Sturgill v. Social Security Administration

Filing 22

MEMORANDUM OPINION: The decision will be affirmed. Signed by Judge G. Wix Unthank on 4/5/2012. (RCB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE

CIVIL ACTION NO. 11-40-GWU

JIMMY DALE STURGILL,

VS.

PLAINTIFF,

MEMORANDUM OPINION

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,

DEFENDANT.

INTRODUCTION
The plaintiff had previously filed Sturgill v. Astrue, Pikeville Civil Action No.
09-25-GWU (E.D. Ky.) to appeal from the negative administrative decision on his
application for Disability Insurance Benefits (DIB) and Supplemental Security
Income (SSI). After the undersigned’s Memorandum Opinion, Order and Judgment
of November 10, 2009 (Tr. 328-36), the case was returned to the agency for further
consideration of the treating physician’s opinion. (Tr. 336). Another negative
administrative decision issued (Tr. 313-25) and the case is again before the
undersigned on cross-motions for summary judgment.
APPLICABLE LAW
Review of the Commissioner's decision is limited in scope to determining
whether the findings of fact made are supported by substantial evidence. Jones v.
Secretary of Health and Human Services, 945 F.2d 1365, 1368-1369 (6th Cir.
1991); Crouch v. Secretary of Health and Human Services, 909 F.2d 852, 855 (6th
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Cir. 1990). This "substantial evidence" is "such evidence as a reasonable mind
shall accept as adequate to support a conclusion;" it is based on the record as a
whole and must take into account whatever in the record fairly detracts from its
weight. Crouch, 909 F.2d at 855.
The regulations outline a five-step analysis for evaluating disability claims.
See 20 C.F.R. § 404.1520.
The step referring to the existence of a “severe” impairment has been held
to be a de minimis hurdle in the disability determination process. Murphy v.
Secretary of Health and Human Services, 801 F.2d 182, 185 (6th Cir. 1986). An
impairment can be considered not severe only if it is a “slight abnormality that
minimally affects work ability regardless of age, education, and experience.” Farris
v. Secretary of Health and Human Services, 773 F.2d 85, 90 (6th Cir. 1985).
Essentially, the severity requirements may be used to weed out claims that are
“totally groundless.” Id., n.1.
Step four refers to the ability to return to one's past relevant category of work,
the plaintiff is said to make out a prima facie case by proving that he or she is
unable to return to work. Cf. Lashley v. Secretary of Health and Human Services,
708 F.2d 1048, 1053 (6th Cir. 1983). Once the case is made, however, if the
Commissioner has failed to properly prove that there is work in the national
economy which the plaintiff can perform, then an award of benefits may, under
certain circumstances, be had. E.g., Faucher v. Secretary of Health and Human
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Services, 17 F.3d 171 (6th Cir. 1994). One of the ways for the Commissioner to
perform this task is through the use of the medical vocational guidelines which
appear at 20 C.F.R. Part 404, Subpart P, Appendix 2 and analyze factors such as
residual functional capacity, age, education and work experience.
One of the residual functional capacity levels used in the guidelines, called
"light" level work, involves lifting no more than twenty pounds at a time with frequent
lifting or carrying of objects weighing up to ten pounds; a job is listed in this category
if it encompasses a great deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls; by definition,
a person capable of this level of activity must have the ability to do substantially all
these activities. 20 C.F.R. 404.1567(b). "Sedentary work" is defined as having the
capacity to lift no more than ten pounds at a time and occasionally lift or carry small
articles and an occasional amount of walking and standing. 20 C.F.R. 404.1567(a),
416.967(a).
However, when a claimant suffers from an impairment "that significantly
diminishes his capacity to work, but does not manifest itself as a limitation on
strength, for example, where a claimant suffers from a mental illness . . .
manipulative restrictions . . . or heightened sensitivity to environmental
contaminants . . . rote application of the grid [guidelines] is inappropriate . . ."
Abbott v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990).

