Hoskins v. SSA
Filing
12
MEMORANDUM OPINION & ORDER: 1) Plaintiff's Motion for Summary Judgment (DE 10 ) is DENIED and 2) Defendant's Motion for Summary Judgment (DE 11 ) is GRANTED. Signed by Judge Joseph M. Hood on 9/29/2016.(RBB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
WILLIE TRAMPAS HOSKINS,
)
)
) Action No. 6:15-CV-00147-JMH
)
)
) MEMORANDUM OPINION AND ORDER
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security
Defendant.
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This matter is before the Court on the parties’ cross-Motions
for Summary Judgment (DE 10, 11) on Plaintiff’s appeal of the
Commissioner’s denial of his application for disability insurance
benefits.1
The matter having been fully briefed by the parties is
now ripe for this Court’s review.
I.
In
determining
whether
an
individual
is
disabled,
an
Administrative Law Judge (“ALJ”) uses a five step analysis:
1. An individual who is working and engaging
in substantial gainful activity is not
disabled, regardless of the claimant’s
medical condition.
2. An individual who is working but does not
have
a
“severe”
impairment
which
significantly limits his physical or mental
ability to do basic work activities is not
disabled.
1
These are not traditional Rule 56 motions for summary judgment. Rather,
it is a procedural device by which the parties bring the administrative record
before the Court.
3. If an individual is not working and has a
severe impairment which “meets the duration
requirement and is listed in appendix 1 or
equal to a listed impairment(s)”, then he
is disabled regardless of other factors.
4. If a decision cannot be reached based on
current work activity and medical facts
alone, and the claimant has a severe
impairment, then the Secretary reviews the
claimant’s residual functional capacity and
the physical and mental demands of the
claimant’s previous work. If the claimant
is able to continue to do this previous
work, then he is not disabled.
5. If the claimant cannot do any work he did
in the past because of a severe impairment,
then the Secretary considers his residual
functional capacity, age, education, and
past work experience to see if he can do
other work. If he cannot, the claimant is
disabled.
Preslar v. Sec’y of Health & Hum. Servs., 14 F.3d 1107, 1110 (6th
Cir. 1994)(citing 20 C.F.R. § 404.1520(1982)).
II.
Plaintiff
Benefits
filed
(“DIB”)
and
applications
Supplemental
for
Disability
Security
Income
Insurance
(“SSI”),
alleging disability beginning January 15, 2013 (Tr. 212, 219),
when he was forty-three years old.
He has the equivalent of a
high school education (GED) and previous work as an industrial
truck
driver,
operator,
production
tractor-trailer
assembler,
truck
driver,
construction worker (Tr. 46-47).
2
concrete
dump
truck
mixing
truck
driver,
and
He alleged in his applications
that he was unable to work due to back, neck, left arm, left leg,
and “sometimes” right leg pain (Tr. 264, 281).
His applications
were denied initially and on reconsideration (Tr. 74-77), and by
an Administrative Law Judge after a hearing (“ALJ”) (Tr. 11-23,
24-51).
The
Appeals
Council
declined
Plaintiff’s
request
for
review (Tr. 1-4), making the ALJ’s August 28, 2014 decision the
final agency decision.
This appeal followed and the case is ripe
for review pursuant to 42 U.S.C. § 405(g).
III.
In
September
2002,
Plaintiff
had
a
successful
anterior
cervical discectomy and fusion at the C5-C6 level (Tr. 574). After
some time, he sought treatment for management of pain in the lower
back extending into the legs at Interventional Pain Specialists
for pain management, beginning in April 2012 through April 2013(Tr.
378-406).
Both Michael Fletcher, M.D., and Kendall Hansen, M.D.,
noted over time that Hoskins had a “smooth and steady” gait (Tr.
378, 381, 383, 385, 388, 390, 392, 395, 397, 399, 401, 403, and
405).
One month after his alleged disability onset date, in
February 2013, Dr. Fletcher noted Plaintiff’s report of increased
back pain due to packing, moving, and lifting boxes (Tr. 381).
