Hinkle v. SSA
MEMORANDUM OPINION & ORDER : 1) Plaintiff's Motion for Summary Judgment (DE 15 ) is DENIED; and 2) Defendant's Motion for Summary Judgment (DE 19 ) is GRANTED. Signed by Judge Joseph M. Hood on 9/29/17.(SYD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
DAVID WAYNE HINKLE,
) Action No. 6:16-CV-000143-JMH
) MEMORANDUM OPINION AND ORDER
NANCY A. BERRYHILL,
Acting Commissioner of
This matter is before the Court on the parties’ cross-Motions
for Summary Judgment (DE 15, 17, 19) on Plaintiff’s appeal of the
Acting Commissioner’s denial of his application for disability
The matter having been fully briefed by the
parties is now ripe for this Court’s review.
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
2. An individual who is working but does not
significantly limits his physical or mental
ability to do basic work activities is not
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
Preslar v. Sec’y of Health & Hum. Servs., 14 F.3d 1107, 1110 (6th
Cir. 1994) (citing 20 C.F.R. § 404.1520(1982)).
In April 2013, at the age of fifty-one, Plaintiff filed an
application for Supplemental Security Income (“SSI”), alleging
disability beginning July 1, 2008 (Tr. 197-206). Hinkle has an
eleventh grade education, reads at a sixth grade level, and has no
past relevant work. This claim was initially denied on June 25,
2013, and upon reconsideration on September 5, 2013.
a hearing, which was held and at which he testified on January 7,
2015, in Livonia, Michigan.
Hinkle testified at the hearing, and
the ALJ ultimately determined that he had the severe impairments
hypertension, and anxiety.
After the hearing, the ALJ submitted
interrogatories to vocational expert (“VE”) Michael E. Rosko. The
ALJ asked the VE 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 Plaintiff
(Tr. 284): “claimant has the residual functional capacity to
perform light work . . . except the claimant requires a sit/stand
option allowing a change in position every fifteen minutes; should
never use ladder[,] scaffolds[,] or ropes; should avoid walking on
uneven surfaces and should never use foot controls . . . [and is]
calculating or problem solving; work in a non-public setting with
routine work changes accommodating a sixth grade literacy level.”
The VE stated that such an individual could perform the unskilled
light jobs of assembler, packager, and sorter (Tr. 285). After
evidence to Plaintiff’s attorney for the opportunity to comment on
the response, to submit additional questions to the vocational
Plaintiff’s attorney did not respond (Tr. 27). The Administrative
Law Judge (“ALJ”) denied Plaintiff’s claim in April 2015 (Tr. 2446), and the Appeals Council denied Plaintiff’s request for review
(Tr. 1-6), making the ALJ’s decision the final agency decision for
purposes of judicial review. 20 C.F.R. §§ 416.1481, 422.210(a).
This appeal followed.
The relevant aspects of the record evidence
are discussed in turn, below.
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
Substantial evidence “‘means such relevant evidence as
a reasonable mind might accept.’” Foster, 279 F.3d at 353 (quoting
Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th
As an initial matter, Plaintiff has not cited to any evidence
in the record nor has he otherwise supported his claim that he
meets Listing 12.05, as he argues in his Motion for Summary
Plaintiff bears the burden of demonstrating that his
impairments meet or equal a listed impairment.
Bowen v. Yuckert,
482 U.S. 137, 146 n.5 (1987). “For a claimant to show that his
impairment matches a listing, it must meet all of the specified
medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990)
(emphasis omitted); see also Elam ex rel. Golay v. Comm’r of Soc.
Sec., 348 F.3d 124, 125 (6th Cir. 2003) (same).
Under the Acting Commissioner’s regulations, Listing 12.05 is
structured differently than the rest of the mental disorders
listings. 20 C.F.R. pt. 404, subpt. P, app. 1, §12.00(A). Listing
description,” with criteria the claimant must meet in addition to
disability. See Randall v. Astrue, 570 F.3d 651, 659-60 (5th Cir.
