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Howard v. Colvin

United States District Court, E.D. Kentucky, Central Division, Lexington

February 27, 2015



ROBERT E. WIER, Magistrate Judge.

Plaintiff, Jannette Howard, appeals the Commissioner's denial of her application for a period of disability, Social Security Disability Insurance benefits, disabled widow's benefits, and Supplemental Security Income benefits (collectively, "benefits"). The matter is before the Court on cross-motions for summary judgment. The Court GRANTS the Commissioner's motion (DE #20) and DENIES Howard's motion (DE #19) because substantial evidence supports the findings resulting in the administrative decision.


Howard is 57 years old. R. at 28. During her career, she worked as a licensed practical nurse ("LPN"), certified nursing assistant ("CNA"), and van driver. R. at 27-28, 39-42, 306, 313. However, she has not worked since August 13, 2010, the date she alleges her disability began. R. at 19, 22. She applied for benefits on February 22, 2011. R. at 265-73. Her claims were initially denied on June 6, 2011, R. at 180-83, and denied upon reconsideration on August 17, 2011, R. at 194-96. Howard then filed a written request for a hearing on August 29, 2011. R. at 19. Administrative Law Judge ("ALJ") Ronald Kayser held a hearing on her application on May 25, 2012, in Hazard, Kentucky. Id. At this hearing, Howard appeared and testified; she was represented by Lucinda Cornett as counsel. Id. Martha R. Goss, an impartial vocational expert ("VE"), also testified. Id. The ALJ subsequently denied Howard's claim on June 18, 2012. R. at 16-29. In his decision, the ALJ found Howard's necrotizing fasciitis of the groin, problems with toiletry, diabetes mellitus II, obesity, and somatoform disorder were severe, but that these impairments did not meet or medically equal one of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1. R. at 23-25.[1] The ALJ found that Howard had the residual functional capacity ("RFC") to perform a range of medium work. R. at 25-27. The ALJ further relied on the testimony of the VE to establish that with her RFC, Howard could return to her past relevant work. R. at 27-29, 75-76. Alternatively, the ALJ found Howard capable of doing other jobs (thus foreclosing disability). The Appeals Council upheld the ALJ's decision on August 13, 2013. R. at 1.

As the catalyst for these proceedings, while Howard was employed as an LPN, she was either pricked by a needle or had an open sore from a boil while in her employing nursing home and acquired a necrotizing fasciitis infection, more commonly referred to as flesh-eating bacteria disease. R. at 46, 666. She was hospitalized on August 14, 2010. R. at 401. She remained hospitalized for over a month, where she was diagnosed, received treatment, and underwent procedures for a variety of ailments. R. at 404. Particularly, she underwent two surgical debridements of the groin area by Dr. Todd Tom, who then officially diagnosed the necrotizing fasciitis. R. at 404, 406, 423, 431. After her release from the hospital on September 16, 2010, Dr. Tom saw her on follow-up, where he noted the possible need for skin grafting and a continued bad odor around her wound area. R. at 671. Howard was re-admitted to the hospital on December 2, 2010, due to continuing infection in her left thigh area, at which time Dr. Bekoe Opoku-Owusu recommended a change in antibiotic. R. at 357, 364, 409-12. She had normal motor and sensory function in all extremities, and she promptly was discharged in stable condition. R. at 367, 360. Dr. Sree Suryadevara noted "no evidence of a necrotizing soft tissue infection currently." R. at 367. During this hospitalization, Howard received a normal psychiatric evaluation, interacted normally, and demonstrated appropriate affect and demeanor.[2] R. at 395. She did not and has not received mental health treatment. R. at 60.

Howard followed up on this series of treatment with her primary care provider, Dr. Michael Raichel. R. at 1697. Dr. Raichel, in the relevant period, diagnosed Howard with a variety of symptoms and diseases, including diabetes, headaches, hyperlipidemia, diabetic peripheral neuropathy, and hypertension. R. at 1699-1700, 1744-45. During repeated occasions of treatment, Howard reported she was doing fairly well, and she had a full range of motion in the joints of her extremities and normal muscle strength and tone. R. at 1697-99. She was alert, cooperative, and in a normal mood. R. at 1699. Follow-up treatment with Dr. Raichel revealed that Howard continued to do fairly well. R. at 1742, 1774-76, 1787. She reported tremendous improvement regarding her headaches and denied medication side effects. R. at 1742-43. Dr. Raichel recorded no musculoskeletal abnormalities and reported normal muscle strength. R. at 1743.

