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Blessing-Hardy v. Berryhill

United States District Court, W.D. Kentucky, Louisville

May 15, 2017

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security DEFENDANT



         Plaintiff, Karen Leona Blessing-Hardy (Hardy), 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 her application for disability insurance benefits (DIB). Hardy applied for DIB on March 26, 2012, alleging that she was disabled as of August 26, 2008, due to degenerative disc disease of the cervical and lumbar spine accompanied by head and neck pain, tension headaches, occipital neuralgia and hand and finger numbness/pain (Tr. 245-267, 280). The Commissioner denied Hardy's claim on initial consideration (Tr. 148) and on reconsideration (Tr. 153). Hardy requested a hearing before an Administrative Law Judge (ALJ) (Tr.156-57).

         ALJ Jonathan Stanley conducted a videoconference hearing in Lexington, Kentucky, on February 19, 2014 (Tr.59-93).[2] Hardy attended with her attorney, Lisa Ballou (Tr. 59). Hardy and vocational expert (VE) Jackie Rogers testified at the hearing (Tr. 64-83, 83-93). Following the conclusion of the hearing, ALJ Stanley entered a hearing decision on April 4, 2014 that found Hardy is not disabled for the purposes of the Social Security Act (Tr. 25-41).

         In his adverse decision, ALJ Stanley made the following findings:

1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2013.
2. The claimant did not engage in substantial gainful activity during the period from her alleged onset date of August 26, 2008 through her date last insured of December 31, 2013(20 C.F.R. 404.1571, et seq.).
3. Through the date last insured, the claimant has the following severe impairments: degenerative disc disease (DDD) of the cervical spine with cervicalgia; degenerative disc disease (DDD) of the lumbar spine with pain; history of tension headaches/occipital neuralgia; and hand and finger numbness/pain (20 C.F.R. 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled 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, and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she can frequently push and pull using her upper extremities, bilaterally; can occasionally climb ramps and stairs, but cannot climb ropes, ladders or scaffolds; can occasionally balance, stoop, kneel, crouch and crawl; can occasionally reach overhead bilaterally; can frequently handle and finger, bilaterally; cannot work outdoors; and must avoid concentrated exposure to extremes in temperature, loud noise, pulmonary irritants, strobing light and vibration.
6. Through the date last insured, the claimant was capable of performing past relevant work as a sorter/pricer and as an assistant manager. This work did not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 C.F.R. 404.1565).
7. The claimant was not under a disability, as defined in the Social Security Act, at any time from August 26, 2008, the alleged onset date,, through December 31, 2013, the date last insured(20 C.F.R. 404.1520(f)).

(Tr. 27-41).

         Hardy sought review of the hearing decision by the Appeals Council (Tr. 13-15). The Appeals Council denied her request for review, finding no reason under the Rules to review ALJ Stanley's decision (Tr.1-7). 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(a), 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(a)(4)(i)-(v), 916.920(a)(4). 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 P 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 (6thCir. 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).

         Issues for Review

         A. Hardy's Arguments

         The primary issue raised by the Plaintiff in her Fact and Law Summary involves her request for a sentence 6 remand of her case pursuant to 42 U.S.C. § 405(g). (DN 19, Plaintiff's FL&S). Following the entry of ALJ Stanley's adverse hearing decision on April 4, 2014, Hardy submitted additional medical evidence to the Appeals Council for its review. Hardy argues that the evidence was both new and material and that good cause existed why it had not been earlier presented to ALJ Stanley. According to Hardy, the Appeals Council failed to fully and adequately consider all of the new, material evidence in accordance with 20 CFR § 404.970(4)(b) and SSR 11-1p so as to require a sentence 6 remand, where the records, if appropriately considered, reasonably could have led to a different outcome given Hardy's long-standing complaints of severe back pain beginning in March 2013.

