SCOTT J. HARTMAN, Plaintiff,
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION Defendant.
DAVE WHALIN, Magistrate Judge.
Plaintiff Scott J. Hartman has filed a complaint pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security that denied his current applications for disability insurance benefits (DIB) and supplemental security income (SSI). Hartman applied for DIB and SSI on August 12, 2011, alleging that he was disabled as of January 1, 2008, due to degenerative disk disease in the cervical and lumbar spine, nerve damage and swelling in the right leg, attention deficit-hyperactivity disorder, and mood swings (Tr. 288). The Commissioner denied Hartman's claims on initial consideration (Tr. 103-114, 115-126) and on reconsideration (Tr. 168-170, 171-173). Hartman requested a hearing before an Administrative Law Judge (ALJ) (Tr. 174-76).
ALJ George A. Jacobs conducted a hearing in Louisville, Kentucky, on July 17, 2012 (Tr. 36-72). Hartman attended with his attorney, Alvin Wax (Tr. 36). Hartman and vocational expert (VE) Robert Piper testified at the hearing (Tr. 41-64, 65-72). Following the conclusion of the hearing, ALJ Jacobs entered a hearing decision on July 26, 2012, that found Hartman is not disabled for the purposes of the Social Security Act (Tr. 20-31).
In his adverse decision, ALJ Jacobs made the following findings:
1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2010.
2. The claimant has not engaged in substantial gainful activity since January 1, 2008, the alleged onset date (20 C.F.R. 404.1571, et seq. and 416.971, et seq. ).
3. The claimant has the following severe impairments: lumbar degenerative disk disease with radiculopathy, cervical degenerative disk disease with radiculopathy, and bipolar/anxiety/attention deficit/post-traumatic stress disorders (20 C.F.R. 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light and sedentary work as defined in 20 C.F.R. 404.1567(a, b) and 416.967(a, b) except with a sit/stand option with at least 30 minutes in a position with the use of a cane to ambulate; occasional posturals but never climb ladders/ropes/scaffolds, kneel or crawl; avoid hazards (e.g. machinery, heights), vibration, bright or pulsating lights (due to headaches alleged at hearing); overhead reaching; no push/pull with the lower extremities; simple, repetitive tasks; no production rate pace work but rather goaloriented; occasional contact with co-workers and supervisors; and no contact with the public.
6. The claimant is unable to perform any past relevant work (20 C.F.R. 404.1565 and 416.965).
7. The claimant was born on July 8, 1959, and was 48-years-old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 C.F.R. 404.1563 and 416.963).
8. The claimant has at least a high-school education and is able to communicate in English (20 C.F.R. 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled, " whether or not the claimant has transferrable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appx. 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. 404.1569, 404.1569(a), 416.969 and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from January 1, 2008, through the date of this decision (20 C.F.R. 404.1520(g) and 416.920(g)).
(Tr. 22-30). Hartman sought review of the hearing decision by the Appeals Council (Tr. 14-16). The Appeals Council denied his/her request for review, finding no reason under the Rules to review ALJ Jacobs' decision (Tr. 1-6). The present lawsuit followed.
The Five-Step Sequential Evaluation Process.
Before the Court can address the arguments raised by Hartman in his fact and law summary, it first must set forth certain fundamental principles involved in the determination of disability. Disability is defined by law as being the inability to do substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death, or which has lasted or can be expected to last for a continuous period of not less than 12 months. See, 20 CFR §§ 404.1505, 416.905(a). To determine whether a claimant for DIB or SSI benefits satisfies such definition, a 5-step evaluation process has been developed. 20 CFR §§ 404.1520, 916.920(a). At step 1, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the Commissioner will find the claimant to be not disabled. See, 20 CFR §§ 404.1520(a)(4)(i), 416.920(a)(4)(ii), 416.971. See, Dinkel v. Secretary, 910 F.2d, 315, 318 (6th Cir. 1990).
