CHAPTER 2
Cases From Start To Finish
It is rare that a
decision of an ALJ is affirmed by the SSA’s Appeals Council. It is even rarer
still when the SSA will take a case to the District Court and fight to support
the decision of the ALJ. And it is practically unheard of for the SSA to defend
the decision of an ALJ at the Circuit Court level. When that happens there is
reason to celebrate. I was fortunate enough to experience this rare series of
fortuitous events on several occasions in almost 20 years as an ALJ. When a
case follows that complete path to a final Agency Decision, it is profitable
for instruction and as an illustration. The average claimant will not have to
travel this entire journey to a grant of benefits.
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Here is a CIRCUIT COURT
CASE AS AN EXAMPLE:
Let’s take the case of Jack Smith*[1], a resident of Los
Angeles, California who applied for disability insurance benefits (DIB) and
Supplemental Security Income (SSI) benefits in October 1992. Claiming an on the
job back injury on February 14, 1989, from lifting 75 pounds of metal castings,
he filed applications for disability insurance benefits (DIB) and SSI benefits
on October 28, 1992. Smith alleged that he had become unable to work since his
date last worked (DLW) of March 9, 1989 due to severe pain in his back, legs,
neck and head. As a result, he had allegedly also suffered a severe mental
impairment, specifically anxiety, depression and alcohol abuse. His Alleged
Onset Date (AOD) is March 9, 1989.
His claim was initially
denied by the California State Disability Determination Service (DDS). He
requested a reconsideration of the DDS denial and was again denied benefits.
He appealed the Reconsideration denial and was
given a hearing before Administrative Law Judge (ALJ) London Steverson at the
Downey OHA on February 18, 1993. The Social Security hearing is considered a
federal hearing. Mr. Smith appeared before the judge alone (that means this was
a bench trial and there was no jury present). The Government was not
represented. He was represented by his own personal attorney, a member of the
California Bar in good standing.
Mr. Smith was initially treated with
chiropractic care and physical therapy. On March 27, 1989, a Magnetic Resonance
Imaging (MRI) test revealed moderately severe central disc herniations at L4-5
and at L5-S1 of the lumbar spine. After experiencing numbness and further pain,
Mr. Smith sought treatment from Dr. Omar Epps, a neurosurgeon. In July 1989,
these symptoms abated and Mr. Smith received physical therapy for lower back
problems until August 1989. Surgery scheduled for November 11, 1989 was
cancelled. Mr. Smith continued to improve until a slip and fall accident in a
grocery store on December 19, 1989. After reporting some improvement, he
declined acupuncture treatment in January 1990. On February 22, 1990, Dr. Epps
determined that Mr. Smith's condition was permanent and stationary, but that he
had shown marked improvement in both subjective assessment and objective
findings. Dr. Epps concluded that Mr. Smith could perform only light work that did
not involve prolonged standing or sitting. Light work involves lifting a
maximum of 25 pounds occasionally and 10 pounds frequently.
On August 20, 1991, a California state ALJ found
Mr. Smith disabled and eligible for Medi-Cal benefits.
After an auto accident on March 10, 1992, Mr.
Smith was treated by Dr. Charlie Luke for headache and back and neck pain. On
April 29, 1992, the Los Angeles County and University of Southern California
(LAC/USC) Medical Center Emergency Room treated him for chronic back pain. About
June 1992, Dr. Luke reported that Mr. Smith had improved sufficiently to
discontinue treatment.
On July 25, 1992, Dr. Sammy Kumar reported that
Mr. Smith was receiving psychotherapy for depression and anxiety.
Mr. Smith again received treatment at the
LAC/USC center from August 5, 1992 to February 10, 1993. From November 1992 to
January 1993, he reported pain relief due to epidural blocks. In February 1993,
Mr. Smith's treating physician reported that he had no disability. The
opinion of a treating physician is entitled to controlling weight.
At the hearing before ALJ Steverson, Mr. Smith
testified that his daily routine included reading law, history and other types
of books for six hours, and that he watched television for three and a half
hours, spent considerable time talking on the phone to friends, cleaned up
around the apartment and was able to do his laundry and drive a car. Mr. Smith
also testified that he could lift under 20 pounds, walk up and down stairs and
play a musical instrument.
(Standard of Review In The Ninth Circuit.)
A district court's order affirming a Social
Security Commissioner's denial of benefits is reviewed by the circuit court de
novo. (Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.1996)). The
decision by the Commissioner must be upheld, however, if it is supported by
substantial evidence and the Commissioner correctly applied the law. (Smolen,
80 F.3d at 1279; Flaten v. Secretary, 44 F.3d 1453, 1457 (9th
Cir.1995)). Substantial evidence is more than a mere scintilla, but less than a
preponderance. (Matney ex rel. Matney v. Sullivan, 981 F.2d 1016,
1019 (9th Cir.1992)). The ALJ cannot discount a claim of excess pain without
making specific findings supporting that decision. (Johnson v. Shalala,
60 F.3d 1428, 1433 (9th Cir.1996))
Fortunately, the Standard of Review is the same
in all Federal Circuits. A quick glance at the standard in the Sixth Circuit
will serve as an illustration.
