Hensley v. Astrue

573 F.3d 263, 2009 U.S. App. LEXIS 16085, 2009 WL 2146467
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 21, 2009
Docket08-6389
StatusPublished
Cited by424 cases

This text of 573 F.3d 263 (Hensley v. Astrue) 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
Hensley v. Astrue, 573 F.3d 263, 2009 U.S. App. LEXIS 16085, 2009 WL 2146467 (6th Cir. 2009).

Opinion

OPINION

FRIEDMAN, Circuit Judge.

Once again, we reject the Commissioner of Social Security’s denial of a claim for social security disability benefits because the administrative law judge (“administrative judge”) who adjudicated the claim failed to give controlling weight to a medical evaluation by the claimant’s treating physician or to explain his reasons for such action. We therefore vacate the judgment of the United States District Court for the Eastern District of Kentucky, which upheld the administrative judge’s decision, and remand the case to that court for it to return the case to the Commissioner of Social Security for further proceedings that follow the proper standard for dealing with the claimant’s treating physician’s medical opinion, as explained in this opinion.

I

The appellant Terry Hensley has a history of elbow, arm, hand, and spine problems. In December 2001 he filed an application for social security disability benefits. After his application initially was denied, the district court reversed and remanded for further proceedings, based on its determination that the administrative decision was not supported by substantial evidence. An additional hearing was held before a different administrative judge, who again ruled that Hensley was not entitled to disability benefits.

Under settled practice, an administrative judge “making a determination as to [social security] disability ... undertakes a five-step sequential evaluation process mandated by regulation.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th Cir.2004). In the first four steps, which are not at issue here, the claimant is required to show specified matters that establish disability. If the claimant does so, including establishing that under the claimant’s “residual functional capacity the claimant can [not] perform his past relevant work,” the burden then shifts to the Commissioner to show that “based on the claimant’s residual functional capacity, as well as his age, education, and work experience, the claimant can make an adjustment to other work, in which case the claimant is not disabled.” Id.

The issue in the present case involves the fifth step of the adjudicatory process. More specifically, it involves the validity of the administrative judge’s determination that Hensley had the residual capacity to *265 perform certain specified jobs and therefore was not disabled. The dispute relates to the medical evidence involving a particular aspect of Hensley’s “residual functional capacity,” namely, his ability to use his hands for repetitive pushing and pulling.

The medical evidence on this issue consisted of the opinions of two physicians. One, who had treated Hensley at Department of Veterans Affairs’ medical facilities numerous times between 2002 and 2005, was Dr. Cross, who in social security jargon is known as the claimant’s “treating physician.” The other was the Commissioner’s medical witness, Dr. Muffly, who conducted a single consultative physical examination of Hensley in 2005.

Neither physician testified at the hearing before the administrative judge. Instead, each submitted a one-page “Functional Capacities Form,” on which the physician checked various block spaces to answer specific questions on the form. The relevant particular medical information thus provided was as follows:

The form asked:

“Patient/claimant can use hands for repetitive actions such as:” It then listed three kinds of such actions, including Pushing/Pulling
Right:_ Yes_No
Left:_ Yes_No

Dr. Cross, Hensley’s treating physician, checked “No” for both hands. Dr. Muffly, the Commissioner’s medical witness, checked ‘Yes” for both hands.

In dealing with these conflicting medical opinions, the administrative judge stated only the following:

I also considered opinion evidence in accordance with the requirements of 20 C.F.R. 404.1527 and SSRs 96-2p, 96-5p, and 96-6p. As for treating source opinion, I have adopted the assessment of Dr. Cross at Exhibit 14F, p. 3, and have incorporated these limitations in the residual functional capacity that I have determined. Despite that Dr. Muffly found no impairment in the claimant’s ability to engage in repetitive pushing and pulling (Exhibit 13F, p. 7), Dr. Cross opined he could not do this repetitively. Therefore, I find that this function can be performed only occasionally; and in poundages equivalent to no more than Dr. Cross’s opinion with regard to lifting/carrying, viz., 10 pounds frequently and 20 pounds occasionally. (Exhibit 14F, p. 3).

Although in other contexts the difference between any pushing and pulling and doing so “only occasionally” might be de minimis, the record indicates that in social security disability cases- the word “occasionally” is a term of art: it means up to one-third of someone’s working time. Cf S.S.R. 83-10 (1983), 1983 SSR LEXIS 30, at * 13 (“ ‘Occasionally’ means occurring from very little up to one-third of the time”.)

At the hearing, the Commissioner presented a vocational expert who was asked two hypothetical questions. One of them was based on Dr. Muffly’s evaluation of Hensley’s physical condition. The other was based on Dr. Cross’ evaluation, modified to reflect the administrative judge’s change that repetitive pushing and pulling would be done “only occasionally,” i.e., for not more than one-third of Hensley’s working hours. The vocational expert gave the same answer to both hypothetical questions. Asked whether there were jobs available in the national economy that an individual with the physical limitations stated in the question could perform, he answered affirmatively and stated that there were two such jobs: toll collector and packer. Accepting this expert evidence, the administrative judge concluded that Hensley was not disabled.

*266 On judicial review, the district court, adopting the opinion of the magistrate judge, ruled that substantial evidence supported the administrative judge’s analysis. The court held that the administrative judge’s determination that Hensley could perform repetitive hand pushing and pulling “only occasionally” — although neither examining physician had so evaluated him-was not error because it adopted Dr. Cross’s assessment “for the most part,” and that rejecting it in part was not procedural error, despite a lack of explanation.

II

In social security cases involving a claimant’s disability, the Commissioner’s regulations require that if the opinion of the claimant’s treating physician is ‘ “well-supported by medically acceptable clinical and laboratory diagnostic techniques’ and [is] ‘not inconsistent with the other substantial evidence in [the] case record,’ ” it must be given “controlling weight.” Wilson, supra, 378 F.3d at 544; 20 C.F.R. § 404.1527(d)(2).

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Bluebook (online)
573 F.3d 263, 2009 U.S. App. LEXIS 16085, 2009 WL 2146467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hensley-v-astrue-ca6-2009.