Brown v. Social Security Administration

Filing 13

MEMORANDUM OPINION & ORDER: For the foregoing reasons, we DENY the dfts Motion for Summary Judgment 11 and GRANT the plas motions for summary judgment 8 . This matter is hereby REMANDED to the Social Security Administration for further consideration not inconsistent with this opinion. Signed by Judge Joseph M. Hood on 12/2/2011. (TDA)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
RICHARD G. BROWN,

)
)
)
) Civil Action No. 7:11-CV-27-JMH
)
)
)
) MEMORANDUM OPINION AND ORDER
)
)
)
)

Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
**

**

**

**

**

This matter is before the Court upon cross-motions for summary
judgment on the plaintiff’s appeal of the Commissioner’s denial of
his application for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”).

[DE 8, 9].1

Plaintiff Brown

has also filed a response in opposition to the Commissioner’s
Motion for Summary Judgment.

[DE 12].

The Court, having reviewed

the record and being otherwise sufficiently advised, will grant the
plaintiff’s motion and deny the defendant’s motion.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed for disability benefits on May 3, 2007,

alleging an onset of disability of June 16, 2005, due to:

post-

burn upper extremity impairments; cervical and lumbar pain and
stiffness; knee pain; a right thigh injury; chronic obstructive

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.

pulmonary

disease

(“COPD”);

anxiety;

and

depression.

Administrative Record (hereinafter “AR”) 18-21].

[See

A hearing on his

application was conducted on June 24, 2009, [AR 27], and his
application was denied by Administrative Law Judge (“ALJ”) Roger L.
Reynolds on October 1, 2009.

[AR 26].

Plaintiff timely pursued

and exhausted his administrative remedies, and this matter is ripe
for review and properly before this Court under the Social Security
Act, 42 U.S.C. §§ 405(g), 1383(c)(3).
Plaintiff was forty-two-years-old at the time of the ALJ’s
final decision.

[See AR 31].

He is a high school graduate and

took a vocational course in diesel mechanics.

[AR 31-32].

Plaintiff engaged in past work as a pumper/hauler for oil wells.
[AR 31].

As the result of an accident at work in June 2005,

Plaintiff

sustained

extensive

burns

to

extremities, which required skin grafts.

his

face

[AR 186].

and

upper

During his

hearing, he reported continued difficulty extending his arms due to
the residual effects of the burns.

Id.

Plaintiff’s maladies were

compounded in July of 2007, when he was involved in a motor vehicle
accident.

Id.

As a result of the wreck, Plaintiff sustained a

cervical fracture and puncture wound to his right thigh.
In January of 2006, Dr. James Owen examined Plaintiff for the
purpose of determining Worker’s Compensation eligibility.
194].

[AR

Dr. Owen opined that, due to Plaintiff’s neck, arm and knee

problems, he would not be able to engage in activity that required

2

recurrent bending, squatting or stooping. [AR 198]. Dr. Owen also
found that Plaintiff would not be able to engage in activity that
would expose his arms to hot and cold, nor would he be able to
“drive effectively” due to persistent neck pain.
further

opined

difficulty

that

Plaintiff

would

lifting,

handling,

or

have

Id.

moderate

carrying

“traveling, speaking, etc. would be affected.”

Dr. Owen
to

objects

severe

and

that

Id.

In May of 2006, Plaintiff began treatment for neck and back
pain with Dr. John Gilbert.

[AR 204].

An MRI revealed “mild

arthritic changes,” which included degeneration at C5-C6 and C6-C7
and mild neuroforaminal narrowing, although no herniation was seen.
[AR 205].

As for his low back, Plaintiff was diagnosed with

degenerative disc disease, with an annular tear at L2-L3, mild
scoliosis, and facet arthropathy at L2-S1.

A nerve conduction

study revealed moderate right ulnar neuropathy at the elbow and
right L5 radiculopathy.

Although he subsequently denied having

used marijuana since his early twenties, Plaintiff tested positive
for marijuana use during a drug screen ordered by Dr. Gilbert. [AR
213, 269-70].

By November 15, 2006, Dr. Gilbert reported that

Plaintiff’s function and activities of daily living were “stable
and being improved.”

[AR 216].

