Hall v. SSA

Filing 12

MEMORANDUM OPINION & ORDER: 1. The plaintiff's motion for summary judgment (DE 10 ) is DENIED; 2. The defendant's motion for summary judgment (DE 11 ) is GRANTED; 3. The decision of the Commissioner is AFFIRMED pursuant to senten ce four of 42 U.S.C. § 405(g) as it was supported by substantial evidence and was decided by proper legal standards; and 4. A judgment will be entered contemporaneously with this order. Signed by Judge Karen K. Caldwell on 07/16/2014.(KJA)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
BENDA MAE HALL,

CIVIL ACTION NO. 6:13-CV-96-KKC

Plaintiff,
V.

MEMORANDUM, OPINION, & ORDER

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Plaintiff Benda Mae Hall 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
denying her claim for supplemental security income.

The Court, having reviewed the

record, will affirm the Commissioner’s decision, as it is supported by substantial evidence.
I. FACTUAL AND PROCEDURAL BACKGROUND
Hall filed her claim for benefits on August 16, 2007. (DE 10-1, p. 2). Her claim was
initially denied and denied again on reconsideration. (DE 11, p. 1–2 ). Hall then filed a
written request for a hearing before an Administrative Law Judge (“ALJ”). (DE 10-1, p.2).
After the hearing, on February 17, 2009, the ALJ issued an unfavorable decision. (DE 11,
p. 2). Hall appealed the ALJ’s decision, and the Appeals Council (“AC”) granted Hall’s
request for review, vacated the hearing decision, and remanded the case back to the ALJ.
(DE 11, p. 2). After a supplemental hearing on December 7, 2011, the ALJ issued another
unfavorable decision. (DE 11, p.2). The AC denied Hall’s subsequent request for review.
(DE 11, p. 2).

At the time the ALJ issued his opinion on January, 12, 2012, Hall was forty-seven
years old.

(DE 11, p.2).

She has not worked in the past fifteen years, but has been

employed as a nursing assistant previously. She alleges she became disabled on August 21,
2007. (DE 11, p. 2).
In determining whether a claimant has a compensable disability under the Social
Security Act (the “Act”), the regulations provide a five-step sequential process which the
ALJ must follow. 20 C.F.R. § 404.1520(a)–(e); see Walters v. Comm’r of Soc. Sec., 127 F. 3d
525, 529 (6th Cir. 1997). The five steps, in summary, are as follows:
(1) If the claimant is currently engaged in substantial gainful activity, she is not
disabled.
(2) If the claimant is not doing substantial gainful activity, her impairment must be
severe before she can be found disabled.
(3) If the claimant is not doing substantial gainful activity and is suffering from a
severe impairment that has lasted or is expected to last for a continuous period of at
least twelve months, and her impairment meets or equals a listed impairment, the
claimant is presumed disabled without further inquiry.
(4) If the claimant’s impairment does not prevent her from doing past relevant work,
she is not disabled.
(5) Even if the claimant’s impairment does prevent her from doing her past relevant
work, if other work exists in the national economy that accommodates her residual
functional capacity and vocational factors (age, education, skills, etc.), she is not
disabled.
Id. The burden of proof is on the claimant throughout the first four steps of the process to
prove that she is disabled. Bowen v. Yuckert, 482 U.S. 137, 146, n. 5 (1987). If the ALJ

