Bennett v. SSA

Filing 12

MEMORANDUM OPINION & ORDER: 1. Plaintiff Gregory W. Bennett's motion for summary judgment [Record No. 10 ] is DENIED. 2. Defendant Carolyn W. Colvin's motion for summary judgment [Record No. 11 ] is GRANTED. 3. The administrative decision will be AFFIRMED by separate judgment entered this date. Signed by Judge Danny C. Reeves on 2/11/15.(SYD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
GREGORY W. BENNETT,
Plaintiff,
V.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Civil Action No. 6: 14-163-DCR

MEMORANDUM OPINION
AND ORDER

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This matter is pending for consideration of cross-motions for summary judgment filed
by Plaintiff Gregory W. Bennett (“Bennett”) and Defendant Carolyn W. Colvin, Acting
Commissioner of Social Security (“the Commissioner”). [Record Nos. 10, 11] Bennett
argues that the administrative law judge (“ALJ”) assigned to his case erred by finding that he
is not entitled to a period of disability, disability insurance benefits, or supplemental security
income. [Record No. 10-1, pp. 5–8] The Commissioner asserts that the ALJ’s decision is
supported by substantial evidence and should be affirmed. [Record No. 11, pp. 3–7] For the
reasons discussed below, the Court will grant the Commissioner’s motion and deny the relief
requested by Bennett.
I.
On August 20, 2011, Bennett filed applications for a period of disability and disability
insurance benefits under Title II of the Social Security Act (“the Act”), and supplemental

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security income under Title XVI of the Act. [See Record No. 7-1, Administrative Transcript,
“Tr.,” p. 10.] He alleges a disability beginning May 20, 2009. Bennett, along with attorney
Ronald Cox and vocational expert (“VE”) JoAnn Bullard, appeared before ALJ Christopher
Van Dyck on March 28, 2013, for an administrative hearing. [Tr., pp. 23–43] On April 8,
2013, the ALJ found that Bennett was not disabled under sections 216(i), 223(d) and
1614(a)(3)(A) of the Act. [Tr., pp. 10–18] Bennett filed an appeal with the Social Security
Administration’s Appeals Council. However, this appeal was denied on June 5, 2014. [Tr.,
pp. 1–4]
Bennett was 45 years old when his alleged disability began on May 20, 2009, and 49
years old at the time of the ALJ’s decision. He has a high school education and has
previously worked as a semi-skilled material handler. [Tr., p. 16] Bennett asserts that he is
unable to work due to back injuries, depression, and a nervous condition. [Tr., p. 238] After
considering the testimony presented at the administrative hearing and reviewing the record,
the ALJ concluded that Bennett suffers from the severe impairment of degenerative disc
disease of the cervical and lumbar spine. [Tr., p. 13–14] Despite this impairment, the ALJ
determined that the claimant maintained the residual functional capacity (“RFC”) to perform
medium work, subject to the following limitations: “[Bennett] can perform no more than
frequent climbing of ropes, ladders and scaffolds. The claimant can perform no more than
frequent stooping, crouching or crawling, and no more than occasional kneeling.” [Tr., p.
14]

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After considering Bennett’s age, education, work experience, and RFC, the ALJ
concluded that there were a significant number of jobs in the national economy that he could
perform, including hand packager, industrial cleaner, and store laborer. [Tr., p. 17] Thus,
the ALJ concluded that Bennett was not disabled from May 20, 2009, through the date of the
administrative decision. [Tr., p. 18]
II.
Under the Social Security Act, a “disability” is defined as “the inability to engage in
‘substantial gainful activity,’ because of a medically determinable physical or mental
impairment of at least one year’s expected duration.” Cruse v. Comm’r of Soc. Sec., 502
F.3d 532, 539 (6th Cir. 2007). A claimant’s Social Security disability determination is made
by an ALJ in accordance with “a five-step ‘sequential evaluation process.’” Combs v.
Comm’r of Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (en banc) (quoting 20 C.F.R. §
404.1520(a)(4)). If the claimant satisfies the first four steps of the process, the burden shifts
to the Commissioner with respect to the fifth step. See Jones v. Comm’r of Soc. Sec., 336
F.3d 469, 474 (6th Cir. 2003).
A claimant must first demonstrate that he is not engaged in substantial gainful
employment at the time of the disability application. 20 C.F.R. §§ 404.1520(b), 416.920(b).
Second, the claimant must show that he suffers from a severe impairment or combination of
impairments. 20 C.F.R. §§ 404.1520(c), 416.920(c). Third, if the claimant is not engaged in
substantial gainful employment and has a severe impairment which is expected to last for at
least twelve months and which meets or equals a listed impairment, he will be considered
disabled without regard to age, education, and work experience. 20 C.F.R. §§ 404.1520(d),
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416.920(d). Fourth, if the Commissioner cannot make a determination of disability based on
medical evaluations and current work activity and the claimant has a severe impairment, the
Commissioner will then review the claimant’s RFC and relevant past work to determine
whether he can perform his past work.

