Gamble v. SSA
Filing
12
MEMORANDUM OPINION AND 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 6/5/2014. (RCB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
BILLIE J. GAMBLE,
)
)
) Action No. 7:13-CV-62-JMH
)
)
)
MEMORANDUM OPINION AND
)
ORDER
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
**
**
**
**
**
This matter is before the Court on cross motions for
summary judgment [DE 10 and 11]1 on Plaintiff’s appeal of
the
Commissioner’s
Supplemental
review.
otherwise
denial
Security
of
Income.
his
This
application
matter
is
for
ripe
for
The Court, having reviewed the record and being
sufficiently
advised,
will
deny
Plaintiff’s
motion and grant Defendant’s motion.
I. Factual and Procedural Background
Plaintiff
Billie
Gamble
filed
an
application
for
Supplemental Security Income (SSI) on September 3, 2010,
alleging disability as of July 1, 2010.
(Tr. 12).
After
the agency denied Gamble’s application at the initial and
1
These are not traditional Rule 56 cross motions for
summary judgment. Rather, they are procedural devices used
by the Court to obtain the views of the parties regarding
the
sufficiency
of
the
evidence
contained
in
the
administrative record developed before the Commissioner.
1
reconsideration
levels
(Tr.
12),
the
Administrative
Law
Judge, Jerry Meade, held a hearing on October 27, 2011.
(Tr. 12).
On November 25, 2011, the ALJ issued a hearing
decision denying Gamble’s claim.
(Tr. 12—22).
The Appeals
Council denied Gamble’s Request for Review (Tr. 1-5).
Commissioner’s
final
decision
is
now
subject
to
The
review
pursuant to 42 U.S.C. § 405 (g).
Gamble
was
50
years
administrative hearing.
grade.
(Tr. 211—22).
classes.
old
at
the
(Tr. 177.)
time
of
the
Gamble completed 7th
He did not attend special education
(Tr. 211—22).
He testified that he cannot read
or write, aside from writing his name, and would not be
able to read a newspaper.
worked as a carpenter.
(Tr. 37—38).
(Tr. 212).
In the past, he
Gamble alleges that his
vision in his left eye is impaired due to surgery, claiming
that it “went out.”
(Tr. 31—32).
He must keep his eye
shut because light bothers it and fluid drains from it.
(TR. 31—32).
depression.
He also suffers from headaches, anxiety and
(Tr. 33).
He testified that he does not go
near people often and he suffers from crying spells every
day.
(Tr. 33).
Additionally,
Gamble
around his belt line.
back
in
a
car
suffers
(Tr. 33).
accident
from
pain
at
or
He reports breaking his
twenty-six
2
back
years
earlier
and
suffering from back pain from that date forward, although
he continued working as a carpenter after the car accident.
Gamble testified that he can sit for about an hour and a
half at a time, and that he can stand for approximately
half an hour.
(Tr. 34).
during the day.
He will lie down once or twice
(Tr. 34—35).
Back pain also interferes
with Gamble’s sleep, as well as his ability to enjoy his
hobbies, such as playing ball and fishing.
(Tr. 35—36).
He testified that he has difficulty putting his pants on
and tying his shoes.
(Tr. 36).
He does not cook, but
relies on his sister and girlfriend to cook for him.
36-37).
many
(Tr.
Gamble reports, however, that he does engage in
household
activities,
such
as
mowing
the
grass,
watching television, and talking with friends and family.
(Tr. 19).
He also manages his own finances.
(Tr. 19).
Gamble was seen by Dr. Brad Adkins for a psychological
exam on October 14, 2010.
(Tr. 291—96).
Gamble’s full
scale IQ was 67 on the Wechsler Adult Intelligence Test,
indicating “that his overall intellectual abilities are in
the
Extremely
Low
range
population.”
(Tr.
suffers
Generalized
from
295).
compared
Dr.
Adkins
Anxiety
to
the
noted
Disorder,
normative
that
a
Gamble
history
of
alcohol abuse, and has borderline intellectual functioning.
