Irvin v. SSA
Filing
17
MEMORANDUM OPINION & ORDER: (1) Plaintiff's Motion for Summary Judgment [R. 7 ] is DENIED; (2) Defendant's Motion for Summary Judgment [R. 8 ] is GRANTED(3) JUDGMENT in favor of the Defendant will be entered contemporaneouslyherewith. Signed by Judge Gregory F. Van Tatenhove on 9/30/2013.(RBB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
BILLY IRVIN,
Plaintiff,
V.
CAROLYN COLVIN,
Commissioner of Social Security,
Defendant.
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Civil No. 12-169-GFVT
MEMORANDUM OPINION
&
ORDER
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The Plaintiff, Billy Irvin, brought this action pursuant to 42 U.S.C. §§ 405(g) to obtain
judicial review of an administrative decision of the Commissioner of Social Security
(Commissioner) denying Irvin’s application for disability insurance benefits (DIB) and
supplemental security income (SSI). The Court, having reviewed the record and for the reasons
set forth herein, will deny Irvin’s Motion for Summary Judgment [R. 12] and grant the
Commissioner’s [R. 13].
I
Irvin protectively filed applications for DIB and SSI on February 19, 2010. [Transcript
(Tr.) 119; Tr. 126]. He alleges a disability beginning on February 23, 2011, due to rheumatoid
arthritis. [R. 12-1 at 2]. Irvin’s applications were denied initially [Tr. 64; Tr. 65] and upon
reconsideration [Tr. 66; Tr. 67]. Subsequently, at Irvin’s request, an administrative hearing was
conducted before Administrative Law Judge Todd Spangler (ALJ) on November 9, 2010. [Tr.
23-63]. During the hearing, the ALJ heard testimony from Irvin and vocational expert (VE) Dr.
Julian M. Nodolsky. [Tr. 47-57]. Irvin, who was forty-five years old at the time of the hearing,
had a high school education via general education diploma (GED). [Tr. 119; Tr. 17]. Irvin has
past relevant work experience as a tree trimmer, and though the VE testified that he could no
longer perform that work, he found that there are jobs that exist in significant numbers in the
national economy that the Irvin could perform, and the ALJ accepted that testimony. [Tr. 17-18.]
In evaluating a claim of disability, an ALJ conducts a five-step analysis. See 20 C.F.R.
§§ 404.1520, 416.920.1 First, if a claimant is working at a substantial gainful activity, she is not
disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or
combination of impairments which significantly limit her physical or mental ability to do basic
work activities, then she does not have a severe impairment and is not disabled. 20 C.F.R. §
404.1520(c). Third, if a claimant’s impairments meet or equal an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1, she is disabled. 20 C.F.R. § 404.1520(d). Fourth, if a
claimant’s impairments do not prevent her from doing past relevant work, she is not disabled. 20
C.F.R. § 404.1520(e). Fifth, if a claimant’s impairments (considering her residual functional
capacity, age, education, and past work) prevent her from doing other work that exists in the
national economy, then she is disabled. 20 C.F.R. § 404.1520(f).
In this case, at Step 1, the ALJ found that Irvin has not engaged in substantial gainful
activity since February 17, 2010, the alleged onset date. [Tr. 14.] At Step 2, the ALJ found that
1
The Sixth Circuit 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 that 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 (internal citations omitted).
2
Irvin’s rheumatoid arthritis constituted a severe impairment. [Id.] At Step 3, the ALJ found that
Irvin’s impairments did not meet or medically equal one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix I. [Tr. 14]. At Step 4, the ALJ determined that Irvin is unable to
perform any past relevant work. [Tr. 17]. However, at Step 5 the ALJ relied on the testimony of
the VE to find that, based on Irvin’s residual functional capacity, there are jobs that exist in
significant numbers in the national economy that Irvin could perform. [Id.] Accordingly, on
February 23, 2011, the ALJ issued an unfavorable decision, finding that Irvin was not disabled,
and therefore, ineligible for DIB and SSI. [Tr. 18]. The Appeals Council declined to review the
ALJ’s decision on June 27, 2012 [Tr. 1-3] and Irvin now seeks judicial review in this Court.
II
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); Shelman v. Heckler, 821 F.2d 316, 319-20 (6th Cir. 1987). “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) (en banc)
(quotes and citations omitted).
In determining the existence of substantial evidence, courts must examine the record as a
whole. Id. (citing Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981),
cert. denied, 461 U.S. 957 (1983)). However, courts are not to conduct a de novo review, resolve
conflicts in evidence, or make credibility determinations. Id. (citations omitted); see also Bradley
3
v. Sec’y of Health & Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988). 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. See Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th
Cir. 1999); see also Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir.
1993); Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983); Mullen, 800 F.2d at 545.
A
Irvin first argues that the ALJ did not adequately address whether his rheumatoid arthritis
satisfied Listing 14.09. At Step Three of the disability analysis, Irvin had the burden of showing
that his impairments were equal or equivalent to a listed impairment. Malone v. Comm'r of Soc.
