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Huskey v. Saul

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

September 30, 2019

ALBERT D. HUSKEY, Plaintiff,
ANDREW SAUL, Commissioner of Social Security, [1] Defendant.



         Plaintiff Albert D. Huskey brings this action under 42 U.S.C. § 405(g) to challenge Defendant Commissioner’s final decision denying Plaintiff’s application for Social Security Disability Insurance Benefits. [DE 2]. The specific matters currently before the Court include Plaintiff’s Motion for Summary Judgment [DE 11] and Defendant’s Motion for Summary Judgment [DE 13]. Both matters are now ripe for decision, and for the reasons discussed below, Plaintiff’s Motion for Summary Judgment [DE 11] will be denied, and Defendant’s Motion for Summary Judgment [DE 13] will be granted. Accordingly, the Court will affirm the Commissioner’s decision, as it is supported by substantial evidence.


         On May 15, 2014, Plaintiff filed a Title II application for a period of disability and disability insurance benefits, alleging his disability began on March 28, 2013. [Tr. 109, 288-94]. At the time of Plaintiff’s alleged disability onset date, he was 46 years old. [Tr. 110]. Plaintiff completed the ninth (9th) grade, and his past relevant work was as a repairman in both a furniture factory and the coal mines. [Tr. 324]. In Plaintiff’s application materials, he initially alleged he was unable to work due to black lung and pain in his neck, back, arms, and legs. [Tr. 110, 323].

         In June 2008, Plaintiff strained his back moving things, and an MRI revealed a “right paracentral disc herniation with moderate stenosis.” [Tr. 420-23]. Following a March 2013 motor vehicle accident, Plaintiff had a CT scan of his cervical spine, which showed “signs of degenerative disk disease involving the C5-C6” with a “mild diffuse bulging annulus.” [Tr. 590]. The CT scan was accompanied by an x-ray, which showed Plaintiff’s lumbar spine to be normal. [Tr. 592]. A March 26, 2013, MRI showed “[p]rominent osteophyte disc complexes . . . at ¶ 3-C4 and C-5-C6 slightly impinging on the thecal sac” and “[n]o definite evidence for disc protrusion.” [Tr. 596]. On April 1, 2013, James R. Bean, M.D., examined Plaintiff and reviewed the March 26, 2013, MRI, finding that it showed “no evidence of disk herniation” and “a minor bulge to the left of the C5-C6 which appears to be chronic.” [Tr. 600- 01]. Dr. Bean diagnosed Plaintiff with cervical and lumbar sprains and recommended physical therapy, so Plaintiff could rehabilitate and return to work. [Tr. 601]. On May 1, 2013, despite finding Plaintiff did not qualify for wrist work, hand work or assembly activities, or shoulder work, Plaintiff’s physical therapist also found Plaintiff “qualifie[d] for sedentary work for shoulder and overhead lifts and qualifies for sedentary-light work for 2-handed carry activities.” [Tr. 639-52]. Between March 5, 2013 and July 11, 2013, Julie A. Jackson, APRN, and other healthcare providers at Harlan Appalachian Regional Healthcare (“ARH”), treated Plaintiff’s physical complaints with opioid medication. [Tr. 727, 732, 738-739, 883, 897, 902, 930].

         On July 28, 2014, Plaintiff was in a four-wheeler accident and fractured his right lateral tibia plateau. [Tr. 954-55]. To correct the fracture, Plaintiff had an open reduction and internal fixation. [Tr. 956-57].

         On September 16, 2014, at the behest of the Kentucky Department for Disability Determination, Kathleen M. Monderewicz, M.D., conducted a consultative examination of Plaintiff. [Tr. 1156-65]. At the time of Dr. Monderewicz’s examination, Plaintiff was still recovering from his fractured tibia, which occurred only seven (7) weeks prior. [Tr. 1159]. Dr. Monderewicz noted the following about Plaintiff: “no dyspnea with exertion . . . is noted during ambulation to the exam room or with effort of talking dressing/undressing and ROM performance;” “ambulates using two crutches with limping and partial weight bearing on the right lower extremity;” “appears uncomfortable in the sitting and supine position as well as lying down and rising from the exam table;” “has difficulty stepping up and down from the exam table;” and “[t]o get up on the exam table he slides onto the table without using a step stool and he steps down bearing weight onto the left lower extremity without using crutches.” [Tr. 1160]. Dr. Monderewicz further noted, “Since the fracture does not appear to be a maximum medical improvement, [t]he claimant would need to be reassessed later for any chronic changes in the right leg and knee.” [Tr. 1163].