3
His Global Assessment of Functioning (GAF) was 42.
(Tr.
295).
Dr. W. R. Stauffer examined Gamble on November 10,
2010 as an examining consultant.
On exam, Gamble was noted
to keep closing his left eye due to light sensitivity. Dr.
Stauffer
diagnosed
history
of
fractures,
the
claimant
degenerative
bilateral
knee
with
disease,
pain
chronic
back
multiple
probably
pain,
compression
secondary
to
osteoarthritis, blindness in the left eye, probable COPD,
and hypertension, not controlled.
(Tr. 298-304).
On April 15, 2011, Dr. Jerry Brackett evaluated Gamble
on referral from his attorney.
noted
that
Gamble
(Tr. 318—23).
exhibited
weakness
Dr. Brackett
in
his
lower
extremities, and exhibited tenderness in both knees. (Tr.
318).
East
Kentucky
Psychological
Services
evaluated
the
claimant on October 13, 2011. This time Gamble received a
69
on
the
Wechsler
Adult
Intelligence
Test.
At
60,
Gamble’s current GAF score assessed by Mr. Pack was higher
than that previously assessed by Dr. Adkins.
(Tr. 327-
335).
II. OVERVIEW OF THE ALJ HEARING
In determining whether a claimant is disabled or not,
the ALJ conducts a five-step analysis:
4
1.) Is the individual engaging in substantial
gainful activity? If the individual is engaging
in substantial gainful activity, the individual
is not disabled, regardless of the claimant’s
medical condition.
2.) Does the individual have a severe impairment?
If not, the individual is not disabled.
If so,
proceed to step 3.
3.) Does the individual’s impairment(s) meet or
equal the severity of an impairment listed in
appendix 1, subpart P of part 404 of the Social
Security Regulations?
If so, the individual is
disabled. If not, proceed to step 4.
4.) Does the individual’s impairment(s) prevent
him or her from doing his or her past relevant
work, considering his or her residual functioning
capacity?
If not, the individual is not
disabled, if so, proceed to step 5.
5.) Does the individual’s impairment(s) prevent
him or her from performing other work that exists
in the national economy, considering his or her
residual functioning capacity together with the
“vocational factors” of age, education, and work
experience?
If so, the individual is disabled.
If not, the individual is not disabled.
See Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th
Cir.
2001).
“The
burden
of
proof
is
on
the
claimant
throughout the first four steps of this process to prove
that he is disabled.
If the analysis reaches the fifth
step without a finding that the claimant is not disabled,
the burden transfers to the Secretary.” Preslar v. Sec’y of
Health
&
Human
Servs.,
14
F.3d
5
1107,
1110
(6th
Cir.
1994)(citing
Bowen
v.
Yuckert,
482
U.S.
137,
146
n.
5
(1987)).
III. ALJ’s findings
The ALJ applied the five-step sequential evaluation
process found at 20 C.F.R. § 416.920(a)(4) (2013) in his
administrative
following
decision.
“severe”
The
ALJ
impairments
found
pursuant
Gamble
to
20
has
the
C.F.R.
§
416.920(c): degenerative disc disease of the lumbar spine;
history of compression fracture of T12; degenerative joint
disease;
blind
in
left
eye;
history
of
bronchitis;
hypertension; headaches; generalized anxiety disorder; pain
disorder; borderline intellectual functioning; and alcohol
abuse.
(Tr. 14, Finding No. 2).
The ALJ found that Gamble
did not have an impairment or combination of impairments
that met or medically equaled one of the listed impairments
in
20
C.F.R.
Part
404,
Subpart
P,
Appendix
1
(Tr.
16,
Finding No. 3).
The ALJ determined that Gamble retained the residual
functional capacity (RFC) to perform a limited range of
light work.
(Tr. 18, Finding No. 4).
The ALJ determined
that Gamble could not perform his past relevant work.
20,
Finding
evaluation,
No.
20
5).
C.F.R.