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reaches the fifth step without finding that the claimant is not disabled, then the burden
shifts to the Commissioner to consider the claimant’s residual functional capacity, age,
education, and past work experience to determine if she could perform other work. If not,
she would be deemed disabled. 20 C.F.R. § 404, 1520(f). Importantly, the Commissioner
only has the burden of proof on “the fifth step, proving that there is work available in the
economy that the claimant can perform.” Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391
(6th Cir. 1999).
In this case, the ALJ began his analysis at step one by determining that the
claimant has not engaged in gainful activity since August 21, 2007, the application date.
(AR 19). At step two, the ALJ determined that Hall suffers from the following severe
impairments: chronic low back pain secondary to degenerative disc disease of the thoracic
and lumbar spine, status post L3-L4 discectomy, and history of T8 and T12 compression
fractures; degenerative changes of the left hip; status post left shoulder rotator cuff
debridement; and status post right wrist fracture with open reduction and internal fixation.
(AR 19). In the third step, the ALJ found that the claimant does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments. (AR 20).
At step four, the ALJ found that based on the medically determinable evidence, Hall
has the residual function capacity (“RFC”) to perform a wide range of light and sedentary
work, lifting and carrying up to twenty pounds occasionally, ten pounds frequently, with
sitting, standing and walking up to six hours each in an eight hour day. The ALJ further
found that Hall requires a sit/stand option with no prolonged standing or walking in excess
of forty-five minutes to one hour without interruption. She cannot climb ropes, ladders, and
scaffolds or work in exposure to concentrated vibration. She is limited to no more than

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occasional climbing of stairs and ramps. She cannot crawl, stoop, crouch, kneel, or operate
foot pedal control with her left leg and is limited to no more than occasional flexion and
extension of her right wrist. Finally, she can occasionally pinch, finger, and grasp with the
right hand. (AR 20). The ALJ then determined that Hall is unable to perform any past
relevant work. (AR 22).
At step five, considering Hall’s age, education, work experience, and residual
functional capacity, the ALJ found that jobs exist in significant numbers in the national
economy that the claimant can perform. (AR 22). The ALJ found Hall would be able to
perform the requirements of an information clerk, a gate check, and non-hazardous security
work.
The Appeals Commission subsequently denied Hall’s request for review of the ALJ’s
January 2012 opinion. (AR 9). Hall has exhausted her administrative remedies and filed a
timely action in this Court. This case is now ripe for review under 42 U.S.C. § 405(g).
II. GENERAL STANDARD OF REVIEW
The decision of the Commissioner must be supported by substantial evidence.
Varley v. Sec’y of Health and Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). Once the
decision of the Commissioner is final, an appeal may be taken to the United States District
Court pursuant to 42 U.S.C. § 405(g). Judicial review of the Commissioner’s decision is
restricted to determining whether it is supported by substantial evidence and was made
pursuant to the proper legal standards. See Cullip v. Sec’y of Health and Human Servs., 25
F.3d 284, 286 (6th Cir. 1994). “Substantial evidence” is defined as “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.” Id. In reviewing the decision of the
Commissioner, courts are not to conduct a de novo review, resolve conflicts in the evidence,

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or make credibility determinations.

See id.

Rather, the Court must affirm the

Commissioner’s decision so long as it is supported by substantial evidence, even if the Court
might have decided the case differently. See Her, 203 F.3d at 389–90. However, the Court
must review the record as a whole, and must take into account whatever in the record fairly
detracts from its weight. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
III. ANALYSIS
On appeal, Hall argues that the ALJ’s decision is not supported by substantial
evidence and was not decided correctly for four reasons.
i.
Hall first maintains that the ALJ improperly discounted the opinion of her treating
physician, Dr. Nickerson.

(DE 10-1, p. 7).

Treating-source opinions must be given

controlling weight if “(1) the opinion ‘is well-supported by medically acceptable clinical and
laboratory diagnostic techniques’; and (2) the opinion ‘is not inconsistent with the other
substantial evidence in [the] case record.’” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365,
376 (6th Cir. 2013) (quoting 20 C.F.R. § 404.1527(c)(2)). “If the Commissioner does not give
a treating source opinion controlling weight, then the opinion is weighed based on the
length, frequency, nature, and extent of the treatment relationship, as well as the treating
source’s area of specialty and the degree to which the opinion is consistent with the record
as a whole . . . .” Id. (internal citations omitted). The ALJ must give “good reasons” for
discounting the weight given to the treating source opinion. Id. Here, the ALJ’s opinion
satisfies this standard.
As an initial matter, Dr. Nickerson’s conclusion that Hall was unable to work, is not
entitled to significant weight, because the question of disability is ultimately reserved for
the Commissioner.