If he can, he is not disabled.

20 C.F.R.

§§ 404.1520(f), 416.920(f).
Under the fifth step of the analysis, if the claimant’s impairment prevents him from
doing past work, the Commissioner will consider his RFC, age, education, and past work
experience to determine whether he can perform other work. If he cannot perform other
work, the Commissioner will find the claimant disabled.

20 C.F.R. §§ 404.1520(g),

416.920(g). The Commissioner has the burden of proof only on “‘the fifth step, proving that
there is work available in the economy that the claimant can perform.’” White v. Comm’r of
Soc. Sec., 312 F. App’x 779, 785 (6th Cir. 2009) (quoting Her v. Comm’r of Soc. Sec., 203
F.3d 388, 391 (6th Cir. 1999)).
Judicial review of the denial of a claim for Social Security benefits is limited to
determining whether the ALJ’s findings are supported by substantial evidence and whether
the correct legal standards were applied. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241
(6th Cir. 2007). 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.
McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006).

Substantial

evidence is such relevant evidence as a reasonable mind might accept as sufficient to support
the conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Bass v. McMahon, 499
F.3d 506, 509 (6th Cir. 2007).
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If supported by substantial evidence, the Commissioner’s decision must be affirmed
even if the Court would decide the case differently and even if the claimant’s position is also
supported by substantial evidence. Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir.
2007); Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007); Longworth v. Comm’r of Soc.
Sec. Admin., 402 F.3d 591, 595 (6th Cir. 2005); Casey v. Sec’y of Health & Human Servs.,
987 F.2d 1230, 1233 (6th Cir. 1993). In other words, the Commissioner’s findings are
conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g).
III. 
Bennett asserts that ALJ Van Dyck erred in two ways. First, he argues that the ALJ
erred in considering the opinion of consultative examiner Dr. Paul von Herrmann. Second,
he contends that the question posed to the vocational expert did not include all of his
limitations.
A. Weight Assigned to Consultative Examiner
Bennett asserts that the ALJ’s opinion is not supported by substantial evidence.
Specifically, he argues that the ALJ failed to properly weigh the opinion of one time
consultative examiner Dr. Paul von Herrmann, M.D. Bennett contends that by finding he
had a medium lifting restriction, the ALJ failed to properly weigh Dr. von Herrmann’s
opinion that he could “lift and carry approximately 10 lbs. without restriction.” [Record No.
10-1, pp. 5–6, 8; Tr., p. 320] The ALJ agreed with the majority of Dr. von Herrmann’s
report and objective findings. However, he assigned “very little weight” to the lifting and
carrying restriction because it was not supported by Dr. von Herrmann’s objective findings
and was inconsistent with the remaining evidence in the record. [Tr., p. 16]
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The ALJ is responsible for weighing the record as a whole and determining the
claimant’s RFC. Coldiron v. Comm’r of Soc. Sec., 391 F. App’x 435, 439 (6th Cir.
2010); 20 C.F.R. §§ 404.1546(c), 416.946(c). When reviewing medical evidence, the
weight the ALJ gives to a consultative opinion depends on a variety of factors, including:
whether a source actually treated a claimant, the supportability of the source’s opinion,
the consistency of the opinion when compared with the record as a whole, and other
factors. 20 C.F.R. §§ 404.1527(c), 416.927(c). Under the treating physician rule, opinions
of treating physicians are entitled to great deference. The rule applies if a physician has
dealt with a claimant over a long period of time and, as a result, has a deep insight into
the claimant’s medical condition. See Coldiron, 391 F. App’x at 442; Barker v. Shalala,
40 F.3d 789, 794 (6th Cir. 1994).
The ALJ’s determination that Dr. von Herrmann’s lifting restriction was entitled to
very little weight is supported by the objective medical evidence. The treating physician rule
is inapplicable here because Dr. von Herrmann did not have a sufficient relationship with the
claimant to be classified as a treating source.1 See Coldiron, 391 F. App’x at 442 (treating
physician rule does not apply to consultative examiners). As noted by the ALJ, Dr. von
Herrmann’s opinion was not supported by his own objective findings. Dr. von Herrmann
found that Bennett had mild tenderness in his lower back. However, he also found that
Bennett had no limitations in “[r]eaching, handling, fingering, feeling, pushing and pulling.”
Additionally, he concluded that Bennett had 5+/5 strength throughout his body, including