2009); Wall v. Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009); Novy
v. Astrue, 497 F.3d 708, 709 (7th Cir. 2007); Maresh v. Barnhart,
438 F.3d 897, 899 (8th Cir. 2006); Foster , 279 F.3d at 354. As
the regulations clearly explain, “[i]f your impairment satisfies
the diagnostic description in the introductory paragraph and any
one of the four sets of criteria [paragraphs A through D], we will
find that your impairment meets the listing.” 20 C.F.R. pt. 404,
subpt. P, app. 1, § 12.00(A) (emphasis added). The diagnostic
description of Listing 12.05 requires a showing of “significantly
adaptive functioning initially manifested during the developmental
period [i.e., onset before age 22].” 20 C.F.R. pt. 404, subpt. P,
app. 1 §12.05. Once that is shown, “severity prong” C requires a
showing of (1) a valid verbal, performance, or full scale IQ of 60
through 70; and (2) a physical or other mental impairment imposing
an additional and significant work-related limitation of function.
See 20 C.F.R. pt. 404, subpt. P, app. 1, §12.05C.
Here, the only IQ scores contained in the documentary evidence
are from a consultative examination performed by Mary AllenGenthner, M.S., in April 2010, in connection with an earlier
application for benefits. On IQ testing, Plaintiff achieved a
Verbal Comprehension score of 89, a Perceptual Reasoning score of
81, and a Full Scale IQ score of 80, placing him in the low average
range of intellectual functioning (Tr. 322). Ms. Allen-Genthner
assessed alcohol dependence, anxiety disorder, and history of
poly-substance abuse but did not provide any diagnosis related to
Plaintiff’s intellectual functioning (Tr. 322-23). In fact, no
medical source diagnosed Plaintiff with any disorder relating to
agency psychologist examined Plaintiff in June 2013, and estimated
Plaintiff’s intelligence to be in the average to low average range.
She assessed pain disorder related to general medical condition
and anxiety disorder (Tr. 483). That same month, Dan Vandivier,
impairments of anxiety disorder and substance addiction disorders,
but not intellectual disability (Tr. 106). Dr. Vandivier concluded
Plaintiff could carry out simple instructions/tasks in object
focused, nonpublic work settings with casual, infrequent coworker
contact and infrequent, gradually introduced work routine changes,
accommodating a sixth grade literacy level (Tr. 109). Later that
summer, state agency psychologist Lea Perritt, Ph.D., agreed with
Dr. Vandivier’s opinion (Tr. 123).
Not only did valid IQ testing reveal scores well above those
required to meet Listing 12.05, there were also no evidence that
Plaintiff had deficits in “[a]daptive functioning [which] includes
communication, and daily living skills.” West v. Comm’r of Soc.
Sec., 240 F. App’x 692, 698 (6th Cir. 2007). A person has deficits
in adaptive functioning when he has significant limitations in at
least two of the following skill areas: communication, self care,
leisure, health, and safety. See Diagnostic and Statistical Manual
of Mental Disorders – Text Revision (DSM-TR2000) at 41-42.
not considered in the evaluation as relevant past work, Hinkle
contractor, which is a skilled job (Tr. 240, 279, 283). He also
worked as a semi-truck driver, which is a semi-skilled job and
required him to have a commercial driver’s license (Tr. 240, 283,
322). Plaintiff also completed truck-driving school (Tr. 226). He
maintained the ability to perform his own self-care tasks (Tr.
221, 257, 487), prepare meals and do housework (Tr. 64, 218, 258),
and shop and handle money (Tr. 63, 216, 223). He also cared for
his elderly father (Tr. 325). Plaintiff reported that before his
back injury he “could do anything” (Tr. 221). He was able to
complete the questionnaires for his disability claim himself (Tr.
223, 259). As the Acting Commissioner urges in her Motion for
Summary Judgment, the evidence clearly supports a conclusion that
Plaintiff was not disabled by deficits in adaptive functioning.
Plaintiff has failed to demonstrate on the evidence of record
that he met all of the specified medical criteria of Listing 12.05,
and the Acting Commissioner’s decision will be affirmed in this
regard. See Zebley, 493 U.S. at 530 (noting that it is the
Plaintiff’s burden to demonstrate that he meets all the Listings
“overwhelming weight of treating and examining physician opinions”
prove that he is disabled.