On April 17, 2007, Plaintiff was

released from Dr. Gilbert’s care.
Agency

consultant

Dr.

David

[AR 225].
Jansen

rendered

a

physical

Residual functional capacity (“RFC”) assessment on June 19, 2007.

3

[AR 275].

Dr. Jansen opined that Plaintiff could occasionally

lift, carry, or pull up to fifty pounds; frequently lift, carry or
pull twenty-five pounds; stand and/or walk for about six hours in
an eight-hour workday; and sit for about six hours in an eight-hour
workday.

[AR 276].

He added that Plaintiff has diminished range

of motion, which would preclude heavy lifting and carrying, and
stooping on any more than a frequent basis.

Id.

He also opined

that Plaintiff would be able to kneel only frequently.

Id.

In July of 2007, Plaintiff was examined for his knee problems
by Dr. Darren Johnson.

[AR 301].

Dr. Johnson diagnosed him with

a questionable tear of the anterior cruciate ligament (“ACL”), as
well as a questionable tear of the posterolateral corner.

Dr.

Johnson proposed reconstructive surgery, pending the results of an
MRI.

Id.

A radiology report dated April 20, 2007 indicates that

no ligamentous tear was present, however.

The reading radiologist

diagnosed Plaintiff with degeneration of the knee, as well as a
small meniscus tear and mild osteoarthritis.

[AR 357].

There is

no evidence in the record to suggest that Plaintiff underwent the
surgery that Dr. Johnson recommended.
Also

in

aforementioned

July
motor

of

2007,

vehicle

Plaintiff
accident.

was
As

involved

in

the

a

of

the

result

accident, he sustained penetrating trauma to his right thigh and
developed

compartment

intervention.

[AR 303].

syndrome,

which

required

surgical

He was also diagnosed with a cervical

4

odontoid fracture and was instructed to wear a cervical collar.
[AR 314, 307].

On August 28, 2007, Dr. Phillip Tibbs provided a

neurological consultation for Plaintiff’s neck problems. [AR 455].
Dr. Tibbs reported that Plaintiff had five out of five strength and
continued to treat him with a cervical collar.

Id.

At an October

2007 follow-up, Dr. Tibbs noted that, “overall,” Plaintiff was
“better” and reported that Plaintiff’s x-rays revealed healing and,
thus, Plaintiff could wean out of his cervical collar

[AR 454].

Dr. Tibbs anticipated a good outcome and felt that Plaintiff only
needed to be seen on an as-needed basis.

Id.

Agency medical consultant Carlos Hernandez, M.D. performed a
second physical residual functional capacity assessment on November
11, 2007, in which he affirmed the initial RFC assessment of June
21, 2007.

[AR 481, 488].

He concluded that the medical evidence

of record showed that any injuries Plaintiff sustained in the motor
vehicle accident would not significantly affect the initial RFC
assessment. In support of this conclusion, Dr. Hernandez cited the
opinion of Dr. Tibbs, who expected Plaintiff to fully recover from
his cervical fracture.

He also cited the report of treating

physician Dr. Alam, who reported that Plaintiff’s right thigh was
healing satisfactorily.

[AR 483].

Plaintiff was consultatively examined on August 8, 2009 by Dr.
Brian Harshman.

[AR 489].

Dr. Harshman reported that Plaintiff

was able to perform gait, station, heel, toe, tandem walking, and

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squatting without difficulty.

[AR 490].

He also noted normal

strength and sensation throughout all extremities.

Id.

Dr.

Harshman found that Plaintiff would have limited tolerance for
activities involving longer periods of standing or walking, bending
over, heavy lifting and stooping.

[AR 491].

As reflected in the administrative record, Plaintiff received
treatment for mental health issues, as well.

Plaintiff received

treatment, for medication only, from Dr. Granacher in early 2007.
[AR 200-203].

During that course of treatment, Plaintiff was

diagnosed

PTSD

with

and

depression,

and

was

assigned

global

assessment of functioning (“GAF”) scores of fifty to fifty-five.2
He was treated with medications including Cymbalta, Celexa,
trazadone, and clonazepam.

During his administrative hearing,

Plaintiff testified that he was receiving monthly counseling for
his mental health issues.

[AR 45-46].

At the Social Security Administration’s request, Robert Fitz,
Ph.D. performed a psychiatric examination of Plaintiff on June 11,
2007.

