Boseley v. Commissioner of Social Security Administration ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0635n.06
No. 09-6058 FILED
Sep 30, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
DENNIS CARL BOSELEY, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
COMMISSIONER OF SOCIAL SECURITY ) TENNESSEE
ADMINISTRATION, )
)
Defendant-Appellee. )
Before: SILER and SUTTON, Circuit Judges; CLELAND, District Judge.*
SILER, Circuit Judge. Dennis Carl Boseley applied for disability-insurance benefits under
Title II of the Social Security Act (“SSA” or “the Act”), asserting that he is unable to work due to
the partial amputation of his left thumb. The Administrative Law Judge (“ALJ”) and the Social
Security Appeals Council (the “Council”) denied his claim for benefits, after which he sought and
was denied relief in federal district court. He appeals the district court’s determination and argues
that the Commissioner’s decision was not supported by substantial evidence based on his
disagreement with the Commissioner’s residual functional capacity (“RFC”) finding and the
Commissioner’s reliance on a vocational expert’s testimony.
For the reasons set forth below, we AFFIRM the judgment of the district court.
*
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 09-6058
Boseley v. Comm’r of Soc. Sec.
I. FACTS AND PROCEDURAL HISTORY
The statutory and regulatory background governing the application for disability benefits
under the SSA is well established. See, e.g., Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 602-603
(6th Cir. 2009). Boseley only objects to the fifth step of the analysis, i.e., whether the Commissioner
established Boseley’s ability to do “other work.” See 42 U.S.C. § 1382c(a)(3)(B).
A. Boseley’s Disability Claim
Boseley, a forty-five-year-old truck driver, injured his knees and sustained a partial
amputation of his left thumb in a motor vehicle accident on October 31, 2002. In December 2002,
he began physical therapy at the referral of his treating physician Dr. Ronald J. French, Jr. On
January 27, 2003, French cleared Boseley for “Limited Duty”—work that involved a limited use of
his injured hand, no heavy gripping or use of vibrating tools, and allowed for pushing, pulling, or
lifting of up to five pounds. French later noted that Boseley still “ha[d] a lot of stiffness in the
hand,” exhibited symptoms of reflex sympathetic dystrophy (“RSD”), and “almost” did not use his
left hand at all during an appointment in February 2003. Throughout the next several months,
French reported “slow progress” with regard to Boseley’s left-hand range of motion.
Similarly, Boseley’s own statements demonstrated slow but steady improvement as to both
his fine and gross motor skills. In April 2003, he told his physical therapist that he had been unable
to pick up a bean. Days later, however, he reported stripping radiators with his son and noted that
he could “use [his] hand better.” By the end of the month he was “us[ing] [his left hand] to push a
wheelbarrow.” In May, he stated that his hand, while stiff, allowed him to hold a fishing pole. In
June, he noted that he could hold pliers, but to use them he had to “switch hands.” Around the same
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time, his physical therapist recorded that by then he “was able to use [his left] hand normally to clip
the nails on [his] right hand,” and he had “made gains in [range of motion] and strength.” Also in
June, French charted improvements in Boseley’s grip strength and range of motion.
In July, French reduced Boseley’s physical therapy visits to once a week, although his notes
indicated that Boseley “[s]till had a lot of stiffness” and was “unable to make a full fist.” In August,
the physical therapist observed that Boseley demonstrated a ten-pound increase in his left-hand grip
strength. Boseley reported that he still had “trouble picking up small objects,” but he also
acknowledged that he could “hook up a boat a lot easier.” As a result, French concluded that
Boseley no longer needed physical therapy, should continue his exercises at home, and recommended
that the Functional Capacity Evaluation (“FCE”) be postponed for one or two months “to make sure
he has reached his end point in terms of improvement.” French also cleared Boseley for “medium
duty” work with a thirty-pound lifting restriction and “limited use of [his left] hand/arm.”
French reexamined Boseley in October, at which point Boseley was “able to bring all the
fingers down into the palm [of his left hand] with the exception of the index finger where he still
lack[ed] about a [centimeter].” In December 2003, French reported that Boseley had “plateaued in
terms of range of motion and strength of the left hand.” Specifically, French noted that while
Boseley had “good grip strength on the ulnar side of his hand,” he lacked “full flexion and ability
to grasp with the index finger and of course the thumb.” Based on his opinion that Boseley had
“reached maximum medical improvement,” French approved an FCE “for the left hand to assess
[Boseley’s] ability to work in the future.”
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Boseley participated in the FCE in January 2004. The FCE concluded that Boseley suffered
from the following “Significant Deficits”:
Difficulty with waist to crown lifts due to [left] hand decreased strength. Below
average coordination with [left] hand specially [sic] when working with small
objects. [Left] hand decreased grip strength and tip pinch.
The FCE Grid tracked Boseley’s grip strength and tip pinch, and it also noted that he could engage
in activity involving coordination with his left hand for just one to five percent of the work day.