(Standard of Review In
The Sixth Circuit)
The District Court
exercises de novo review of district court decisions in Social Security
disability cases. White v. Comm'r of Soc. Sec., 572 F.3d 272, 281 (6th
Cir.2009); Lindsley v. Comm'r of Soc. Sec., 560 F.3d 601, 604 (6th
Cir.2009). The Social Security Commissioner's conclusion will be affirmed absent
a determination that the ALJ failed to apply the correct legal standard or made
fact findings unsupported by substantial evidence in the record. White,
572 F.3d at 281 (citing 42 U.S.C. § 405(g)). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Lindsley, 560 F.3d at 604 (citing Richardson v. Perales,
402 U.S. 389, 401 (1971)); see also Walker v. Sec'y of Health and Human
Services, 980 F.2d 1066, 1070 (6th Cir.1992); McGlothin v. Comm'r of
Soc. Sec., 299 Fed. Appx. 516, 522 (6th Cir.2008) (noting that substantial
evidence is “more than a scintilla of evidence but less than a preponderance;
it is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.”) (internal quotations omitted).
In deciding whether to
affirm the Commissioner's decision, “it is not necessary that the District
Court agree with the Commissioner's finding, as long as it is substantially
supported in the record.” Beinlich v. Comm'r of Soc. Sec., 345 Fed.Appx.
163, 167 (6th Cir.2009). Even if the District Court might have reached a
contrary conclusion of fact, the Commissioner's decision must be affirmed so
long as it is supported by substantial evidence. Lindsley, 560 F .3d at
604-05 (administrative findings are not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion)
(quoting Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir.1994)); Roe v.
Apfel, 211 F.3d 1270, at *7 (6th Cir. April 25, 2000) (unpublished table
decision).
Mr. Smith claimed that the ALJ based his
decision that he was not disabled on five incorrect or inadequate reasons.
First, he contends that the ALJ failed to
explain why Mr. Smith failed to equal, even if he did not meet, section 1.05 of
the Listing of Impairments (the Listings). (Marcia v. Sullivan, 900 F.2d
172, 176 (9th Cir.1990)). The ALJ has a duty to make this determination 20
C.F.R. § 416.920(d).
The Ninth Circuit Court found the ALJ's
explanation sufficient. The degenerative disc disease of the claimant's spine,
and most particularly the herniated disc shown on MRI studies in August 1990
and in August 1992, did not meet or equal the requisite level of severity of
section 1.05(c) of the Listing of Impairments inasmuch as a pain syndrome
requiring ongoing treatment for back pain is not shown, and as there had been
no dermatomal neurological deficits on clinical examination.
Second: Mr. Smith claimed that the ALJ failed to
give any reason for rejecting Dr. Epps's finding that he is restricted from
prolonged sitting in violation of the rule that evidence cannot be rejected
without any reason. Cotter v. Harris, 642 F.2d 700, 706 (3d Cir.1981).
The ALJ does provide a reason, however, for not accepting that particular
finding: "The claimant's refusal of back surgery and his refusal of even
acupuncture treatment reflects a lack of motivation to improve and return to
work."
Third: Mr.
Smith contended that the ALJ incorrectly found that his claims of pain were
contradicted by Dr. Luke's medical findings and statements made to Dr. Luke by
Mr. Smith. There is substantial evidence for the ALJ's finding.
Fourth: Also Mr. Smith maintained that the ALJ
incorrectly found that records of the LAC/USC Medical Center indicated that he
was not disabled. There was substantial evidence for the ALJ's finding.
Fifth: Mr. Smith argued that the ALJ incorrectly
found a number of inconsistencies in his complaints about continuing and
excruciating pain. " 'The ALJ is responsible for determining credibility
and resolving conflicts in medical testimony.' "( Saelee v. Chater,
94 F.3d 520, 522 (9th Cir.1996)) (quoting Magallanes v. Bowen, 881 F.2d
747, 752 (9th Cir.1989)). In addition to the deference accorded the ALJ's
findings of credibility, there was substantial evidence for the ALJ's finding.
Mr. Smith's claim that sufficient evidence
existed as to his nonexertional limitations, mental impairment and severe pain,
so as to make the ALJ's application of the grids inappropriate was not persuasive.