Since
2002,
Plaintiff
has
also
received
examinations
or
treatment by providers at St. Elizabeth Healthcare (Tr. 422-557,
558-573),
with
an
October
2012
physical
examination
finding
Plaintiff to be in no acute distress, with normal range of motion
3
of his neck without tenderness, and with his extremities having
intact distal pulses, with no tenderness or edema. Plaintiff was
also described as fully oriented, moved his extremities equally,
and no focal deficits were noted (Tr. 445) during that examination.
In May 2013, Robert Hoskins, M.D., saw Plaintiff for a
consultative
physical
examination
(Tr.
362-366).
Plaintiff
reported his chief complaint was “back pain” (Tr. 362). The
relevant physical examination findings from Dr. Hoskins report
that Plaintiff exhibited no edema of his extremities.
Dr. Hoskins
observed a surgical incision being noted over the right anterior
neck;
otherwise,
no
crepitation,
tenderness,
effusions,
instability, atrophy, and no abnormal strength/tone in the head,
neck, spine or extremities was observed. Plaintiff demonstrated a
normal gait and no sensory deficits were identified. Plaintiff
could
sit/squat
and
stand
from
a
chair
with
no
perceived
discomfort. Plaintiff was able to transfer to and from the exam
table
without
remarkable
difficulty.
Dr.
Hoskins
noted
that
Plaintiff reported smoking one pack of cigarettes per day. Despite
noting that physical examination was “benign without deformities,”
Dr.
Hoskins
significant
opined
that
limitations
he
for
expected
lifting,
Plaintiff
carrying,
would
standing,
have
and
sitting. However, Dr. Hoskins opined that he was not certain
Plaintiff was completely excluded from some limited light lifting,
carrying, handling, etc., and that he could be malingering. Dr.
4
Hoskins did not set forth specific functional limitations (Tr.
362-366).
Subsequently,
treatment
consisting
from
Plaintiff
Roy
Varghese,
primarily
of
received
routine
M.D.,
back
for
prescription
conservative
and
medication
neck
pain,
refills.
Dr.
Varghese’s physical examinations of Plaintiff between October 2013
and April 2014 resulted in generally normal and minimal findings
with refills of prescription medications (Tr. 416-421). In March
2014, Dr. Varghese provided somewhat illegible checklist residual
functional
capacity
questionnaire
responses
that
contained
restrictive functional limitations without much in the way of
reporting supportive objective findings (Tr. 407-411).
State agency medical consultant Donna Sadler, M.D., reviewed
the record in July 2013 and opined that Plaintiff had abilities
consistent with light exertion work (Tr. 85-87). Dr. Sadler’s
assessment
included
Plaintiff
retaining
the
ability
to
occasionally lift and carry 20 pounds; frequently lift and carry
10 pounds; stand, walk, and sit about six hours, respectively, in
an
eight
hour
workday;
no
limitation
in
balancing;
frequent
climbing of ramps and stairs; frequent stooping, kneeling and
crouching; no climbing ladders, ropes, and scaffolds or crawling;
frequent
pushing
and
pulling;
occasional
overhead
reaching
bilaterally but no limitations in handling or fingering; and
environmental limitations as to avoiding concentrated exposure to
5
extreme cold or heat and vibration; and all exposure to hazards
(Tr. 85-87).
State agency psychologists Nancy Hinkeldey, Ph.D., and Ed
Ross, Ph.D., reviewed the record in May 2013, and July 2013,
respectively (Tr. 56, 67, 83-84, 96-97). In May 2013, Dr. Hinkeldey
opined that Plaintiff was not subject to a medically determinable
mental impairment (Tr. 56, 67). In July 2013, Dr. Ross also opined
that Plaintiff was not subject to a medically determinable mental
impairment (Tr. 83-84, 96-97).