Sec., 507 F. App'x 470, 472 (6th Cir. 2012) (citing Foster v. Halter, 279 F.3d 348, 354 (6th
Cir.2001). “For a claimant to show that his impairment matches a listing, it must meet all of the
specified medical criteria. An impairment that manifests only some of those criteria, no matter
how severely, does not qualify.” Id. (quoting Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct.
885, 107 L.Ed.2d 967 (1990)) (emphasis in original). In his written decision, the ALJ expressly
considered Irvin’s impairments under Listing 14.09 and found that Irvin had failed to carry his
burden as to show he met all of the listing’s criteria. Specifically ALJ Spangler stated:
The record does not show that the claimant has a major dysfunction of any joint,
or signs of inflammation or deformity in two or more joints, resulting in an
inability to ambulate effectively or inability to perform fine and gross movements
effectively, as required by Medical Listings 1.02 and 14.09.
[Tr. 14].
As an initial matter, Irvin claims that this explanation is insufficient and requires remand
under Reynolds v. Commissioner of Social Security, 424 Fed.Appx. 411 (6th Cir. April 1, 2011).
4
In Reynolds, the ALJ began his Step 3 analysis by stating, “[c]laimant does not have an
impairment or combination of impairments which, alone or in combination, meet sections 1.00 or
12.00 of the Listings.” Reynolds, 424 F. App'x at 415 (6th Cir. 2011). The ALJ dutifully
undertook a full page analysis of Listing 12.04, evaluating the evidence of the record under the
criteria of that listing. However, aside from mention of section 1.00 in the introduction, the ALJ
never referenced Listing 1.04 or discussed why the impairment of the claimant did not meet that
listing criteria. The court found that the ALJ had erred in omitting a discussion of Listing 1.04
because, “[p]ut simply, he skipped an entire step of the necessary analysis.” Id. at 416.
Unlike his counterpart in Reynolds, ALJ Spangler directly cited the listing at issue,
acknowledged that he had considered it on the record, and then identified the specific criteria
under the Listing that Irvin had failed to meet. [Tr. 14]. This is sufficient information to allow
this Court to compare the ALJ’s rationale to the record and thereby provide meaningful judicial
review. Other courts in this Circuit have not interpreted Reynolds to mandate the kind of
heightened explanation requirement Irvin seeks, and have often upheld the decisions of ALJs
who have provided less explanation than ALJ Spangler. See Hartman v. Astrue, 3:12CV-48-S,
2013 WL 4011074 at *5 (W.D. Ky. Aug. 5, 2013); Dove-Askin v. Astrue, 11-119-DLB, 2012
WL 176486 (E.D. Ky. Jan. 20, 2012), M.G. v. Comm'r of Soc. Sec., 861 F. Supp. 2d 846, 859-60
(E.D. Mich. 2012), Todd v. Astrue, 1:11-CV-1099, 2012 WL 2576435 (N.D. Ohio May 15,
2012) report and recommendation adopted, 1:11 CV 1099, 2012 WL 2576282 (N.D. Ohio July
3, 2012). In fact, the Reynolds Court itself required no more documentation than ALJ Spangler
has provided, stating “[i]n short, the ALJ needed to actually evaluate the evidence, compare it to
Section 1.00 of the Listing, and give an explained conclusion, in order to facilitate meaningful
judicial review.” The ALJ’s decision meets these requirements of Reynolds and sufficiently
5
explains why Irvin did not meet the criteria of Listing 14.09.
Further, the Court finds that ALJ Spangler’s explanation and conclusion is supported by
substantial evidence of the record. Irvin takes issue with the finding of the ALJ that the record
did not show that his impairment resulted in an inability to ambulate effectively or an inability to
perform fine and gross movements effectively as required by Listing 14.09. In support, Irvin
cites to the conclusions of the state agency physicians, Drs. Hernandez and Loy, who found that
due to postural limitations, Irvin could only climb stairs occasionally. [Tr. 306; Tr. 360]. The
Physical Residual Functional Capacity Assessment indicates that “occasionally means occurring
very little to one-third of an eight hour workday.” [Tr. 304]. The parties note that under Social
Security Ruling 96-9p, this limitation would practically mean that Irvin could climb stairs for up
to one-third of the work day, which is about 2.6 hours. SSR 96-9p. However, in defining, “what
we mean by inability to ambulate effectively,” the Social Security Administration seems to
require a more severe limitation than this. 20 C.F.R. Pt. 404,Subpt. P, App. 1 § 1.00(B)(2)(b).
Specifically, the agency’s regulations state that:
Inability to ambulate effectively means an extreme limitation of the ability to
walk; i.e., an impairment(s) that interferes very seriously with the individual's
ability to independently initiate, sustain, or complete activities. Ineffective
ambulation is defined generally as having insufficient lower extremity functioning
(see 1.00J) to permit independent ambulation without the use of a hand-held
assistive device(s) that limits the functioning of both upper extremities.
