Carley Cunningham v. Commissioner of Social Security

360 F. App'x 606
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 5, 2010
Docket08-3848
StatusUnpublished
Cited by64 cases

This text of 360 F. App'x 606 (Carley Cunningham 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.

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Carley Cunningham v. Commissioner of Social Security, 360 F. App'x 606 (6th Cir. 2010).

Opinions

OPINION

COLE, Circuit Judge.

Claimant-Appellant John Cunningham appeals the district court’s order affirming the denial of his application for Disability Insurance Benefits (“DIB”) under 42 U.S.C. § 405(g) by Defendant-Appellee Commissioner of Social Security. Cunningham contends that the district court’s ruling should be reversed because the decision by the Administrative Law Judge (“ALJ”) is not supported by substantial evidence. Cunningham also argues that the district court incorrectly adopted the ALJ’s determination that Cunningham’s subjective complaints were not entirely credible. Cunningham died on March 27, 2008. His mother, Carley Cunningham, in whose name this appeal was filed, died sometime prior to May 20, 2009. Cunningham’s surviving brother and sisters have filed a motion seeking to be substituted as claimants-appellants. For the following reasons, we REMAND to the Commissioner for further consideration.

I. BACKGROUND

A. Factual background

Cunningham was born on April 8, 1962, and died on March 27, 2008. He was awarded a closed period of DIB from April 1993 through May 1998, but contends that various ailments caused him to again become disabled beginning May 1, 1998. [608]*608Cunningham had suffered from Type I Diabetes Mellitus since age 11 and, in April 1993, was diagnosed with end-stage renal disease. In 1995, Cunningham received a kidney transplant. Also in 1995 following severe retina problems, Cunningham had surgery on his left eye; he underwent the same procedure on his right eye the previous year.

Prior to 1993, Cunningham held several jobs: he worked building metal lathes, worked as a restaurant cook, and worked in construction. Cunningham had not worked since November 2000, when he stepped on a nail and severely infected his right foot.

Even after his kidney transplant, Cunningham frequently sought emergency care for his diabetes. For example, from August 31, 2000 to September 6, 2001, Cunningham made at least seven trips to the emergency room, usually due to low blood sugar or unresponsiveness. On multiple occasions, he voluntarily left the hospital shortly after arrival. His diabetes-related vision problems persisted post surgery as well. The record contains information regarding two ophthalmologieal exams. The first occurred in 1999, in which Cunningham’s treating ophthalmologist diagnosed Cunningham with clinically significant retina problems in both eyes. He found Cunningham’s corrected vision to be 20/50 in the right eye and 20/30 in the left eye. The second exam occurred in 2001, in which a consultative ophthalmologist diagnosed Cunningham with incipient cataracts in both eyes. He found Cunningham’s corrected vision to be 20/30-2 in the right eye and 20/20-2 in the left eye and concluded that Cunningham could perform most work-related activities from an eyes standpoint.

Cunningham also suffered from problems with fatigue. Multiple physicians examining Cunningham from 1999-2004 indicated that he experienced weakness, poor balance, light headedness, and dizziness. In fact, based on a consultative exam conducted in 2001, Dr. Benjamin Berger concluded that “[o]n the basis of the objective examination, the marked increased fatigue-ability associated with his underlying problem is going to interfere with most forms of gainful employment.” (Administrative Transcript (“Tr.”) at 511.) In addition, Cunningham suffered from bouts with diarrhea, including a 2004 hospitalization.

The record contains multiple assessments of Cunningham’s ability to stand, sit, carry weight, and manipulate objects. Most assessments concluded that Cunningham was capable of standing for one hour at a time, although one doctor, based on a review of Cunningham’s medical files, concluded that Cunningham could stand for roughly six hours in an eight-hour workday. The assessments concluded that Cunningham could sit anywhere from two to eight hours and could occasionally lift anywhere from twenty to twenty-eight pounds. Several assessments indicated that Cunningham suffered motor impairment and had limited manipulative ability. Specifically, a 2002 work evaluation conducted by Goodwill Industries, based on five days of employment at one of the organization’s stores, indicated that Cunningham was capable of completing an eight-hour workday without taking extra breaks or rest periods, that his stamina was not a factor in his performance, and that he had “great difficulty” working with small parts and small tools because he had a partial amputation of his great finger on his right hand and an injury to the thumb of his left hand. (Id. at 734.)

B. Procedural background

Cunningham was initially granted DIB beginning April 2, 1993, due to end-stage renal disease; his DIB ended in May 1998. Cunningham’s date last insured was June [609]*60930, 2003; therefore, in order for Cunningham to be entitled to DIB, the evidence must demonstrate that he had a disability that began on or before June 30, 2003. Cunningham filed an application for DIB on June 26, 2001,1 claiming disability beginning May 1, 1998, due to post kidney transplant status, diabetes, heart problems, fatigue, inability to carry weight, and unstable balance. The application was denied on November 5, 2001, and Cunningham filed a request for reconsideration, which was denied on February 7, 2002. On May 14, 2002, he filed a request for heai’ing.

1. ALJ hearings

An ALJ hearing was scheduled for August 24, 2004, which was continued in order for Cunningham to obtain further medical evidence. A second hearing occurred on October 5, 2004, at which Cunningham testified that he had trouble maintaining his blood glucose level; suffered from exhaustion, which required him to take a nap every afternoon; had trouble sitting and standing for more than a couple hours at a time due to his diabetes; had a difficult time maintaining his balance; could cook, load a dishwasher, wash dishes, run a vacuum cleaner, sweep a floor, make a bed, write, and read with his glasses; had limited feeling in his hands and fingers, such that he could not pick a penny up off of a table; and suffered from diarrhea due to his transplant medications. This hearing was also continued. A third hearing took place on April 12, 2005, at which both Cunningham and Vocational Expert (“VE”) Mark Anderson testified.2

The ALJ posed the following relevant hypothetical to the VE to determine if Cunningham could perform substantial activity in the national economy. It posited an individual

Same age, education, vocational background of the claimant here before us today. Limited to lifting ... [five] pounds frequently, up to [ten] pounds occasionally---- [He]can sit for six hours out of an eight-hour workday, stand and walk for two hours out of an eight-hour workday. No unprotected heights, no ropes, ladders, scaffolds. Occasional — and I should put it very occasionally — ramps and stairs. No uneven surfaces. No temperature extremes, no balancing requirements, occasional stooping. Going to preclude him from working with small parts— that’s because of a partial amputation of the great finger, this thumb on his left hand — oh, on his right hand.... And he has a minor loss of visual acuity, which would probably go with the small parts in a different way than the thumb.

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