Williams v. SSA
Filing
13
MEMORANDUM OPINION & ORDER: (1) that Plafs Motion for S/J D.E. 9 is GRANTED; (2) Dfts Motion for S/J D.E. 12 is DENIED; (3) that the decision of the Commissioner is REVERSED, and this matter is REMANDED to the Commissioner for further proceedings consistent with this Opinion and Order. Signed by Judge Joseph M. Hood on 4/16/14.(MJY)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
ANTHONY GLEN WILLIAMS,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Civil Case No.
7:13-cv-98-JMH
MEMORANDUM OPINION
AND ORDER
***
This
Summary
matter
Judgment
Commissioner’s
is
before
[D.E.
denial
9,
of
the
12]
his
Court
on
upon
cross-motions
Plaintiff’s
application
for
appeal
for
of
the
disability
and
disability insurance benefits. [Tr. 9-27].1 The Court, having
reviewed the record and being otherwise sufficiently advised,
will grant Plaintiff’s motion and deny Defendant’s motion.
I. Overview of the Process and the Instant Matter
The
Administrative
Law
Judge
("ALJ"),
in
determining
disability, conducts 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
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.
physical or mental ability to do basic work activities
is not disabled.
3.
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.
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 & Human Servs., 14 F.3d 1107, 1110
(6th Cir. 1994) (citing 20 C.F.R. § 404.1520 (1982)).
"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
Secretary."
not
disabled,
the
burden
transfers
to
the
Id.
In the instant matter, the ALJ determined that Plaintiff
did
not
engage
in
substantial
gainful
activity
during
the
relevant time period under step one. [Tr. 15]. Under step two,
the
ALJ
found
that
Plaintiff’s
medically
determinable
impairments of cervical strain, degenerative disc disease of the
2
lumbar spine with right lower extremity radiculopathy, history
of
left
tibia
depressive
and
fibula
disorder,
fracture,
generalized
osteoarthritis,
anxiety
disorder,
major
and
pain
disorder were “severe” as defined by the agency’s regulations.
[Tr. 15]; 20 CFR §§ 404.1520(c), 416.920(c). The ALJ further
found
that
Plaintiff’s
impairments
of
hypertension,
GERD
and
stomach problems, and allergies were “non-severe” impairments.
[Tr. 16]. Additionally, the ALJ found Plaintiff’s allegations of
seizures not to be a medically determinable impairment. [Tr.
16].
During step three of the analysis, the ALJ considered all
of Plaintiff’s impairments and decided that none of them met the
criteria listed in 20 C.F.R. pt. 404, subpt. P, app.1. [Tr. 1618]. After further review of the record, the ALJ concluded at
step
four
(“RFC”)
that
to
404.1567(a).
Plaintiff
perform
[Tr.
had
a
sedentary
18].
residual
work
as
Additionally,
functional
defined
the
ALJ
capacity
in
C.F.R.
found
that
Plaintiff requires the ability to alternate between sitting and
standing
at
his
discretion,
can
do
no
overhead
work,
can
frequently handle and finger, can occasionally bend and stoop,
can never climb, can understand, remember, and carry out simple
instructions,
can
deal
with
changes
in
a
routine
work
environment, can occasionally interact with the public, and can
frequently interact with coworkers and supervisors. [Tr. 18].
3
The ALJ found that Plaintiff was unable to perform any of
his past relevant work. [Tr. 21]. However, there were jobs in
the
national
and
regional
economies
that
Plaintiff
could
perform. [Tr. 21]. Thus, the ALJ determined that Plaintiff is
not disabled under the Social Security Act. [Tr. 22].
In this appeal, Plaintiff argues that the ALJ erred when he
adopted
the
disability
RFC
from
benefits
and
Plaintiff’s
that
the
earlier
ALJ
failed
application
to
present
for
an
accurate hypothetical question to the vocational expert.
II. 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) (citations omitted).
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)
(citations omitted), and whether the ALJ employed the proper
legal standards in reaching her conclusion. See 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
4
reasonable
mind
conclusion."
might
accept
as
adequate
to
support
a
Cutlip, 25 F.3d at 286 (citations omitted).
III. Factual and Procedural Background
Plaintiff previously filed an application for a period of
disability and disability insurance benefits on January 21, 2010
and
was
denied
benefits
on
September
20,
2011.
[Tr.
12].