         Dr. Monderewicz diagnosed Plaintiff with the following: “[c]hronic neck pain with history of radicular symptoms of both upper extremities;” “[d]eep tendon reflex finding in the right upper extremity;” “motor weakness in the left upper extremity suggested radiculopathy involving the C5-C7 nerve root levels corresponding to the area of cervical spine tenderness;” “[o]steoarthrosis of the hands;” “[t]here may also be mild degenerative changes of the left acromial clavicular joint;” “[c]hronic thoracic spine pain;” “[c]hronic low back pain with history of radicular symptoms to both lower extremities;” and “[h]istory of co[al] workers pneumoconiosis and tobacco use.” [Tr. 1162-63]. Dr. Monderewicz noted, “Straight leg raising was positive; right leg more than left. However, absence of the right patellar deep tendon reflex may be due to decrease [sic] sensation over the right knee and leg following surgery for fracture.” [Tr. 1163]. With Plaintiff still in a recovering state, Dr. Monderewicz opined, “Currently the claimant is unable to squat, kneel, or crawl on the right knee. The claimant can currently not climb ladders or engage in unprotected height.” [Tr. 1163]. Dr. Monderewicz further opined that prolonged siting, standing, walking, bending, stooping, squatting, and heavy lifting and carrying were limited by Plaintiff’s chronic back pain, and Plaintiff’s use of his upper extremities for overhead reaching and pushing and pulling were limited by his neck and back pain. [Tr. 1163]. However, Dr. Monderewicz noted that Plaintiff’s grip strength and fine manipulation were normal bilaterally. [Tr. 1163].

         An October 20, 2014, x-ray of Plaintiff’s lumbar spine showed normal findings. [Tr. 1168]. An October 21, 2014, x-ray of the cervical spine showed mild degenerative changes and narrowing of the neural foramina at ¶ 5-C6. [Tr. 1169]. On November 3, 2014, Dr. Bean reviewed Plaintiff’s x-rays of the cervical spine and lumbar spine and opined that Plaintiff’s lumbar spine was normal, his cervical spine showed “mild narrowing at ¶ 5-C6, ” his radiographic findings were “quite minor, ” and Dr. Bean saw “no radiologic reason to assess a permanent impairment.” [TR. 1203].

         On December 10, 2014, Plaintiff visited his tibia surgeon, who reported Plaintiff was “doing very well” and “able to ambulate and walk without major restrictions.” [TR. 1211-12]. While Plaintiff stated that he was unable to run or do increased activities and complained of pain of the anterior aspect of the knee and sensation of crepitus, he was found to have a normal range of motion and no instability. [Tr. 1211-12]. On January 20, 2015, Plaintiff’s physical therapist noted that Plaintiff ambulated throughout the clinic without an assistive device and had a “[v]ery mild” antalgic gait. [Tr. 1219-20]. On November 12, 2015, Plaintiff presented to Julie A. Jackson, ARNP, that he had “chronic low back pain, mid back pain, neck pain, bilateral upper extremity paresthesias, and bilateral lower extremity parasthesias.” [Tr. 1323].

         On January 14, 2015, H. Thompson Prout, Ph.D., a state agency psychological consultant, provided on an opinion on Plaintiff’s medically determinable impairments and found Plaintiff’s affective disorders were not severe mental impairments. [Tr. 129]. Additionally, Dr. Prout opined that Plaintiff’s affective disorders did not restrict him in his activities of daily living and only caused mild difficulties in maintaining social functioning, concentration, persistence, and pace. [Tr. 129].

         On January 15, 2015, Diosado Irlandez, M.D., a state agency medical consultant, provided an opinion on Plaintiff’s Residual Functional Capacity (“RFC”). [Tr. 131-33]. Dr. Irlandez found that due to Plaintiff’s S/P ORIF of the right knee and tibia fracture and low back pain, Plaintiff had the following exertional limitations: occasionally lift or carry twenty (20) pounds; frequently lift or carry ten (10) pounds; sit, stand, or walk six (6) hours in an eight (8) hour workday; and push or pull limited in lower extremities, right. [Tr. 131]. Dr. Irlandez also found that due to Plaintiff’s S/P ORIF of the right knee and tibia fracture and low back pain, Plaintiff could: occasionally climb ramps or stairs; never climb ladders, ropes, or scaffolds; and occasionally stoop, kneel, crouch, or crawl. [Tr. 105, 123]. Dr. Irlandez further found that due to Plaintiff’s low back pain and pneumonconiosis, Plaintiff should avoid concentrated exposure to vibration, concentrated exposure to hazards, such as machinery and heights, and concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. [Tr. 105, 123].