At
§
step
five
of
416.920(a)(4)(v),
the
the
(Tr.
sequential
ALJ
used
Medical-Vocational rule 204.00, 20 C.F.R. pt. 404, subpt.
6
P, app. 2, rule 204.00, as a framework for decision-making,
and,
in
conjunction
testimony,
existing
that
the
in
with
ALJ
found
significant
Gamble
could
a
Vocational
that
numbers
perform.
there
in
(Tr.
Expert’s
were
the
other
national
20-22,
(VE)
Findings
jobs
economy
6-9).
Thus, the ALJ found that Gamble is not disabled. (Tr. 22,
Finding No. 10).
IV. STANDARD OF REVIEW
In
reviewing
benefits,
the
the
Court
ALJ’s
may
decision
not
try
the
to
deny
case
de
disability
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,
see 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 his conclusion.
Landsaw 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 (citing Kirk
7
v. Sec. of Health and Human Servs., 667 F.2d 524, 535 (6th
Cir. 1981)).
V.
Analysis
Gamble
argues
that
the
Commissioner’s
determination
should be reversed for three reasons. Gamble’s first and
second
arguments
are
that
the
ALJ
erred
by
posing
hypothetical questions to the VE that failed to properly
consider the severity of Gamble’s left eye blindness and
headaches.
by
not
Gamble’s third argument is that the ALJ erred
specifically
addressing
equaled Listing 12.05C.
whether
Gamble
met
or
For the reasons described herein,
this Court will affirm the Commissioner’s determination.
First, Gamble argues that because the ALJ found that
Gamble’s
blindness
in
his
left
eye
was
a
“severe”
impairment, it was error for the ALJ to only refer to “some
mild field of visual problems” in the ALJ’s hypothetical to
the VE. Gamble’s argument is unpersuasive.
Contrary to Gamble’s argument, the ALJ’s determination
that
Gamble’s
blindness
is
a
severe
impairment
inconsistent with the ALJ’s hypothetical.
must
result
from
“anatomical,
is
not
An impairment
physiological
or
psychological abnormalities” and is categorized as “severe”
if
it
“significantly
limits
[a
claimant’s]
physical
mental ability to do basic work activities. . . .”
8
or
20
C.F.R. §§ 404.1508, 404.1520(c).
Thus, the existence of an
impairment, or a finding that an impairment is categorized
as “severe,” is not indicative of the level of limitation
caused by the impairment or Gamble’s ability to work within
that
range
of
limitations.
The
Residual
Functional
Capacity (RFC) assessment, on the other hand, addresses the
functional
limitations
Gamble’s impairment.
and
VE
based
determination
on
of
resulting
from
See Social Security Ruling [SSR] 96-
8P, 1996 WL 374184, at *1.
the
restrictions
The ALJ accurately questioned
hypotheticals
the
RFC.
representing
Thus,
Gamble’s
the
ALJ’s
argument
is,
essentially, that the ALJ erred in determining his RFC.
However, Gamble’s RFC is supported by substantial evidence.
The ALJ found that Gamble:
can occasionally push or pull. He can never climb
ladders, ropes, or scaffolds. He can occasionally
climb
ramps/stairs,
balance,
stoop,
kneel,
crouch, and crawl. He must avoid concentrated
exposure to excessive vibration; irritants such
as
fumes,
odors,
dust,
gases,
and
poorly
ventilated areas; and hazards such as moving
machinery and unprotected heights.
The claimant
is blind in the left eye, which results in mild
field of vision problems. He is limited to oneor two-step tasks that are simple, routine, and
repetitive and that can be explained verbally
instead of in writing. He can only work in a lowstress job (defined as a job that requires only
occasional
decision
making
and
has
only
occasional changes in the work setting). He can
have occasional interaction with the public and
co-workers.
9
(Tr. 18) (emphasis added).
Gamble testified that he had
surgery in his left eye and that “it went out” (Tr. 18,
31).
Gamble stated that light bothers his eye and that
fluid drains from it all the time.
