Bartyzel v. Commissioner of Social Security

74 F. App'x 515
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 26, 2003
DocketNo. 01-4161
StatusPublished
Cited by26 cases

This text of 74 F. App'x 515 (Bartyzel v. Commissioner of Social Security) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bartyzel v. Commissioner of Social Security, 74 F. App'x 515 (6th Cir. 2003).

Opinion

OPINION

LAWSON, District Judge.

The plaintiff, Debra K. Bartyzel, appeals the district court’s judgment affirming the decision of the Commissioner of Social Security denying her application for a period of disability and disability insurance benefits under Title II of the Social Security Act. The district court found that substantial evidence supported the decision of an administrative law judge that Bartyzel was not disabled because she retained the residual functional capacity to perform a limited range of light work, and that there are hundreds of jobs in the regional and national economies that fit within Bartyzel’s exertional and nonexertional limitations. We agree with the reasoning and conclusions of the district court, and therefore affirm the judgment for the Commissioner.

I.

The plaintiff was forty-one years old when she filed her application for a period of disability and disability insurance benefits on January 31, 1997. She had obtained a high school equivalency diploma (a GED). For almost twelve years she had worked as a sales clerk, beginning in June 1983. In June 1989, she injured her back at work, and aggravated this injury six months later. Her pain symptoms worsened, and she eventually stopped working on June 16,1995.

The plaintiffs claim for benefits, which was based on the plaintiffs back symptoms coupled with the inability to read and understand, was denied initially, and the denial was upheld on reconsideration. The plaintiff then appeared before Administrative Law Judge (ALJ) Paul Bogas in Morgantown, West Virginia on October 1, 1998 when the plaintiff was forty-three years old. ALJ Bogas filed a decision on December 21, 1998 in which he determined that the plaintiffs insured status extended through December 31, 1998, but he denied benefits because he found that the plaintiff was not disabled. The ALJ reached this conclusion by applying the five-step sequential analysis prescribed by the Secretary of Health and Human Services in 20 C.F.R. § 404.1520. The ALJ concluded [518]*518that the plaintiff had not engaged in substantial gainful activity since June 16, 1995 (step one); the plaintiff suffered from several impairments consisting of cervical strain, L5 radiculopathy, dysthymic disorder, reading disorder, somatization disorder, and borderline intellectual functioning that the ALJ determined were “severe” within the meaning of the Social Security Act (step two); none of these impairments by themselves or in combination met or equaled a listing in the regulations (step three); and the plaintiff could not perform her previous work as a sales clerk, which the ALJ found to require medium to heavy exertional effort (step four). In applying the fifth step, the ALJ concluded that the plaintiffs residual functional capacity (RFC) allowed her to perform a range of light work restricted by non-exertional limitations, that is, jobs that gave her the option to sit or stand; required only occasional climbing, balancing, stooping, kneeling, crawling or crouching, but that did not require repetitive bending; did not require complex tasks, but only simple, routine, repetitious work with one or two steps; required few independent decisions and no reading, writing, or making change; and did not demand that she perform at more than a medium rate of production. Relying on the testimony of a vocational expert, the ALJ found that jobs such as locker room attendant, small parts assembler, hand packer, and security monitor fit within those limitations, that the plaintiff was able to make a vocational adjustment, and that these jobs existed in significant numbers in the national and regional economies. The ALJ also used the Secretary’s Medical-Vocational Guidelines as a framework to reach his conclusion that the plaintiff was “not disabled.” See C.F.R. Pt. 404, Subpt. P, App., 2 § 202.20.

The ALJ’s decision became the final decision of the Commissioner after the Appeals Council denied the plaintiffs requests for review, and the plaintiff filed a timely action in the district court seeking review of the agency decision. The plaintiff raised several points of error in the agency decision, rejected by the district court, which she repeats here. First, the plaintiff contends that the ALJ’s conclusion that she could perform light work was not supported by substantial evidence, pointing to evidence in the administrative record, presumably disregarded or misinterpreted by the ALJ, that tends to contradict that conclusion. She also challenges the ALJ’s finding that the plaintiffs description of her pain and functional limitations was not fully credible, contending that the ALJ did not follow the rules for assessing subjective complaints. Next, the plaintiff insists that the ALJ should have found in her favor at step three of the five-step sequential analysis because, she believes, her diagnosis of fibromyalgia proves that she has a listing-level impairment. Finally, the plaintiff contends that her ability to cross-examine the vocational expert (VE) at the administrative hearing was improperly restricted.

The administrative record developed by the Agency indicates that the plaintiff was born on February 1, 1955. She obtained her GED and began working as a sales clerk in 1982. J.A. at 66, 401-02. In June 1989, the plaintiff injured her back attempting to remove a microwave from a box while working at Best Products. J.A. at 194,261. She aggravated this injury on December 27, 1989. J.A. at 261. In 1991, the plaintiff began seeing a counselor, David R. Bousquet, M.Ed., for depression. J.A. at 301-803. On June 11, 1991, she met with Dr. David H. Liebeskind, who diagnosed the plaintiff as having “[cjhronic fibromyalgia affecting the back, thorax and cervical area.” J.A. at 306. In July 1992, the plaintiff began seeing chiropractor Craig S. Bentley, D.C., for chiropractic [519]*519treatment. J.A. at 282. The plaintiff continued to experience pain and eventually stopped working on June 16, 1995. J.A. at 66.

In 1996, Ms. Bartyzel began treating with Dr. Laura B. Fleck, a back specialist. Dr. Fleck examined her on March 19, 1996, and noted that the plaintiffs general appearance was one of being uncomfortable and avoiding movement. J.A. at 195. Dr. Fleck also noted that the plaintiffs posture was

abnormal with decreased lumbosacral lordosis and mild cervical kyphosis. Lumbosacral range of motion is diminished in all planes. Her gait is abnormal as she walks favoring her left leg. Muscle examination shows normal strength. She has no atrophy of fasciculations. Her sensation is diminished in the lateral aspect of her thigh and calf with negative Tinel’s at the fibular head. Her reflexes are symmetric. On palpation she is tender in the lumbosacral region at L4/5 and L5/S1. She is also exquisitely tender in the left sciatic notch. She had positive straight leg raise on the left which was confirmed with dorsiflexion and in a seated position. Other provocative maneuvers were negative.

J.A. at 195. According to Dr. Fleck, the plaintiffs history and examination were compatible with an active left Si radiculopathy. J.A. at 195. Dr. Fleck recommended that the plaintiff be “released to perform light-duty [work] according to U.S. Department of Labor guidelines.” J.A. at 196. On April 4, 1996, Dr. Fleck noted in a follow-up visit that the plaintiffs “EMG/NCV testing was unremarkable and showed no radiculopathy,” and she again released the plaintiff to “light duty” work. J.A. at 249.

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