If the claimant is not working, then the Commissioner next must determine at step 2 of the evaluation process whether the claimant has a severe impairment or combination of severe impairments that significantly limit his or her ability to perform basic work activities. See 20 CFR §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the impairments of the claimant are determined by the Commissioner to be non-severe, in other words, so slight that they could not result in a finding of disability irrespective of a claimant's vocational factors, then the claimant will be determined to be not disabled at step 2. See, Higgs v. Bowen, 880 F.2d 960, 962 (6th Cir. 1988); Mowery v. Heckler, 771 F.2d 966, 971-72 (6th Cir. 1985).
If the claimant has a severe impairment or impairments, then the Commissioner at step 3 of the process will determine whether such impairments are sufficiently serious to satisfy the listing of impairments found in Appendix 1 of Subpart B of Part 404 of the federal regulations. 20 CFR §§ 404.1520(A)(4)(iii), 416.920(a)(4)(iii) The claimant will be determined to be automatically disabled without consideration of his or her age, education or work experience if the claimant's impairments are sufficiently severe to meet or equal the criteria of any impairment listed in the Appendix. See, Lankford v. Sullivan, 942 F.2d 301, 306 (6th Cir. 1991); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990).
When the severity of the claimant's impairments does not meet or equal the listings, then the Commissioner must determine at step 4 whether the claimant retains the residual functional capacity (RFC) given his or her impairments to permit a return to any of his or her past relevant work. 20 CFR §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). See, Smith v. Secretary, 893 F.2d 106, 109-110 (6th Cir. 1989). A claimant who retains the residual functional capacity, despite his or her severe impairments, to perform past relevant work is not disabled. 20 CFR §§ 404.1560(b)(3), 416.960(b)(3) The burden switches to the Commissioner at step 5 of the sequential evaluation process to establish that the claimant, who can not return to his or her past relevant work, remains capable of performing alternative work in the national economy given his or her residual functional capacity, age, education and past relevant work experience. See, 20 CFR §§ 404.1520(a)(4)(v), 404.1560(c), 416.920(a)(4)(v), 416.960(c); Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994); Herr v. Commissioner, 203 F.3d 388, 391 (6th Cir. 1999). Collectively, the above disability evaluation analysis is commonly referred to as the "5step sequential evaluation process."
Standard of Review.
Review of a disability decision of the Commissioner is governed by 42 U.S.C. § 405(g). The statute, and case law that interprets it, require a reviewing court to affirm the findings of the Commissioner if they are supported by substantial evidence and the Commissioner has employed the appropriate legal standard. Walters v. Commissioner of Social Security, 127 F.3d 525, 528 (6th Cir. 1997) ("This Court must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record.). Substantial evidence is defined by the Supreme Court to be "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). See also, Lashley v. Sec'y of HHS, 708 F.2d 1048, 1053 (6th Cir. 1983) (citing Perales ). It is more than a mere scintilla of evidence or evidence that merely creates the suspicion of the existence of a fact, but must be enough evidence to justify a refusal to direct a verdict if the matter were tried to a jury. Sias v. Sec'y of HHS, 861 F.2d 475, 479 n. 1 (6th Cir. 1988).
The substantiality of the evidence is to be determined based upon a review of the record taken as a whole, not simply some evidence, but rather the entirety of the record to include those portions that detract from its weight. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984); Laskowski v. Apfel, 100 F.Supp.2d 474, 482 (E.D. Mich. 2000). So long as the decision of the Commissioner is supported by substantial evidence, it must be upheld by the federal court even if the record might support a contrary conclusion. Smith v. Sec'y of HHS, 893 F.2d 106, 108 (6th Cir. 1989). The substantial evidence standard "presupposes that there is a zone of choice within which decision makers can go either way, without interference from the courts." Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) ( en banc ).