Id. Examples provided by the agency of someone with an inability who is unable to ambulate
effectively might be characterized by having “inability to climb a few steps at a reasonable pace
with the use of a single hand rail.” Id. The limitations placed on Irvin by Drs. Hernandez and
Loy permit climbing stairs in amounts well in excess of this definition and example, and do not
support that the ALJ’s determination was in error. In addition, the evaluation of Drs. Hernandez
6
and Loy indicates that Irvin is able stand and/or walk (with normal breaks) for a total of about six
hours in an eight-hour workday. [Tr. 305; Tr. 359]. This suggests that Irvin is “capable of
sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities
of daily living,” which also suggests the ability to ambulate effectively under the 20 C.F.R. Pt.
404, Subpt. P, App. 1 § 1.00(B)(2)(b). Thus, substantial evidence supports ALJ Spangler’s
conclusion that the record does not show Irvin as having an inability to ambulate effectively.
Irvin states that, counter to the decision of the ALJ, the record also shows him to be
unable to perform fine and gross movements effectively. He notes that Drs. Hernandez and Foy
found that manipulative limitations constrained Irvin’s capacity in reaching all directions,
handling (gross manipulation), and fingering (fine manipulation). [Tr. 307; Tr. 361].2 However,
in describing these manipulative limitations, Drs. Hernandez and Loy indicated that Irvin could
reach in all directions, handle, and finger “frequently,” which is to say, between one-third to twothirds, or about 5.3 hours, in an eight hour work day. [Tr. 304; Tr. 307; Tr. 358; Tr. 361]. In
contrast, an “inability to perform fine and gross movements effectively means an extreme loss of
function of both upper extremities; i.e., an impairment(s) that interferes very seriously with the
individual's ability to independently initiate, sustain, or complete activities.” 20 C.F.R. Pt.
404,Subpt. P, App. 1 § 1.00(B)(2)(c)). Examples provided by the agency of someone with an
inability to perform fine and gross movements include those with “the inability to prepare a
simple meal and feed oneself, the inability to take care of personal hygiene, the inability to sort
and handle papers or files, and the inability to place files in a file cabinet at or above waist
level.” Id. Not only do the limitations assessed by Drs. Hernandez and Loy not show that Irvin
2
Irvin also argues that the letter from ARNP Smith further supports the extent of these restrictions [R. 407];
however, as shall be discussed, the ALJ was justified in determining that ARNP Smith’s letter was entitled to little
weight.
7
is unable to perform fine and gross movements effectively under this definition, but neither does
Irvin’s own characterization of his daily activities. [Tr. 306; Tr. 361; Tr. 169]. As recognized by
the ALJ in his decision, the record shows that Irvin indicated his “ability to wash the dishes, fold
laundry, take out the trash, feed his cat, and prepare microwave meals.” [Tr. 16; Tr. 169]. Thus,
substantial evidence supports the ALJ’s conclusion that Irvin does not meet all the criteria of
Listing 14.09.
B
At the next step of the analysis, ALJ Spangler reviewed the record to determine Irvin’s
residual functional capacity. However, in Irvin’s view, the ALJ made this determination
erroneously because he improperly rejected the opinions of treating rheumatologist Dr.
Jayalakshmi Pampati and ARNP Kristie Smith without providing good reasons for doing so.
Under 20 C.F.R. § 404.1527(d)(2), a treating source’s opinion on the issues of the nature and
severity of a claimant’s impairments is given controlling weight only if it is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques” and is “not inconsistent with
other substantial evidence in [the] case record.” Wilson v. Comm'r of Soc. Sec., 378 F.3d 541,
544 (6th Cir. 2004) (quoting 20 C.F.R. § 404.1527(d)(2)). As part of this so-called “treating
physician” regulation, an ALJ is required to give “good reasons” for not giving weight to
opinions from the treating physician in a disability determination. 20 C.F.R. § 404.1527(d)(2).
The purpose of this requirement is to “let claimants understand the disposition of their cases,” to
“ensure[] that the ALJ applies the treating physician rule,” and to “permit[] meaningful review of
the ALJ's application of the rule.” Wilson, 378 F.3d at 544 (citing Soc. Sec. Rul. 96-2p, 1996 WL
374188, at *5; Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999); Halloran v. Barnhart, 362 F.3d
28, 32-33 (2d Cir. 2004)); see also Gayheart v. Commissioner of Social Security, 710 F.3d 365,
8
376 (6th Cir. 2013).
1
Dr. Pampati is Irvin’s treating rheumatologist. On Irvin’s initial visit, Dr. Pampati’s
assessed him with “chronic rheumatoid arthritis,” for which he prescribed medication. [R. 252].
He notes that Irvin refused some of his recommended treatment. [Id.] Further, in describing the
extent of the Irvin’s limitations caused by the rheumatoid arthritis, Dr. Pampati noted, “it is also
my impression that my patient is completely disabled for any occupation.” [Tr. 253]. On the
same day, he drafted a letter addressed “[t]o whom it may concern,” in which he certified that
Irvin was under his care and “totally incapacitated permanently.” [Tr. 240]. Irvin believes the
ALJ erred in not giving proper weight to this opinion.
