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Hicks v. Colvin

United States District Court, E.D. Kentucky, Southern Division, London

February 24, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



The Plaintiff, Dexter Dee Hicks, brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of an administrative decision of the Commissioner of Social Security (Commissioner) denying Hicks's application for a period of disability and disability insurance benefits (DIB). The Court, having reviewed the record and for the reasons set forth herein, will DENY Dexter Hicks's Motion for Summary Judgment [R. 17] and will GRANT the Commissioner's Motion for Summary Judgment. [R. 15.]


Dexter Hicks filed an application for a period of disability and DIB on July 31, 2009. [Transcript (Tr.) 131-32.] He alleges a disability beginning on December 12, 2007, the day after a previous Administrative Law Judge (ALJ) issued a decision denying his previous application for DIB. [Tr. 69-78, 131.] Hicks's application for DIB alleges a variety of problems including shoulder and back pain, nerve problems, migraine headaches, blackouts, and anxiety. [Tr. 144, 162-63.] The instant application was denied initially in November 2009 and again upon reconsideration on March 30, 2010. [Tr. 11, 79-89.] At Hicks's request, an administrative hearing was conducted before ALJ Todd Spangler on October 7, 2010. [Tr. 24-64.] During the hearing, the ALJ heard testimony from Hicks and from vocational expert (VE) James H. Miller. [ Id. ] Following the hearing, ALJ Spangler issued a decision denying Hicks's application on November 18, 2010. [Tr. 11-18.] Hicks, who was forty-eight years old as of the alleged onset date, has a limited education, having only completed the eighth grade. [Tr. 30-31.] Hicks's past relevant work includes working in construction as a carpenter and a drywall hanger. [Tr. 17, 32, 145.] Although the VE testified at Hicks's hearing that Hicks could no longer perform his past relevant work, he also testified that there are several types of jobs that exist in significant numbers in both the regional and national economies that Hicks could perform despite his limitations, and the ALJ accepted that testimony. [Tr. 60-63, 17-18.]

In evaluating a claim of disability, an ALJ conducts a five-step analysis. See 20 C.F.R. 404.1520.[1] First, if a claimant is performing a substantial gainful activity, he is not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or combination of impairments which significantly limit his physical or mental ability to do basic work activities, then he does not have a severe impairment and is not "disabled" as defined by the regulations. 20 C.F.R. § 404.1520(c). Third, if a claimant's impairments meet or equal one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is "disabled." 20 C.F.R. §404.1520(d). Before moving to the fourth step, the ALJ must use all the relevant evidence in the record to determine the claimant's residual functional capacity (RFC), which is an assessment of one's ability to perform certain physical and mental work activities on a sustained basis despite any impairment experienced by the individual. See 20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545. Fourth, the ALJ must determine whether the clamant has the RFC to perform the requirements of his past relevant work, and if a claimant's impairments do not prevent him from doing past relevant work, he is not "disabled." 20 C.F.R. § 404.1520(e). Fifth, if a claimant's impairments (considering his RFC, age, education, and past work) prevent him from doing other work that exists in the national economy, then he is "disabled." § 404.1520(f).

In this case, at Step 1, the ALJ found that Hicks has not engaged in substantial gainful activity during the period from his alleged onset date of December 12, 2007 through his last insured date of December 31, 2009. [Tr. 13.] At Step 2, the ALJ found that Hicks suffers from the following severe impairments: right shoulder tendonitis, arthritis in the shoulder, and anxiety. [Tr. 13.] At Step 3, the ALJ found that Hicks's impairments, whether considered alone or in combination, did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [Tr. 13-14.] Before moving to Step 4, the ALJ considered the entire record and determined that Hicks possessed the residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. § 404.1567(b) except for certain physical and mental limitations which were described as follows:

... [The claimant] is unable to reach overhead with the right upper extremity, is unable to climb ladders, ropes, or scaffolds, and is unable to perform work around hazards such as moving machinery and unprotected heights. Mentally, the claimant is capable of performing one, two, and three step instructions with no more than occasional contact with co-workers, supervisors, or the general public.

[Tr. 14.] After explaining in significant detail how he determined Hicks's RFC [Tr. 14-17], the ALJ found at Step 4 that based on this RFC, Hicks is unable to perform any past relevant work. [Tr. 17.] At Step 5, the burden shifted to the Commissioner to identify a significant number of jobs in the national economy that Hicks could perform, given his RFC, age, education, and experience. Jones, 336 F.3d at 474; 20 C.F.R. § 404.1520(g); 20 C.F.R § 404.1560(c). Here, the ALJ concluded that, based on Hicks's RFC and the VE's testimony, there are jobs that exist in significant numbers within both the national economy and regional economy that Hicks could perform. [Tr. 17-18.] Accordingly, on November 18, 2010, the ALJ issued an unfavorable decision, finding that Hicks was not disabled, and therefore ineligible for DIB. [Tr. 18.] The Appeals Council declined to review the ALJ's decision on July 6, 2012 [Tr. at 1-6], and Hicks now seeks judicial review in this Court.


This Court's review is limited to whether there is substantial evidence in the record to support the ALJ's decision. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003); Shelman v. Heckler, 821 F.2d 316, 319-20 (6th Cir. 1987). "Substantial evidence" is "more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). The substantial evidence standard "presupposes that there is a zone of choice within which [administrative] decisionmakers can go either way, without interference by the courts." Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) ( en banc ) (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).

In determining the existence of substantial evidence, courts must examine the record as a whole. Cutlip, 25 F.3d at 286 (citing Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983)). However, a reviewing court may not conduct a de novo review, resolve conflicts in the evidence, or make credibility determinations. Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (citation omitted); see also Bradley v. Sec'y of Health & Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988). Rather, if the Commissioner's decision is supported by substantial evidence, it must be affirmed even if the reviewing court would decide the matter differently, and even if substantial evidence also supports the opposite conclusion. Ulman, 693 F.3d at 714 (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)); Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).


Hicks's motion for summary judgment first contends that the ALJ erred because "the overwhelming weight of treating and examining physician opinions prove" that Hicks is "totally disabled." [R. 17-1 at 14.] The Court notes at the outset that because the treating physician's opinion is not the only basis for determining whether a person is "disabled" for purposes of DIB, the more appropriate inquiry concerning treating physicians is whether the ALJ gave the appropriate weight to the opinion of Hicks's treating professionals. See White v. Comm'r of Soc. Sec., 572 F.3d 272, 281 (6th Cir. 2009) (describing the focus of review as determining whether the ALJ applied the correct legal standards and whether the ALJ's factual findings are supported by substantial evidence). Under 20 C.F.R. § 404.1527(d)(2), a treating source's opinion on the issues of the nature and severity of a claimant's impairments is given controlling weight only if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques" and is "not inconsistent with other substantial evidence in [the] case record." Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (quoting 20 C.F.R. §404.1527(d)(2)); see also Bogle v. Sullivan, 998 F.2d 342, 347-48 (6th Cir. 1993) ("This court has consistently stated that the Secretary is not bound by the treating physician's opinions, and that such opinions receive great weight only if they are supported by sufficient clinical findings and are consistent with the evidence."). If the ALJ gives less than controlling weight to opinions from treating physicians, however, the ALJ must give "good reasons" for doing so, 20 C.F.R. § 404.1527(d)(2), and must explain what weight, if any, the treating physician's opinion warrants. §404.1527(c)(2).

Here, although Hicks discusses at great length the legal standard for considering a treating physician's opinion, he fails to point out how the ALJ did not follow that standard. ...

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