United States District Court, W.D. Kentucky, Louisville
DAVID R. HUNT, Plaintiff,
CAROLYN COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION AND ORDER
DAVE WHALIN, Magistrate Judge.
Plaintiff David Hunt 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 applications for disability insurance benefits (DIB) and supplemental security income (SSI). Hunt applied for DIB and SSI on May 8, 2010, alleging that he was disabled as of March 6, 2009, due to attention deficit disorder, psychological instability and social workplace problems (Tr. 122). The Commissioner denied Hunt's claims on initial consideration (Tr. 55-56) and on reconsideration (Tr. 57-58). Hunt requested a hearing before an Administrative Law Judge (ALJ) (Tr. 102).
ALJ D. Lyndell Pickett conducted a hearing in Louisville, Kentucky, on Jan. 12, 2012 (Tr. 36-54). Hunt attended with his attorney, Alvin Wax (Tr. 36). Hunt and vocational expert (VE) Stephanie Barnes testified at the hearing (Tr. 40-51, 52-54). Following the conclusion of the hearing, ALJ Pickett entered a hearing decision on April 6, 2012, that found Hunt is not disabled for the purposes of the Social Security Act (Tr. 20-31).
In his adverse decision, ALJ Pickett made the following findings:
1. The claimant meets the insured status requirements of the Social Security Act through March 31, 2014.
2. The claimant has not engaged in substantial gainful activity since March 6, 2009, 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: depressive disorder and diabetes mellitus (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 the severity of 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 medium work as defined in 20 C.F.R. 404.1567(c) and 416.967(c) except limited to occasional climbing of ladders, ropes and scaffolds, can occasionally crawl, limited to frequent but not constant climbing of ramps and stairs, can frequently stoop, kneel, crouch, or crawl, only occasional exposure to vibration, work should be routine, repetitive, and unskilled, generally considered low stress, no strict production quotas, work should be away from the general public, only occasional contact with co-workers and supervisors, and work should be in a task oriented environment.
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 Nov. 23, 1954, and was 54-years-old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date. The claimant subsequently changed age category to 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, App. 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 March 6, 2009, through the date of this decision (20 C.F.R. 404.1520(g) and 416.920(g)).
(Tr. 22-31). Hunt sought review of the hearing decision by the Appeals Council (Tr. 15-16). The Appeals Council denied his request for review, finding no reason under the Rules to review ALJ Pickett's decision (Tr. 1-6). The present lawsuit followed.
The Five-Step Sequential Evaluation Process.
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 cannot 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 "5-step sequential evaluation process."
Standard of Review.
Review of a 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 ).
The Material Facts.
David R. Hunt was born Nov. 23, 1954, and was 54 years old at the time of ALJ Pickett's adverse decision (Tr. 30, 40). He is 5'8" tall and weighs 225 lbs. (Tr. 40). Hunt has never married and has no dependents (Tr. 40). He is a college graduate with a master's degree in computer engineering from the U of L Speed School of Engineering (Tr. 40, 186). He also has a Microsoft software and Visual Studio certification from Sullivan University (Tr. 186).
For approximately 15 years, Hunt worked in Michigan as an independent computer programming consultant for various employers from 1986 until 2001 (Tr. 239, 249). Hunt returned to Louisville, Kentucky, after downsizing in the automobile industry made it impossible for him to obtain employment as a computer programmer consultant in Michigan (Tr. 249). Upon returning to Louisville, where his family lived, Hunt worked a number of entry level jobs that included employment as a clerk in a retail store, a clerk at a liquor store, a temporary warehouse worker, a gas station attendant, restaurant employee, and telemarketer (Tr. 131). Hunt has not worked since March of 2009 (Tr 131), although he continued to seek employment without success throughout the time that he was applying for disability (Tr. 140, 212, 256, 296).
When asked at the hearing what problems prevented him from sustaining employment, Hunt explained that he has difficulty with understanding verbal communications, multi-tasking and communicating with others at work (Tr. 41-46). Hunt's prior employers, according to the vocation evaluation report prepared by vocational rehabilitation specialist Andrea Weahrley (Tr. 174-187), indicate that Hunt's main problem areas in employment include "hygiene, multitasking, being argumentative and following directions." (Tr. 185). Hunt's parents on a number of occasions have informed different healthcare providers and evaluators that Hunt has difficulties with social interaction and understanding verbal information (Tr. 185, 215, 238, 249, 254).
Hunt has a limited medical history that includes treatment for diabetes mellitus and hypertension (Tr. 42, 269-287). Hunt also beginning June 30, 2011, started treatment with the University of Louisville Psychiatric Group for major depressive disorder (Tr. 253-260, 268, 296-302). Hunt's family has a history of bipolar disorder found in both his sister and his biological mother, who was reported to have attempted suicide on multiple occasions (Tr. 249-59). Hunt, however, has no prior mental health treatment history outside of a brief hospitalization in 2007, following a panic attack and his recent treatment by the U of L Psychiatric Group (Tr. 253-60, 268, 296-302). Hunt had not previously been treated with psychotropic medication, either, for his mental problems.
A number of consultative examiners, healthcare providers and vocational professionals have examined Hunt. Dr. D. Keshore Gupta, a psychiatrist/neurologist, performed a consultative psychological evaluation of Hunt on June 15, 2010 (Tr. 210-212). Upon examination, Dr. Gupta diagnosed major depression (Tr. 211). Dr. Gupta noted Hunt's affect to be depressed with a poor degree of autonomy (Tr. 211). Hunt was noted to be fully oriented to time, place and person, to have successfully completed a 3-object memory test and to be able to do serial 7's subtraction and abstract thinking (Id.). Hunt reported to Gupta on ...