Plaintiff did not appeal this decision. [Tr. 12]. The ALJ found
that this previous determination was res judicata, and, thus,
that Plaintiff’s application was for benefits from September 21,
2011 to the date of the decision. [Tr. 12-13]. Plaintiff filed
for a period of disability and disability insurance benefits
under Title II alleging disability beginning on September 21,
2011. [Tr. 12]. The claims were denied both initially and upon
reconsideration. [Tr. 12]. Plaintiff requested a hearing with
the ALJ, which took place on May 14, 2013. [Tr. 12]. The ALJ
issued
an
unfavorable
decision
denying
disability
insurance
benefits on May 24, 2013. [Tr. 22].
Plaintiff
disability
was
date
thirty-five
[Tr.
21].
years
Plaintiff
of
age
on
started,
the
but
alleged
did
not
complete the eighth grade. [Tr. 39]. Plaintiff has past work
experience as a steamer cleaner, dump truck driver, construction
worker, construction truck driver, and a timber cutter in a
sawmill. [Tr. 21].
5
According to Plaintiff, his neck and back hurt all the
time. [Tr. 33]. Plaintiff claims that the pain begins in his
neck and radiates down through his legs, and he always has a
headache. [Tr. 33].
he
has
muscle
Plaintiff claims his neck remains stiff and
spasms
in
his
back
and
shoulders.
[Tr.
188].
Plaintiff testified that he broke his left leg in seven places
and
that
it
was
repaired
using
rods
and
pins.
[Tr.
36].
Plaintiff testified that the left leg hurts all the time and
swells if he stands too long or rides in a vehicle. [Tr. 36].
Plaintiff treats his problems with Lortab, Cymbalta, Prilosec,
and Claritin D. [Tr. 189]. Plaintiff also has a TENS unit, but
claims that it no longer helps. [Tr. 34-35].
Plaintiff visited the Allen Family Clinic on October 20,
2009, claiming that a tree branch fell and struck Plaintiff in
the low back. [D.E. 332]. Plaintiff alleges that this injury led
to the pain of which he now complains. See [D.E. 190]. Plaintiff
made additional visits to the Allen Family Clinic following the
initial injury. Plaintiff visited on November 3, 2009 and was
treated
for
lumbago,
mid-back
pain,
and
radiculopathy.
[D.E.
329]. On November 9, 2009, he was treated for lumbago and midback pain. [D.E. 326].
Plaintiff
was
regularly
treated
at
St.
Claire
Regional
Hospital in Morehead, Kentucky. [Tr. 254-64]. On May 2, 2011,
Plaintiff was diagnosed with chronic neck pain, myofascial pain
6
syndrome, chronic low back pain with radiation into the right
hip,
right
syndrome,
sacroiliac
and
facet
joint
dysfunction,
arthropathy.
[D.E.
right
257].
piriformis
At
this
time,
Plaintiff was prescribed a TENS unit, and was scheduled for a
right hip injection and trigger point injections. [D.E. 257].
Plaintiff was also treated by the Frederick Medical Clinic.
[D.E. 265-71]. At various points of his treatment, Plaintiff
presented
with
severe
back
pain,
numbness
and
tingling,
depression and anxiety [D.E. 266]; GERD and neck pain [D.E.
267];
allergies
[D.E.
268];
insomnia
[D.E.
269];
low
back
pain/lumbago [D.E. 299]; and pain in the lower leg joints. [D.E.
300-01].
Also during this time period, Plaintiff was treated by Dr.
Melanie
Ledford
of
Morehead
Medical
Specialists.
Plaintiff
visited Dr. Ledford, on November 30, 2011, for right low back
pain, right neck pain, and requested trigger point injections.
[D.E. 272]. On November 7, 2011, Plaintiff visited complaining
of low back pain, bilateral shoulder pain, and neck pain. [D.E.
274]. At this time, an MRI was ordered. [D.E. 274]. Plaintiff
again saw Dr. Leford in January 2012, complaining of pain in the
neck, low back, and right leg. [D.E. 281].
An MRI of Plaintiff’s lumbar spine on November 18, 2009
revealed
bilateral
a
right
neural
paracentral
foramina
L4-5
disc
encroachment
7
protrusion
related
with
to
mild
lateral
bulging
of
the
disc
and
hypertrophic
face
joint
change,
localized central disc protrusion L5-S1 with a mild degree of
bilateral
neural
foramina
encroachment
related
to
lateral
bulging of the disc and hypertrophic facet joint change, minimal
diffuse bulging of the disc at L3-4, and there was no disc
herniation
or
high
grade
spinal
stenosis
at
any
visualized
level. [D.E. 339]. An MRI of the thoracic spine showed minimal
disc bulging at the T5-6 and T6-7 with no disc herniation and
there was no focal thoracic spinal cord abnormality or high
grade spinal stenosis. [D.E. 340].