1
Dr. von Herrmann saw Bennett on one occasion for a consultative examination. [Tr., pp. 317–22]

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5+/5 strength in his hands. [Tr., pp. 15, 319–20] These conclusions contradict his opinion
that Bennett was restricted to lifting and carrying ten pounds.
Further, Bennett’s own testimony casts doubt on Dr. von Herrmann’s opinion. As
noted by the ALJ, Bennett lacked credibility as a result of several inconsistencies. [Tr., pp.
15–16] Bennett filled out a functional report regarding his physical and mental limitations
on September 13, 2011, in which he stated that he was unable to do more than light
household chores. [Tr., pp. 223–31] Relating to his ability to lift and carry, Bennett stated
that he could lift only up to five pounds. [Tr., p. 229] However, Bennett testified that he had
been engaging in “odd jobs” including home improvement projects (putting up molding and
walls) requiring the use of tools (hammers and nails). 2
The ALJ also assigned “great weight” to state agency physician, Dr. Timothy Gregg’s
opinion. [Tr., p. 16] Dr. Gregg reviewed the record and determined that Dr. von Herrmann’s
opinion was more restrictive than the medical evidence required and was based only on a
snapshot of Bennett’s functioning. [Tr., p. 102] He concluded that Bennett had the physical
capability to occasionally lift and carry fifty pounds and to frequently lift and carry twentyfive pounds. [Tr., p. 101] In light of the minimal medical evidence supporting the alleged
back problems and Bennett’s own testimony, the ALJ agreed with Dr. Gregg’s conclusion
that a reduction to medium exertion with necessary postural precautions adequately reflected

2
The ALJ noted additional inconsistencies in Bennett’s testimony. Specifically, Bennett told Dr.
Timothy Baggs that he had stopped working because he “wasn’t making up [sic] to afford the ride.” [Tr.,
p. 324] However, at the administrative hearing, Bennett stated that he had stopped working because the
job was too strenuous. [Tr., p. 28] Further, although Bennett stated in his functional report that he was
unable to do more than light household chores, he told Dr. Baggs that in a typical day he would “walk to a
friend’s house and watch TV. If my back is not bothering me, then I play horseshoes.” [Tr., pp. 223–31,
327]

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the claimant’s limitations as demonstrated by the record.

[Tr., p. 16]

Thus, Dr. von

Herrmann’s opinion was not supported by the medical evidence because his findings were
contradicted by his own examination, Bennett’s own testimony, and Dr. Gregg’s review. As
a result, the ALJ’s determination on this issue is supported by substantial evidence.
B. Hypothetical Question
Bennett also asserts that the hypothetical question upon which the ALJ relied was
defective because it failed to accurately depict the restrictions assessed by Dr. Timothy
Baggs, Psy. D., whose opinions the ALJ chose to adopt regarding Bennett’s mental
limitations.