[AR 265].

Dr. Fitz diagnosed PTSD, generalized anxiety

disorder, adjustment disorder with depressed mood, and bereavement,
due to the then-recent death of Plaintiff’s wife.

2

[AR 272].

Dr.

“GAF is a clinician’s subjective rating, on a scale of zero
to 100, of an individual’s overall psychological functioning. . .
. A GAF score may help an ALJ assess mental RFC, but is not raw
medical data.” Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496,
503 (6th Cir. 2006). A GAF score of fifty-one to sixty suggests
moderate symptoms, while a score of forty-one to fifty indicates
symptoms that are serious. Id.
6

Fitz assigned a GAF of fifty and opined that Plaintiff’s ability to
understand, retain, and follow directions was fair.

Further, he

found, Plaintiff’s ability to sustain attention to perform simple
repetitive tasks was fair, but poor at times.

Dr. Fitz found that

Plaintiff’s ability to relate to others was fair and that his
ability to tolerate stress and work pressures was poor.

Id.

H. Thompson Prout, Ph.D. rendered a mental RFC assessment on
June

21,

2007.

Dr.

Prout

found

that,

although

Plaintiff’s

allegations of mental impairment were not “clearly delineated,”
credible impairments were clear. [AR 285]. Based on the evidence,
however, Dr. Prout opined that Plaintiff’s mental limitations would
not create marked restrictions in function.

Id.

Dr. Prout gave

“great weight” to Dr. Fitz’s opinion, except for the portion
dealing with stress tolerance.
appeared

to

be

able

to

Dr. Prout concluded that Plaintiff

“[u]nderstand,

remember,

and

sustain

attention with simple, even-paced tasks for extended periods of two
hour

segments”

and

to

“[r]elate

adequately

in

object-focused

settings” and “[a]dapt to expected, routine task demands.”
Agency consultant Jan Jacobson, Ph.D. rendered another mental
RFC assessment on October 15, 2007.

[AR 450].

Dr. Jacobson found

that Plaintiff’s ability to carry out detailed instructions and his
ability

to

maintain

attention

and

periods were moderately limited.

Id.

concentration

for

extended

Further, Dr. Jacobson found

that Plaintiff’s ability to interact with the public and his

7

ability to respond appropriately to changes in the workplace were
moderately limited.

[AR 451].

Ultimately, Dr. Jacobson affirmed

the mental RFC assessment of June 21, 2007.

[AR 452].

Plaintiff’s regular treating physician during the relevant
time period was Van Breeding, MD.
treated

Plaintiff

complications

for

following

a

[See AR 376].

variety
the

of

explosion

hypertension; and high cholesterol.

Dr. Breeding

conditions,
at

including

work;

insomnia;

[See e.g., AR 376-479].

Plaintiff was also diagnosed with emphysema and COPD, involving
heavy tobacco use.

[AR 423].

Based on the administrative record,

and Plaintiff’s arguments upon this appeal, it is apparent that Dr.
Breeding did not render a functional assessment of Plaintiff that
was before the ALJ at the time of his decision.
ALJ Reynolds issued his decision on October 1, 2009. He found
that the medical evidence established the following combination of
severe impairments:

“status post second and third degree burns to

arms with skin grafting; status post motor vehicle accident with
cervical odontoid fracture and right thigh wound; bilateral knee
pain secondary to meniscus tears; chronic obstructive pulmonary
disease

(COPD)

marijuana

with

abuse;

continued

post

nicotine

traumatic

stress

abuse;

a

history

of

disorder

(PTSD);

an

adjustment disorder; bereavement issues and a generalized anxiety
disorder (20 CFR 404.1520(c) and 416.920(c)).”

[AR 18].

The ALJ

found these impairments to be severe in combination within the

8

meaning of the regulations, but not severe enough to meet or
medically equal one of the impairments listed in Appendix 1.
19].

[AR

The ALJ found that the Plaintiff was not disabled and that,

while he was unable to perform his past work, he retained the
residual

functional

sedentary work.
II.

capacity

to

perform

a

limited

range

of

[AR 24].

OVERVIEW OF THE PROCESS
The ALJ, in determining disability, conducts a five-step

analysis:
1.
2.