After reviewing the FCE, French was unable to opine as to whether Boseley could return to his job
as a truck driver, but he did state that Boseley “has reached maximum medical improvement and he
needs to be evaluated for a return to some sort of employment.” Finally, after an April 2004 follow-
up appointment, French concluded that Boseley “can drive and . . . [has] good functional use of the
left hand within the stated guidelines [i.e. a fifty-pound permanent lifting restriction].” In January
2005, Dr. Joseph Johnson examined Boseley at the request of the Tennessee Disability
Determination Services. He concluded that Boseley’s left-hand range of motion was “nearly
normal,” and his left-hand motor strength was a “4/5.” He noted that Boseley’s ability to make
“[r]apid alternating movements in the left hand” was “slightly slow due to tendinous stiffness.” That
same month, a physician reviewed Boseley’s medical records for the Social Security Administration
in order to determine his RFC. He indicated that Boseley could stand, walk, and sit six hours in an
eight-hour workday, could lift fifty pounds occasionally and twenty-five pounds frequently; and had
no push or pull limitations in his upper extremities. Furthermore, he found that Boseley suffered
from no limitations in reaching and feeling.
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In 2006, Boseley submitted to a vocational evaluation by Mark Boatner. Specifically,
Boatner was retained “to administer a standardized measure of [Boseley’s] finger dexterity” and “to
get insight into [Boseley’s] capacity for performing daily activities and for return to his regular job
of tractor-trailer driver.” After administering a Purdue Pegboard Test, Boatner noted that Boseley
performed “poor[ly]” as to both his right and left hands and concluded that Boseley “does not
possess the functional dexterity or fingering ability to successfully work in basic assembly jobs,
production occupations, maintenance or service occupations.” Moreover, due to French’s opinion
that Boseley would likely be absent from work one day per month, Boatner concluded that Boseley
was not employable for any entry-level unskilled jobs. French later checked “yes” on a letter from
Boseley’s lawyer, indicating that he agreed with these findings.
B. Procedural Background
Boseley applied for disability-insurance benefits in October 2004. At a hearing before an
ALJ in 2006, Boseley testified that he was right handed and that he had not worked since his
accident. He stated that he had only applied for positions as a truck driver and had not expanded his
job search to other fields. He indicated that his left thumb caused him pain, for which he took over-
the-counter medicine.
The ALJ asked JoAnn Bullard, a vocational expert, to evaluate the ability to work of a
hypothetical individual with Boseley’s prior experience, who was limited to no more than 30 pounds
of lifting on an occasional basis and assuming the following additional limitations:
I want you to assume, as well, that I might find him to be precluded from anymore
than frequent climbing of stairs and ramps, stooping or bending from . . . the waist
to the floor. He would be precluded from any climbing of ladders, ropes and
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scaffolds, kneeling, stooping, crouching or crawling and he would be precluded from
any heavy gripping with his left, upper extremity. . . . Under that hypothetical, would
there be jobs which he could perform in the area?
Bullard responded in the affirmative, and stated that Boseley was capable of the following “light,
unskilled occupations” available in the local and national economies: Cashier II, a parking lot
attendant, or a textile checker. The ALJ then changed the hypothetical slightly to prohibit “any more
than occasional gripping and manipulating with [the] left upper extremity,” which would preclude
more jobs than the more general prohibition against “any heavy gripping.” In that case, Bullard
opined that Boseley would be “precluded from about 97.5 percent of occupations in the [Dictionary
of Occupational Titles (‘DOT’)].” She clarified that the availability of “light, unskilled occupations”
would not be affected if Boseley was “limited to only occasional reaching or using his [left] hand
for . . . something to push against.”
The ALJ found that Boseley was not disabled. On appeal, the Council affirmed. In only one
respect did it differ from the ALJ’s decision: it noted that the ALJ “did not address Dr. French’s
endorsement of the limitations contained in [Boatner’s 2006] assessment.” However, because the
Council concluded that the evidence did not support the limitations listed in the assessment, it
“assign[ed] little weight” to Dr. French’s 2006 opinion.
II. STANDARD OF REVIEW
We review de novo the decisions of the district court in social security cases. Ealy v.
Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010). We will affirm the Commissioner unless
the ALJ failed to apply the correct legal standards or made findings of fact unsupported by
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substantial evidence in the record. 42 U.S.C. § 405(g); see also Rogers v. Comm’r of Soc. Sec., 486
F.3d 234, 241 (6th Cir. 2007).
III. ANALYSIS
A. RFC Finding
Boseley first claims that the RFC finding was not supported by substantial evidence.
Specifically, he argues that the Commissioner “offered no reason at all for rejecting” the results of
the Purdue Pegboard Test and the notation in the 2004 FCE that Boseley could only engage in
activity involving coordination with his left-upper extremity for one to five percent of the work day
(the “FCE finding” or the “1-5 notation”).
We do not read the Commissioner’s failure to refer to the FCE notation to mean that it
“reject[ed]” it. Neither the ALJ nor the Council is required to discuss each piece of data in its
opinion, so long as they consider the evidence as a whole and reach a reasoned conclusion. See
Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 507-08 (6th Cir. 2006) (per curiam).