[Record No. 10-1, pp. 6–8]

The question asked to the vocational expert

incorporated the ALJ’s RFC determination. Specifically, the ALJ described a hypothetical
individual “of the same age, education, work background as [Bennett]. This individual
would be limited to medium work, RFC, with no more than frequent climbing of ladders,
ropes, and scaffolds, no more than frequent stooping, crouching, or crawling, and no more
than occasional kneeling.” [Tr., p. 41] Relying on the testimony of VE Bullard, the ALJ
found that although Bennett’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., pp. 16–17, 41–42]
“[F]or 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); Webb v. Comm’r of Soc. Sec., 368
F.3d 629, 633 (6th Cir. 2004). Therefore, the hypothetical question does not need to contain
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every one of the claimant’s conditions. However, “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) (quotations omitted).
In determining Bennett’s severe impairments, the ALJ stated that he assigned “great
weight” to Dr. Timothy Baggs’ findings because his conclusions were “wholly supported by
the lack of mental health treatment from the claimant, [the] objective evaluation and
findings,” and Dr. Baggs’ knowledge of agency rules and medical criteria for evaluating
functional limitations. [Tr., p. 14] In these remarks, the ALJ seems to completely accept Dr.
Baggs’ findings. Along with other conclusions, Dr. Baggs stated that it was his opinion that
Bennett “had the ability to understand and remember simple instructions.” [Tr., p. 330]
However, the ALJ did not include a limitation of “simple instructions” in the hypothetical
question posed to the vocational expert.3 [Tr., pp. 14, 41] As a result, Bennett asserts that
the hypothetical question cannot constitute substantial evidence that jobs exist in the national
economy that he could perform. [Record No. 10-1, pp. 7–8]
The Commissioner argues that, although the ALJ erred in not including a “simple
instructions” limitation, the error was harmless. [Record No. 11, pp. 6–7] In answering the
ALJ’s hypothetical, the vocational expert determined that there are “medium, unskilled
occupations” – including hand packager, industrial cleaner, and storage laborer – that exist in
significant numbers in the national economy that Bennett could perform. [Tr., p. 42] The

3
Dr. Baggs’ “simple instructions” limitation was not included in Bennett’s RFC either. However,
the claimant does not argue that this amounted to reversible error.

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Commissioner asserts that any error resulting from the failure to include a limitation of
“simple instructions” was harmless because all of the jobs identified by the vocational expert
were “unskilled occupations,” which accounted for Dr. Baggs’ limitation. [Record No. 11, p.
7] Thus, the Commissioner contends that the claimant has the ability to perform the jobs
identified by the vocational expert regardless of whether the RFC or the hypothetical
question included Dr. Baggs’ limitation. [Record No. 11, p. 7]
The Sixth Circuit has recognized that “[i]t is an elemental principle of administrative
law that agencies are bound to follow their own regulations.” Wilson v. Comm’r of Soc. Sec.,
378 F.3d 541, 545 (6th Cir. 2004). However, decisions of administrative agencies are
generally reviewed for harmless error. See Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d
647, 654 (6th Cir. 2009); Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001).
Accordingly, if an agency has failed to adhere to its own procedures, the reviewing court
“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.” Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 654 (6th Cir. 2009) (quotations
omitted).
The Sixth Circuit has remanded a similar case for failure to properly include a
claimant’s limitations in a hypothetical question. In Ealy v. Commissioner of Social Security,
594 F.3d 504, 514–17 (6th Cir. 2010), the hypothetical question relied upon by the ALJ
failed to include limitations assessed by a state psychologist whose opinion the ALJ
accepted.

