Gray v. SSA

Filing 15

MEMORANDUM OPINION & ORDER: ORDERED: 1. Dft's Mt for entry of judgment w/ remand 12 is GRANTED; 2. Plf's Mt for S/J 9 is GRANTED to the extent that it seeks a remand of the action for further consideration and DENIED to the extent it seeks an immediate award of DIB; and 3. JUDGMENT in favor of the plf will be entered contemporaneously herewith. Signed by Judge Gregory F. Van Tatenhove on 1/10/2013.(RBB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON

RITA F. GRAY,
Plaintiff,
V.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Civil No. 12-79-GFVT

MEMORANDUM OPINION
AND ORDER

*** *** *** ***
The plaintiff, Rita Gray, brought this action pursuant to 42 U.S.C. §§ 405(g) and
1383(c) to obtain judicial review of an administrative decision of the Commissioner of
Social Security (“Commissioner”) denying her application for Disability Insurance
Benefits (“DIB”). In response to Gray’s motion for summary judgment [R. 9], the
Commissioner moves for entry of judgment with remand [R. 13.] Gray objects to the
motion and asserts that she is entitled an immediate award of DIB. [R. 14.] The Court,
having reviewed the record and for the reasons stated herein, will grant the
Commissioner’s motion for entry of judgment with remand.
I.
Gray filed her application for DIB on January 22, 2008. [Transcript (“Tr.”) 113.]
She alleges disability, beginning November 9, 2007, due to the residuals of left knee
replacement, blood disorders and a bad back. [Tr. 113, 160.] The plaintiff’s application
was denied initially on April 24, 2008 [Tr. 59], and again upon reconsideration on June 9,
1

2008. [Tr. 60.] An Administrative hearing was conducted before Administrative Law
Judge (“ALJ”) Ronald T. Jordan on March 8, 2010. [Tr. 38-58.] During the hearing, the
ALJ heard testimony from Gray and Vocational Expert (“VE”) Stephanie Archer. At the
time of the hearing, Gray was a forty-eight-year-old former crater, machine tender and
assembler with a high school education. [Tr. 31-32.]
In evaluating a claim of disability, an ALJ conducts a five-step analysis. See 20
C.F.R. 416.920.2 First, if a claimant is working at a substantial gainful activity, she is not
disabled. 20 C.F.R. § 416.920(b). Second, if a claimant does not have a severe
impairment, she is not disabled. 20 C.F.R. § 416.920(c). Third, if a claimant’s
impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P,
Appendix I, she is disabled. 20 C.F.R. § 416.920(d). Fourth, if a claimant’s impairments
do not prevent her from performing past relevant work, she is not disabled. 20 C.F.R. §
416.920(e). Fifth, if a claimant’s impairments (considering her residual functional
capacity, age, education, and past work) prevent her from performing other work that
exists in the national economy, then she is disabled. 20 C.F.R. § 416.1520(f).
In this action, at Step 1, the ALJ found that Gray had not engaged in substantial
gainful activity since the alleged DIB onset date of November 9, 2007 through the date of
2

The Sixth Circuit Court of Appeals summarized this process in Jones v. Comm’r
of Soc. Sec., 336 F.3d 469 (6th Cir. 2003):
To determine if a claimant is disabled within the meaning of the Act,
the ALJ employs a five-step inquiry defined in 20 C.F.R. § 404.1520.
Through step four, the claimant bears the burden of proving the
existence and severity of limitations caused by her impairments and the
fact she is precluded from performing her past relevant work, but at
step five of the inquiry, which is the focus of this case, the burden shifts
to the Commissioner to identify a significant number of jobs in the
economy that accommodate the claimant’s residual functional capacity
(determined at step four) and vocational profile. Id. at 474.
2