If this non-exertional

impairment is significant, the Commissioner may still use the rules as a framework
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for decision-making, 20 C.F.R. Part 404, Subpart P, Appendix 2, Rule 200.00(e);
however, merely using the term "framework" in the text of the decision is insufficient,
if a fair reading of the record reveals that the agency relied entirely on the grid. Ibid.
In such cases, the agency may be required to consult a vocational specialist.
Damron v. Secretary, 778 F.2d 279, 282 (6th Cir. 1985). Even then, substantial
evidence to support the Commissioner's decision may be produced through reliance
on this expert testimony only if the hypothetical question given to the expert
accurately portrays the plaintiff's physical and mental impairments. Varley v.
Secretary of Health and Human Services, 820 F.2d 777 (6th Cir. 1987).
DISCUSSION
On remand, a new ALJ considered additional evidence in addition to
evaluating the treating physician opinion by Dr. Dennis Sandlin from 2006 which
was inadequately evaluated in the first ALJ decision. She continued to find that the
claimant had “severe” impairments consisting of obesity; mild cardiomegaly;
diabetes mellitus; chronic stable angina with moderate probability for coronary artery
disease; chronic obstructive pulmonary disease; pneumoconiosis/silicosis; bilateral
hearing loss and degenerative arthritis of the shoulders, ankles and knees,
bilaterally. She concluded that the new evidence showed that the plaintiff was
under a disability beginning February 22, 2010 but not prior to that time. (Tr. 32025).

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At the most recent administrative hearing, the ALJ asked a Vocational Expert
(VE) whether a “younger” individual such as the plaintiff, with a “limited” education
and a history of “heavy” exertional level work, could perform any jobs if he were
limited to “light” level exertion with the ability to stand and walk no more than two
hours in an eight-hour day and sit for no more than six hours in an eight-hour day,
and also had the following non-exertional restrictions. He: (1) could occasionally
balance, kneel, crawl, stoop, crouch, and climb ramps and stairs; (2) could not be
exposed to extreme temperatures, respiratory irritants or wetness/humidity; (3)
could not work around hazardous machinery, unprotected heights, vibrating
surfaces, or excessively loud background noise; and (4) could not climb ladders,
ropes, and scaffolds. (Tr. 753-54). The VE responded that there were unskilled
sedentary jobs that such a person could perform, and proceeded to give the
numbers in which they existed in the state and national economies. (Tr. 755).
Given greater restrictions consistent with a February, 2010 examination by Dr. Kevin
Blackwell, the VE stated that the sedentary jobs could still be performed. (Tr. 75657). However, under the same set of restrictions but adding absences of 30 to 40
percent of the day, there would be no jobs the person could perform. (Tr. 758).
Although Dr. Blackwell had not specified that the plaintiff would be limited to
the degree specified in the last hypothetical question, the ALJ noted that shortly
afterwards the plaintiff had passed out while trying to perform pulmonary function
testing, requiring hospitalization and that his condition had subsequently worsened
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to the extent that he required regular use of oxygen. (Tr. 322). The ALJ also noted
that by August of 2010, the plaintiff’s treating pulmonary specialist essentially ruled
out all exertional activities. (Tr. 323, 506-8). Thus, the ALJ found that by February
22, 2010, slightly before the pulmonary function testing at which he passed out, Mr.
Sturgill was unable to perform substantial gainful activity. (Tr. 323-25). Before that
time, however, she accepted the VE’s testimony as establishing that there were jobs
the plaintiff could have performed. (Tr. 323-24).
Mr. Sturgill appeals the unfavorable portion of the ALJ’s decision concerning
his condition between November 2, 2005 and February 21, 2010. Specifically, he
makes two arguments. First, he asserts that the opinion of the treating source was
again rejected without good reasons.