“Medical opinions are statements from
acceptable medical sources that reflect judgments about the nature
C.F.R. § 416.927(a)(1). While medical opinions of treating doctors
are entitled to controlling weight if they are well-supported by
medically acceptable clinical and laboratory diagnostic techniques
and not inconsistent with other substantial evidence, 20 C.F.R. §
416.927(c)(2), none of Plaintiff’s treating physicians provided
any opinion regarding the nature and severity of Plaintiff’s
physical impairments or his functional limitations. Thus, there
was no opinion that could be given controlling weight. See Bass v.
McMahon, 499 F.3d 506, 510 (6th Cir. 2007) (ALJ had no duty to
weight or provide good reasons for not doing so as they were not
medical opinions under the regulations).
There are multiple impressions of Plaintiff’s multilevel
degenerative disc disease, lumbar disc herniation, diagnoses with
back sprain and lumbar sprain, and general chronic back pain in
his treatment records, but Plaintiff never draws the Court’s
attention to any limitations evidenced in those medical records.
Nonetheless, in keeping with those, when examining physician,
Robert C. Hoskins, M.D. examined Plaintiff in September 2012, and
provided what the Acting Commissioner describes as a somewhat
imprecise opinion, Dr. Hoskins stated that he expected “remarkable
limitations standing, walking, lifting, and carrying for foot and
back pain” but also stating that he identified no musculoskeletal
standing, sitting, handling, gross manipulations, or traveling.”
Dr. Hoskins also stated that there were no limitations that
bending, squatting, crawling, climbing and balancing” (Tr. 364).
The Court agrees that, while Dr. Hoskins did not quantify these
limitations, he offered no opinion that Plaintiff had limitations
that would preclude all work.
Later, state agency medical consultant Jack Reed, M.D., who
reviewed Plaintiff’s record, assessed limitations consistent with
medium work (Tr. 125-26), although the ALJ gave this opinion only
“some weight” because he thought the evidence revealed greater
limitations than that. The ALJ also noted Plaintiff did not seek
much treatment for his allegedly disabling physical and mental
conservative nature (Tr. 38).
The ALJ considered these opinions and the treatment records in
including normal strength, intact sensation, normal reflexes, and
normal gait and station (Tr. 35, see, Tr.363, 425, 492, 496, 522).
The ALJ was obliged to resolve conflicts in the opinion
evidence contained in the record and decided to accord greater
weight to Dr. Hoskin’s opinion than to Dr. Reed’s opinion, a
reasoned decision supported by substantial evidence of record. See
Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990).
ALJ’s decision was consistent with the medical opinion in the
record and properly relied on the record to resolve the conflict
in that evidence, there is no error in this regard.
Next, the Court considers Plaintiff’s arguments about the
ALJ’s treatment of testimony and application of the so-called pain
standard, which are essentially challenges to the ALJ’s finding
that his statements as to the intensity, persistence, and limiting
effects of his symptoms (Pl.’s Br. at 14-16; see also Tr. 39). In
this regard, the ALJ’s analysis of Plaintiff’s symptom complaints
is entitled to particular deference from this Court. See Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003) (“Upon
review, we are to accord the ALJ’s determinations of credibility
great weight and deference particularly since the ALJ has the
opportunity, which we do not, of observing a witness’s demeanor
An ALJ can base his decision that a claimant’s symptoms are
not as limiting as a claimant alleges on a lack of support in the
medical records. See 20 C.F.R. § 416.929(c)(4) (“We will consider
whether there are any inconsistencies in the evidence and the
extent to which there are any conflicts between your statements
and the rest of the evidence, including your history, the signs
and laboratory findings, and statements by your treating and
nontreating source or other persons about how your symptoms affect
you.”) (effective June 13, 2011 to Mar. 26, 2011; amended 82 CFR
5882, effective Mar. 27, 2017); Social Security Ruling (SSR) 967p,
credibility of an individual’s statements is their consistency,
both internally and with other information in the case record.”)
(superseded by SSR 16-3p (effective Mar. 28, 2016)), 2016 WL
1237954 (Mar. 24, 2016)).