The
medical
record
(Tr. 31-32).
submitted
to
the
ALJ
does
not
include any medical records regarding Gamble’s eye surgery,
any
treatment
consistent
for
lost
headache
vision
in
treatment.
the
In
left
October
eye,
or
2009,
any
Gamble
went to the emergency department with multiple complaints,
including a “knot” on his face near the left eye and a
headache.
(Tr. 260).
Gamble was diagnosed with bronchitis
and a cyst and was prescribed medications.
His head CT scan was normal.
(Tr. 262, 273).
(Tr. 266).
There do not
appear to be any other treatment records relating to his
eye or headaches in the administrative record.
The
vision
consultative
problems
complain
of
in
exams
his
headaches
confirmed
left
to
eye,
the
that
but
Gamble
Gamble
consultative
has
did
not
examiners.
Gamble did not complain of headaches to Dr. Stauffer during
his consultative exam on November 10, 2010.
While
Gamble
reported
that,
following
(Tr. 298).
surgery,
he
could
only see light in his left eye, Dr. Stauffer noted that
Gamble “really [had] not seen a physician about this.” (Tr.
299).
Dr. Stauffer found Gamble’s visual acuity to be
10
20/200
in
his
glasses.
left
eye
(Tr. 300).
and
20/30
in
both
eyes
without
Dr. Stauffer concluded Gamble would
have mild field of vision limitations due to his left eye.
(Tr. 301).
The ALJ gave great weight to Dr. Stauffer’s
opinion, noting that Gamble had “limited field of vision in
the left eye.”
(Tr. 19).
Similarly, in April 2011, Dr.
Brackett noted “some visual defect” in Gamble’s left eye
(Tr. 318).
Gamble did not complain to Dr. Brackett about
headaches (Tr. 318).
Moreover, in his brief, Gamble does not point to any
evidence in the record indicating that his vision requires
more restrictive limitations than RFC assigned by the ALJ,
specifically, that he had “mild field of visual problems.”
The
medical
evidence
did
not
reflect
any
treatment
for
Gamble’s vision problems and no treating physician assessed
any functional limitations connected with Gamble’s vision
loss.
The ALJ properly relied on Dr. Stauffer’s finding
that Gamble had mild field of vision problems (Tr. 18,
301).
The
substantial
under
20
ALJ’s
evidence,
C.F.R.
§
RFC
assessment
consistent
416.945,
and
with
was
the
Gamble
supported
ALJ’s
has
by
duties
failed
to
establish that he has additional limitations related to his
vision beyond those included in the RFC and hypotheticals
to the VE.
11
Second, Gamble argues that he should be found disabled
because the VE found no jobs for the ALJ’s hypothetical
containing
a
limitation
due
to
Gamble’s
headaches.
Specifically, the ALJ asked if there would be any jobs for
an individual with Gamble’s RFC described above and who
“would have severe migraine headaches which would cause the
individual to be off-task at least 30 percent of the work
week.”
In response to that hypothetical, the VE found that
an individual with those restrictions would “be unable to
sustain or maintain competitive employment.” (Tr. 43).
In finding that headaches were a severe impairment,
the
ALJ
gave
complaints.
great
deference
to
Gamble’s
subjective
He stated:
The claimant has alleged headaches. A CT of the
Head (sic), taken in October 2009, was within
normal limits (Exhibit 1F, pg. 12). There are no
recent complaints of headaches and he has no
treatment for this condition.
Therefore, I have
granted him the maximum benefit of the doubt, and
find that he suffers from severe headaches.
(Tr. 15).
At the third stage, however, the ALJ did not
find Gamble credible to the extent that his assertions were
inconsistent
with
the
RFC,
which
did
limitations due to Gamble’s headaches.
hypothetical
questions
to
a
vocational
not
include
any
An ALJ “may pose
expert
and
is
required to incorporate only those limitations accepted as
credible by the finder of fact.” See Casey v. Sec’y of
12
Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993).
The
classification
of
Gamble’s
headaches
as
a
severe
impairment is not dispositive of either the RFC or the VE
hypothetical and this Court finds that Gamble’s RFC was
supported by sufficient evidence.