The use of the grids can be appropriate even when a claimant alleges both
exertional limitations and nonexertional limitations. ( Bates v. Sullivan,
894 F.2d 1059, 1063 (9th Cir.1990)) , overruled on other grounds,( Bunnell
v. Sullivan, 947 F.2d 341, 342 (9th Cir.1991)) (en banc). The ALJ properly
applied the grids to Mr. Smith since the ALJ found that the alleged pain did
not significantly detract from his exertional capabilities. Though the
ALJ failed to consider whether mental impairment significantly detracted from
his exertional capabilities, evidence of mental impairment was not properly
submitted to the ALJ. Though Mr. Smith maintained that there were numerous
references in the record to his mental impairment, he failed to claim a
significant mental impairment in his benefits application, failed to submit a
medical or psychological report that such impairment was sufficiently serious
to limit work activities, failed to raise it at the hearing, and failed to
raise it before the Appeals Council. Mr. Smith's argument that the mentally
impaired frequently do not realize that they are impaired as such and thus he
should not be penalized for failing to raise the issue was undermined by his
attorney also not raising the issue before the Appeals Council. Since Mr.
Smith's claim of mental impairment, as a basis for his claim that the ALJ
improperly applied the grids, was untimely, therefore the Circuit Court
declined to consider it in ascertaining whether the ALJ erred in applying the
grids. (Avol v. Secretary of HHS, 883 F.2d 659, 661 (9th Cir.1989))
With respect to Mr. Smith's alleged
nonexertional limitation of pain, the ALJ had substantial evidence to support
its determination that Mr. Smith's claims of severe and excruciating pain were
not sufficiently severe to detract from his exertional capabilities. (See Bates,
894 F.2d at 1063; Perminter v. Heckler, 765 F.2d 870, 872 (9th
Cir.1985)) (grids inapplicable only if evidence shows that pain prevents
claimant from working at any job). There was also substantial evidence to
warrant the ALJ's finding that the medical evidence was insufficient and that
Mr. Smith's subjective assessment was not credible. Since the ALJ made specific
reference as to why Mr. Smith's claims of pain were not entirely credible and the
ALJ did not make his finding based on medical evidence alone, there was
substantial evidence to support that the ALJ's finding of lack of credibility
was proper. (Bates, supra at 1062-63.)
Mr. Smith claimed that the ALJ did not obtain a
valid waiver of his right to counsel. Relying on Binion v. Shalala, 13
F.3d 243, 245 (7th Cir.1994), he argued that in order for his waiver to be
valid the ALJ should have advised him how an attorney could be of aid, the
possibility of a contingency arrangement, limitations on attorney fees and the
requirement of court approval of fees. In addition to the above requirements
not being controlling for the Ninth Circuit Court, it has been well established
that a claimant has to make a showing of the resulting prejudice or unfairness
stemming from lack of counsel. (Key v. Heckler, 754 F.2d 1545, 1551 (9th
Cir.1985)); Hall v. Secretary of Health, Ed. and Welfare, 602 F.2d 1372,
1378 (9th Cir.1979). Mr. Smith neither established the requisite resulting
prejudice nor even argued that any resulting prejudice stemmed from his lack of
counsel.
Mr. Smith's claim that the ALJ failed to meet
its heavier burden when the claimant is without counsel to "scrupulously
and conscientiously probe into, inquire of and explore for all relevant facts,"
Vidal v. Harris, 637 F.2d 710, 713 (9th Cir.1981), was not persuasive.
When the ALJ fails to meet his or her heavier burden for a claimant without
counsel, remand is appropriate. Id. at 715. Considering that evidence of
mental impairment (including alcohol abuse, anxiety and depression) was not
fully raised by Mr. Smith before the ALJ, the ALJ satisfactorily met his
heavier burden to explore all relevant facts under Vidal. Though the ALJ failed
to obtain medical reports mentioned in state ALJ Hall's decision, whether such
reports should have been considered was within the sound discretion of the ALJ.
Wilson v. Heckler, 761 F.2d 1383, 1385 (9th Cir.1985). Without a showing
from Mr. Smith that the ALJ abused his discretion, the Circuit Court would not
upset the ALJ's discretionary judgment.
Mr. Smith argued that the ALJ failed to give due
consideration to state ALJ Hall's ruling that he was disabled. The ALJ must
explain why significant and probative evidence has been rejected. Vincent v.
Heckler, 739 F.2d 1393, 1395 (9th Cir.1984). The determinations of another
agency, however, are not binding on the Social Security Commissioner and in his
or her discretion may give it much or little weight. Wilson, 761 F.2d at
1385.
Mr. Smith's reliance on Allen v. Heckler,
749 F.2d 577, 579 (9th Cir.1984) (a prior determination of disability gives
rise to a presumption of disability requiring the government to show that a
claimant has improved in order to deny benefits), is misplaced. Allen, unlike
the instant case, involved a prior determination by the same agency and in
order to terminate benefits the government had to show that the claimant had
improved. Id.