Vocational expert Anthony Michael testified at the hearing
before the ALJ. [Tr. 41-43]. Mr. Michael testified that a person
with an RFC equivalent to the ALJ’s finding for Plaintiff would
not
be
able
to
return
to
Plaintiff’s
past
work.
[Tr.
42].
However, Mr. Michael determined that there were jobs in the
relevant economy that someone with that RFC assessment could
perform. [Tr. 42]. Mr. Michael found that there would be no jobs
in
the
national
economy
if
an
individual
was
limited
to
sedentary work and during an eight-hour day could stand or walk
a total of two hours, only sit for four, and needs a sit/stand
option at will throughout the day. [Tr. 42-43].
Plaintiff
testifies
that
he
sometimes
can
sit
for
40
minutes to an hour and can stand for 15 to 20 minutes. [Tr. 3637]. Plaintiff has a driver’s license, but testified that he no
8
longer drives. [Tr. 37]. Plaintiff testified that he typically
gets two hours of sleep a night and gets four hours on a good
night. [Tr. 38]. Plaintiff used to ride four-wheelers, camp,
fish, and ride horses, but he is no longer able to do those
activities. [Tr. 39-40]. Plaintiff is mostly able to maintain
his personal hygiene, but sometimes cannot put on his shoes and
socks or shave. [Tr. 190-191]. According to Plaintiff, he does
not cook meals, he can no longer perform household chores, and
he no longer does any shopping for the household. [Tr. 191].
IV. Analysis
I.
The
ALJ
did
not
err
when
he
adopted
the
RFC
limitations from Plaintiff’s earlier application for
disability benefits.
Plaintiff
findings
because
of
contends
the
ALJ
additional
that
in
severe
an
the
ALJ
erred
earlier
in
disability
impairments
were
adopting
the
determination
included
in
the
disability determination now before this Court and the prior RFC
finding did not accurately describe Plaintiff.
“In Drummond v. Commissioner of Social Security, [the Sixth
Circuit] held that ‘a subsequent ALJ is bound by the findings of
a previous ALJ . . . absent new and additional evidence.’” Haun
v. Comm’r of Soc. Sec., 107 F. App’x 462, 464 (6th Cir. 2004)
(alteration in original) (quoting Drummond v. Comm’r of Soc.
Sec.,
126
F.3d
837,
842
(6th
Cir.
9
1997)).
When
an
initial
application
has
been
denied
and
a
subsequent
application
is
filed, Drummond requires that, “[i]n the absence of reopening,
the
ALJ
adjudicates
the
subsequent
period,
but
is
bound
by
relevant factual findings made with respect to the prior period
unless there is new and material evidence as to those findings.”
Gay v. Comm’r of Soc. Sec., 520 F. App’x 354, 357-58 (6th Cir.
2013) (citations omitted).
The ALJ in this case adopted the limitations set forth in
the
September
fully
accept
undersigned
2011
decision
the
RFC
gives
denying
disability,
determination.
great
weight
to
See
the
but
[Tr.
did
20]
residual
not
(“The
functional
capacity set forth in Judge Patterson’s September 2011 decision
and adopts these limitations.”). Rather, the ALJ included the
earlier limitations and, based upon new and material evidence,
added additional limitations to the RFC assessment. Compare [Tr.
18]
(adding
additional
limitations
to
the
initial
RFC
assessment), with [Tr. 51] (finding the initial limitations on
Plaintiff’s
first
application).
Thus,
the
ALJ
adopted
the
relevant factual findings and then, based on a worsening of
Plaintiff’s conditions, added limitations to Plaintiff’s ability
to
perform
sedentary
job
functions.
However,
the
additional
limitations did not require the ALJ to find that Plaintiff could
no longer perform sedentary work.
10
Plaintiff’s challenge is similar to one previously rejected
by the Sixth Circuit.
Rather than relying on the prior ALJ’s determination
regarding [plaintiff’s] residual functional capacity
in 1999, ALJ Jones then proceeded to review the
evidence offered in support of [plaintiff’s] 2001
application. While allowing that the new evidence
suggested deterioration in [plaintiff’s] condition
since
1999,
the
ALJ
nevertheless
determined
independently that [plaintiff] still retained the
residual functional capacity to perform sedentary
work. . . . The record does not demonstrate that
Drummond was misapplied.