         A May 16, 2017, cervical spine AP showed disc disease at ¶ 5-C6 with narrowing of the disc space and degenerative changes at C-5-C6 and C6-C7 with small anterior osteophyte. [Tr. 1445]. On June 16, 2017, during an appointment at Mountain Comprehensive Health, Plaintiff presented walking with a cane and was prescribed a new cane. [Tr. 1434]. On June 28, 2017, Plaintiff visited Kentucky Orthopedic Clinic and was reported to: walk with a cane; have a non-antalgic gait; have limited mobility and tenderness in his back; reduced strength in his left hip flexor and right quadriceps; and positive straight leg raise bilaterally. [Tr. 1450]. A July 19, 2017, MRI found, “Mild degenerative changes are present. At ¶ 3-4 and L4-5, mild disc bulges and mild facet hypertrophy result in mild narrowing of the neural foramina and thecal sac. There is no disc herniation, significant central spinal stenosis or nerve root compression at any level.” [Tr. 1454].

         Plaintiff’s disability claims were denied both initially and on reconsideration. [Tr. 109, 136]. After a January 8, 2016, hearing, [Tr. 70-108], on February 4, 2016, an Administrative Law Judge (“ALJ”) reviewed the evidence of record and denied Plaintiff’s application. [Tr. 137-54]. However, on April 11, 2017, the Appeals Council vacated the ALJ’s February 4, 2016, decision [Tr. 137-54] and remanded this case for further consideration of Plaintiff’s maximum residual functional capacity (“RFC”), the medical opinion evidence, and the vocational evidence. [Tr. 155-59]. On September 7, 2017, the ALJ held a second hearing, [Tr. 30-69]. As will be discussed further herein, Plaintiff testified at the second hearing. [Tr. 35-64].

         In addition to Plaintiff, vocational expert (“VE”) William Ellis testified. [Tr. 64-68]. VE Ellis testified that a hypothetical person of Plaintiff’s age, with Plaintiff’s education, work experience, and limitations, could not perform Plaintiff’s past relevant work as a repairman, a medium, skilled occupation, as classified by the Dictionary of Occupational Titles (“DOT”), but very heavy as actually performed. [Tr. 64-65]. However, VE Ellis also testified that a person such as Plaintiff could perform light exertional work as a ticket taker, parking lot attendant, and mail clerk, and VE Ellis clarified, “That’s a representative and not an exhaustive list and the region is the state of Kentucky.” [Tr. 65]. VE Ellis further testified that if the hypothetical person required the ability to alternate between sit and stand every thirty (30) minutes, they would still be able to perform the previously mentioned jobs, but “[t]hey would be reduced by 50 percent.” [Tr. 65]. Responding to a final hypothetical question, VE Ellis testified that if such a person, as previously described, required three (3) additional ten (10) minute unscheduled breaks each day, “[i]t would eliminate those jobs plus all jobs.” [Tr. 66]. While VE Ellis cited the DOT at times, VE Ellis’s testimony deviated from the DOT “at the exertional level and that was due to the claimant’s testimony and/or the information [he] received concerning [the claimant’s] work history.” [Tr. 64-65]. VE Ellis also testified his answers regarding Plaintiff sitting and standing and breaks were not supported by the DOT because “[t]he sit stand option is not in the DOT so it would actually come from my observations and surveys I’ve done, ” and “[t]he breaks aren’t in the DOT, so, again, it’s per observation of work.” [Tr. 65-66].

         After the second hearing, on January 4, 2018, the ALJ reviewed the evidence of record and denied Plaintiff’s application. [Tr. 8-29]. In denying Plaintiff’s application, the ALJ found Plaintiff had the following severe impairments: “cervical and lumbar degenerative disc disease, history of tibial fracture status post open reduction internal fixation, black lung disease, osteoarthritis of the hands and left shoulder, obesity.” [Tr. 14 (citing 20 C.F.R. §§ 404.1520(c)]. Despite the ALJ finding Plaintiff had multiple severe impairments, the ALJ also found Plaintiff had the RFC to perform light work, as defined in 20 C.F.R. §§ 404.1567(b), with the following physical limitations: occasional pushing and pulling with the right lower extremity; occasional climbing of ramps and stairs; no climbing of ropes, ladders, or scaffolds; occasional stooping, kneeling, crouching, and crawling; frequent exposure to vibration; occasional exposure to fumes, odors, dusts, gases, and poor ventilation; and frequent exposure to unprotected heights or dangerous moving machinery. [Tr. 18].