Substantial evidence exists to support the ALJ's
finding that Mr. Smith can perform a full range of sedentary work. Mr. Smith's
reliance on Delgado v. Heckler, 722 F.2d 570, 574 (9th Cir.1983)
("A man who cannot walk, stand or sit for over one hour does not have the
capacity to do most jobs available in the national economy.") for his
claim that he cannot perform sedentary work is not persuasive. Mr. Smith only
claims that he cannot sit for prolonged periods, he does not fix a particular
duration as to how long that he can or cannot sit. Based not only on objective
medical evidence but also on Mr. Smith's description of his daily activities of
prolonged reading, watching TV, talking on the telephone etc., and his lack of
credibility regarding his claims of severe pain, substantial evidence exists
that Mr. Smith can perform sedentary work. Even Dr. Espinosa, the physician
whose determinations and diagnoses Mr. Smith principally relies on, opined that
Makshanoff could perform light work.
Mr. Smith claims that the ALJ's four cited
reasons for concluding that his testimony regarding severe pain was not
credible is not based on substantial evidence. Despite Mr. Smith's arguments,
there is substantial evidence to support the ALJ's finding that since his
medical records show significant improvement in his experiences of pain, his
claims of no significant relief from pain are not credible.
Mr. Smith's argument that substantial
evidence does not exist to support the ALJ's second finding that Mr. Smith's
refusal of surgery "reflects a lack of motivation to improve and return to
work," ER at 8, is not entirely persuasive. Although failure to seek
medical treatment cannot be used to infer a lack of credibility of the claimant
regarding his or her experience of pain, Penny v. Sullivan, 2 F.3d 953, 958
(9th Cir.1993), the unexplained absence of treatment for pain may be used to
impeach credibility. Orteza v. Shalala, 50 F.3d 748, 750-51 (9th
Cir.1995). While Mr. Smith's present explanations for the absence of treatment
for his pain may be compelling, the explanations were not offered to the ALJ at
the hearing. The ALJ's determination was supported by substantial evidence.
Substantial evidence supports the ALJ's
third finding that Dr. Luke's medical records show Mr. Smith's significant
improvement and Mr. Smith's statement to Dr. Luke that he felt well undermine
Mr. Smith's allegation of continuing severe pain.
The ALJ's fourth finding that physicians
rejected Mr. Smith as a suitable candidate for surgery because his claimed back
pain failed to match any anatomical distribution is also supported by
substantial evidence. Mr. Smith's argument that allegations of pain cannot be
discredited solely on the basis of a lack of objective medical evidence, Penny,
2 F.3d at 957, is not persuasive. The ALJ discredits the pain allegations not
merely from objective medical evidence but also from statements made by Mr.
Smith about his daily routine. Doing laundry, reading law and history for at
least 6 hours a day, playing a musical instrument, watching television and
talking on the telephone with friends is incompatible with the pain that Mr.
Smith claims. See Fair v. Bowen, 885 F.2d 597, 604 (1989); Orteza,
50 F.3d at 750-51.
Mr. Smith also claims that if the ALJ
noted the disparity between the objective medical evidence and his allegations
of severe pain "the possibility of a mental impairment as the basis for
the pain should have been investigated." Bunnell, 947 F.2d at 343.
Since the ALJ did not consider the possibility of mental impairment, Mr. Smith
argues, the ALJ's determination is legally deficient. The ALJ's findings that
Mr. Smith's pain allegations were not credible, his refusal to seek treatment,
and his lack of motivation to improve and return to work, however, support an
inference that the ALJ found Mr. Smith's pain allegations to be exaggerated so
as to obtain benefits and not work which would foreclose the necessity of
considering mental impairment. See Saelee, 94 F.3d at 522.
Mr. Smith contends that the magistrate, in
adopting the ALJ's incorrect findings, committed three abuses of discretion.
First, Mr. Smith argues the magistrate erroneously found that the ALJ properly
developed the record since the magistrate found that there was no reason for
the ALJ to inquire into a mental impairment. As discussed in the analysis to
issue III, the ALJ satisfactorily met his heavier burden, under the Vidal
standard, to develop a full record.
Second, Mr. Smith claims the magistrate
incorrectly agreed with the ALJ that Mr. Smith did not meet section 1.05 of the
listings without considering whether he equaled the listings. As discussed in
the analysis of issue I, there is substantial evidence that the ALJ fully
considered, under Marcia, whether Mr. Smith equaled, even if he did not meet,
the Medical Listings of Impairments.
Third, Mr. Smith asserts that the
magistrate erroneously accepted the ALJ's determination to reject Dr.
Espinosa's opinion that Mr. Smith was precluded from prolonged sitting. As
discussed in the analysis of issue I, given the substantial evidence regarding
Mr. Smith's daily activities and his unwillingness to seek treatment, the magistrate
properly accepted the ALJ's determination.
CONCLUSION
We AFFIRM the district court's grant of summary
judgment in favor of Shirley S. Chater, Commissioner of the Social Security
Administration.
The following case is a District Court decision.
It is well written, but the claimant lost. He will have to appeal to the
Circuit Court. If this were a medical situation, I would have to say that in
this case “the operation was a success, BUT the patient died”.