As an initial matter, Dr. Pampati’s comments about Irvin’s functionality can hardly be
considered a medical opinion, but is instead a determination of disability, which is reserved to
the Secretary. Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007) (citing 20 C.F.R. §
404.1527(e)(1)). As a result, “no special significance will be given to opinions of disability,
even if they come from a treating physician.” Id. (citing 20 C.F.R. § 404.1527(e)(3) (2006);
SSR96–5: Policy Interpretation Ruling Titles II and XVI: Medical Source Opinions on Issues
Reserved to the Commissioner, 61 Fed.Reg. 34471, 34473 (Soc. Sec. Admin. July 2, 1996))
(internal quotes omitted).
Even though a treating physician's opinion on an issue reserved to the Commissioner
does not receive controlling weight, the ALJ must still “explain the consideration given to the
treating source's opinion(s).” Id. (citing SSR96–5: Policy Interpretation Ruling Titles II and XVI:
Medical Source Opinions on Issues Reserved to the Commissioner, 61 Fed.Reg. at 34474). In
considering Dr. Pampati’s opinions, ALJ Spanger began by stating, “[a]s for the opinion
9
evidence, the undersigned gives little weight to Dr. Pampati’s opinion that the claimant is
permanently disabled.” [Tr. 16]. However, unlike his counterpart in Wilson, ALJ Spangler did
not stop with a summary conclusion, but went on to explain that he reached this conclusion
because Dr. Pampati’s opinion is “contradicted by medical evidence showing a decrease in
symptoms with medication.” [Id.] The ALJ specifically cites to the portions of the record
demonstrating the inconsistency that he has noted. The first is the previously referenced letter in
which Dr. Pampati usurps the role of the Secretary in opining that Irvin is “totally incapacitated
permanently.” [Tr. 16; Tr. 240]. He contrasts that with Dr. Pampati’s own treatment notes,
wherein he indicates that medication – which is to say, the medication not refused by Irvin –
had helped improve Irvin’s symptoms. [Tr. 16; Tr. 390].3 Without further explanation from Dr.
Pampati, there is facial inconsistency between these treatment notes and Dr. Pampati’s letter.4
Finally, ALJ Spangler also notes that, “Dr. Pampati was contacted on two occasions to
provide a function by function assessment of the claimant’s abilities, but did not respond.” [Tr.
16]. The record reflects that both Irvin’s attorney and ALJ Spangler unsuccessfully attempted to
reach Dr. Pampati for the purpose of obtaining a formal residual functional capacity assessment
3
In his Response, Irvin claims that record is actually devoid of any documentation that the medication helped
improve his symptoms. However, in Irvin’s follow-up visit with Dr. Pampati on September 20, 2010, Dr. Pampati
states in his treatment note, “The patient continues to have presence of stiffness, swelling, and pain, occasionally he
had stiffness lasting for about two hours. He has been on prednisone 5 mg dialing and also on Arava, which he has
tolerated. However, he tells me the effect wear off by two in the evening.” [Tr. 390]. Dr. Pampati responds by
increasing the amount of prednisone to 10 mg. [Id.] In the relatively limited amount of information provided from
Dr. Pampati, ALJ Spangler’s interpretation of this statement to mean that Irvin’s medication was addressing some of
his symptoms is reasonable and logical. Otherwise, what else could be the “effect” that is wearing off or the reasons
to increase the prescription amount? [Tr. 390]. Additionally, Irvin’s credibility in making this argument is
somewhat weakened by the fact to he refused medication that Dr. Pampati clearly believed would also address he
symptoms. [Tr. 252; Tr. 306].
4
Additionally, further inconsistencies of Dr. Pampati’s records not noted by the ALJ also support this conclusion.
For example, on the same day in which Dr. Pampati issued his opinion as to Mr. Irvin’s functionality, he also
documented in his treatment notes that, “the patient is a moderately built middle-aged woman, who appeared to be
in no distress.” [Tr. 252]. (emphasis added). In addition, Dr. Pampati’s conclusion that Irvin was “completely
disabled for any occupation” and that this effect was permanent, was given on Irvin’s initial visit before any of the
treatment that Dr. Pampati indicated might be helpful had even been attempted. [R. 253; R. 240].
10
from him. [Tr. 409; Tr. 418; Tr. 26]. At the administrative hearing, Irvin’s attorney indicated
that Dr. Pampati “doesn’t fill out forms and doesn’t respond to those requests for information
with regard to Social Security’s regulations and requirements.” [Tr. 26]. Dr. Pampati is, of
course, not required by law to complete an RFC Assessment, but his failure to do so significantly
limits the amount of information in the record detailing and explaining his opinion. Noting the
absence of the more detailed RFC Assessment, ALJ Spangler explained, with specific examples
and direct citation to the record, that he gave little weight to Dr. Pampati’s summary opinion
because it conflicted with his treatment notes. [Tr. 16]. This explanation is sufficiently detailed
to enable Irvin to understand why his treating physician’s opinion was granted little weight and
also to permit judicial review. Wilson, 378 F.3d at 544 ; Hall v. Comm'r of Soc. Sec., 148 F.
