Riley v. SSA, No. 6:2008cv00018 - Document 14 (E.D. Ky. 2008)

Court Description: MEMORANDUM OPINION: The administrative decision must be reversed and action remanded to Commissioner for further consideration. Signed by Judge G. Wix Unthank on 9/29/2008.(EHM)cc: COR
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION at LONDON CIVIL ACTION NO. 08-18-GWU TONDA LEE RILEY, VS. PLAINTIFF, MEMORANDUM OPINION MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT. INTRODUCTION Tonda Riley brought this action to obtain judicial review of an unfavorable administrative decision on her application for Supplemental Security Income (SSI). The case is before the court on cross-motions for summary judgment. APPLICABLE LAW The Sixth Circuit Court of Appeals has set out the steps applicable to judicial review of Social Security disability benefit cases: 1. Is the claimant currently engaged in substantial gainful activity? If yes, the claimant is not disabled. If no, proceed to Step 2. See 20 C.F.R. 404.1520(b), 416.920(b). 2. Does the claimant have any medically determinable physical or mental impairment(s)? If yes, proceed to Step 3. If no, the claimant is not disabled. See 20 C.F.R. 404.1508, 416.908. 3. Does the claimant have any severe impairment(s)--i.e., any impairment(s) significantly limiting the claimant's physical or mental ability to do basic work activities? If yes, proceed to Step 4. If no, the claimant is not disabled. See 20 C.F.R. 404.1520(c), 404.1521, 416.920(c), 461.921. 1 08-18 Tonda Lee Riley 4. Can the claimant's severe impairment(s) be expected to result in death or last for a continuous period of at least 12 months? If yes, proceed to Step 5. If no, the claimant is not disabled. See 20 C.F.R. 404.920(d), 416.920(d). 5. Does the claimant have any impairment or combination of impairments meeting or equaling in severity an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Listing of Impairments)? If yes, the claimant is disabled. If no, proceed to Step 6. See 20 C.F.R. 404.1520(d), 404.1526(a), 416.920(d), 416.926(a). 6. Can the claimant, despite his impairment(s), considering his residual functional capacity and the physical and mental demands of the work he has done in the past, still perform this kind of past relevant work? If yes, the claimant was not disabled. If no, proceed to Step 7. See 20 C.F.R. 404.1520(e), 416.920(e). 7. Can the claimant, despite his impairment(s), considering his residual functional capacity, age, education, and past work experience, do other work--i.e., any other substantial gainful activity which exists in the national economy? If yes, the claimant is not disabled. See 20 C.F.R. 404.1505(a), 404.1520(f)(1), 416.905(a), 416.920(f)(1). Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Applying this analysis, it must be remembered that the principles pertinent to the judicial review of administrative agency action apply. 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). This "substantial evidence" is "such evidence as a reasonable mind shall accept as adequate to 2 08-18 Tonda Lee Riley 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. Garner, 745 F.2d at 387. One of the detracting factors in the administrative decision may be the fact that the Commissioner has improperly failed to accord greater weight to a treating physician than to a doctor to whom the plaintiff was sent for the purpose of gathering information against his disability claim. Bowie v. Secretary, 679 F.2d 654, 656 (6th Cir. 1982). This presumes, of course, that the treating physician's opinion is based on objective medical findings. Cf. Houston v. Secretary of Health and Human Services, 736 F.2d 365, 367 (6th Cir. 1984); King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984). Opinions of disability from a treating physician are binding on the trier of fact only if they are not contradicted by substantial evidence to the contrary. Hardaway v. Secretary, 823 F.2d 922 (6th Cir. 1987). These have long been well-settled principles within the Circuit. Jones, 945 F.2d at 1370. Another point to keep in mind is the standard by which the Commissioner may assess allegations of pain. Consideration should be given to all the plaintiff's symptoms including pain, and the extent to which signs and findings confirm these symptoms. 20 C.F.R. § 404.1529 (1991). However, in evaluating a claimant's allegations of disabling pain: First, we examine whether there is objective medical evidence of an underlying medical condition. If there is, we then examine: (1) 3 08-18 Tonda Lee Riley whether objective medical evidence confirms the severity of the alleged pain arising from the condition; or (2) whether the objectively established medical condition is of such a severity that it can reasonably be expected to produce the alleged disabling pain. Duncan v. Secretary of Health and Human Services, 801 F.2d 847, 853 (6th Cir. 1986). Another issue concerns the effect of proof that an impairment may be remedied by treatment. The Sixth Circuit has held that such an impairment will not serve as a basis for the ultimate finding of disability. Harris v. Secretary of Health and Human Services, 756 F.2d 431, 436 n.2 (6th Cir. 1984). However, the same result does not follow if the record is devoid of any evidence that the plaintiff would have regained his residual capacity for work if he had followed his doctor's instructions to do something or if the instructions were merely recommendations. Id. Accord, Johnson v. Secretary of Health and Human Services, 794 F.2d 1106, 1113 (6th Cir. 1986). In reviewing the record, the Court must work with the medical evidence before it, despite the plaintiff's claims that he was unable to afford extensive medical work-ups. Gooch v. Secretary of Health and Human Services, 833 F.2d 589, 592 (6th Cir. 1987). Further, a failure to seek treatment for a period of time may be a factor to be considered against the plaintiff, Hale v. Secretary of Health and Human Services, 816 F.2d 1078, 1082 (6th Cir. 1987), unless a claimant simply has no way 4 08-18 Tonda Lee Riley to afford or obtain treatment to remedy his condition, McKnight v. Sullivan, 927 F.2d 241, 242 (6th Cir. 1990). Additional information concerning the specific steps in the test is in order. Step six refers to the ability to return to one's past relevant category of work. Studaway v. Secretary, 815 F.2d 1074, 1076 (6th Cir. 1987). 