BONSANTO v. ASTRUE
LUCY BONSANTO, Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social
Security, Defendant.
Case No. 2:09-cv-366-FtM-DNF.
United States District Court, M.D. Florida, Ft.
Myers Division.
September 28, 2010.
OPINION AND ORDER
DOUGLAS N. FRAZIER, Magistrate Judge.
Plaintiff filed an application for a period of
disability and disability insurance benefits [DIB] and Supplemental Security
Income [SSI] on February 15, 2006, alleging an onset of disability of January
1, 2002 . Plaintiff has acquired sufficient quarters of coverage to remain insured
through June 30, 2004. The Agency denied this application in initial and
reconsideration determinations. Plaintiff timely requested and appeared at a
hearing on October 16, 2007 before Administrative Law Judge (ALJ) Steven D.
Slahta. In a hearing decision dated February 23, 2008, the ALJ found Plaintiff
not disabled. The ALJ's hearing decision rested as the final decision of the
Commissioner when the Appeals Council denied Plaintiff's request for review, on
April 24, 2009. [Tr. 3-5]. The ALJ's final hearing decision is now ripe for
review under sections 205(g) and 1631(c)(3) of the Social Security Act, 42
U.S.C. §§ 405(g), 1383 (c)(3).
For the reasons set forth below, the Court finds
that the Commissioner's decision is due to be AFFIRMED.
I. SOCIAL SECURITY ACT ELIGIBILITY, THE ALJ'S
DECISION AND STANDARD OF REVIEW
Plaintiff is entitled to disability benefits
when she is unable to engage in substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to
either result in death or last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 423 (d) (1)(A); 1382c(a)(3)(A). The Commissioner has
established a five-step sequential evaluation process for determining whether
Plaintiff is disabled and therefore entitled to benefits. See 20 C.F.R. §
416.920(a)-(f); Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997).
Plaintiff bears the burden of persuasion through Step 4, while at Step 5 the
burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987).
The decision of Administrative Law Judge Steven
D. Slahta, dated December 10, 2007, found Plaintiff was not under a disability
as defined in the Social Security Act, at any time from January 1, 2002,
(alleged onset date), through June 30, 2004 (date last insured "DLI")
20 C.F.R. 404.1520(g).
At Step 1 the ALJ found Plaintiff had not
engaged in substantial gainful activity since her alleged onset date of January
1, 2002, through her date last insured of June 30, 2004. (Tr. 13). At Step 2
the ALJ found Plaintiff suffered from severe impairments of fibromyalgia,
colitis, irritable bowel syndrome, obesity, and depressive disorder. At Step 3
the ALJ found Plaintiff did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926). At Step 4 the ALJ determined
Plaintiff has the residual functional capacity to perform a wide range of
sedentary work with a sit/stand option. At Step 5 the ALJ found Plaintiff
(through June 30, 2004), was unable to perform any of her past relevant work as
a cook, culinary manager, teacher, and retail salesperson.
In reviewing a decision by the Commissioner, the
District Court is bound to uphold the Commissioner's findings if they are
supported by substantial evidence and based upon proper legal standards. 42
U.S.C. §§ 405(g), 1383(c)(3); Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th
Cir. 1997). Factual findings are conclusive if supported by "substantial
evidence," which is more than a scintilla and consists of such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion. Lewis v. Callahan, 125 F.3d at 1440. The Court does not decide the
facts anew, reweigh the evidence, or substitute its judgment for that of the
Commissioner. Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). If the
Commissioner's decision is supported by substantial evidence, the Court must
affirm even if the evidence predominates against the decision. Wilson v.
Barnhart, 284 F.3d at 1291. However, the Court must conduct an exacting
examination of whether the Commissioner followed the appropriate legal
standards in deciding the claim and reached the correct legal conclusions.
Wilson v. Barnhart, 284 F.3d at 1291. The failure to apply the correct law or
to provide the reviewing court with sufficient reasoning for determining that
the proper legal analysis has been conducted will mandate reversal. Keeton v.
Department of Health and Human Servs., 21 F.3d at 1066.
II. Review of Facts and Conclusions of Law
A. Background Facts:
Plaintiff was born on July 18, 1968, and was
thirty-nine years old at the time of the February 28, 2008, hearing decision.
Plaintiff reported she has a high school education, two years of college and
has worked in the past as a cook, culinary manager, teacher, and retail
salesperson. Plaintiff reports her disability began January 1, 2002, due to
fibromyalgia, colitis, irritable bowel syndrome, obesity, and depressive
disorder. After review of the medical evidence and testimony at the hearing
from Plaintiff, the ALJ found Plaintiff not disabled.
The ALJ found Plaintiff had the residual
functional capacity (RFC) for a wide range of sedentary work with a sit/stand
option. The ALJ found that Plaintiff could occasionally climb, balance, kneel,
stoop, crouch, and crawl and precluded exposure to hazards. The ALJ limited
Plaintiff to unskilled, low stress work defined as one to two step tasks,
routine repetitive tasks, working primarily with things rather than people, and
entry level positions. Plaintiff could not return to her past relevant work.