App'x 456, 464 (6th Cir. 2005); see also Nelson v. Comm'r of Soc. Sec., 195 F. App'x 462, 470
(6th Cir. 2006). Further, due to the nature of Dr. Pampati’s opinion and the substantial evidence
of the record, the ALJ was justified in according little weight to Dr. Pampati as Irvin’s treating
rheumatologist.
2
Substantial evidence also supports ALJ Spangler’s decision as to Kristie Smith, ARNP at
Mountain Comprehensive Care, who initially referred Irvin to Dr. Pampati. As conceded by
Partin, ARNP Smith is not “an acceptable medial source,” and therefore she cannot be
considered a treating source, “whose opinions may be entitled to controlling weight.” [Tr. 12-1
at 11; Social Security Ruling 06-03p]. Irvin is correct that the ALJ should still consider the
opinions the non-acceptable medical source, but the ALJ has discretion to determine the
appropriate weight to accord it. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.
1997). That is to say, the ALJ must only weigh it along with all other evidence in the record. Id.
11
ARNP Smith did not complete a physical residual functional capacity assessment, but
submitted a physician’s statement. [Tr. 407]. This letter was not structured in the detailed form
of the RFC assessment and made no citation to supporting medical records. Instead, the brief
letter merely stated several of the summary conclusions of ARNP Smith about her patient. She
opined that Irvine would have to miss five to six working days per month due to his condition.
[Id.] She states that several days per month he would need to change position every fifteen
minutes. [Id.] Further, ARNP Smith indicated her belief that Irvin was significantly limited
ability to perform both fine and gross manipulation, and that he would have to take up to ten
bathroom breaks per day. [Id.].
ALJ Spangler, expressly considered the opinions of ARNP Smith and found them to be
too speculative and not supported by the other record evidence. The ALJ specifically attacked
the reliability of ARNP Smith’s conclusion that Irvin would have to miss five to six days a week
of work per month, a fact which he stated was supported by “no medical evidence.” [Tr. 16].
ALJ Spangler also noted that record did not support the ARNP’s finding that Irvin was
significantly limited in terms of fine and gross manipulation. [Id.]. As previously discussed, the
extent to which Irvin participated in household chores and accomplished daily life activities
militates against a finding that Irvin has such substantial limitations in fine and gross
manipulation. [Tr. 16; Tr 169]. It is clear from the ALJ’s written decision that, as required, he
gave proper consideration to ARNP Smith’s opinion before ultimately according it little weight,
and substantial evidence from the record supports this conclusion. Walters, 127 F.3d at 531 (6th
Cir. 1997). As a result, the court need not remand this case to enable to enable the agency
physicians the opportunity to review ARNP’s statement or to allow the ALJ to incorporate her
opinions into his residual functional capacity determination.
12
C
Irvin next contends that his own allegations were improperly rejected by the ALJ without
a proper credibility determination under 20 C.F.R. § 404.1529. In determining whether a
claimant is disabled, the Commissioner considers statements or reports from the claimant. 20
C.F.R. § 404.1529. To determine whether statements of a claimant are credible, ALJ’s employ
the following two-part test:
First, the ALJ will ask whether the there is an underlying medically determinable
physical impairment that could reasonably be expected to produce the claimant's
symptoms. Second, if the ALJ finds that such an impairment exists, then he must
evaluate the intensity, persistence, and limiting effects of the symptoms on the
individual's ability to do basic work activities.
Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007) (citing 20 C.F.R. § 416.929(a))
(internal citations omitted). In 20 C.F.R. § 404.1529, the Social Security Administration informs
claimants that, in certain credibility determinations, the following factors should guide the
analysis of the agency decision makers:
(i) Your daily activities; (ii) The location, duration, frequency, and intensity of
your pain or other symptoms; (iii) Precipitating and aggravating factors; (iv) The
type, dosage, effectiveness, and side effects of any medication you take or have
taken to alleviate your pain or other symptoms; (v) Treatment, other than
medication, you receive or have received for relief of your pain or other
symptoms; (vi) Any measures you use or have used to relieve your pain or other
symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour,
sleeping on a board, etc.); and (vii) Other factors concerning your functional
limitations and restrictions due to pain or other symptoms.
20 C.F.R. § 404.1529; see also, Felisky v. Bowen, 35 F.3d 1027, 1037 (6th Cir. 1994).
Importantly, it is within the province of the ALJ, rather than the reviewing court, to evaluate the
credibility of claimant. Rogers, 486 F.3d at 247 (citing Walters v. Comm'r of Soc. Sec., 127 F.3d
525, 531 (6th Cir.1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir.1990); Kirk v. Sec'y of
13
Health & Human Servs., 667 F.2d 524, 538 (6th Cir.1981)). Even so, the credibility
determinations of the ALJ must be reasonable and supported by substantial evidence. Id. at 249.