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). However, both 20 C.F.R. § 416.965(a) and 20 C.F.R. § 404.1563 provide that an individual with only off-and-on work experience is considered to have had no work experience at all. Thus, jobs held for only a brief tenure may not form the basis of the Commissioner's decision that the plaintiff has not made out its case. Id. at 1053. 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 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. 5 08-18 Tonda Lee Riley 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 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. 6 08-18 Tonda Lee Riley 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 The Administrative Law Judge (ALJ) concluded that Riley, a 41-year-old former nursing assistant, fast food cashier and convenient store cashier with a high school education, suffered from impairments related to unspecified arthropathies and depression. (Tr. 21, 26-27). While the plaintiff was found to be unable to return to her past relevant work, the ALJ determined that she retained the residual functional capacity to perform a restricted range of medium level work. (Tr. 24, 26). Since the available work was found to constitute a significant number of jobs in the national economy, the claimant could not be considered totally disabled. (Tr. 27). The ALJ based this decision, in large part, upon the testimony of a vocational expert. (Id.). After review of the evidence presented, the undersigned concludes that the administrative decision is not supported by substantial evidence. However, the current record also does not mandate an immediate award of SSI. Therefore, the 7 08-18 Tonda Lee Riley court must grant the plaintiff's summary judgment motion, in so far as it seeks a remand of the action for further consideration, and deny that of the defendant. The hypothetical question presented to Vocational Expert James Miller included an exertional restriction to medium level work restricted from a full range by such non-exertional limitations as (1) an inability to ever climb ladders, ropes or scaffolds; (2) an inability to more than occasionally climb ramps or stairs, stoop, crouch, kneel, and crawl; (3) a need to avoid exposure to hazardous machinery or heat and cold; and (4) a "limited but satisfactory" ability to deal with co-workers and the public and to deal with work stresses with a restriction to low stress jobs. (Tr. 696-697). In response, the witness identified a significant number of jobs in the national economy which could still be performed. (Tr. 697). The ALJ then presented an alternative hypothetical question with all of the same restrictions with the exception of an exertional limitation to light level work and an inability to reach overhead with the left arm. (Id.). Miller again identified a significant number of jobs which could still be done. (Tr. 698). The ALJ relied upon this testimony to support the administrative decision. Review of the medical record reveals the existence of more severe physical limitations than those presented to the vocational expert. Dr. Barry Burchett examined Riley and reported a diagnostic impression of chronic right hip pain with probable degenerative arthritis, chronic back pain with possible right radiculopathy, 8 08-18 Tonda Lee Riley chronic neck pain with possible right radiculopathy, chronic arthralgias of the hands and chronic headaches. (Tr. 205-206). Dr. Burchett opined that the plaintiff would be "at least moderately limited" in such areas as bending, stooping, lifting, walking, crawling, squatting, carrying, traveling, and pushing or pulling heavy objects. (Tr. 206). No other treating or examining source of record, including the staff at the Willowbrook Women's Center (Tr. 140-154), the staff at Memorial Hospital (Tr. 155181, 234-265), Dr. Neeraj Mahboob (Tr. 182-201), the staff at Parkway Medical Center (Tr. 266-273), Dr. Theresa Madden (Tr. 275-277) and the staff at Medical Specialists of Kentucky (Tr. 300-304) identified fewer physical restrictions. Riley argues that the hypothetical question did not include all of Dr. Burchett's restrictions and that this omission constituted reversible error. The court notes that the hypothetical question was essentially consistent with most of the limitations. However, the vocational expert was never asked to consider the effect of any limitation upon walking. The jobs cited by Miller as remaining available under either set of hypothetical factors were all medium and light level positions. Social Security Ruling 83-10 indicates that "relatively few unskilled light jobs are performed in the seated position" and indicated that "in most medium jobs, being on one's feet for most of the workday is critical." Therefore, the "moderate" walking restriction appears a to be a very significant limitation to the undersigned. 9 08-18 Tonda Lee Riley The only other physician of record to express an opinion regarding Riley's ability to perform work activities was Dr. Sudideb Mukherjee, a non-examining medical reviewer. Dr. Mukherjee indicated that the plaintiff would be limited to a restricted range of medium level work. (Tr. 208-215). The ALJ's hypothetical question was compatible with these restrictions. Dr. Mukherjee saw Dr Burchett's opinion and stated that it was entitled to great weight. (Tr. 213). However, despite this assertion, the physician did not restrict standing and walking beyond the normal six hours out of an eight-hour day. (Tr. 208). An ALJ may rely upon the opinion of a non-examiner over that of an examining source when the non-examiner clearly states the reasons for his differing opinion. Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994). Dr. Mukherjee did not provide any reasons for why he did not believe that Dr. Burchett's "moderate" restriction with regard to walking was not well supported and even purported to give the opinion great weight. Under these circumstances, the ALJ could not rely upon the reviewer's opinion. The ALJ should at least have sought the advice of a medical advisor who could clarify the issue. Therefore, a remand of the action for further consideration is required. The undersigned concludes that the administrative decision must be reversed and the action remanded to the Commissioner for further consideration. Therefore, the court must grant the plaintiff's summary judgment motion, in so far 10 08-18 Tonda Lee Riley as such relief is achieved and deny that of the defendant. A separate judgment and order will be entered simultaneously consistent with this opinion. This the 29th day of September, 2008. 11