Roby v. Commissioner of Social Security

48 F. App'x 532
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 2, 2002
DocketNo. 01-3385
StatusPublished
Cited by10 cases

This text of 48 F. App'x 532 (Roby 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
Roby v. Commissioner of Social Security, 48 F. App'x 532 (6th Cir. 2002).

Opinion

PER CURIAM.

Plaintiff, Richard Roby, appeals the denial of Social Security disability insurance benefits. 42 U.S.C. §§ 416(i) and 423(d). Plaintiff argues that the decision of the [534]*534administrative law judge (ALJ) is not supported by substantial evidence. He also challenges the constitutionality of 20 C.F.R. § 404.1513(e) on due process and equal protection grounds. After review of the arguments, the record, and the applicable law, we affirm.

I.

Roby was born September 23, 1951, and completed the seventh grade. He has trouble reading and writing. He worked as a belt cleaner and general laborer in the coal mining industry and as a skid operator and log truck operator in the timber industry. Roby was injured on August 22, 1995, when he hit his head on a beam and compressed his neck. He testified that he experienced pain in his neck and left shoulder; got dizzy if he bent over; and could not climb, crouch, or crawl. He could not lift anything after the first month, and he also had problems gripping objects. He had difficulty turning his head. Roby said that he kneels every 20 to 30 minutes for 10 to 20 minutes at a time. Roby’s wife testified that he was very irritable and could not be around noise or people because of his pain. He had to take Tylenol. Linda Roby also testified that Roby had to kneel every half hour for ten minutes at a time. She said that he experienced dizziness and dropped things frequently. On June 6, 1997, Roby returned to a job shoveling coal.

Roby received chiropractic treatment from Dr. John D. Bashline. Dr. Bashline diagnosed Roby as having cervical sprain/ strain and cervical myofascitis.

On December 18, 1995, Dr. Michael J. Somple, a physician, performed a disability evaluation. He diagnosed cervical sprain and strain. Dr. Somple found herniation in the disc at C4-C5. Dr. Somple opined that Roby could perform work involving lifting no more than 25 pounds.

On June 18, 1996, Dr. Nicholas Varrati, who specializes in occupational medicine, performed a disability evaluation. He found disc herniation at C4-C5, and opined that Roby could perform frequent lifting and carrying of weights up to ten pounds.

Dr. Amirk S. Chattha, a physician, performed a consultative evaluation at the request of Dr. Bashline. On July 23, 1996, Dr. Chattha observed neck pain and limited and painful movement of the left shoulder. An MRI scan revealed minor abnormalities. Dr. Chattha found a small central and left paracentral disc herniation at C4-C5 and a bulging disc at C5-C6. X-rays of the left shoulder on August 15, 1996, were negative. On September 20, 1996, Dr. Chattha found that Roby was experiencing neck and shoulder pain. There were no sensory changes, no muscle spasms, and no reflex abnormalities. Dr. Chattha found that Roby could use his hands for fine and gross manipulation. There was no evidence of atrophy or radiculopathy associated with the cervical pain.

On August 16, 1996, Dr. David A. Rath executed a residual functional capacity evaluation indicating that Roby could frequently lift and carry up to ten pounds and occasionally lift and carry up to 20 pounds. He could stand/walk for six hours each during an eight-hour work day. He could sit for six hours. Dr. Rath opined that Roby retained an unlimited ability to push and pull.

On October 10, 1996, a myelogram and CT-scan of the cervical spine showed a small posterior protrusion at C4-C5 with minimal neural impingement. The CT-scan was normal.

On March 18, 1997, Dr. Albert J. Camina, a neurosurgeon, performed a consultative examination for Dr. Bashline. Dr. Camma reported that Roby had full range [535]*535of motion in the cervical spine except that he had lateral rotation to only about 10 to 15 degrees. Roby reported pain on extension, lateral bending, and lateral rotation. The neurologic exam was negative. Dr. Camma concluded that the pain was secondary to a herniated disc at C4-C5.

Roby filed an application for disability insurance benefits on July 31, 1996, alleging that he became disabled on August 24, 1995, by impairments to his neck, left arm, and shoulder. The application was denied initially and upon reconsideration. On January 18, 1998, at a hearing before the ALJ, Roby requested that his application be amended to seek a closed period of disability from August 24, 1995 to June 6, 1997 (the date he returned to a heavy-lifting job).

During the hearing, the ALJ asked a vocational expert, Frances Kenley, what jobs would be available to a hypothetical individual who was limited to unskilled work involving simple one- or two-step operations and no reading, writing, or mathematics. The individual could not crawl, crouch, climb, squat, or kneel. He could not perform any reaching or other work activity above shoulder level and required a job with a sit/stand option. The vocational expert testified that such a hypothetical individual could perform in the state region 5,000 collector, ticket taker, and cashier jobs; 2,000 assembler jobs; and 100 mail clerk jobs.

On April 15, 1998, the ALJ issued a decision finding that Roby was not disabled during the closed period. The ALJ concluded that while Roby could not have performed any part of his past work during the closed period, he could have performed other jobs existing in significant numbers in the economy. On January 15, 2000, the Appeals Council denied Roby’s request for review and adopted the ALJ’s decision as the final decision of the Commissioner.

Roby sought judicial review under 42 U.S.C. § 405(g). The district court adopted the magistrate’s report and recommendation, finding that the ALJ’s decision was supported by substantial evidence in the record. Summary judgment was granted for the Commissioner on March 21, 2001. This appeal followed.

II.

The standard of review is limited to determining whether the Commissioner’s findings are supported by substantial evidence, and whether he employed the proper legal standards in reaching his conclusion. Brainard v. Sec’y of Health and Human Servs., 889 F.2d 679, 681 (6th Cir.1989). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir.2001) (citation omitted). Even if substantial evidence would have supported the opposite conclusion, the Commissioner’s findings must be affirmed if supported by substantial evidence. Smith v. Chater, 99 F.3d 780, 782 (6th Cir.1996).

The Social Security Act requires the Secretary to follow a “five-step sequential process” for disability claims. Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir.1990).

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