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Charles F. Gordon v. Michael J. Astrue

March 23, 2011

CHARLES F. GORDON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



MEMORANDUM OPINION

INTRODUCTION

Charles Gordon originally brought Gordon v. Astrue, London Civil Action No. 06-525-GWU (E.D. Ky) to obtain judicial review of an unfavorable administrative decision on his application for Disability Insurance Benefits (DIB). After a period of administrative reconsideration prompted by the court's Memorandum Opinion, Order, and Judgment of September 12, 2007 (Tr. 399-408), it is 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 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 10-183 Charles F. Gordon 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 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 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

The Administrative Law Judge (ALJ) concluded that Gordon, a 51-year-old former electrician with a high school education, suffered from impairments related to degenerative disc disease of the lumbosacral spine, grade I spondylolisthesis at L5-S1, being status post L5 laminectomy with bilateral L4-L5 medial facetectomies, L5-S1 posterior lateral with TSRH-3D pedicle screw fixation and autologous bone graft and right posterior iliac crest bone graft harvesting, degenerative disc disease of the thoracic spine, morbid obesity and obstructive sleep apnea. (Tr. 350-351, 388). For the time period between June 22, 2004 and June 22, 2005, the ALJ found that the plaintiff equaled the requirements of Section 1.03 of the Listing of Impairments and, so was disabled for this closed period. (Tr. 379-380). After June 23, 2005, the ALJ determined that the claimant would be able to perform a restricted range of light level work. (Tr. 381-382). Since the available work was found to constitute a significant number of jobs in the national economy, Gordon could not be considered totally disabled. (Tr. 389-390, 392). The ALJ based this portion of the decision, in large part, upon the testimony of a vocational expert. (Tr. 390).

Gordon seeks judicial review of the unfavorable portion of the administrative decision. After review of the evidence presented, the undersigned concludes that the administrative decision is supported by substantial evidence. Therefore, the court must grant the defendant's summary judgment motion and deny that of the plaintiff.

The hypothetical question presented by the ALJ to Vocational Expert William Ellis included all of the physical restrictions identified by Dr. Allan Levine, who testified at the administrative hearing as a medical advisor, in addition to including Gordon's age, work background and educational level. (Tr. 678). The physical limitations of Dr. Levine included (1) an inability to lift more than 15 pounds occasionally and 10 pounds frequently; (2) an inability to stand for more than 45 minutes at a time with breaks of two to three minutes for a total of four hours in an eight-hour day; (3) an inability to walk for more than 30 minutes at a time with breaks of two to three minutes for a total of four hours in an eight-hour day; (4) an inability to perform a combined amount of standing and walking for just under eight hours a day; (5) an inability to more than occasionally climb stairs, kneel, crouch and stoop; and (6) an inability to ever climb ladders, work at unprotected heights, operate heavy, vibrating machinery, or work at temperatures less than 40 degrees.

(Tr. 667-671). In response, Ellis identified a significant number of jobs in the national economy which could still be performed including hand packer (315,000 national jobs), production worker (300,000 national jobs), and inspector (98,000 national jobs). (Tr. 679). The ALJ then inquired as to the effect of a sit/stand option on the available job base. (Tr. 680). The witness initially indicated that this would produce a 50 percent reduction in the number of available jobs. (Id.). The ALJ then called attention to the discrepancy between the 15 pound maximum lifting restriction of the hypothetical question and the usual 20 pound maximum weight lifting limit of light level work. Ellis estimated that this would reduce the available job base by 25 percent and indicated that the job numbers he cited in response to the second hypothetical question would remain because he had imposed too great a reduction for the sit/stand option. (Tr. 681). ...


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