20 C.F.R. § 416.927(d).

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Here, the ALJ ultimately rejected the

limitations listed by Dr. Nickerson because they were “not supported by acceptable medical
evidence and are contradicted by other evidence and inconsistent with the evidence as a
whole.” (AR 22).

The ALJ went on to find that the Dr. Nickerson’s report was internally

inconsistent and based on exaggerated complaints. (AR 22).
The ALJ found both that Dr. Nickerson’s opinion was not well supported by the
acceptable medical evidence, nor was it consistent with the substantial evidence in the case
record. (AR 22). The ALJ gave the following reasons for declining to give Dr. Nickerson’s
opinion controlling weight, as well as for why he rejected Dr. Nickerson’s asserted
limitations:







Dr. Nickerson’s opinion was inconsistent with progress notes form March 2007 at
the White House Clinic, which indicate that “claimant’s musculoskeletal and
neurological examinations were unremarkable [and that she] had no tenderness in
the extremities/spine and her motor and sensory function was grossly intact.” (AR
21).
Dr. Nickerson’s 2011 opinion letter, which indicated Hall could lift no more than ten
pounds, was inconsistent with Dr. Nickerson’s prior opinion letters that noted she
could lift no more than 20 pounds. Dr. Nickerson did not provide reasoning for these
new limitations, and Hall submitted no treatment records from Dr. Nickerson after
2009. (AR 21).
The evidence indicates that Hall is able to drive, go out alone, prepare meals, and
use public transportation. This evidence is inconsistent with the severity of Dr.
Nickerson’s findings (AR 22).
While Hall claims she had fragments of bone removed from her spinal cord, the
records indicate no bone fragments in the spine. (AR 21). Instead, the ALJ found
exhibits that indicate only mild degenerative disc disease and no retropulsion of
fragments into the canal to be compelling. (AR 21). Therefore, he found no reason
for the severity of Hall’s neck and back complaints. (AR 21).
Thus, the ALJ has provided good reasons to explain why he declined to give Dr.

Nickerson’s opinions controlling weight and explained why Dr. Nickerson’s opinions are
inconsistent with the evidence as a whole. Therefore, the ALJ’s decision was supported by
the substantial evidence.

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ii.
Hall next contends that the ALJ erred in step 3 of his analysis and should have
found that Hall’s impairments meet the requirements of Listing Impairment 1.04A. Hall
has not provided specific medical findings that satisfy all of the criteria for the particular
listing alleged; “An impairment that manifests only some of those criteria [in a listing], no
matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
Substantial evidence supports the ALJ’s finding that Hall’s impairments did not
meet the listing impairment. Listing 1.04 states in part,
Disorders of the spine . . . resulting in compromise of a nerve
root or the spinal cord with: A: Evidence of nerve root
compression characterized by neuro-anatomic distribution of
pain, limitation of motion of the spine, motor loss (atrophy with
associated weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of the lower
back, positive straight-leg raising test . . . .
204 C.F.R. pt. 404, Subpt. P, App. 1, § 1.04. As the Commissioner indicates, “the diagnostic
images of record do not indicate that Plaintiff’s back condition resulted in ‘compromise of a
nerve root . . . or the spinal cord,’ as required by Listing 1.04.” (DE 11, p. 9). Hall’s 2005
MRI showed stable but chronic T12 compression deformity and minimal retropulsion. (AR
320). Hall’s physical examinations also indicate that she does not satisfy all of the criteria
of Listing 1.04. Upon examination in 2007, Hall’s motor and sensory functions were intact.
(AR 233). In July 2007, Hall received a 5/5 motor strength in the right lower extremity and
4/5 on the left lower extremity. (AR 268). In April 2009, Hall was able to walk without
assistance and exhibited no muscle asymmetry, atrophy, or involuntary movements. (AR
493).

