Blankenship v. Commissioner of Social Security

624 F. App'x 419
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 26, 2015
DocketNo. 14-2464
StatusPublished
Cited by27 cases

This text of 624 F. App'x 419 (Blankenship 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
Blankenship v. Commissioner of Social Security, 624 F. App'x 419 (6th Cir. 2015).

Opinion

OPINION

BERNICE BOUIE DONALD, Circuit Judge.

Valemaria Blankenship (“Blankenship”) appeals the district court’s judgment upholding the Commissioner of Social Security’s (“Commissioner”) denial of Social Security Disability Insurance Benefits (“DIB”). Blankenship suffers from degenerative joint disease in her feet, which causes, inter alia, neuromas, stress fractures, and breaks requiring outpatient surgical repair. Blankenship applied for DIB in 2002 and again in 2010, claiming she was unable to work due to problems with her feet. An ALJ denied her first application for benefits in 2004, finding that, despite her condition, she retained the residual functional capacity (“RFC”) to perform light work and there were a significant number of such jobs in the economy. In 2011, a succeeding ALJ — after finding that Blankenship had failed to present new evidence of a change in her condition, and was therefore collaterally estopped from relitigating her disability claim — denied Blankenship’s second application for the same reasons. Blankenship appeals, primarily challenging the second ALJ’s conclusion that her medical condition had not deteriorated and that she retained her RFC from 2004. Because substantial evidence supported the second ALJ’s findings, we AFFIRM the Commissioner’s denial of benefits.

I.

A.

Blankenship was born on December 22, 1956 and is currently 58 years old. (Pa-gelD 164.) She has an eighth-grade education and is able to read and write. (Pa-gelD 50, 62,194.) As a child, Blankenship was pigeon-toed and wore special shoes. (PagelD 369.) Between 1977 and 2002, Blankenship worked at Delphi East, a subsidiary of General Motors in Flint, Michigan. (PagelD 50-51.) During the last three years of her tenure there, Blankenship assembled circuit boards for cars. (PagelD 51.) As an assembler, she never lifted more than ten pounds; she spent approximately three hours per day sitting and the rest of her day standing. (PagelD 51-52.)

In October 1996, at a physical therapy session following bunion removal, Blankenship reported having had at least 21-23 prior surgeries. (PagelD 369.) She in[421]*421formed the physical therapist that, for many years, she had a history of foot pain and difficulty walking. (Id.) From March 1997 to August 2004, Blankenship underwent twelve outpatient procedures on both feet, including bunion removal, heel spur repair, neuroma (a growth or tumor of nerve tissue) removal, nerve decompres-sions, plantar fascia repair, fracture repair, and implantation and removal of bone stimulators. (PagelD 282-83, 285-87, 289-90, 292-93, 338-41, 343-44, 350-52, 357-58, 360, 362-63, 364-65.)1 Beginning in 1998, most of these foot surgeries were performed by Blankenship’s podiatrist, Dr. Keith Daniels, DPM (“Dr. Daniels”).

Blankenship unsuccessfully applied for DIB on May 9, 2002 (“2002 Application”) “due to problems with [her] right foot.” (PagelD 102.) A hearing on the 2002 Application, at which Blankenship appeared and testified without representation, was held on April 6, 2004. (PagelD 29.) This initial application was denied by ALJ Regina Sobrino (“ALJ Sobrino”) on September 10, 2004. (PagelD 106.) ALJ Sobrino found that Blankenship had a “severe” physical impairment consisting of degenerative joint disease in her feet. (PagelD 54, 103, 105.) ALJ Sobrino further found that this impairment precluded Blankenship from her past relevant work as an assembler. (PagelD 104.) Based largely on the testimony of vocational expert Timothy Shaner (“Shaner”), however, ALJ So-brino found that Blankenship had the RFC to perform a limited range of light work and could perform a significant number of light jobs despite the limitations caused by her impaired feet. (PagelD 102, 104-06.) Although Blankenship requested review of the decision by the Social Security Administration’s Appeals Council, the Council declined review. (PagelD 29.) Blankenship did not seek further judicial review. (Id.)

Following this denial, Blankenship had five' outpatient procedures on her left foot from September 2004 to September 2006, for tendon repair, removal of hardware, fusion of her first metatarsal cuneiform joint, and two partial tarsectomys. (Pa-gelD 268-71, 273-81.)2

B.

Through counsel, Blankenship filed a second application for DIB on January 27, 2010 (“2010 Application”), alleging disability beginning on December 22, 2006 — her fiftieth birthday.3 (PagelD 164.) Blankenship’s insured status for Social Security disability benefits expired nine days later, on December 31,' 2006.4 (PagelD 171.).

The denial of the 2010 Application is the subject of this appeal. The state agency responsible for reviewing disability bene[422]*422fits applications denied Blankenship’s application, and she requested a hearing before an ALJ.- (PagelD 29, 126-27.) A hearing was held on September 7, 2011, before ALJ Peter Dowd (“ALJ Dowd”). Blankenship alleged she could not work because of degenerative joint disease in her feet. (PagelD 54, 60.) Blankenship testified that she underwent about ten surgeries for fractures in her feet since ALJ Sobrino rendered her decision, (PagelD 55-56); records, in fact, demonstrate that she has had an additional fifteen surgeries since ALJ Sobrino’s decision. (PagelD 251-67.)5 These surgeries were mainly on her left foot. (PagelD 55-56.) Blankenship stated that her feet got worse from 2004 through the end of 2006 because of “[ojsteoporosis, fractures, [and] breaks.” (PagelD 63.) She also complained of asth-. ma and emphysema. (PagelD 57-58.).

As for her physical capabilities, Blankenship reported that she could stand for ten minutes. (PagelD 65, 71.) She could not walk one block, but was able to walk from her car to the room where the hearing was held. (PagelD 66.) Her ability to walk in 2006 was the same as it was in 2011. (PagelD 70.) She could lift ten pounds and carry it four or five feet. (Pa-gelD 66-67.) She stated she could not lift ten pounds repetitively throughout the day because “my hand ain’t going to last me.” (PagelD 67.) She was unable to bend over because she could not get back up, and she was unable to squat. (PagelD 69.) According to records, Blankenship had used crutches and a walker following her surgeries. (PagelD 195.)

Vocational expert Judith Findora (“Fin-dora”) testified at the hearing. (PagelD 79-86.) During Findora’s testimony, ALJ Dowd posed a “hypothetical question ... based on the residual functional capacity finding by Judge Sabrino [sic] in her decision of September 10, 2004.” (PagelD 80.) In this hypothetical, ALJ Dowd asked whether an individual with the following characteristics could perform Blankenship’s past work: Blankenship’s age on December 31, 2006 (50 years old); Blankenship’s education and past work experience; RFC to lift, carry, push, and pull 10 pounds frequently and 20 pounds occasionally; ability to stand and walk for two hours in an eight-hour workday, so long as she- was given the option to alternate between sitting and standing at will; no operation of foot controls; occasional stooping and rare climbing of stairs; and no crouching, kneeling, crawling, or climbing of ropes, ladders, or scaffolding. (PagelD 80-81.) Findora testified — consistent with Shaner’s testimony — that such an individual could not perform Blankenship’s past work.

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624 F. App'x 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blankenship-v-commissioner-of-social-security-ca6-2015.