ALJ Spangler cited the correct test and found that “the claimant’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however, the
claimant’s statements concerning the intensity, persistence, and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the above residual functional
capacity assessment.” [Tr. 16]. Then, counter to the representations of Irvin, the ALJ expressly
sets forth three direct examples to support this conclusion. First, the decision notes that Irvin’s
contentions of diffuse joint pain is inconsistent with Irvin’s daily activities, which include
washing dishes, folding laundry, taking out the trash, watering plants, feeding the cat, and
preparing microwave meals. [Tr. 16; Tr. 169]. Second, despite Irvin’s characterization of the
severity of his symptoms, the Dr. Pampati’s treatment notes show that he responded positively to
treatment and demonstrated minimal chronic changes in the wrist and MCP joints. [Tr. 16; Tr.
390]. Finally, the record reveals no evidence of acute or active synovitis. [Tr. 16; 390]. ALJ
Spangler’s analysis employs the proper test and directly addresses factors that the agency has
bound itself to consider. In so doing, ALJ Spangler has conducted a proper credibility
determination, which the Court’s independent review has found to be reasonable and supported
by substantial evidence from the record.
D
Finally, Irvin claims that the residual functional capacity adopted by the ALJ and
reflected in the hypothetical question upon which the ALJ relied was defective because it failed
to accurately depict the restrictions assessed by the sources whose opinions the ALJ chose to
adopt. A claimant’s residual functional capacity represents the most that he can still do in a work
14
setting despite his limitations. 20 C.F.R. § 416.945. This decision is to be made by the
Administrative Law Judge after reviewing the entire record. 20 C.F.R. 404.1520(e); 416.920(e),
404.1545; 416.945; SSR 98-8. In fulfilling that duty and assessing Irvin’s residual functioning
capacity, ALJ Spangler stated as follows:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in
20 C.F.R 404.1567(b) and 416.967(b) except the claimant is limited to no more
than occasional climbing of ramps, stairs, ladders, ropes, and scaffolds; stooping,
kneeling, crouching, and crawling. The claimant can lift 20 pounds occasionally
and 10 pounds frequently. He can sit for six hours, and stand/walk for six hours
in an eight hour day.
[Tr. 15]. The ALJ incorporated this RFC into the first hypothetical question that he posed to
vocation expert, Dr. Julian M. Nadolsky. [Tr. 48]. Relying on the testimony of the VE, ALJ
Spangler found that though Irvin’s limitations precluded him from returning to his past work,
there existed a significant number of jobs in the national economy that the claimant could
perform. [Tr. 17-18; Tr. 47-48]
“In order for a vocational expert's testimony in response to a hypothetical question to
serve as substantial evidence in support of the conclusion that a claimant can perform other
work, the question must accurately portray a claimant's physical and mental impairments. Ealy v.
Comm'r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010) (citing Howard v. Comm'r of Soc. Sec.,
276 F.3d 235, 239 (6th Cir.2002) See (6th Cir.2002); Webb v. Comm'r of Soc. Sec., 368 F.3d
629, 633 (6th Cir.2004)). That is to say, that though the hypothetical question need not contain
an exhaustive list of the claimant’s medication condition, “the ALJ must include in the question
an accurate calculation of the claimant's residual functional capacity—i.e., a description of what
the claimant can and cannot do.” Cooper v. Comm'r of Soc. Sec., 217 F. App'x 450, 453 (6th Cir.
2007) (citing Howard, 276 F.3d at 239); Webb, 368 F.3d at 633 (“In Foster v. Halter, 279 F.3d
15
348 (6th Cir.2001), we stated that a hypothetical question need only reference all of a claimant's
limitations, without reference to the claimant's medical conditions.”) (internal quotes omitted).
Irvin does not claim that the VE’s conclusion does not address the hypothetical question
given or that the hypothetical question does not mirror the RFC. Irvin’s complaint is that the
RFC itself does not adequately entail all of the limitations that ALJ had approved of, and thus the
VE’s response to the hypothetical question crafted from that RFC cannot constitute substantial
evidence that other jobs exist in the national economy that Irvin could perform. As previously
noted, Drs. Hernadez and Loy, the agency physicians who evaluated Irvin’s case, found that he
was afflicted with both postural and manipulative limitations. [Tr. 306-07, Tr. 360-61].
Specifically, in terms of the manipulative limitations, the agency physicians found that Irvin was
limited to frequent reaching in all directions, handling (gross manipulation), fingering (fine
manipulation); and feeling (skin receptors). [Id.] As is facially obvious, the RFC set forth by the
ALJ expressly incorporated the postural limitations, but not these manipulative limitations. [Tr.