3.

4.

5.

An individual who is working and engaging in
substantial gainful activity is not disabled,
regardless of the claimant’s medical condition.
An individual who is not working but does not have
a “severe” impairment which significantly limits
his physical or mental ability to do basic work
activities is not disabled.
If an individual is not working and has a severe
impairment which “meets the duration requirement
and is listed in appendix 1 or is equal to a listed
impairment(s),” then he is disabled regardless of
other factors.
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.
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 & Human Servs., 14 F.3d 1107, 1110 (6th
Cir. 1994)(citing 20 C.F.R. § 404.1520 (1982)).
9

“The burden of

proof is on the claimant throughout the first four steps of this
process to prove that he is disabled.”

Id.

“If the analysis

reaches the fifth step without a finding that the claimant is not
disabled, the burden transfers to the Secretary.”

Id.

III. STANDARD OF REVIEW
In reviewing the ALJ’s decision to deny disability benefits,
the Court may not try the case de novo, nor resolve conflicts in
the evidence, nor decide questions of credibility. Cutlip v. Sec’y
of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
Instead, judicial review of the ALJ’s decision is limited to an
inquiry

into

whether

the

ALJ’s

findings

were

supported

by

substantial evidence, 42 U.S.C. § 405(g), Foster v. Halter, 279
F.3d 348, 353 (6th Cir. 2001), and whether the ALJ employed the
proper legal standards in reaching her conclusion. See Landshaw v.
Sec’y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986).
“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, 25 F.3d at 286.
IV.

ANALYSIS
A.

THE ALJ’S RELIANCE ON EARLIER REPORTS DOES NOT RENDER HIS
DECISION UNSUPPORTED BY SUBSTANTIAL EVIDENCE.

Plaintiff contends that the ALJ relied on medical reports
generated

prior

to

his

motor

vehicle

accident

to

disprove

subsequent medical reports, and that he erred in doing so.
10

Plaintiff goes on to state, without citing any specific examples
from the record, that the ALJ unfairly demeaned the Plaintiff and
inaccurately depicted the evidence. Plaintiff has cited no portion
of the record in support of this position and, as this Court has
stated, “[t]he parties shall provide the Court with specific page
citations to the administrative record to support their arguments.
The Court will not undertake an open-ended review of the entirety
of the administrative record to find support for the parties’
arguments.” Gen. Order 09-13 (E.D. Ky. Nov. 6, 2009)(citing Hollon
ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 491 (6th Cir.
2006)).

Nevertheless, the Court is not persuaded by Plaintiff’s

argument.

The record provides substantial evidence that Plaintiff

recovered satisfactorily from the injuries he sustained in the car
accident.

A second physical RFC, rendered after the accident,

affirmed the initial RFC, finding that Plaintiff’s subsequent
injuries did not significantly affect his ability to function. [AR
481].

In support of its conclusion, the second RFC cited the

opinions of physicians that were treating the Plaintiff for the
injuries he sustained in the car accident.

Id.

Plaintiff has

provided no medical evidence in the record to suggest that he had
residual impairments from the car accident that were not taken into
account by the ALJ.

Accordingly, Plaintiff’s argument on this

front fails.
B.

THE VOCATIONAL EXPERT’S TESTIMONY DID NOT CONSTITUTE
SUBSTANTIAL EVIDENCE BECAUSE IT IS UNCLEAR, BASED ON THE
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ALJ’S OPINION, WHETHER THE HYPOTHETICAL PRESENTED AN
ACCURATE DESCRIPTION OF PLAINTIFF.
In his opinion, the ALJ made clear that he intended to rely
upon the opinions of Drs. Owen, Harshman, and Fitz, as well as the
state agency psychological consultants. [AR 23-24]. The following
hypothetical was posed to the vocational expert (“VE”) at the
administrative hearing:
Assume, first of all, a person of Mr. Brown’s age,
education, and experience, and the capacity to lift,
carry, push, or pull up to 20 pounds occasionally, ten
pounds frequently; sitting, standing, or walking six
hours each in an eight hour day; no climbing of ropes,
ladders, or scaffolds; no exposure to direct sunlight,
chemicals, temperature extremes, concentrated dust,
gases, smoke, poor ventilation, excess humidity; no work
with hands over the head, occasional stooping, crouching;
no kneeling, crawling or operation of foot pedal
controls; no commercial driving; requires entry level
work with simple, repetitive procedures, no frequent
changes in work routines, independent planning or setting
of goals; should work preferably in an object-oriented
environment with only interaction with the general
public,
not
requiring
extended
conversation
and
coordinated activities, dispute resolution, and so forth.
[AR 65].