         This new evidence Hardy explains included: (1) treatment records of Dr. Joseph Werner dated December 3, 2014, which indicated nail-patella syndrome, grade 4 spondylolisthesis with spinal stenosis, lumbar hyperlordosis and chronic backache (TR 51-57); (2) a lumbar MRI report confirming grade 3 anterolisthesis secondary to bilateral L5 pars defects (TR 58) and treatment notes of Dr. Matthew Phillips from May 19, 2014 that reflect that Hardy was scheduled for back surgery, an L4-S1 decompression and fusion procedure on June 2, 2014 (TR 16-21); (3) a treatment note of Dr. Phillips with x-ray impression dated April 2, 2014 that noted tenderness with a step-off in Hardy's spinous process in her lower lumbar spine along with L5/S1 severe spondylolisthesis(TR 48); and (4) records of Dr. Thomas Loeb from March 13, 2014 that included a cervical spine x-ray of the same date along with an earlier lumbar x-ray of February 9, 2014 confirming grade III to IV slip L5 on the S1 with the cervical x-ray revealing market degenerative disc disease of the cervical spine at the C 5-6, all of which caused Dr. Loeb to refer Hardy to a surgeon for evaluation and to order all lumbar brace lumbar x-ray (TR 51-57). This new, objective imaging evidence and treatment notes explains Hardy confirmed the severity of her back problems, as well as, her complaints of debilitating pain, so that the outcome of her application for DIB may well have been different had ALJ Stanley had available this new and material evidence.

         Hardy also argues in addition that the hearing decision of the ALJ is not supported by substantial evidence where the residual functional capacity (RFC) assessment found in finding of fact no. 5 fails to include an adequate narrative discussion as required by SSR 96-8p of her symptom-related, functional limitations due to her lower back pain and the medical findings related to it. Hardy claims that ALJ Stanley “virtually ignored all reference to [her] back condition entirely, as confirmed by his failure to note the results of a September 30, 2011 CT scan of her abdomen and pelvis, which revealed grade 2-to-3 L5-S1 anterolisthesis with bilateral L5 pars defects, noted to be chronic in appearance.

         Hardy similarly argues that ALJ Stanley made no mention in his decision of the significant medical treatment on her neck, which included radiofrequency ablation at the C2-C3 on the right in February 2012 and earlier at the C3-C4 on the right in December 2011. Such recurrent and significant cervical spine treatment in the view of Hardy supports the conclusion that her complaints of neck pain were both significant and debilitating. Yet, the ALJ completely ignored this medical history of repeated radiofrequency ablation of her cervical spine in his decision. Consequently, Hardy believes that ALJ Stanley overstated her remaining physical abilities in his RFC determination in finding no. 5. ALJ Stanley's reliance on the assessments of the state agency physicians and consultative examiner, all of which occurred between May and August 2012, failed in her view to take into consideration the “compelling objective medical evidence [not discovered until 2014 that] contradict[ed] the 2012 opinions and would have led to a different, more limit[ed] RFC” had it been appropriately considered.

         B. The Commissioner's Arguments

         The Defendant, Commissioner Berryhill, has filed a Fact and Law Summary in which she responds to the above arguments. (DN 21, Defendant's FL&S). Defendant begins with Finding of Fact No. 2 in which the ALJ identifies the claimant's severe impairments. Defendant challenges the notion that ALJ Stanley did not adequately consider the extent of Hardy's severe cervical and lumbar spine impairments. Because ALJ Stanley found several severe cervical and lumbar spine impairments at step two of the sequential evaluation process, Defendant maintains that the failure of the ALJ to specifically include foraminal stenosis of the cervical spine and anterolithesis of the lumbar spine is at worst harmless error. See, Maziarz v. Sec'y of Health and Human Servs, 387 F.2d 240, 244 (6th Cir. 1987).

         Defendant directly disputes the notion that ALJ Stanley failed to consider the Plaintiff's significant treatment for her neck pain in the form of radiofrequency ablation (RFL) or that the ALJ ignored the opinion of Hardy's neurologist that her neck pain was due to radiculopathy and a bone spur at the C5-6 nerve root. Defendant argues that the ALJ carefully set out the full history of Plaintiff's medical treatment including her RFL procedures at U of L, along with her various MRI studies performed in March 2011, April 2012 and August 2013 all of which revealed only minimal symptoms such as mild degenerative disc disease at the C4-5, and mild straightening with moderate right foraminal stenosis at the C 5-6. The ALJ, according to Defendant, also carefully documented Plaintiff's history of hospital ER visits with complaints of neck pain, all of which revealed a normal range of motion in her spine and extremities on examination and her complaints were successfully resolved with medication.

