Harrison v. SSA

Filing 15

MEMORANDUM OPINION & ORDER: DENY Plaintiff's motion for summary judgment, [DE 13 ] and GRANT Defendant's motion for summary judgment, [DE 14 ]. Signed by Judge Joseph M. Hood on 2/14/12.(SYD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
DAVID WAYNE HARRISON,

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) Civil Action No. 6:11-CV-211-JMH
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) MEMORANDUM OPINION AND ORDER
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Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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This matter is before the Court upon cross-motions for summary
judgment on the plaintiff’s appeal of the Commissioner’s denial of
his application for Disability Insurance Benefits (“DIB”).1

[DE

13, 14]. The Court, having reviewed the record and being otherwise
sufficiently advised, will deny the plaintiff’s motion and grant
the defendant’s motion.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Harrison applied for Social Security benefits on

February 4, 2008, alleging an onset of disability of August 9,
2004, due to: degenerative disc disease; depression; anxiety; hand
numbness; and neck pain. [Administrative Record, hereinafter “AR,”
213].

Hearings on his application were conducted on May 12, 2010

[AR 41] and September 7, 2010.
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[AR 22].

Plaintiff’s application

These are not traditional Rule 56 motions for summary
judgment. Rather, this is a procedural device by which the parties
bring the administrative record before the Court.

was denied by Administrative Law Judge (“ALJ”) Ronald M. Kayser on
September 21, 2010.

[AR 17].

Plaintiff timely pursued and

exhausted his administrative remedies, and this matter is ripe for
review and properly before this Court under the Social Security
Act, 42 U.S.C. § 405(g).
Plaintiff was fifty-one-years-old at the time of the ALJ’s
final decision.

[See AR 193].

served four years in the Navy.

He is a high school graduate and
[AR 45-46].

Prior to a back injury

in 2004, Plaintiff worked as drywall installer for approximately
twenty-seven years.

[AR 46].

Since injuring his back in 2004,

Plaintiff has been treated – primarily at a Veterans Affairs (“VA”)
medical

center

–

with

non-narcotic

injections and a TENS Unit.

pain

[AR 48-50].

medication,

epidural

Plaintiff provided the

following testimony regarding his daily activity: He tries to help
his wife around the house, including doing laundry, and he goes
shopping.

[AR 52-53].

riding mower.
marijuana.

He mows his three-quarter-acre lawn on a

[AR 54].

[AR 55].

He sometimes drinks alcohol and smokes

He reported being able to stand and sit

comfortably for about fifteen minutes and is able to bend at the
waist.

[AR 56, 57].

He reports difficulty with getting up and

down on his knees, but he is able to lift and carry twenty or
twenty-five pounds.
A

2007

MRI

of

Plaintiff’s

low

back

degenerative changes in his lumbar spine.

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revealed

[AR 310].

moderate

At least a

mild degree of congenital central canal narrowing was noted.

The

left L5-S1 neural foramen was moderately narrowed, while the right
L4-L5 and L5-S1 were mildly to moderately stenosed.

[AR 310-11].

He had mild to moderate disc bulging throughout the lumbar spine.
[AR 311].

Sherry Brewer, M.D. treated Plaintiff for low back pain

at the VA.

Treatment notes indicate that he was prescribed NSAIDs

and referred to Mazhar Rasul M.D., a pain management specialist,
who performed epidural injections. [AR 382]. Barry Burchett, M.D.
consultatively examined Plaintiff in May, 2008.

[AR 320].

Dr.

Burchett noted that Plaintiff walked with a moderate limp and had
limited movement due to complaints of pain.

[AR 323].

He found,

however, that deep tendon reflexes were normal and that Plaintiff’s
lower extremities had no motor or sensory abnormalities.
The ALJ issued his decision on September 21, 2010.

Id.
He found

that the medical evidence established the severe impairment of low
back pain secondary to degenerative disc disease.

[AR 13].

The

ALJ found this impairment to be severe within the meaning of the
regulations, but not severe enough to meet or medically equal one
of the impairments listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1.

[AR 14].

The ALJ found that the Plaintiff was not

disabled and that, while he was unable to perform his past work, he
retained the residual functional capacity (“RFC”) to perform a
limited range of light work.

[AR 14].

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II.

OVERVIEW OF THE PROCESS
The ALJ, in determining disability, conducts a five-step

analysis:
1.

An individual who is working and engaging in
substantial gainful activity is not disabled,
regardless of the claimant’s medical condition.

2.

An individual who is not working but does not have
a “severe” impairment which significantly limits
his physical or mental ability to do basic work
activities is not disabled.

3.

If an individual is not working and has a severe
impairment which “meets the duration requirement
and is listed in appendix 1 or is equal to a listed
impairment(s),” then he is disabled regardless of
other factors.

4.

If a decision cannot be reached based on current
work activity and medical facts alone, and the
claimant has a severe impairment, then the
Secretary
reviews
the
claimant’s
residual
functional capacity and the physical and mental
demands of the claimant’s previous work. If the
claimant is able to continue to do this previous
work, then he is not disabled.

5.

If the claimant cannot do any work he did in the
past because of a severe impairment, then the
Secretary
considers
his
residual
functional
capacity, age, education, and past work experience
to see if he can do other work. If he cannot, the
claimant is disabled.

Preslar v. Sec’y of Health & Human Servs., 14 F.3d 1107, 1110 (6th
Cir. 1994)(citing 20 C.F.R. 404.1520 (1982)). “The burden of proof
is on the claimant throughout the first four steps of this process
to prove that he is disabled.”

Id.

“If the analysis reaches the

fifth step without a finding that the claimant is not disabled, the
burden transfers to the Secretary.”
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Id.

