese was a specialist in internal medicine
rather than neurology, and the ALJ thought that this was another factor to give less
weight to the opinion. (Id.). Finally, many of the doctor’s limitations, such as his
prohibition on lifting and carrying or performing work activity with the hands, were
contradicted by the claimant’s own testimony in which she reported being able to lift
up to 30 pounds and have no difficulty using her hands. (Tr. 14, 32). An ALJ does
not need to give controlling weight to the opinion of a treating physician where it is
contradicted by the plaintiff’s own testimony. Warner v. Commissioner of Social
Security, 375 F.3d 387, 391 (6th Cir. 2004). Therefore, the ALJ acted properly in
rejecting the opinion of Dr. Varghese.
The record reveals that Kilburn was also diagnosed with mitral valve prolapse
by Dr. Jacqueline Noonan in September of 2006. (Tr. 287). The ALJ considered this
impairment but concluded that it was not “severe.” (Tr. 13). The plaintiff asserts
that this finding was erroneous. However, as noted by the ALJ, Dr. Noonan imposed
no functional limitations in connection with the condition. (Tr. 13, 287). 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). Therefore, the court
finds no error.
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Kilburn also asserts the ALJ erred by failing to consider whether she could
meet the duration requirements for 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. The record in the current action does not establish that the plaintiff could not
maintain employment.
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 11th day of May, 2012.
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