         Likewise, Defendant maintains that the ALJ did not ignore Hardy's lumbar spine issues in his hearing decision. To the contrary, according to the Defendant, the ALJ set forth in detail Plaintiff's history of back examinations beginning in December 2010 through May 2013, all of which appeared to reflect normal findings such as negative straight leg raising, normal gait, normal muscle strength, heel-toe and tandem walking without difficulty, no motor or sensory deficits and limited complaints of back pain. While ALJ Stanley admittedly did not mention the September 2011 CT scan that indicated grade 2-to-3 L5-S 1 anterolisthesis, the Commissioner maintains that the omission was at worst harmless as there is no indication that this particular imaging supported any additional restrictions in the Plaintiff's RFC, nor was the ALJ required to recite every single item of evidence found in the medical record in his decision explains the Defendant. See, Bosley vs. Comm'r of SSA, 397 Fed. App'x. 195, 199 (6th Cir. 2010).

         Defendant concludes its Fact and Law Summary with a discussion of the evidence that Hardy presented to the Appeals Council. The Commissioner maintains that the Appeals Council appropriately considered all of the evidence. This evidence the Commissioner points out, most of which post-dated the decision of ALJ Stanley, cannot now be considered on the question of whether the ALJ's decision is supported by substantial evidence. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Further, the Commissioner argues that the evidence does not merit a remand pursuant to sentence 6 of 42 U.S.C. § 405(g). On this final point, Defendant argues that no adequate explanation has been offered by Plaintiff to explain why she could not have obtained and presented the March and early April 2014 reports of Dr. Loeb from spine surgery Associates. Because ALJ Stanley held the hearing record open for 21 days after the February 19, 2014 hearing date, Plaintiff had ample opportunity according to the Commissioner to supply these medical records, which at most showed only a post-hearing deterioration of her condition so that had they been timely supplied they would not have changed the outcome of the hearing particularly since Hardy's insured status expired on December 31, 2013 four months earlier. Plaintiff cannot meet her burden of proving that she is disabled merely by showing that her condition worsened after the decision of the ALJ according to the Commissioner. Wyatt v. Sec. of Health and Human Services 974 F.2d 680, 685 (6th Cir. 1992).

         Legal Analysis

         A. Sentence 6 Remand

         The first issue we address is whether Hardy is entitled to a sentence 6 remand under 42 U.S.C.§ 405(g)[3]. Such a remand will only be appropriate when the Plaintiff shows that new and material evidence exists, and good cause is shown why such evidence was not presented at the prior administrative hearing. See, Ferguson v. Comm'r, 628 F.3d 269, 276 (6th Cir. 2010)(quoting Foster v. Halter 279 F.3d 348, 353 (6th Cir. 2001)). Evidence will be considered to be “new” if it was “not in existence or available to the claimant at the time of the administrative proceeding.” Id. Evidence is “material” if there is “a reasonable probability that the Commissioner would have reached a different disposition of the disability claim if presented with the new evidence.” Sizemore v. Sec. of Health & Human Services, 865F.2d 709, 712 (6th Cir. 1988). Finally, the requirement of “good cause” requires that Hardy demonstrate “a reasonable justification for the failure to acquire and present the evidence for inclusion in the hearing before the ALJ.” Foster, 279 F.3d at 357. Good cause is not shown merely because new evidence was not generated until after the decision of the ALJ. Richardson v. Comm'r, 2012 WL 4210619 at *4 (E.D. Mich. Aug. 27, 2012) (citing Oliver v. Sec. of Health & Human Services, 804 F.2d 964, 966 (6th Cir. 1986)). The Sixth Circuit has been noted to take a “harder line” on the good cause test. Richardson v. Comm'r, No. 11-12605, 2012 WL 4210619 at *4 (E.D. Mich. Aug. 27, 2012)(citing Oliver v. Sec. of Health & Human Surfaces, 804 F.2d 964, 966 (6th Cir. 1986)).

         Treatment which post-dates the relevant time period so as to fall outside of either the alleged onset date or date last insured will not be ordinarily considered unless the Plaintiff is able to establish that this new evidence relates back to the covered time period. See McCracken v. Commissioner, No 1:08-CV-327, 2009 WL 2983049 at *3 (S.D. Ohio Sept.14, 2009) (“[M]edical evidence obtained after Plaintiff's insured status expired is not relevant, except perhaps to the extent that it relates back to the covered period.”). Evidence of a subsequent deterioration in the claimant's condition that occurred after the administrative hearing that does not relate back is immaterial. Wyatt v. Sec. of Health & Human Services, 974 F.2d 680, 685 (6thCir. 1992)(citing Sizemore v. Sec ‘y of Health and Human Servs., 865 F.2d 709, 712 (6th Cir.1988)). Allegedly ...

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