III. STANDARD OF REVIEW
In reviewing the ALJ’s decision to deny disability benefits,
the Court may not try the case de novo, nor resolve conflicts in
the evidence, nor decide questions of credibility. Cutlip v. Sec’y
of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
Instead, judicial review of the ALJ’s decision is limited to an
inquiry

into

whether

the

ALJ’s

findings

were

supported

by

substantial evidence, 42 U.S.C. § 405(g), Foster v. Halter, 279
F.3d 348, 353 (6th Cir. 2001), and whether the ALJ employed the
proper legal standards in reaching her conclusion. See Landshaw v.
Sec’y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986).
“Substantial evidence is more than a scintilla of evidence, but
less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Cutlip, 25 F.3d at 286.
IV.

ANALYSIS
In his motion for summary judgment, Plaintiff contends that

the ALJ’s findings are not supported by substantial evidence.
First, Plaintiff argues that the ALJ erred in finding that his
condition

did

not

constitute

an

impairment

described

in

the

Secretary’s Listing of Impairments located at Appendix 1 to 20
C.F.R. part 404, subpart P.
MRI

of

his

lumbar

spine

Plaintiff asserts, based on the 2007
and

the

results

of

Dr.

Burchett’s

examination, that he “[o]bviously has severe stenosis with nerve
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root compression” and, thus, he is disabled under Listing 1.04
sections A and C.

For the following reasons, Plaintiff’s argument

is without merit.
When challenging the Commissioner’s decision regarding failure
to meet a listing under Appendix 1, a plaintiff must point to
specific medical evidence to satisfy all of the criteria for a
particular listing.

See Hale v. Sec’y of Health & Human Servs.,

816 F.2d 1078, 1083 (6th Cir. 1987).

While Plaintiff’s 2007 MRI

revealed evidence of nerve root compression, the record reveals
that Plaintiff did not suffer all of the impairments outlined in
1.04A.

For instance, the report of Dr. Burchett, upon which

Plaintiff

so

heavily

relies,

describes

Plaintiff’s

pain

as

“nonradicular” and states that there were no motor or sensory
deficits in the lower extremities.

[AR 320, 323].

Further, Dr.

Burchett reported that Plaintiff’s lower extremity deep tendon
reflexes were intact and symmetrical.

[AR 323].

Plaintiff was

also able to stand on one leg at a time without difficulty.
322].

[AR

sensory

Because Listing 1.04A requires motor loss, as well as
or

reflex

loss,

substantial

evidence

supports

the

Commissioner’s determination that Plaintiff did not meet this
listing.

Plaintiff also argues that he meets the criteria for

Listing 1.04C.

Although Plaintiff’s MRI revealed some degree of

lumbar stenosis, Plaintiff points to no evidence in the record
suggesting

that

he

experienced

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pseudoclaudication

or

its

accompanying symptoms. Accordingly, substantial evidence supports
the conclusion that Plaintiff failed to meet Listing 1.04C, as
well.
Plaintiff’s next point of error is that the ALJ found him
capable of performing work that he is unable to do.

Specifically,

he asserts that the ALJ failed to take into account the fact that
his back problems require him to change positions every hour. Both
hypotheticals presented to the vocational expert (“VE”), however,
included
positions.

limitations

on

the

ability

to

sustain

particular

The first hypothetical assumed an individual who could

“sit 60 minutes at a time, sitting and walking limited to 60
minutes at a time, requires the option to change positions for five
to ten minutes . . . .”

[AR 35].

The second hypothetical included

“an alternate sit/stand option to allow that individual to get up
and move around the work station every hour.”

[AR 36].

Based on

the hypotheticals presented to him, the VE determined that there
were jobs existing in the national economy and in Kentucky that
Plaintiff could perform.
Once an ALJ determines that a plaintiff cannot perform his
past work, it becomes the ALJ’s burden to establish that the
plaintiff

is

capable

of

performing

other

work,

despite

his

limitations. 20 C.F.R. § 404.1560(c). Here, the ALJ satisfied his
burden by relying on the testimony of a VE, to whom the ALJ had
presented hypotheticals, which were based on substantial evidence.

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See Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779
(6th

Cir.

1987)(In

determining

whether

the

claimant

has

the

residual functional capacity to perform any other substantial
gainful activity, the ALJ may rely on the testimony of a vocational
expert in response to hypothetical questions.).

Plaintiff cites

Social Security Ruling 83-12, 1983 WL 31253 (1983), which discusses
some claimants’ need to alternate sitting and standing.

In his

brief, Plaintiff includes the following language from the Ruling:
“Unskilled types of jobs are particularly structured so that a
person cannot ordinarily sit or stand at will.”
include the following sentence, which reads:

He failed to

“In cases of unusual

limitation of ability to sit or stand, a [VE] should be consulted
to clarify the implications for the occupational base.”
case, the ALJ complied with that ruling.

In this

By including Plaintiff’s

limitations in the hypotheticals presented to the VE and, in turn,
relying on the VE’s testimony to conclude that Plaintiff could
perform other work, the ALJ properly consulted the VE.

See Heston

v. Comm’r of Soc. Sec., 245 F.3d 528, 537-38 (6th Cir. 2001)(where
SSR

83-12

applied,

substantial
hypothetical

Commissioner’s

evidence
posed

to

when
VE).

ALJ

decision

incorporated
Accordingly,

was

supported

limitations
the

by

into

Commissioner’s

decision is supported by substantial evidence.
V.

CONCLUSION
For the foregoing reasons, we DENY Plaintiff’s motion for
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summary judgment, [DE 13] and GRANT Defendant’s motion for summary
judgment, [DE 14].
This the 14th day of February, 2012.

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