15; Tr. 306-07; Tr. 306-361].5
The Commissioner argues that this is not error. She points to the concluding language in
the ALJ’s discussion of the RFC, wherein he stated, “In sum, the above residual functional
capacity assessment is supported by the medical evidence showing improvement in symptoms
with medication. The claimant was given the benefit of the doubt, and the RFC includes
limitations on postural activities.” [Tr. 16]. In the Commissioner’s view, the implication from
this statement is that the ALJ only accepted the postural limitation, and by negative inference
5
In his response, Irvin maintains that the RFC did not adequately incorporate the postural limitation of climbing
either; however, the record clearly reflects otherwise. Dr. Hernandez and Loy limited Irvin to occasional stair
climbing. [Tr.. 306; R. 360]. ALJ Spangler’s RFC noted that Irvin is limited to no more than occasional climbing
of stairs. [Tr. 15]. The relevant hypothetical question assumed that the individual was limited to light exertion with
no more than occasional climbing. [Tr. 48]. It is unclear what more ALJ Spangler could have done to incorporate
this limitation to the satisfaction of Irvin.
16
excluded manipulative limitations. And in general, the Commissioner might be right. After all,
as previously stated, the ALJ was not required to incorporate the findings of Dr. Pampati an
ARNP Smith, which he found that were not supported by the record. The same could
conceivable apply to the agency physicians here as well. Further, as stated, in other parts of his
decision, the ALJ indicated that Irvin was not as limited in manipulation as ARNP Smith opined,
and that Irvin did not demonstrate an inability to perform gross and fine manipulation effectively
to satisfy Listing 14.09. [Tr. 14; Tr. 16]. However, these are inference and implications, and
what the ALJ expressly stated in his report contradicts them. Immediately after articulating the
RFC, the ALJ stated, “[t]he abovementioned RFC mirrors State agency findings at Exhibits 6F
and 9F that indicate the claimant can perform a range of light work. These findings are
supported by medical evidence in its entirety.” [Tr. 15]. In making this statement, the ALJ
seems to completely accept the findings of the agency physicians, Drs. Hernandez and Loy
(Exhibits 6F and 9F); however, in crafting the RFC he omits several limitations that they
identified. [Tr. 15; Tr. 306; Tr. 360]. Because the hypothetical question is based on an RFC
assessment that does not encompass all of the limitations found by the ALJ, the VE’s answer to it
may not constitute substantial evidence for the ALJ’s conclusion at Step Five that other jobs
exist in the national economy that Irvin could perform.
It is clear that this is error, but the Commissioner argues alternatively that it is harmless
and so remand is not required. Based on the VE’s answer to his hypothetical, the ALJ
determined that though Irvin could not return to his past work, there are jobs that exist in
significant numbers in the national economy that Irvin could perform. [Tr. 17-18]. In reviewing
the transcript, it is notable that before asking the hypothetical question, the ALJ directly cited
that report of Dr. Hernandez and noted that the question was based on that assessment. [Tr. 48;
17
Tr. 306]. The VE responded to the hypothetical question that “there’s many, many light jobs a
person could perform with those – with the limitations in that hypothetical.” [Tr. 49]. Among
the jobs specifically enumerated and then subsequently set forth by the ALJ in his decision were
unarmed security guard, delivery person, flagman, ticket taker, and grinding machine operator. 6
[Tr. 17-18; Tr. 48-49]. As noted by the Commissioner, and confirmed by the Court’s
independent review of the DOT, each of these jobs could not only be performed by someone
with the limitations of the hypothetical, but also someone with the exact limitations assessed to
Irvin by the agency physicians, Drs. Hernandez and Loy. Specifically, Drs. Hernandez and Loy
indicated that Irvin had manipulative limitations that would only allow him to engage in frequent
reaching, handling, and fingering. [Tr. 306-307; Tr. 360-361]. This means that Irvin could
engage in those activities between one-third to two-thirds, or about 5.3 hours, of an eight hour
work day. [Tr. 304; Tr. 307; Tr. 358; Tr. 361].. [Id.] According to the DOT, which provides
information regarding the demands of jobs as they are generally performed in the national
economy, the jobs of unarmed security guard, delivery person, flagman, ticket taker, and
grinding machine operator, never require more than frequent reaching and handling and never
more than occasional fingering. See United States Dep’t of Labor, Dictionary of Occupational
Titles §§ 372.667-034 (1991 WL 673100); 230.663-010 (1991 WL 672160); 372.667-022 (1991
WL 673097); 344.667-010 (1991 WL 672863); 690.685-194 (1991 WL 678545) (4th ed. Rev.
1991). Thus, even though the RFC and the hypothetical question posed by the ALJ did not
contain all of the relevant limitations, the jobs selected by the ALJ to demonstrate his conclusion
at Step Five did.
6
The ALJ also stated that “oil inspector,” was a an available job that Irvin could do. However, as the Court’s
independent review of the DOT did not specifically reveal such a job, it has been omitted from the analysis above.