Based upon this hypothetical, the VE testified that

Plaintiff would be unable to perform his any of his past work.

[AR

65-66]. She found that he would, however, be able to perform light
duty and sedentary jobs existing in significant numbers in the
national economy.

[AR 65].

The ALJ ultimately concluded that

Plaintiff could perform sedentary work with numerous restrictions.
[AR 25].
Plaintiff contends that the hypothetical posed to the VE did
not reflect accurately the restrictions assessed by the sources
12

whose opinions the ALJ intended to adopt.
out

that

regarding
assessed

the

hypothetical

stress
by

Dr.

did

tolerance,
Fitz.

not

include

attention,

After

First, Plaintiff points

and

examining

the

restrictions

concentration,

Plaintiff,

Dr.

as

Fitz

concluded, in part, that Plaintiff’s “ability to sustain attention
to perform simple repetitive tasks is fair, but poor at times,” and
that “[h]is ability to tolerate stress and work pressures of dayto-day work activities is poor.” [AR 272]. In addition, Plaintiff
argues

that

the

hypothetical

did

not

include

the

extent

of

restriction in driving, standing, stooping and bending assessed by
Drs. Owen and Harshman. [See AR 194, 489]. Specifically, Dr. Owen
opined that Plaintiff would not be able to engage in any activity
that required recurrent bending, squatting, stooping, and that he
would not be able to “drive effectively” due to neck pain.
198].

[AR

Further, Dr. Harshman determined that had the ability to

sit, stand or walk for “short periods of time,” and that he would
have “limited tolerance” to activities involving “longer periods of
standing or walking, bending over, heavy lifting, and stooping.”
[AR 491].
“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

13

Cir. 2010)(citing Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 23942 (6th Cir. 2002)).

The Commissioner contends that the ALJ gave

probative weight to the portions of the opinions “that were
supported by the objective medical evidence” in accordance with 20
C.F.R. §§ 404.1527(d), 416.927(d) (2011).
required

to

incorporate

into

the

While the ALJ was

hypothetical

only

those

limitations that he found to be credible, Casey v. Sec’y of Health
& Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993), he was not
free

to

disregard

claim-supportive

portions

of

otherwise

controlling opinions, with no explanation for doing so. See Walton
v. Comm’r of Soc. Sec., 187 F.3d 639, *2 (6th Cir. 1999)(table)(ALJ
“carefully explained” reasons for rejecting a particular portion of
the otherwise controlling opinion of a non-treating source).
Because the ALJ did not address the limitations at issue, it
is unclear whether he found them not credible or whether he simply
failed to consider them entirely. “While a ‘deficiency in opinionwriting is not a sufficient reason to set aside an ALJ’s finding
where the deficiency [has] no practical effect on the outcome of
the

case,’

inaccuracies,

incomplete

analysis

and

conflicts of evidence can serve as a basis for remand.”

unresolved
Karger v.

Comm’r of Soc. Sec., 414 F. App’x 739, 749 (6th Cir. 2011)(citing
Loral Def. Sys.-Akron v. NLRB, 200 F.3d 436, 453 (6th Cir. 1999)).
Had the omitted restrictions been included in the hypothetical
posed to the VE, there is a reasonable possibility that the VE’s

14

opinion regarding Plaintiff’s ability to work would have been
different.

Because the ALJ did not carry his burden of proof at

the final stage of analysis, this matter must be remanded.

At the

very least, the ALJ should articulate his reasons for rejecting
portions of the opinions to which he afforded controlling weight.
IV.

CONCLUSION
For the foregoing reasons, we DENY the defendant’s Motion for

Summary Judgment and GRANT the plaintiff’s motions for summary
judgment.

This matter is hereby REMANDED to the Social Security

Administration for further consideration not inconsistent with this
opinion.
IT IS SO ORDERED this the 2nd day of December, 2011.

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