Thus, the ALJ’s determination that Hall did not meet a listing impairment is

supported by substantial evidence.

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iii.
Hall next contends that the vocational expert’s (“VE”) testimony did not support the
ALJ’s conclusion that jobs exist in significant numbers that Hall could perform. (DE 10-1,
p. 12). She insists that, “the ALJ erroneously relied on the VE’s response to the first
hypothetical question as substantial evidence that there were a significant number of jobs
in the national economy Ms. Hall could perform.” (DE 10-1, p. 12). However, the ALJ
properly relied on the VE’s testimony when reaching his conclusion. “Substantial evidence
may be produced through reliance on the testimony of a vocational expert in response to a
‘hypothetical’ question, but only ‘if the question accurately portrays [claimant’s] individual
physical and mental impairments.’” Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 150 (6th Cir.
1996).
The ALJ questioned the VE about what sorts of jobs exist that Hall could perform
considering the ALJ’s RFC finding. (AR 564). The VE at first responded that there would
be a “small number of jobs this individual could perform.” (AR 565). However, when the
ALJ asked about positions such as an “information clerk [or] telephone receptionist,” the
VE responded that jobs would exist but at a reduced range. The VE went on to calculate
the reduced number of jobs, considering Hall’s limitations, and calculated that there would
be “about 4,000 of these jobs in Kentucky, and in the United States, approximately 300,000
. . . .” (AR 566). The ALJ next asked about nonhazardous security work, to which the ALJ
estimated that there existed about 500 in Kentucky and 190,000 nationally.” (AR 566).
These numbers represent a significant number of jobs. The Court of Appeals “has held that
fewer than 1000 regional jobs can be a significant number for purposes of determining
whether a claimant is disabled.” Anderson v. Comm’r of Soc. Sec., 406 Fed. Appx. 32, 35

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(6th Cir. 2010) (citing Martin v. Comm’r, 170 Fed. Appx. 369, 375 (6th Cir. 2006)). Here,
the number of jobs available is significant.
To the extent that Hall implies that the ALJ was unsatisfied with the VE’s original
answer, and coaxed the VE into answering about specific jobs, the record does not reflect
any improper questioning by the ALJ.
Finally, Hall argues that the ALJ erred when he indicated that Hall could perform
the occupation of a gate checker, but such an error is harmless. While “gate check” was not
an occupation explicitly contemplated by the VE, information clerk and non-hazardous
security worker were discussed, and the VE found that such jobs exist in the regional and
national economy. Therefore, remanding this matter only to correct a harmless error would
be a waste of judicial and administrative resources. Heston v. Comm’r of Soc. Sec., 245 F.3d
528, 535–36 (6th Cir. 2001).
iv.
Hall lastly argues that the ALJ erred at step five by not relying on the limitations
reported by Dr. Nickerson. (DE 10-1, p.13). This is essentially a reiteration of her previous
argument. As this Court already has found, the ALJ had substantial evidence to decline to
give Dr. Nickerson’s opinion controlling weight, and properly rejected it. Therefore, the
ALJ properly declined to rely on the VE’s response to the hypothetical question that
included Dr. Nickerson’s limitations.

See Foster v. Halter, 279 F.3d 348, 356 (6th Cir.

2001).
IV.CONCLUSION
For the reasons stated above, IT IS ORDERED that:
1. The plaintiff’s motion for summary judgment (DE 10) is DENIED;
2. The defendant’s motion for summary judgment (DE 11) is GRANTED;

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3. The decision of the Commissioner is AFFIRMED pursuant to sentence four of 42
U.S.C. § 405(g) as it was supported by substantial evidence and was decided by
proper legal standards; and
4. A judgment will be entered contemporaneously with this order.
Dated this 16th day of July, 2014.

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