Plaintiff testified at the hearing convened in this matter
before the ALJ that the primary reason he was unable to work was
due to neck and back pain as well as numbness in his upper
extremities (Tr. 35-38). Plaintiff testified that he had a GED and
had attended one semester of college (Tr. 35). He advised the ALJ
that he last worked as a trash truck driver in November or December
of 2011 or 2012 (Tr. 30-31) and testified that he can no longer
drive long distances (Tr. 41-42). He testified, as well, that he
spends his days watching television (Tr. 41) and cuts the grass,
but it takes all day (Tr. 41). He estimated that he could only
lift about five pounds (Tr. 39), could stand for no more than 1015 minutes at a time and sit for 15-20 minutes at a time, and
6
testified that, if he sat for very long periods, his left leg goes
numb (Tr. 39-40, 42).2
A vocational expert, Jo Ann Bullard, testified at the August
2014 administrative hearing (Tr. 44-50) that Plaintiff’s past work
ranged from light to heavy exertion and unskilled to semi-skilled
with the position of production assembler being unskilled light
exertion (Tr. 46-47). The ALJ asked the vocational expert to assume
a hypothetical individual of Plaintiff’s age, education, and work
experience
with
limitations
the
same
as
those
ultimately
determined by the ALJ to be those of the Plaintiff (Tr. 47-48).
The vocational expert testified that such an individual could
perform Plaintiff’s past relevant work as a production assembler,
and could also perform the representative unskilled light exertion
jobs of laundry folder, textile checker and retail marker (Tr. 4849).
In
response
to
further
questioning
from
the
ALJ,
the
vocational expert testified that certain further limitations would
preclude employment (Tr. 49-50).
Having considered the record, including the testimony offered
at the hearing in this matter, the ALJ found that Plaintiff had
severe impairments in the form of degenerative disc disease of the
lumbar and cervical spines and status post cervical fusion (Tr.
2
Plaintiff also testified that he was, at that time, incarcerated
after pleading guilty to conspiracy to manufacture methamphetamine
(Tr. 43).
The Court notes that “Willie Trampus Hoskins” was
convicted in 6:13-cr-49-GFVT (E.D.Ky.).
7
13; Finding No. 3). The ALJ found that Plaintiff’s impairments,
singly or in combination, did not meet or equal the severity of a
listed impairment (Tr. 14; Finding No. 4). As discussed below, the
ALJ
also
found
that
Plaintiff’s
complaints
of
disabling
limitations were not entirely credible (Tr. 15). The ALJ found
that Plaintiff had the residual functional capacity to do light
exertion
work
with
additional
postural,
manipulative
and
environmental limitations (Tr. 14; Finding No. 5) and that, based
on the testimony of the VE, Plaintiff could perform his past work
as a production assembler as well as the representative light
exertion positions of laundry folder; textile checker; and marker
retail, existing in significant numbers in the national economy
(Tr. 17-19; Finding No. 6). Thus, the ALJ found that Plaintiff was
not under a disability from his alleged disability onset date of
January
15,
2013
through
August
28,
2014,
the
date
of
the
Commissioner’s final decision (Tr. 19; Finding No. 7).
IV.
When reviewing a decision made by the ALJ, the Court may not
“‘try the case de novo, resolve conflicts in evidence, or decide
questions of credibility.’” Ulman v. Comm’r of Soc. Sec., 693 F.3d
709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506,
509 (6th Cir. 2007).
“The ALJ’s findings are conclusive as long
as they are supported by substantial evidence.” 42 U.S.C. § 405(g);
Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (citations
8
omitted).
Substantial evidence “means such relevant evidence as
a reasonable mind might accept.” Foster, 279 F.3d at 353.
V.
Plaintiff generally argues that the ALJ’s decision was not
supported by substantial evidence, but he specifically contends in
this appeal that the ALJ did not properly assess his subjective
complaints of pain and that the ALJ erred in discounting the
opinions of treating or examining physicians in developing her
residual
functional
capacity
(Pl.’s Br.) at 3, 10).3
determination
The Court disagrees.
(Plaintiff’s
Brief
As explained below,
the ALJ reasonably considered the record as a whole, including the
objective medical evidence and Plaintiff’s subjective complaints
in determining Plaintiff’s residual functional capacity and in
concluding
that
Plaintiff
could
perform
his
past
work
as
a
production assembler as well as other light exertion positions.