A claimant’s allegations are less
believable if his allegations are not supported by the objective
medical evidence or his medical treatment history. Id. at 6-8.
disabled. See Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 596
(6th Cir. 2005) (“‘a lack of physical restrictions [imposed by a
doctor] constitutes substantial evidence for a finding of nondisability’”) (quoting Maher v. Sec’y of Health & Human Servs.,
898 F.2d 1106, 1109 (6th Cir. 1989)) .
Plaintiff consistently had
strength, intact sensation, normal reflexes, and normal gait and
station. (Tr. 363, 425, 492, 496, 522); Curler v. Comm’r of Soc.
Sec., 561 F.App’x 464, 475 (6th Cir. 2014) (testimony describing
significant abnormalities in claimant’s cervical spine).
Plaintiff testified that he experienced side effects from his
medications (Tr. 59), Plaintiff never complained of this to any of
his doctors which undermines the credibility of this testimony in
some regard. See Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 392
(6th Cir. 2004) (a claimant’s testimony may be discounted if it is
contradicted by the medical reports and other evidence in the
Further, the ALJ properly considered Plaintiff’s admitted
activities of daily living in finding his claims of disabling
activities). Plaintiff reported that he managed his own self-care
tasks (Tr. 221, 257, 487), managed his finances and shopped (Tr.
63, 216, 223), drove (Tr. 59, 223), went to the park and library
(Tr. 216), prepared simple meals (Tr. 63), and burned trash (Tr.
inconsistent with Plaintiff’s claims of disabling symptoms (Tr.
38). See Buxton v. Halter, 246 F.3d 762, 775 (6th Cir. 2001)
(“Buxton’s own accounts of her activities and limitations were
also conflicting. For instance, she shops for herself, does light
cleaning, cooks for herself, drives herself places (including
numerous doctors’ visits), and exercises daily (thirty minutes of
walking without post-exertional collapse), but cannot work.”).
While Plaintiff’s “excellent work history” (Pl.’s Br. at 14)
may weigh in his favor, it does outweigh the rest of the record
See Hicks v. Colvin, Civ. No. 12-147-GVFT, 2015 WL 778800
(E.D. Ky. Feb. 24, 2015) (“good work record by itself is not enough
to overcome the substantial evidence in the record” supporting the
ALJ’s credibility finding).
Additionally, while it might be error
to discount a claimant’s claims about the severity of his pain on
lack of objective evidence alone, see Felisky v. Bowen, 35 F.3d
1027, 1028 (6th Cir. 1994), as Plaintiff argues, that did not
happen here. Rather, the ALJ properly relied upon the medical
opinions, Plaintiff’s inconsistent statements, and his course of
treatment in concluding that Plaintiff’s symptoms were not as
severe as he alleged. This was a credibility determination in the
most classic sense, and the Court concludes that the ALJ’s analysis
of Plaintiff’s subjective complaints was supported by substantial
evidence and will affirm the decision in this regard.
Finally, the Court rejects Plaintiff’s argument that the ALJ
erred in relying on the VE’s response to interrogatories in
reaching a decision because that response was not provided under
oath and because of the format of the interrogatories.
provides that “[a]t the hearings and appeals levels, vocational
experts (VEs) are vocational professionals who provide impartial
expert opinion during the hearings and appeals process either by
testifying or by providing written responses to interrogatories.
A VE may be used before, during, or after a hearing.” SSR 96–9P,
1996 WL 374185 at * 10 n. 8, and an ALJ may rely on responses to
written interrogatories so long as the claimant receives due
process. Coffin v. Sullivan, 895 F.2d 1206, 1212 (8th Cir. 1990).
In this instance, the ALJ gave Plaintiff ten days to consider the
hearing so Plaintiff could cross-examine the vocational expert.
Plaintiff never responded to the offer. The Court concludes that
these procedures comported with due process on these facts.
Accordingly, for all of the reasons set forth above, IT IS
that Plaintiff’s Motion for Summary Judgment (DE 15) is
that Defendant’s Motion for Summary Judgment (DE 19) is
This the 29th day of September, 2017.
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