Howard v. Comm. Of Soc.
Sec., 276 F.3d 235, 240 (6th Cir. 2002) (“[T]he RFC is
meant to describe the claimant’s residual abilities or what
a claimant can do, not what maladies a claimant suffers
from . . . .”); see, e.g., Maziarz v. Sec. of Health &
Human Servs., 837 F.2d 240, 244 (6th Cir. 1987)(noting that
severe and non-severe impairments are considered as part of
the RFC and that the designation of severe or non-severe is
not determinative of the RFC findings); see also 20 C.F.R.
§ 404.1545(e).
Gamble does not point to any evidence, nor does the
Court
find
any
evidence
in
the
record,
indicating
that
Gamble suffers from “severe migraine headaches which would
case the individual to be off task at least 30 percent of
the
work
week.”
(Tr.
43).
Gamble
testified
that
the
problems with the vision in his left eye caused him to have
headaches; however, when asked how often he has headaches,
Gamble responded: “Well, I’ll have migraines.
had them for a long time though.
lot. It’s aggravating mostly.”
13
I haven’t
This sure bothers me a
(Tr. 32).
As previously
noted, Gamble complained of headaches during an emergency
room
visit;
treatment
for
however,
the
record
Gamble
headaches.
reflects
did
no
not
further
mention
his
headaches to either consultative examiner that evaluated
his physical condition.
(Tr. 298-301, 318-23).
The only
evidence regarding Gamble’s headaches are his own reports,
and
in
his
frequency
properly
of
testimony,
any
omitted
such
he
minimized
headaches.
limitations
in
the
The
Gamble’s
severity
ALJ,
RFC
and
therefore,
related
to
these headaches and the hypothetical to the VE.
After
question
to
determining
the
VE
Gamble’s
that
RFC,
included
the
all
ALJ
the
posed
a
limitations
related to Gamble’s vision and his headaches which the ALJ
found to be credible.
(Tr. 41).
The ALJ relied on the
VE’s response to the ALJ’s hypothetical that included only
those limitations supported by substantial evidence.
(Tr.
20-22); Stanley v. Sec’y of Health & Human Servs., 39 F.3d
115, 118 (6th Cir. 1994) (stating that “the ALJ is not
obliged to incorporate unsubstantiated complaints into his
hypotheticals”).
The ALJ, therefore, properly relied on
the VE’s testimony to find that Gamble could perform other
work. See Foster v. Halter, 279 F.3d 348, 356-57 (6th Cir.
2001).
14
Third,
Gamble
argued
that
the
ALJ
erred
by
not
addressing Listing 12.05C of Appendix I to Subpart P of 20
C.F.R. § 404 and that, based on the record, Gamble meets or
equals
the
listing.
“Because
satisfying
the
listings
during the third step yields an automatic determination of
disability based on medical findings . . . the evidentiary
standards for a presumptive disability under the listings
are more strenuous than for claims that proceed through the
entire five-step evaluation.”
Peterson v. Comm’r of Soc.
Sec., No. 13-5841, 552 F. App’x 533, 539 (6th Cir. 2014)
(unpublished) (citations omitted).
As an initial matter, the Court notes that Gamble did
not
raise
Council.
this
argument
before
(Tr. 46—47, 253).
the
ALJ
or
the
Appeals
Gamble bears the burden of
showing that his impairments were equal or equivalent to a
listed impairment.
App’x
470,
argument
472
that
Malone v. Comm’r of Soc. Sec., 507 F.
(6th
ALJ
had
Cir.
to
2012)
(rejecting
specifically
claimant’s
discuss
listing,
where claimant did not argue he had a listed impairment at
his hearing and ALJ expressly found claimant did not have
an impairment or combination of impairments that was equal
or
equivalent
to
any
listed
impairment).
Considering
Gamble’s failure to argue that he met Listing 12.05C at the
hearing, and his failure to point to specific evidence in
15
support of his contention that he met the Listing, the ALJ
did
not
err
when
he
did
regarding Listing 12.05C.
not
make
specific
findings
Malone, 507 F. App’x at 472.