Specifically, the ALJ failed to include limitations in pace, speed, and

concentration, which were all required to perform the jobs identified by the vocational expert
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and adopted by the ALJ. Id. at 516–17. The Sixth Circuit determined that “[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. The reasoning in
Ealy has been interpreted by at least one district court to mean that harmless error may not be
found in these circumstances. See Osborne v. Comm’r of Soc. Sec. Admin, No. 1: 12-CV01904, 2013 WL 5221107, at *12 (N.D. Ohio Sept. 17, 2013) (noting that “because the
burden shifts to the Commissioner at Step Five,” the ALJ’s failure to include a restriction to
simple, routine and repetitive tasks included in the RFC “was not harmless and the ALJ’s
Step Five determination cannot be said to be supported by substantial evidence”).
In Irvin v. Colvin, Civil No. 12-169-GFVT, 2013 WL 5477461, at *9–12 (E.D. Ky.
Sept. 30, 2013), the ALJ accepted the limitations assessed by state agency physicians,
including limiting the claimant to only frequent reaching, handling, or fingering. Id. at *4.
But the claimant’s RFC and the hypothetical question posed to the vocational expert failed to
include these limitations. Regardless, the district court determined that the ALJ’s failure to
include the limitations constituted harmless error because, unlike Ealy, each of the
occupations identified by the vocational expert “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.” Id. at *10. On appeal, the Sixth Circuit reversed the
district court’s ruling. Irvin v. Soc. Sec. Admin., 573 F. App’x 498, 502 (6th Cir. 2014). The
Court concluded that five of the listed occupations could be performed by an individual with
the claimant’s limitations. Nevertheless, the final occupation identified (oil-filter inspector)
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did not correspond to an occupation in the Dictionary of Occupational Titles making it
“unclear whether the oil-inspector position requires only frequent, rather than constant,
reaching, handling, or fingering.” Id. As a result, it was “unclear whether the Commissioner
would have met his step-five burden of demonstrating that Irvin could perform this job if all
[the state agency physicians’] restrictions had been included in the hypothetical question.”
Id. Additionally, the record did not include sufficient evidence to find that the remaining
occupations identified by the vocational expert existed in significant numbers in the national
economy if oil-filter inspector was excluded. Id.
Here, as stated earlier, ALJ Van Dyck failed to include a limitation for “simple
instructions” in the hypothetical question posed to the vocational expert. The vocational
expert concluded that Bennett had the ability to perform “medium, unskilled occupations,”
including hand packager, industrial cleaner, and storage laborer. [Tr., p. 42] In denying the
Commissioner’s harmless error argument in Irvin, the Sixth Circuit relied on the facts that it
was unclear whether one of the occupations identified by the vocational expert accounted for
the omitted limitations and whether the remaining occupations existed in significant numbers
in the national economy. 573 F. App’x at 502. The Court did not conclude that Ealy made
harmless error inapplicable in this context.
The issues requiring remand in Irvin are not presented in this case. The ability to hear
and understand “simple instructions” is all that is required to do unskilled work. See SSR
96-9p, 1996 WL 374185, at *8 (July 2, 1996) (noting that “the ability to hear and understand
simple oral instructions” is sufficient to perform unskilled work). And each occupation listed
by the vocational expert has a “specific vocational preparation” of 2, classifying them as
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unskilled occupations. Thus, even including the “simple instructions” limitation, there is
substantial evidence that Bennett has the ability to perform each occupation identified. See
United States Dep’t of labor, Dictionary of Occupational Titles §§ 920.587-018 (1991 WL
687916); 381.687-018 (1991 WL 673258); 922.687-058 (1991 WL 688132) (all requiring
the ability to “[a]pply commonsense understanding to carry out detailed but uninvolved
written or oral instructions”). And unlike Irvin, there is no question that these occupations
exist in a significant number in the national economy. VE Bullard testified that 167,700
hand packager, 1,089,000 industrial cleaner, and 96,600 storage laborer jobs exist in the
national economy. [Tr., p. 42] Therefore, the Commissioner has satisfied her burden at step
five of the sequential analysis.
This Court is unable to ascertain any harm suffered by Bennett in connection with the
hypothetical question. Even with the failure to include the “simple instructions” limitation,
the procedures employed by the ALJ demonstrate that sufficient jobs exist in the national
economy to account for all of Bennett’s limitations. As a result, harmless error occurred
because Bennett has not shown “prejudice[] on the merits or [deprivation] of substantial
rights because of the agency’s procedural lapse[].” Rabbers, 582 F.3d at 654 (quotations
omitted).
IV.
The ALJ did not err in considering the opinion of consultative examiner Dr. Paul von
Herrmann. Further, the ALJ’s failure to include a limitation of “simple instructions” in the
hypothetical question posed to VE Bullard was harmless error. Having reviewed the record

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of this proceeding, the Court concludes that substantial evidence supports the final decision
of the defendant. Accordingly, it is hereby
ORDERED as follows:
1.

Plaintiff Gregory W. Bennett’s motion for summary judgment [Record No. 10]

is DENIED.
2.

Defendant Carolyn W. Colvin’s motion for summary judgment [Record No.

11] is GRANTED.
3.

The administrative decision will be AFFIRMED by separate judgment

entered this date.
This 11th day of February, 2015.

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