Relying on the testimony of a vocational expert (VE) and the Medical Vocational
Guidelines (Grids) as a framework for decision making, the ALJ found that other
work existed in significant numbers in the national economy that Plaintiff
could perform. The ALJ found Plaintiff not disabled.
Plaintiff has an extensive history of gastric
conditions, including irritable bowel syndrome, and reflux disease. On March 9,
2003, Plaintiff was diagnosed with probable acute cholecystitis, reflux
disease, and irritable bowel syndrome ("IBS"). Plaintiff underwent
surgery several days later and was diagnosed with acute calculous
cholecystitis. Plaintiff continued to receive treatment through October 2004
with Dr. Andrew Conn.. On October 19, 2004, Plaintiff presented with abdominal
cramping and frequent diarrhea. On October 27, 2004, Dr. Conn performed a
colonoscopy. Dr. Conn's notes post-op reveal "colon polyp, normal colon,
probable irritable bowel syndrome ("IBS").
Plaintiff's abdominal pain continued to be
problematic, resulting in an additional emergency room visit on August 18,
2005, (past "DLI" of June 30, 2004) where Plaintiff was treated by
Dr. A. Lafferty. Plaintiff was diagnosed with abdominal pain, vomiting and
diarrhea with possible colitis. Plaintiff received normal saline, Levaquin,
Flagyl, Phenergan and Dilaudid and was given an out-patient prescription of
Flagyl, Leavquin, Phenergan and Vicodin. Dr. Lafferty's report further stated
that Plaintiff's "[c]omplete blood count is within normal limits. Serum
electrolytes were within normal limits with the exception of the glucose being
100. Liver function tests and lipase within normal limits. Urine pregnancy test
negative. Urinalysis is normal".
Through September 2005, Plaintiff was treated by
Dr. Asif H. Choudhury. Plaintiff was diagnosed with abdominal pain and referred
for further testing. On September 6, 2005, Dr. Choudhury performed an
esophagogastroduodenoscopy with biopsy and colonoscopy. Plaintiff's
post-operative diagnosis was gastritis.
As of September 19, 2005, Plaintiff reported
biliary type diarrhea. On September 21, 2005, Dr. Choudhury performed the
following procedures: endoscopic retrograde, cholangiopancreatography with
sphincterotomy. Dr. Choudhury post-operative diagnoses reflects:
"[B]iliary dysfunction with Sphincter of Oddi Dysfunction, status post
sphincterotomy was done and balloon sweeping was done without any evidence of
any stone." "[A]SSESSMENT:
Most likely biliary Dysfunction with Sphincter of Oddi Dysfunction causing the
problem, status post sphincterotomy was done".
Plaintiff was examined and treated by Jack
Clark, DO, on March 8, 2006 for abdominal pain. Plaintiff reported that
"everything hurts". Plaintiff also reported being in pain for the
past five years and having ongoing digestive symptoms with abdominal distress.
She reported migraine headaches, anxiety, colitis, "IBS", muscle and
bone pain and numbness in her legs and the corners of her mouth. Dr. Clark's
examination also revealed Plaintiff was morbidly obese and looked depressed.
Plaintiff had trigger points in the trapezius area, gluteal locations,
trochanteric bursa, left elbow and low cervical area. Dr. Clark diagnosed
"[f]ibromyalgia as part of effective spectrum disorder with migraine
headache, chronic abdominal and pelvic pain, depression and anxiety".
Plaintiff returned to Dr. Clark in October 2007 with complaints of widespread
pain. Dr. Clark noted that he had not seen Plaintiff in over a year.
Examination revealed myofascial trigger point tenderness and allodynia.
However, Plaintiff's motor strength was intact.
State Agency Physician Ronald Kline reviewed
Plaintiff's medical records in May 2006, and found that she could occasionally
lift and carry 20 pounds and frequently lift and carry 10 pounds. Dr. Kline
found that Plaintiff could sit, stand and/or walk for six of eight hours (Tr.
317). Dr. Kline found that Plaintiff could occasionally climb, balance, stoop,
kneel, crouch, and crawl. Specifically, Dr. Kline found Plaintiff to be:
"[m]orbidly obese with HX IBS and alleging
diffuse pains consistent with fibromyalgia. Recent Cellulitis right foot and
talar fx, now healed. 69" 284 lbs BP 112/70. Recent Exams show multiple
tender trigger points but are otherwise normal".
State Agency Physician, Timothy Foster, Ph.D.
psychologist, reviewed Plaintiff's medical records on May 16, 2006, and
determined Plaintiff to be mildly restricted in activities of daily living;
mildly restricted in maintaining social functioning, moderately restricted in
maintaining concentration, persistence or pace, with no episodes of
decompensation. Dr. Foster's notes state:
"[T]his is a 37 yr old female at initial
alleging fibromyalgia, insomnia as well as alleging depression. There is no hx
of psych treatment. Cl was sent to examining Dr. Zsigmond for current psych
interview and MSE. Dr. Zsigmond gives only the dx of Adjustment disorder to
this applicant. I am not finding severe functional limits from mental at this
time".