the denial decision. [Tr. 27.] At Step 2, the ALJ found that Gray suffered from severe
impairments related to the residuals of knee replacement surgery, degenerative disc
disease, a history of deep vein thrombosis, and obesity. Id. At Step 3, the ALJ found that
Gray’s impairments did not meet or equal one of the listed impairments. [Tr. 28.] At
Step 4, the ALJ determined that Gray possessed the residual functional capacity (“RFC”)
to perform a restricted range of sedentary level work but could not return to any of her
past relevant work. [Tr. 28, 31.] At Step 5, the burden of coming forward with evidence
shifted to the Commissioner. Jones, 336 F.3d at 474. Here, the ALJ concluded that there
were a significant number of jobs in the economy which Gray could still perform based
on the testimony of the VE. [Tr. 32.] Accordingly, on August 27, 2010, the ALJ issued
an unfavorable decision, finding that Gray was not disabled, and therefore, ineligible for
DIB. [Tr. 32-33.] The Appeals Council declined to review the ALJ’s decision on
February 15, 2012, [Tr. 1-3] and Gray now seeks judicial review in this court.
II.
A.
This Court’s review is limited to whether there is substantial evidence in the
record to support the ALJ’s decision. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d
611, 614 (6th Cir. 2003). “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 v. Sec’y of Health & Human Servs., 25 F.3d
284, 286 (6th Cir. 1994). The substantial evidence standard “presupposes that there is a
zone of choice within which decision makers can go either way, without interference
from the court.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).

3

In determining the existence of substantial evidence, courts must examine the
record as a whole. Id. However, courts are not to conduct a de novo review, resolve
conflicts in evidence, or make credibility determinations. Id. Rather, if the
Commissioner’s decision is supported by substantial evidence, it must be affirmed even if
the reviewing court would decide the matter differently and even if substantial evidence
also supports the opposite conclusion. Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90
(6th Cir. 1999).
B.
Gray argued that the ALJ erred by failing to mention the opinion of Dr. Michael
Fain, a treating source, who identified a number of very severe physical restrictions on a
February 8, 2010 Physical Residual Functional Capacity Questionnaire including the
need to elevate her legs to the level of the heart for fifty percent of the workday. [Tr. 64347.] These are more severe physical restrictions than those found by the ALJ and
presented to the VE. [Tr. 28, 55-56.] Under the federal regulations, a treating physician's
opinion is normally entitled to superior weight and when this opinion is not given such
deference, the ALJ is required to cite good reasons for this action. 20 C.F.R. §
404.1527(d)(2). The Sixth Circuit Court of Appeals has found that the failure of the
administration to follow its own procedural requirements can constitute reversible error
even if the case is otherwise supported by substantial evidence. Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 546 (6th Cir. 2004). Not only did the ALJ fail to cite reasons for
rejecting Dr. Fain’s opinion, but he was not mentioned at all in the denial decision. [Tr.
25-33.] The defendant concedes the issue and moves for an entry of judgment with

4

remand. [R. 12.] The plaintiff objects to the defendant’s motion and asserts that the court
should reverse the administrative decision and award her DIB.
The Court finds that a remand of the action for further consideration as sought by
the defendant is the appropriate remedy. An award of benefits rather than remand is
appropriate only when all factual issues have been resolved and the evidence of disabled
status is overwhelming in favor the plaintiff. Newkirk v. Shalala, 25 F.3d 316, 318 (6th
Cir. 1994). In the present action, Dr. James Baumberger noted less severe physical
restrictions than those found by Dr. Fain, after a March 21, 2008 physical examination.
[Tr. 521-28.] Dr. Mark Ruiz [Tr. 529-36] reviewed the record in April of 2008 and also
reported less severe physical restrictions than those of Dr. Fain. [Tr. 529-36.] Dr. Ruiz’s
opinion was affirmed by Dr. Bruce Whitley, another reviewer, in June of 2008. [Tr. 585.]
Since the evidence of record is not overwhelming in favor of disability, a remand of the
action of further consideration is appropriate.
III.
Accordingly, and the Court being sufficiently advised, it is hereby ordered as
follows:
(1) Defendant’s motion for entry of judgment with remand [R. 12] is
GRANTED;
(2) Plaintiff’s Motion for Summary Judgment [R. 9] is GRANTED to the extent
that it seeks a remand of the action for further consideration and DENIED to the extent it
seeks an immediate award of DIB; and,
(3) JUDGMENT in favor of the plaintiff will be entered contemporaneously
herewith.

5

This 10th day of January, 2013.

6