In his opinion, the ALJ concluded that Gamble “does
not have an impairment or combination of impairments equal
in
severity
noted
to
that
any
12.05C
listed
had
impairment”
been
and
considered
and
specifically
that
“the
evidence fails to establish the presence” of the requisite
criteria.
finding
(Tr. 16-17).
of
disability
“[W]here no argument is made for a
under
a
Listed
Impairment,
it
is
sufficient if, having reviewed the record in its entirety,
the ALJ finds summarily that no medical evidence supports
any
Listed
Impairment,
and
concludes
claimant at the third step.”
48,
2013
WL
4011074,
at
*4
adversely
to
the
Hartman v. Astrue, 3:12-cv(W.D.Ky
August
5,
2013).
Nonetheless, the Court has reviewed the record and finds
that Gamble does not meet the 12.05C criteria.
Section
12.05
regarding
intellectual
disability
provides as follows:
Intellectual disability refers to significantly
subaverage general intellectual functioning with
deficits
in
adaptive
functioning
initially
manifested during the developmental period; i.e.,
the evidence demonstrates or supports onset of
the impairment before age 22.
The required level of severity for this disorder
is met when the requirements in both A and B are
16
satisfied, or when the requirements in both A and
C are satisfied.
. . .
C. A valid verbal, performance, or full scale IQ
of 60 through 70 and a physical or other mental
impairment imposing an additional and significant
work-related limitation of function;
20 C.F.R. § 404, Subpart P, Appendix 1, 12.05C.
Listing
12.05
significantly
requires
subaverage
general
that
the
individual’s
intellectual
functioning
with deficits in adaptive functioning initially manifest
during the developmental period. See 20 C.F.R. pt. 404,
Subpt. P, App. 1, § 12.05.
While Gamble’s IQ testing would
satisfy one element of Listing 12.05C, he has not cited
evidence in support of the remaining factors.
Gamble did not cite to any evidence in the record
suggesting that his alleged subaverage general intellectual
functioning with deficits in adaptive functioning initially
manifested before he reached the age of 22. See 20 C.F.R.
pt. 404, Subpt. P, App. 1, § 12.05; see also Foster, 279
F.3d at 354.
in
special
While Gamble alleges in his brief that he was
education
classes,
he
does
not
include
a
citation to the record and the Court’s review of the record
reveals no school records supporting this fact.
12, 252).
(Tr. 211-
In fact, Gamble specifically denied being in
special education classes in a disability report completed
17
as
part
of
his
claim.
(Tr.
211-12,
252).
Gamble’s
inability to read or write does not establish that he meets
the
criteria
for
12.05C.
The
consultative
examiners
consistently found that Gamble had borderline intellectual
functioning.
The record, therefore, fails to establish that Gamble
had
significantly
subaverage
general
intellectual
functioning with adaptive functioning initially manifested
during the developmental period, as required to meet Listing
12.05C.
school
At most, the record establishes that Gamble left
before
indication
completing
that
deficiencies.
Gamble
the
left
8th
grade,
school
due
but
to
there
is
no
intellectual
(Tr. 211); see Eddy v. Comm’r of Soc. Sec., 506
F. App’x 508, 510 (6th Cir. 2012) (finding evidence that the
claimant attended special education classes and left school
after the 8th grade did not undermine the ALJ’s finding that
the claimant did not meet Listing 12.05C because the claimant
“did not show that her enrollment in special education classes
or her failure to continue her schooling were due to her
having
significantly
subaverage
general
intellectual
functioning.”).
For
the
foregoing
reasons,
the
decision
of
the
Commissioner will be affirmed and a separate judgment entered.
Accordingly, IT IS ORDERED:
18
(1)
that the Plaintiff’s Motion for Summary Judgment [DE
10] is DENIED; and
(2)
that the Defendant’s Motion for Summary Judgment [DE
11] is GRANTED.
This the 5th day of June, 2014.
19
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