Second, he maintains that substantial

evidence does not support the ALJ’s residual functional capacity finding before
February 22, 2010.
Concerning the plaintiff’s first argument, the court noted in its 2009 remand
that Dr. Sandlin had commented that the plaintiff was “pretty dysfunctional” and it
“doesn’t look like he is able to work in his present condition.” (Tr. 241, 334). This
opinion had been given on July 18, 2006. (Tr. 241). On August 25, 2006, Dr.
Sandlin stated that he encouraged Mr. Sturgill to follow through on disability. (Tr.
240). The first ALJ did not even mention these comments, although purporting to
give them “some weight.” (Tr. 335). A remand was necessary because it was clear
that the ALJ’s decision did not follow the administrative requirement for giving good
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reasons for giving diminished or no weight to a treating physician’s opinion. Wilson
v. Commissioner of Social Security, 378 F.3d 541, 546 (6th Cir. 2004).
On remand, the second ALJ stated that she would give no weight to Dr.
Sandlin’s July, 2006 opinion that he did not “look like” he was able to work because
he “did not thoroughly evaluate the claimant using objective testing but appears to
have based his opinion in part, on what the claimant reported to him during that first
appointment.” (Tr. 322). Additionally, she cited only one emergency room visit
between the alleged onset of disability through February 22, 2010. (Id.).
The plaintiff asserts that this brief discussion by the ALJ did not encompass
all of the factors set out in 20 C.F.R. § 1527(d)(2), including the length of the
treatment relationship, the frequency of examinations, the consistency of the
opinion with the record as a whole (including the plaintiff’s inability to afford
extensive testing) and the consistency of Dr. Sandlin’s 2006 opinion with an August
30, 2010 assessment by Dr. Mahmood Alam (Tr. 506-8), and the overall
supportability of Dr. Sandlin’s opinion in the light of longitudinal evidence.
While the ALJ’s discussion was not as thorough as it could have been, the
ALJ did implicitly discuss the length of the treatment relationship and the frequency
of examination by noting that the opinion was given at the plaintiff’s first
appointment with Dr. Sandlin. Although Dr. Sandlin clearly became a treating
source in that he saw the plaintiff on several occasions over the next few years
(e.g., Tr. 237-39, 548-53), he did not subsequently discuss the plaintiff’s ability to
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work. It is certainly reasonable for a fact finder to give less weight to the opinion of
even a treating source opinion given after one examination than the same opinion
given after several years of treatment.
Concerning the consistency of the opinion with the record as a whole, and
its overall supportability in the light of longitudinal evidence, while the ALJ did not
specifically contrast Dr. Sandlin’s opinion with other records, she did discuss in
detail a pulmonary function study from April, 2005 showing an FEV1 of 65 percent
of normal and the opinion of a pulmonary specialist that same month that Mr.
Sturgill needed to stay away from drilling rocks in coal mines and choose a job that
was not in a dusty atmosphere. (Tr. 166, 174). In other words, this source did not
give an opinion that was consistent with a complete inability to work. She also
noted that a state agency consultative examiner, Dr. K. M. Monderewicz, found
moderate to severe impairments in the plaintiff’s ability to bend, stoop, lift, walk,
crawl, squat, carry, push, and pull heavy objects due to difficulty with dyspnea on
exertion. (Tr. 216). Furthermore, Dr. Kevin Blackwell conducted the first of two
consultative examinations on June 7, 2009, and concluded that the plaintiff could
perform lifting of no more than 45 pounds maximum and 30 pounds frequently,
could sit eight hours per day assuming normal positional changes, could stand two
hours a day (no more than 20 to 30 minutes at a time) and walk up to two hours at
his own pace. (Tr. 413). He could not squat, crawl, or stoop, or be exposed to
dusty environments, extreme heat or cold, or unprotected heights. Bending at the
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waist and kneeling was limited to one-third of the day, and he should not reach
above his head while carrying a load of no more than five pounds more often than
two-thirds of the day. (Id.). The ALJ noted that the opinions of state agency
physicians David Swan and Timothy Gregg (Tr. 221-36), given in 2006, were
consistent with Dr. Blackwell’s June, 2009 opinion and supported by pulmonary
function testing up until February, 2010. (Tr. 322).
Thus, the ALJ permissibly considered the factors in § 404.1527(d)(2) without
explicitly citing them. See Infantado v. Astrue, No. 07-1656 (6th Cir. Feb. 7, 2008),
at 8. The Infantado court also distinguished the case of Rogers v. Commissioner
of Social Security, 486 F.3d 234 (6th Cir. 2007), cited by the plaintiff in the present
case, because in Rogers the ALJ had simply stated that “the record does not
support the limitations of the severity suggested by [the treating physician].” 486
F.3d at 246.

The ALJ’s “failure to explicitly cite the regulation factors is no

impediment to meaningful review and is therefore no grounds for reversal.”
Infantado, supra, at 8.
Regarding the plaintiff’s second argument that substantial evidence did not
support the ALJ’s residual functional capacity finding before February 22, 2010, it
depends to a great extent on his assertion that the report of the state agency
reviewers (Tr. 221-36, 266-67) and the 2009 report of Dr. Blackwell were
inadequate because they did not have all of the available evidence available for
review. This argument could conceivably have merit if Dr. Sandlin’s opinion as a
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treating source were otherwise entitled to controlling weight, but for the reasons
previously given, it was reasonably discounted. As a result, no treating, examining,
or reviewing source opined that the plaintiff was disabled during the period at issue
and the ALJ could reasonably have relied on the restrictions of Dr. Blackwell. In
fact, as the plaintiff points out, the VE testified that even with restrictions taken from
Dr. Blackwell’s second examination in February, 2010, there were sedentary jobs
that the plaintiff could perform (Tr. 756-57) and it was only after the ALJ added that
the hypothetical individual would be unable to stay on task 30 to 40 percent of the
work day that the VE testified that there would be no jobs (Tr. 757-58). The plaintiff
simply failed to carry his burden of proving his inability to work prior to the onset day
selected by the ALJ.
The decision will be affirmed.
This the 5th day of April, 2012.

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