Ealy v. Comm’r of Soc. Sec., 172 F. App’x 88, 90 (6th Cir. 2006)
(internal quotation marks omitted). The case at bar presents the
same situation as Ealy. The ALJ properly applied Drummond by
adopting the limitations, and then, upon an independent review
of the record, found that Plaintiff suffered from additional
limitations due to a worsening of his impairments. Despite the
worsening of the impairments, the ALJ found that Plaintiff could
still
perform
supported
by
sedentary
work,
substantial
and
evidence.
this
See
determination
[Tr.
63-80;
was
83-100].
Thus, the ALJ did not err.
II. The ALJ did not present an accurate hypothetical
question to the vocational expert.
Plaintiff claims that the ALJ erred because he relied upon
the
testimony
hypothetical
of
a
question
vocational
that
did
expert
not
in
response
accurately
to
a
describe
Plaintiff. Specifically, Plaintiff alleges that the ALJ failed
11
to include the moderate limitations to “respond appropriately to
changes
in
a
work
setting”
and
to
maintain
attention
and
concentration for extended periods of time.” [D.E. 9-1 at 8].
When asking a hypothetical question, the ALJ “is required
to incorporate only those limitations accepted as credible by
the finder of fact.” Casey v. Health & Human Servs., 987 F.2d
1230, 1235 (6th Cir. 1993) (citations omitted). The limitations
the
ALJ
finds
credible
must
be
supported
by
substantial
evidence. See Cooper v. Comm’r of Soc. Sec., 217 F. App’x 450,
453
(6th
Cir.
2007)
(“There
is
substantial
evidence
in
the
record that the two hypothetical questions posed by the ALJ
accurately portrayed [plaintiff’s] credible limitations.”). “In
order
for
a
hypothetical
vocational
question
expert’s
to
serve
testimony
as
in
response
substantial
to
evidence
a
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 Cir. 2010) (citations omitted).
The
ALJ
explicitly
found
that
Plaintiff
was
“moderately
limited in maintaining concentration, persistence or pace.” [Tr.
17]. Because the ALJ explicitly found the moderate limitation,
the United States’ argument that the ALJ was not required to
consider
this
portion
of
the
state
agency
psychologist
assessment is unavailing. The ALJ did not include this moderate
12
limitation in any of the hypotheticals posed to the vocational
expert. [Tr. 41-42; 42-43].
The
first
hypothetical
posed
by
the
ALJ
was
the
only
hypothetical containing any mental impairments. See [Tr. 41-43].
The
first
hypothetical
included
that
“[t]he
individual
can
understand, remember and carry out simple instructions; can deal
with changes in a routine work setting; can have occasional
interaction
with
the
public;
and,
frequent
interaction
with
coworkers and supervisors.” [Tr. 41-42]. This description did
not
adequately
describe
Plaintiff’s
limitations
as
to
concentration, persistence or pace.
[W]hile finding that Plaintiff has a ‘moderate
limitation in her ability to concentrate, persist and
keep pace,’ the ALJ’s limitations were with coworkers, supervisors and the public, and to ‘jobs
entailing no more than simple, routine, unskilled
work.’ While close, these are not sufficient, and do
not
fully
convey
Plaintiff’s
limitations
in
concentration
to
the
VE.
.
.
.
The
current
hypothetical question is not adequate on the issue of
moderate limitations of concentration, persistence and
pace for this Court to have any idea as to the number
of assembly, packing, and sorting or security guard
jobs identified by the VE that would be excluded if
quotas
or
other
aspects
related
to
moderate
concentration
limitations
were
added
to
the
hypothetical question.
Edwards v. Barnhart, 383 F. Supp. 2d 920, 930-31 (E.D. Mich.
2005) (citations omitted).
As
the
ALJ
explicitly
found
a
moderate
limitation
in
concentration, persistence or pace to be credible, and failed to
13
include
it
in
his
hypothetical
question
to
the
vocational
expert, or the RFC, the ALJ’s determination was not supported by
substantial evidence. The vocational expert’s testimony cannot
serve as substantial evidence that Plaintiff can perform other
work, and no other evidence on this issue was presented.
V. Conclusion
Accordingly, for the foregoing reasons, IT IS ORDERED:
(1)
that Plaintiff’s Motion for Summary Judgment [D.E. 9]
be, and the same hereby is, GRANTED;
(2)
that Defendant’s Motion for Summary Judgment [D.E. 12]
be, and the same hereby is, DENIED;
(3)
this
that the decision of the Commissioner is REVERSED, and
matter
is
REMANDED
to
the
Commissioner
proceedings consistent with this Opinion and Order.
This the 16th day of April, 2014.
14
for
further
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