         The ALJ, accepting the vocational expert’s testimony, found Plaintiff was unable to perform his past relevant work as a repairman, which is classified by the DOT as a medium, skilled occupation, but very heavy as actually performed. [Tr. 21-22]. However, again accepting the vocational expert’s testimony, the ALJ determined there are other jobs Plaintiff could perform in the national economy, such as ticket taker, parking lot attendant, and mail clerk, which are classified as light work, and Plaintiff was, therefore, found to not be disabled. [Tr. 22-23]. On April 27, 2018, the Appeals Council denied Plaintiff’s request for review of the ALJ’s January 4, 2018, decision [Tr. 8-29], which rendered the decision [Tr. 8-29] final. [Tr. 1-5].

         Having exhausted his administrative remedies, on May 21, 2018, pursuant to 42 U.S.C. § 405(g), Plaintiff sought review through an action in this Court. [DE 2]. On August 22, 2018, Defendant filed an Answer [DE 9] contending, “Paragraph 6 of Plaintiff’s Complaint states a legal conclusion to which no responsive pleading is required, ” and “Plaintiff’s Complaint represents a Prayer for Relief to which no responsive pleading is required.” [DE 9, at 2]. To the extent that the Court deems a response to Paragraph 6 of the Complaint [DE 2] necessary or the Prayer for Relief is deemed to allege facts to which a response is required, the Defendant denies Paragraph 6 and the allegations. Id. Pursuant to the Court’s August 22, 2018, Standing Scheduling Order [DE 10], Plaintiff was directed to “move for summary judgment or judgment on the pleadings within sixty (60) days.” [DE 10, at 2].

         As will be discussed further herein, on October 22, 2018, Plaintiff filed the present Motion for Summary Judgment [DE 11], with an accompanying Memorandum in Support [DE 11-1], arguing, in summary, that the ALJ erred by failing to support his determination that Plaintiff was not disabled with substantial evidence, to follow the directives of the Appeals Council, and to properly evaluate Plaintiff’s subjective complaints of pain. [DE 11-1, at 2]. Responding to Plaintiff’s Motion for Summary Judgment [DE 11], on November 20, 2018, Defendant filed a Motion for Summary Judgment [DE 13] contending the ALJ’s January 4, 2018, decision [Tr. 8-29] should be affirmed because the ALJ’s decision [Tr. 8-29] was supported by substantial evidence, and Plaintiff’s subjective complaints were not supported by the record. [DE 13, at 9-15].


         Pursuant to 42 U.S.C. § 405(g), a reviewing court “must affirm the Commissioner’s conclusions absent a determination that the Commissioner has failed to apply the correct legal standard or has made findings of fact unsupported by substantial evidence in the record.” Longworth v. Comm’r Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (citations omitted). The scope of judicial review is limited to the record itself, and the reviewing court “may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Hogg v. Sullivan, 987 F.2d 328, 331 (6th Cir. 1993) (citations omitted).

         The Sixth Circuit has held that “substantial evidence exists when a reasonable mind might accept the relevant evidence as adequate to support a conclusion.” Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (citations omitted). The limited nature of substantial evidence review prevents the reviewing court from substituting its judgment for that of the ALJ. Rather, so long as substantial evidence exists, the reviewing court should affirm the ALJ’s decision “even if there is substantial evidence in the record that would have supported an opposite conclusion.” Longworth, 402 F.3d at 595 (citations omitted). 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.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (citations omitted).

         “In determining whether the Secretary's factual findings are supported by substantial evidence, [the Court] must examine the evidence in the record ‘taken as a whole . . . .’” Wyatt v. Secretary of Health and Human Services, 974 F.2d 680, 683 (6th Cir. 1992) (citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980)). Additionally, the Court “‘must take into account whatever in the record fairly detracts from its weight.’” Wyatt, 974 F.3d at 683 (citing Beavers v. Secretary of Health, Educ. & Welfare, 577 F.2d 383, 387 (6th Cir. 1978). “The substantial evidence standard presupposes that there is a ‘zone of choice’ within which the [Commissioner] may proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citations omitted). “If the Secretary’s findings are supported by substantial evidence, then we must affirm the Secretary’s decision even though as triers of fact we might have arrived at a different result.” Elkins v. Secretary of Health & Human Services, 658 F.2d 437, 439 (6th Cir. 1981).

         III. ...

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