The existence impairments such as those alleged by Plaintiff
is insufficient to establish disability under the standards of the
Act. Plaintiff must show that his impairments caused functional
3
Plaintiff also makes general assertions that the ALJ erred in not
determining that he was subject to a non-severe mental impairment
or a seizure disorder and that, combined, the severity of his
impairments met or equaled that of a listed impairment (Pl.’s Br.
at 3, 5-6). However, Plaintiff provides no developed argumentation
beyond the general assertions alluded to above and, thus, should
be waived. See United States v. Elder, 90 F.3d 1110, 1118 (6th
Cir. 1996) (“[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.” (internal quotation omitted)).
9
limitations
so
severe
that
he
was
unable
to
engage
in
any
substantial gainful activity for a continuous period of at least
12 months. See Barnhart v. Walton, 535 U.S. 212, 220 (2002) (citing
42 U.S.C. § 423(d)(1)(A)). The disability, not just the impairment,
must last 12 months. Walton, 535 U.S. at 220. Here, the Court
agrees with the Commissioner, that the evidence simply does not
support Plaintiff’s claims of completely disabling limitations
through
the
date
of
the
ALJ’s
decision.
See
20
C.F.R.
§
404.1529(c)(4) (stating an ALJ must consider inconsistencies in
the evidence); see also Walters v. Comm’r of Soc. Sec., 127 F.3d
525, 532 (6th Cir. 1997) (“The absence of sufficient objective
medical evidence makes credibility a particularly relevant issue,
and in such circumstances, this court will generally defer to the
Commissioner’s assessment when it is supported by an adequate
basis.”).
The
Court
first
considers
whether
the
ALJ’s
residual
functional capacity finding was reasonable, based on the evidence
of record, and, thus, represented “the most [a claimant] can still
do
despite
[his]
impairments.”
20
C.F.R.
§§
404.1520(a)(4),
404.1545(a)(1) & (5). An ALJ is required to assess a claimant’s
residual functional capacity based on all of the relevant medical
and other evidence in the case record. 20 C.F.R. § 404.1545(a)(3)
No medical source opinion is conclusive by itself on this issue.
See SSR 96-5p, 1996 WL 374183, at *2, 4-5. Similarly, a claimant’s
10
subjective complaints of pain or other symptoms cannot alone
establish
retains
disability.
the
burden
20
of
C.F.R.
§
establishing
404.1529(a).
his
The
residual
claimant
functional
capacity limitations. See Jordon v. Comm’r of Soc. Sec., 548 F.3d
417, 423 (6th Cir. 2008) (citation omitted) (“The SSA’s burden at
the fifth step is to prove the availability of jobs in the national
economy that the claimant is capable of performing . . . The
claimant, however, retains the burden of proving his lack of
residual functional capacity.”); see also Her v. Comm’r of Soc.
Sec., 203 F.3d 388, 391 (6th Cir. 1999).
In the matter at hand, the ALJ considered the entire record
(Tr. 13, 14; Finding No. 5), including medical source opinions and
Plaintiff’s subjective complaints in the making of her residual
functional capacity determination (Tr. 15-17), her determination
that Plaintiff retained the capacity to perform his past work as
a production assembler as well as the other representative light
exertion
positions
(Tr.
17-19;
Finding
No.
6)
despite
his
impairments, and her ultimate decision that Plaintiff was not
disabled under the Act (Tr. 19; Finding No. 7).
The ALJ discussed
the relevant medical evidence in making this residual functional
capacity determination, including the findings or opinions of
Plaintiff’s treating physicians, Drs. Varghese and Fletcher; the
findings and opinion of consultative examining physician, Dr.
11
Hoskins; and the opinions of the state agency medical consultants,
Drs. Sadler, Hinkeldey, and Ross (Tr. 15-17).
With regard to Plaintiff’s complaints of back and neck pain,
the ALJ concluded and Plaintiff does not dispute that his treatment
during the relevant time period was routine and conservative (Tr.
15-16). The findings were generally normal, with a few exceptions,
and treatment largely consisted of refilling prescriptions for
medication (Tr. 16, 416-21).
In light of this history, the Court
is not persuaded that the ALJ erred to the extent that she
discounted Dr. Varghese’s recommendations regarding Plaintiff’s
residual functional capacity.