18
Admittedly, as recognized by Irvin, courts have remanded cases back to the ALJ when
the hypothetical question does not properly take into consideration all of the claimant’s
limitations. For example, Irvin cites Ealy v. Commissioner of Social Security, 594 F.3d 504,
514-17, wherein the Sixth Circuit considered a similar situation.7 The ALJ’s hypothetical
question did not contain limitations that had been assessed the claimaint by the state
psychologists whose opinions the ALJ had accepted. The Court concluded, “[b]ecause the
controlling hypothetical inadequately described Ealy's limitations, the expert's conclusion that
Ealy could work as an assembler, inspector, packer, or production worker does not serve as
substantial evidence that Ealy could perform this work. Id. at 517. However, Ealy is somewhat
distinct from this case. Specifically, the limitations omitted in those hypothetical questions were
in concentration, persistence, and pace, each of which were required to “sustained degree to
perform the jobs identified by the VE and adopted by the ALJ. Id. Still, at least on district court
has considered the specific argument of the Commissioner under the same circumstances of this
case and, citing Ealy, found that the error was not harmless. That court reasoned:
Considering the complete absence from the VE hypothetical of a restriction to
“simple, routine and repetitive” tasks and because the burden shifts to the
Commissioner at Step Five, the ALJ's error was not harmless and the ALJ's Step
Five determination cannot be said to be supported by substantial evidence. Thus,
reversal and remand is warranted for further vocational expert testimony based on
a hypothetical question or questions that completely and accurately describe
Plaintiff's RFC limitations.
Osborne v. Comm'r of Soc. Sec. Admin., 1:12-CV-01904, 2013 WL 5221107 at * 12 (N.D. Ohio
Sept. 17, 2013).
7
Irvin also cites Cole v. Commissioner of Social Security, 652 F.3d 653, 660 (6th Cir. 2011); however, that specific
opinion was amended upon rehearing, removed from the official reporters, and subsequently decided by separate
opinion on other grounds. See Cole v. Astrue, 661 F.3d 931, 934 (6th Cir. 2011).
19
However, this Court is not bound by the decision of this district court and is not
persuaded by its rationale. This Court does not read Ealy as requiring an automatic remand if the
hypothetical question does not completely encompass all of the claimant’s limitations.
Concerning errors made by administrative law judges in the social security context, the Sixth
Circuit has stated as follows:
We have recognized that “[i]t is an elemental principle of administrative law that
agencies are bound to follow their own regulations.” Wilson, 378 F.3d at 545; see
also 5 U.S.C. § 706(2)(D) (“The reviewing court shall ... hold unlawful and set
aside agency action ... found to be ... without observance of procedure required by
law.”); Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974)
(“Where the rights of individuals are affected, it is incumbent upon agencies to
follow their own procedures.”). Generally, however, we review decisions of
administrative agencies for harmless error. Heston v. Comm'r of Soc. Sec., 245
F.3d 528, 535 (6th Cir.2001); NLRB v. Wyman–Gordon Co., 394 U.S. 759, 766 n.
6, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) (noting that courts are not required to
“convert judicial review of agency action into a ping-pong game” where “remand
would be an idle and useless formality”). Accordingly, if an agency has failed to
adhere to its own procedures, we will not remand for further administrative
proceedings unless “the claimant has been prejudiced on the merits or deprived of
substantial rights because of the agency's procedural lapses.” Connor v. United
States Civil Serv. Comm'n, 721 F.2d 1054, 1056 (6th Cir.1983); see also Am.
Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539, 90 S.Ct. 1288, 25
L.Ed.2d 547 (1970) (holding that agency's failure to follow its own regulations
did not require reversal absent a showing of substantial prejudice by the affected
party).
Rabbers v. Comm'r Soc. Sec. Admin., 582 F.3d 647, 654-55 (6th Cir. 2009). In the same case,
the Sixth Circuit went on to note that it had been hesitant to grant exceptions from this general
rule. Id. at 656 (“Wilson's circumscribed form of harmless error review has not been applied
outside the context of the reasons-giving requirement of § 404.1527(d)(2), and we decline the
invitation to extend it to this case.”).
It is unclear to this Court what harm Irvin has suffered by the ALJ’s error or what
purpose would be served by remanding this case. It is true that the ALJ erred in failing to
20
include in the RFC assessment all of the limitations that he himself had found supported by the
record. It is true that this RFC was used to create the hypothetical question asked the VE.
However, the ALJ also indicated at the hearing that the hypothetical question was based on the
findings of Dr. Hernandez. [Tr. 48]. Further, the jobs listed by the VE and adopted by the ALJ
did actually adhere both the express limitations of the hypothetical questions and those from the
agency physicians that were omitted from the RFC. [Tr. 48-49; Tr. 17-18]. Thus, whether or not
the RFC and the hypothetical question accounted for all of Irvin’s limitations, the fact remains
that the procedure employed by the ALJ has shown that jobs do exist in significant numbers in
the national economy that the claimant can perform, even with actual limitations he has been
assessed. As a result, the ALJ’s error is harmless and, as with the previous arguments raised by
Irvin, remand is not required.
III
Accordingly, and the Court being sufficiently advised, it is hereby ORDERED as
follows:
(1)
Plaintiff’s Motion for Summary Judgment [R. 7] is DENIED;
(2)
Defendant’s Motion for Summary Judgment [R. 8] is GRANTED
(3)
JUDGMENT in favor of the Defendant will be entered contemporaneously
herewith.
This the 30th day of September, 2013.
21
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