Dr. Kent Taylor also consultatively (for state DDS) examined Howard in April 2011. R. at 1704-06. Howard denied experiencing pain, anxiety, and difficulty concentrating, and her musculoskeletal examination was unremarkable. Id. Her gait, muscle strength, and grip strength were normal. Id. Dr. Taylor did, however, note decreased light touch sensation on the upper left thigh, and he diagnosed surgical site numbness, incontinence, and diabetes. R. at 1706.

Additionally, Drs. Warren Bilkey and Tamara Musgrave examined Howard; they noted similar loss of sensation and incontinence, but also pain. R. at 1722-24, 1728-29. In particular, Dr. Musgrave conducted a one-time evaluation of Howard as part of Howard's workers' compensation claim connected to her flesh-eating bacteria infection. R. at 1721. Dr. Musgrave noted similar physical conditions, R. at 1723-24, but found Howard's mood and affect to be appropriate. R. at 1723. Dr. Bilkey similarly conducted a one-time evaluation (generating the reports, 9 months apart) and determined Howard faced physical conditions such as a large umbilical hernia, chronic groin pain, incontinence, unsteady gait, and obesity. R. at 1735.

Drs. Leigh Ann Ford and Robert Genthner[3] consultatively examined Howard's psychological issues. R. at 1710-19, 1778-85. They found some limitations in her ability to deal with stress and the pressures of day-to-day work activity, as well as limited ability to deal with the public, relate predictably in social situations, and demonstrate reliability. R. at 1716-17, 1779-84. However, Dr. Genthner found Howard could understand, retain, and follow detailed or complex instructions. R. at 1717. Howard was friendly, alert, and responsive during his examination. R. at 1711. Dr. Genthner specified that Howard gets along with her neighbors and has a best friend. R. at 1715. Dr. Ford indicated that Howard's mental capacities were satisfactory and her ability to remember was normal. R. at 1783-84, 1779.


A. Standard of Review

The Court has carefully read the full decision and all medical reports it cites. This has included review of reports or pertinent records generated as to Drs. Raichel, Bilkey, Taylor, Musgrave, Ford, and Genthner. The Court also read and considered the full administrative hearing and other parts of the record cited by the parties or significant to the ALJ's decision.

Judicial review of the ALJ's decision to deny disability benefits is a limited and deferential inquiry into whether substantial evidence supports the denial's factual decisions and whether the ALJ properly applied relevant legal standards. Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009); Jordan v. Comm'r of Soc. Sec., 548 F.3d 417, 422 (6th Cir. 2008); Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989) (citing Richardson v. Perales, 91 S.Ct. 1420, 1427 (1971)); see also 42 U.S.C. § 405(g) (providing for judicial review for Social Security claims) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive[.]"); id. § 1383(c) (providing for judicial review for Supplemental Security Income claims to the same extent as provided in § 405(g)). Substantial evidence means "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); see also Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). The Court does not try the case de novo, resolve conflicts in the evidence, or assess questions of credibility. Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). Similarly, the Court does not reverse findings of the Commissioner or the ALJ merely because the record contains evidence, even substantial evidence, to support a different conclusion. Warner, 375 F.3d at 390. Rather, the Court must affirm the ALJ's decision if it is supported by substantial evidence, even if the Court might have decided the case differently. See Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005); Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).

The ALJ, when determining disability, conducts a five-step analysis. See Preslar v. Sec'y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994); 20 C.F.R. § 404.1520(a)(4). At Step 1, the ALJ considers whether the claimant is performing substantial gainful activity. See Preslar, 14 F.3d at 1110. At Step 2, the ALJ determines whether one or more of the claimant's impairments are severe. Id. At Step 3, the ALJ analyzes whether the claimant's impairments, alone or in combination, meet or equal an entry in the Listing of Impairments. Id. At Step 4, the ALJ determines RFC and whether the claimant can perform past relevant work. Id. The inquiry at this stage is whether the claimant can still perform that type of work, not necessarily the specific past job. See Studaway v. Sec'y of Health & Human Servs., 815 F.2d 1074, 1076 (6th Cir. 1987). Finally, at Step 5, when the burden of proof shifts to the Commissioner, if the claimant cannot perform past relevant work, the ALJ determines whether significant numbers of other jobs exist in the national economy that the claimant can ...

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