The ALJ considered the somewhat
illegible
residual
checklist
form
functional
capacity
questionnaire responses prepared by Dr. Varghese in March 2014
(Tr. 407-411) but reasonably concluded that the recommendation was
entitled to less weight than it might otherwise be because it
contained
overly
restrictive
objective findings.
limitations
without
supporting
An ALJ may discount a doctor’s opinion when
the doctor’s findings are not supported by objective medical
evidence or are inconsistent with the record as a whole. See 20
C.F.R. § 404.1527(c); see also Walters v. Comm’r Soc. Sec, 127
F.3d 525, 529–530 (6th Cir.1997); McCoy ex rel. McCoy v. Chater,
81 F.3d 44, 47 (6th Cir. 1995) (ALJ reasonably discounted treating
physician’s
opinion
where
claimant’s
unsupported by objective findings).
12
subjective
complaints
With that in mind, the Court also observes that the ALJ’s
residual functional capacity finding is largely in keeping with
the results of Dr. Hoskins’s May 2013 consultative examination,
although not with any significant limitations proposed.
There,
despite an unremarkable physical examination, Dr. Hoskins opined
that he expected Plaintiff would have significant limitations for
lifting, carrying, standing, and sitting based on his complaints
but was not certain Plaintiff was completely excluded from some
limited
light
lifting,
carrying,
handling,
etc.,
and
that
Plaintiff “could be malingering” (Tr. 364). The ALJ justifiably
assigned
only
“minimal”
weight
to
Dr.
Hoskins’s
opinion,
reasonably pointing out that his physical examination of Plaintiff
“was benign without deformities.” In other words, the ALJ properly
considered whether the opinion offered by Dr. Hoskins was in
keeping with the objective results of his examination.
Further,
the ALJ pointed out that the probative value of Dr. Hoskins’s
opinion was diminished because of the lack of specific functionby-function limitations (Tr. 16-17).
The Court cannot say that
this was error.
Further, the ALJ’s residual functional capacity determination
is
supported
consultants,
by
Drs.
the
opinions
Sadler,
of
the
Hinkeldey,
and
state
Ross,
agency
to
medical
which
she
assigned “substantial” weight (Tr. 17; Tr. 56, 67, 83-84, 85-87,
96-97).
State agency medical consultant, Dr. Sadler, opined that
13
Plaintiff retained the residual functional capacity for light
exertion work, with the ability to occasionally lift and carry 20
pounds; frequently lift and carry 10 pounds; stand, walk, and sit
about six hours, respectively, in an eight hour workday; no
limitation in balancing; frequent climbing of ramps and stairs;
frequent stooping, kneeling and crouching; no climbing ladders,
ropes, and scaffolds or crawling; frequent pushing and pulling;
occasional
overhead
reaching
bilaterally;
no
limitations
in
handling or fingering; and no concentrated exposure to extreme
cold or heat and vibration; and all exposure to hazards (Tr. 8587). And state agency medical consultants, Drs. Hinkeldey and Ross,
opined that Plaintiff was not subject to a medically determinable
mental impairment (Tr. 56, 67, 83-84, 96-97). Again, the ALJ
justifiably assigned “substantial” weight to the opinions of the
state agency medical consultants, Drs. Sadler, Hinkeldey, and Ross
(Tr. 17). As "[s]tate agency medical and psychological consultants
. . . are highly qualified physicians and psychologists who are
also experts in Social Security disability evaluation." 20 C.F.R.
§ 404.1527(e)(2)(i), the decision to give more weight to a state
agency doctor over treating and examining doctors is, indeed,
permissible under the right circumstances. Blakley v. Comm'r of
Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009).
The
ALJ
was
appropriately
concerned
by
the
absence
of
objective clinical or laboratory findings to support the degree of
14
limitations as argued by Plaintiff and suggested by Dr. Varghese
and Mr. Hoskins, and was obliged to consider the fact that the
objective
medical
evidence
offered
support,
instead,
to
the
opinions of the agency physicians and, ultimately, her reasonable
residual functional capacity assessment (Tr. 14-17). 20 C.F.R. §
404.1529(c)(4)
(ALJ
must
consider
inconsistencies,
including
conflicts between a claimant’s statements and the medical record).