State Agency Physician, Dr. Laura Browning
reviewed Plaintiff's medical records in November 2006 and also found that she
could occasionally lift and carry 20 pounds and frequently lift and carry 10
pounds. Dr. Browning found Plaintiff could sit, stand and/or walk for six of
eight hours and found no postural limitations. Dr. Browning's notes state:
"... In 9/05 all tests, including EGD,
colonoscopy, CAT scan of the abdomen and pelvis, were negative. She has had
cholescystesctomy in the past. She underwent a total abdominal hysterectomy in
10/05 secondary to pelvic pain, fibroids and ovarian cysts. 3/06 follow-up
showed no complaints and the pelvic exam was negative. In 3/06 she also
underwent a full physical exam for possible Fibromyalgia — at that time she
weighed 289 lbs., her lungs were clear, there was" FROM" [full range
of motion] of all joints — the remainder of the exam was also unremarkable.
Dr. Nancy Dinwoodie, reviewed Plaintiff's
medical records on November 16, 2006 and completed the Psychiatric Review
Technique Forms ("PRTF"). Plaintiff was noted to be mildly restricted
in activities of daily living; mildly restricted in maintaining social
functioning, moderately restricted in maintaining concentration, persistence or
pace, with no episodes of decompensation. Dr. Dinwoodie notes state:
"[C]1 is a 38 year old female alleging
disability to chronic pain and anxiety. Cl was in Ruth Cooper CSU 08-06 got 1 day.
Cl learned that her husband was with another woman. Cl OD'ed and was
hospitalized. Cl had labile mood and was very attention seeking. DX Adjustment
Disorder and Cocaine and Benzodazepine abuse. MER revealed that she had
questionable credibility. Cl has had a recent life crisis in regard to her
husband. Cl related that she tried to take her life, but she denied suicidal
intent in the hospital. This goes along with the statement that she was needy
and attention seeking".
On January 3, 2008, Plaintiff was examined by
Claudia Zsigmond, Psy.D. (Dr. Zsigmond completed a General Clinical Evaluation
with Mental Status, Memory Test Assessment and Completion of Mental Functional
Capacity Form provided by the Office of Disability Determinations). Plaintiff
reported to Dr. Zsigmond that in August of 2006 she was psychiatrically
hospitalized following an overdose on prescription medications and Cocaine.
Plaintiff was placed under the Baker Act for approximately one week until she
mentally stabilized. Since then Plaintiff has been treated on an out-patient
basis and receives pastoral counseling. Dr. Zsigmond noted:
"[H]er prognosis is poor due to her poorly
managed mental illness and limited coping skills. On the AMS-III she obtained
an immediate Memory score of 69 and General Memory score of 66 placing her in
the Extremely Low range of memory functioning. However, her poorly managed
mental illness and poor concentration impaired her performance".
"[R]ECOMMENDATION: "[O]btain health
Insurance and continue appropriate medical care, including a neurological
consultation given her report of recent "mini-stroke". She would also
benefit from individual counseling to address depression and enhance her coping
skills".
Plaintiff was seen by Stanley Rabinowitz, M.D.,
S.C. on December 22, 2007 at the request of the Office of Disability
Determinations. Plaintiff's chief complaint was that she was suffering from
fibromyalgia. Dr. Rabinowitz found Plaintiff to be morbidly obese and noted she
complained of "[p]ain with any range of motion testing or orthopedic
maneuver." "[I] indicated to her how difficult it would be to do an
adequate examination if she couldn't try to do things on her own. She had great
difficulty doing this, and finally consented to trying to do an appropriate
examination. Significant symptom magnification and embellishment were
evident." IMPRESSIONS: "Chronic fibromyalgia with multiple somatic
complaints; history of chronic depression, history of irritable bowel syndrome
and right upper extremity pain, etiology undermined."
B. SPECIFIC ISSUES
I. DID COMMISSIONER FAIL TO ARTICULATE REASONS
FOR ONLY CREDITING TREATING AND CONSULTATIVE OPINIONS AND DISCREDITING THE
OPINIONS OF OTHER MEDICAL SOURCES.
Plaintiff contends the ALJ failed to adequately
explain the basis for selectively crediting or discrediting multiple opinions
from multiple medical sources. Plaintiff also contends that the rationale for
discrediting these opinions centers mostly on the alleged lack of
"objective" evidence, despite the continuous findings of trigger
points and Plaintiff's diagnosis of severe fibromyalgia.
