Case Information
' ' I * ' ) UNITED STATES DISTRICT COURT I & EASTERN DISTRICT OF KENTUCKY - .? , :I,rJ5 LONDON i ' . , j CIVIL ACTION NO. 04-520-GWU
SANDRA NICKELS, PLAINTIFF, VS . MEMORANDUM OPINION
JOANNE B. BARNHART, DEFENDANT.
COMMISSIONER OF SOCIAL SECURITY,
INTRODUCTION
The plaintiff brought this action to obtain judicial review of an administrative denial of her applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). The appeal is currently 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. 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.
4. Can the claimant's severe impairment@) 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 (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 If no, proceed to Step 7. See 20 C.F.R. disabled. 404.1520(e), 416.920(e). 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(9( I ) , 41 6.905(a), 41 6.920(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. Secretarv 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 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
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. Secretarv of Health and Human Services, 736 F.2d 365, 367 (6th Cir. 1984); Kina 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. Hardawav 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 plaintiffs symptoms including pain, and the extent to which signs and findings confirm these symptoms. 20 C.F.R. Section 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) 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. Secretarv 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. Secretarv 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. Secretarv of Health and Human Services, 794 F.2d 1106, 11 13 (6th Cir. 1986).
In reviewing the record, the Court must work with the medical evidence before it, despite the plaintiffs claims that he was unable to afford extensive medical work- ups. Gooch v. Secretarv 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. Secretarv of Health and Human Services, 816 F.2d 1078, 1082 (6th Cir. 1987), unless a claimant simply has no way to afford or obtain treatment to remedy his condition, McKniaht 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. Studawav v. Secretary, 81 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. Lashlev v. Secretarv 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. u. at
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.a.. Faucher v. Secretarv 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.
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. 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). lfthis 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. w. 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. Varlev v. Secretarv of Health and Human Services, 820 F.2d 777 (6th Cir. 1987).
DISCUSSION The administrative law judge (ALJ) found that Nickels had a history of recurrent right shoulder dislocation, fibromyalgia, hypertension and diabetes. (Tr. 20). The associated limitations were believed to restrict the plaintiff to the performance of less than a full range of light level work (Tr. 20-21); this did not preclude being able to work at past relevant work as a parking lot attendant or secretary (Tr. 21).'
The plaintiffs major argument is that the ALJ improperly discounted the opinion of Treating Physician Morton (Tr. 19). Docket Entry No. 25, at pp. 7-1 1. In her brief, the defendant indicates that she does not dispute that Morton was a
'By Nickels' own statements, one of her secretarial jobs involved no lifting, carrying, kneeling, crouching, crawling, climbing, stooping or handling big objects. (Tr 69).
medical doctor who treated the plaintiff, but ratherthat the doctor's findings were not supported by the medical evidence. Docket Entry No. 26, at p. 6.
This is one of those relatively rare cases when there are obvious reasons to treating physicians. discount opinions of but possibly
Dr. Mark Corcoran (Tr. 134) opined in July, 2001 that the plaintiff was unable to walk and at least somewhat restricted in a variety of other activities due mainly to fibrositis. Corcoran, in the earliest opinion, noted that the plaintiff had a normal range of motion (Tr. 132) and had referred the patient to a rheumatologist who obtained laboratory testing and stated that the plaintiff could return to "normal activity" despite her possible fibromyalgia (Tr. 88-89). Thus, since Corcoran's opinion was contradicted by a specialist to whom he had referred the plaintiff for further evaluation of the only condition he stressed on his assessment form (Tr. 134), Corcoran's opinion is not entitled to binding weight.
A year later, Dr. Steven Morton noted on a prescription pad that the patient was disabled from (1) chronic back pain, (2) complications from diabetes and (3) fibromyalgia. (Tr. 202). Morton's laconic progress notes from late June, 2002 to October, 2003 indicated that the patient's physical examination was normal on many occasions (Tr. 201, 203-206, 208-209, 21 2). No consistent references to trigger point findings were made. A lumbar MRI ordered by Morton shortly before the
a disability statement had been normal in result. (Tr. 220). Shortly after the disability statement was completed, an ophthalmologist informed the doctor that there was no sign of diabetic retinopathy. (Tr. 207). While some degenerative changes showed up in a 2004 MRI, a neurosurgeon to whom the plaintiff was referred by Morton later in 2004 noted that Nickels was "out of shape" and only needed to lose weight and aggressively engage in a home exercise program (Tr. 263).
In contrast to the opinions of Corcoran and Morton, other physicians'opinions supported the ALJ. Beside the rheumatologist previously referred to, Doctors Drew (Tr. 90-97) and Rawlings (Tr. 168-172) also provided support for the agency decision.
For these reasons, as well as those cited in the defendant's brief at pp. 8-9,
the decision will be affirmed.
This the -7 day of December, 2005.
SENIOR JUDGE