Substantial evidence also supports the ALJ’s finding that the
record did not include objective findings that support Plaintiff’s
argument that he was subject to disabling symptoms. Symptoms are
subjective complaints about a claimant’s condition, and cannot be
the basis for a finding of disability without more. See 20 C.F.R.
§ 404.1529(a) (“statements about your pain or other symptoms will
not alone establish that you are disabled”); see also Walters v.
Comm’r of Soc. Sec., 127 F.3d at 532 (6th Cir. 1997) (“The absence
of
sufficient
objective
medical
evidence
makes
credibility
a
particularly relevant issue, and in such circumstances, this court
will generally defer to the Commissioner’s assessment when it is
supported by an adequate basis.”). Here, the ALJ justifiably found
Plaintiff’s subjective complaints were not entirely credible and
set forth a number of significant reasons for her credibility
determination including pointing out that in February 2013 (one
month after Plaintiff’s alleged disability onset date) Plaintiff
engaged in packing, lifting and moving boxes (Tr. 15-17). Walters,
15
127 F.3d at 531 (“Discounting credibility to a certain degree is
appropriate where an ALJ finds contradictions among the medical
reports, claimant’s testimony, and other evidence.”).
This Court is not concerned with the fact that the evidence
could be weighed differently to support a finding of disability,
as Plaintiff urges (Pl.’s Br. at 3-10), because this matter is
subject to substantial evidence review. Kyle v. Comm’r of Soc.
Sec., 609 F.3d 847, 854-55 (6th Cir. 2010) (“Even if this Court
might
have
reached
a
contrary
conclusion
of
fact,
the
Commissioner’s decision must be affirmed so long as it is supported
by substantial evidence.”). Regardless of whether the Court would
have made the same findings as the ALJ on the evidence in the
record, the ALJ’s findings must be affirmed because they are
supported by substantial evidence. Id. The ALJ reasonably weighed
all medical opinions and other evidence and considered all relevant
medical findings including those provided by treating, examining,
and state agency medical consultants (Tr. 14-17), and her decision
concerning the Plaintiff’s ability to do work in her residual
functional capacity finding is supported by substantial evidence.
The Court affirms the decision of the Commissioner in this regard.
Further, the Court concludes that the ALJ’s determination at
step four of the sequential evaluation that Plaintiff retained the
residual
functional
production
assembler
capacity
was
to
perform
supported
16
by
his
past
substantial
work
as
a
evidence.
Because the RFC finding by the ALJ was appropriate, the ALJ
appropriately relied upon the vocational expert’s response to a
hypothetical question which reflected that residual functional
capacity and she was not required to include additional limitations
in her hypothetical question to the vocational expert. See, e.g.,
Casey v. Secretary of Health and Human Services, 987 F.2d 1230,
1235 (6th Cir. 1993) (“It is well established that an ALJ . . . is
required
to
incorporate
only
those
limitations
accepted
as
credible by the finder of fact.”); see also Wilson v. Comm’r of
Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004) (“[T]he Commissioner
may rely on the testimony of a vocational expert to find that the
claimant
possesses
the
capacity
to
perform
other
substantial
gainful activity that exists in the national economy.”). The
vocational expert testified that such an individual could perform
Plaintiff’s past work as a production assembler and provided
representative examples of other light exertion positions that
such an individual could perform (Tr. 47-49). The vocational
expert’s response to the ALJ’s hypothetical question constitutes
substantial evidence in support of the ALJ’s finding that Plaintiff
retained the residual functional capacity to perform his past work
as a production assembler as well as other jobs in the national
economy, including the identified representative light exertion
positions (Tr. 17-19, Finding No. 6; Tr. 47-49).
That is enough,
and the Court will affirm the decision of the Commissioner.
17
Accordingly, for all of the reasons set forth above, IT IS
ORDERED:
1)
that Plaintiff’s Motion for Summary Judgment (DE 10) is
DENIED and
2)
that Defendant’s Motion for Summary Judgment (DE 11) is
GRANTED.
This the 29th day of September, 2016.
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