We begin our consideration of Hartman's case with an overview of the material facts of his personal, social and medical history. Hartman was born July 8, 1959 (Tr. 41, 189). He stands 5'10" tall and weighs 183 lbs (Tr. 45). At the time of the hearing, he was 53 years old, divorced and living alone in rent subsidized housing (Tr. 42). Hartman has a high school education, but no formal vocational training or military experience (Tr. 43-44). His past relevant work includes employment as a cashier, a hand packager and security alarm installer (Tr. 65-66, 288-290). Hartman testified that he has not worked for more than a day since the alleged onset date of his disability on Jan. 1, 2008 (Tr. 45).
Hartman described his physical problems at the hearing before ALJ Jacobs on July 17, 2012 (Tr. 46-51). He explained that he has problems with both of his legs, his back and neck (Tr. 46-47). He experiences daily leg pain that he estimates to be rated at 6-7 on a 10-point scale. The pain is sometimes worse when he stands too long or walks excessively (Tr. 47). Hartman estimated that he can stand for approximately 30 minutes and walk a block and a half without experiencing substantial pain. According to him, elevation of his legs helps to relieve the pain (Tr. 48).
Hartman also experiences pain in his back due to his disk problems. He described this back pain as a dull ache that rates a 3-4 out of 10 on the pain scale (Tr. 48). Too much standing, sitting or lying down will increase his back pain (Id.). Hartman estimated that he can stand for 30-40 minutes, sit for an hour and lay down for 2-3 hours before his back pain starts (Tr. 29). Heat, showers and relaxation help him to relieve this pain (Id.).
Hartman has constant pain in his neck, which "hurts pretty bad all the time." (Id.). He estimated his neck pain to be 5-6 on the same 10-point pain scale. Turning his neck or looking up and down increase the neck pain (Id.). Relaxation reduces it (Tr. 50). Other than his neck, leg and back pain, Hartman denied any other physical problems during questioning by the ALJ (Tr. 50). His doctors have limited him to lifting no more than 5-15 lbs and have told him to avoiding excessive bending or standing. (Id.). Hartman testified that his physical condition had not changed significantly in the six months prior to the July, 2012 hearing. He has attempted physical therapy in the past, but it only helped for a short period of time (Tr. 51). Hartman's pain medications, in particular Seroquel, which he takes at night, make him sleepy (Tr. 51)
Hartman also testified at the administrative hearing about his mental health problems (Tr. 52-60). He has been treated for anxiety, stress and depression (Tr. 52). He takes medications for these conditions and reported being hospitalized at "Wellsprings" for emotional problems for two weeks during the year prior to the hearing (Id.). Hartman does receive treatment with a therapist once a month, and at the time of the hearing had been in counseling for a year (Tr. 53).
On a typical day, Hartman rises early, makes his breakfast, watches tv, does his personal hygiene and decides what he is going to do (Tr. 53, 54). On a "bad day, " Hartman stays to himself and will just sit or lie down if his mind is racing or he can't concentrate (Tr. 54). Hartman estimated that he has two or three such bad days a week (Tr. 55). Nevertheless, he is able to prepare his own meals, watch tv, use public transportation, shop for himself and go to the library where he enjoys reading books about military history (Tr. 55-58).
Hartman also is able to dress himself, do his own laundry, operate a dishwasher and microwave, sweep the floor, manage his own finances and visit with friends. (Tr. 56-59). Hartman has several friends who do come to visit him two or three times a week; otherwise, he belongs to no social organizations, clubs or churches (Tr. 59).
During the hearing, Hartman explained that his neck, back and leg pain, along with his psychological problems, would prevent him from performing any jobs that required physical activity such as sweeping or cleaning (Tr. 60). His neck pain is related to a 3-level fusion surgery that he needed after a water skiing accident in 1999 (Tr. 60). Surgeons installed a cage and plate in his neck, along with six screws (Tr. 61). Hartman also suffered severe compound fractures to his right lower leg following a motorcycle accident in 1976 that left him with a shortened right leg and a crushed right foot that he can barely lift with his ankle (Tr. 61). This foot injury, according to Hartman, ...