The 2004 FCE found that Boseley had “[h]igh abilities in all lifting tasks, push and pull, right
hand carry and walking.” In discussing Boseley’s left hand, however, the evaluation stated that
“there has been good recovery . . . [and] significant progress in strength and [range of movement]
on [left] hand and fingers.” It concluded that Boseley’s “grip strength and [range of motion]” was
at a “functional level,” but that he must be restricted from using his left hand for “heavy lift[ing].”
The existence of one notation regarding left-hand coordination on the FCE grid does not necessarily
contradict the FCE’s conclusion that the only “permanent restriction” on Boseley’s left hand was to
avoid “heavy lift[ing].” Upon reading the entire FCE report, reasonable minds could conclude, as
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did the Council, that it “revealed only below average coordination with the left hand with decreased
grip strength and tip pinch.” The Commissioner considered and impliedly resolved any internal
conflict within the FCE. See Kornecky, 167 F. App’x at 507-08.
Boseley argues that the Commissioner should not have rejected Boatner’s report and the
Purdue Pegboard Test. The test revealed that Boseley performed three standard deviations below
normal on testing of his left hand, both hands, his right and left hands combined, and assembly.
Boatner concluded that Boseley would not be able to perform any type of job requiring reaching,
handling, and dexterous use of the hands, and that he did not possess the “functional dexterity or
fingering ability to successfully work in basic assembly jobs, production occupations, maintenance
or service occupations.” As the ALJ noted, Boatner only saw Boseley on “one occasion.” Boatner
also admitted that he reviewed the FCE but had not otherwise read Boseley’s medical records, and
that he was retained by Boseley’s attorney to determine whether Boseley could return to his job as
a truck driver.
The Commissioner was not persuaded by this evidence, and his decision to assign it little
weight is reasonable, especially when weighed against the 2004 FCE, Johnson’s 2005 examination,
and French’s opinion in 2004 that Boseley retained good functional use of his hand provided that
he lift no more than fifty pounds. Moreover, the Commissioner considered the fact that French
checked the box indicating that he agreed with Boatner’s 2006 report. He concluded that the totality
of the medical evidence did not support Boatner’s conclusions.
Substantial evidence in the record supports the RFC restriction against constant heavy
gripping. French’s 2004 opinion was supported by his own treatment of Boseley over several years
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and his range-of-motion and grip-strength measurements. The physical therapist also tracked
Boseley’s progress and noted his objective improvements as well as his subjective comments
regarding his abilities to fish, strip radiators, push a wheel barrow, and cut his nails. Similarly, the
FCE as a whole reasonably supported French’s conclusion, as discussed. In 2005, Johnson tested
Boseley’s left-hand range of motion and determined that it was “nearly normal.” He also concluded
that Boseley’s left-hand motor strength was a “4/5.” Finally, French’s endorsement of Boatner’s
report was not accompanied by any explanation from which the Commissioner could reconcile it
with French’s earlier prognosis. Thus, the Commissioner reasonably discounted this later opinion
where the record evidence did not support Boatner’s underlying conclusions. Substantial evidence
in the record as a whole supports the Commissioner’s decision to credit the aforementioned evidence
despite some evidence to the contrary in the record.
B. Vocational Expert
Boseley also argues that the first hypothetical posed to Bullard at the hearing did not
accurately portray his limitations and thus the Commissioner’s conclusion that he could perform
light work was not supported by substantial evidence. “In order for a vocational expert’s testimony
in response to a hypothetical question to serve as substantial evidence in support of the conclusion
that a claimant can perform other work, the question must accurately portray a claimant’s physical
and mental impairments.” Ealy, 594 F.3d at 516.
The ALJ’s first hypothetical assumed the claimant would be precluded “from any heavy
gripping with his left, upper extremity.” Boseley attacks the restrictions stated in this hypothetical
as not being representative of his actual limitations. In his view, his limitations are more consistent
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with the second hypothetical, which assumed that the claimant would be precluded from “any more
than occasional gripping.”
We disagree. The ALJ’s first hypothetical accurately summarized Boseley’s limitations on
any heavy gripping, as discussed supra, and the conclusion, based on Bullard’s testimony, that he
was “capable of performing a significant range of light work, as defined in 20 C.F.R. [§] 404.1567,”
is supported by substantial evidence.
We have before affirmed the determination that a claimant’s “right hand and arm enable[d]
him to perform a number of jobs which exist in substantial numbers in the national economy.” Odle
v. Sec’y of Health and Human Svcs., 788 F.2d 1158, 1161 (6th Cir. 1985). Boseley is right handed
and his right hand is fully functional. The record also shows that he could complete certain tasks
with his left hand, even though he was not capable of “any heavy gripping.” Finally, when cross-
examined regarding Boseley’s manual dexterity, Bullard stated that the availability of light work
would not be negatively impacted if Boseley was “limited to only occasional reaching or using his
[left] hand . . . just as . . . something to push against.”
AFFIRMED.
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