In June 2006, Dr. Asif Choudbury's opinion was
Plaintiff was unable to work due to a fibromyalgia attack. The ALJ gave little
weight to this opinion as the examination showed only diffuse abdominal
tenderness. Dr. Choudbury noted that Plaintiff's gastro-intestinal symptoms
worsened when her fibromyalgia worsened. However, the record shows that
gastrointestinal work-ups were repeatedly within normal limits with little
objective evidence to explain Plaintiff's symptoms. Further, Dr. Choudhury
noted that "[P]laintiff's rheumatologist should decide whether or not
Plaintiff needs disability due to fibomyalgia", indicating he was unsure
about his opinion. The ALJ properly found that Dr. Choudhury's limitations were
inconsistent with the evidence of record.
Dr. Clark notes show that April 2006 through
August 2006, Plaintiff showed positive fibomyalgia trigger points. However, he
also noted that there were no deformities or synovitis over the joints, Plaintiff
joints had full range of motion. Further, he noted that Plaintiff's motor
strength was intact throughout and there was equal and symmetric deep tendon
reflexes. The ALJ properly found that Dr. Clark's limitations were inconsistent
with the evidence of record.
Dr. Rabinowitz's notes show that he was unable
to test the Plaintiff's gait because of her dependence on assistance (holding
on to objects in the room) and a quad cane when ambulating. Further, that
"her range of motion testing was impossible to adequately perform because
Plaintiff complained of significant pain with even minimal range of motion
testing of the ankles, knees, hip, and shoulders." Significantly, there
was no evidence of active joint inflammation, deformity, instability, or contracture.
There was no evidence of paravertebral muscle spasm. Straight leg raising was
negative bilaterally in the sitting position and postive bilaterally in the
supine position. Grip strength was 4/5 in the left hand and could not be
assessed in the right hand. Additionally, as noted above Dr. Rabinowitz found
that Plaintiff was embellishing and magnifying her symptoms.
The ALJ also properly found that Dr.
Rabinowitz's findings were based upon Plaintiff's subjective complaints instead
of valid objective findings. (Tr. 19). The ALJ reviewed the medical evidence of
record and found the opinions of Dr. Clark and Dr. Rabinowitz's were not
supported by the medical evidence of record. (Tr. 19). Substantial evidence
supports the ALJ's conclusion that Plaintiff is capable of a wide range of
sedentary work.
II. DID COMMISSIONER ERR IN RELYING ON
"VE" TESTIMONY THAT CONFLICTS WITH THE DICTIONARY OF OCCUPATIONAL
TITLES
Plaintiff argues that the ALJ erred in relying
on the vocational expert's ("VE") testimony that conflicted with the
Dictionary of Occupational Titles because the only occupations listed require
more than the ability to perform one to two step tasks.
Plaintiff's "RFC" was for a wide range
of sedentary work with a sit/stand option; "[s]he can occasionally climb,
balance, kneel, stoop, crouch, and crawl" and was precluded from exposure
to hazards. Plaintiff was limited to unskilled, low stress work defined as one
to two step tasks, routine repetitive tasks, working primarily with things
rather than people, and entry level positions. Plaintiff's "RFC"
precluded her from performing her past relevant work; therefore, the burden of
production shifted to the Commissioner.
To meet this burden, the Commissioner must show
the existence of a significant number of other jobs in the national economy
that the claimant is capable of performing, given her vocational profile and
"RFC" Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987); Boyd v.
Heckler, 704 F.2d 1207, 1209 (11th Cir 1983). If an ALJ finds that a claimant
cannot perform a full range of work within a given exceptional level,
"VE" testimony is the preferred method to determine whether the
claimant's non-exceptional impairments further diminish her ability to work at
that level 20 C.F.R. §§ 404.1561, 416.961; Social Security Ruling (SSR) 83-12;
see also Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
To determine the extent to which these
limitations erode the unskilled sedentary occupational base, the ALJ asked the
"VE" whether jobs exist in the national economy for an individual
with Plaintiff's age, education, work experience, and residual functional
capacity. The "VE" testified that given all the factors the
individual would be able to perform the requirements of representative
occupations such as: surveillance systems monitor (DOT code 379.367-010:
sedentary; SVP 2; 200 local jobs; 1,000 state jobs: 100,000 national jobs) and
semi-conductor bonder (DOT code 726.685-0) and determined that there are jobs
that exist in significant numbers in the national economy that Plaintiff can
perform (20 C.F.R. 404.1560 (c), 404.1566, 416.96(c), and 416.966).
The ALJ asked the "VE" whether an
individual with Plaintiff's "RFC" and other vocational
characteristics could perform her past relevant work or other work . The "VE"
testified that such an individual could not perform Plaintiff's past relevant
work, but could perform other work, including the jobs of surveillance system
monitor and semi-conductor bonder as listed above . The "VE's"
testimony was based upon a hypothetical question that fairly set out all of
Plaintiff's limitations. The ALJ, therefore properly relied on the "VE's
testimony to find that Plaintiff could perform other work and was not disabled.
Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). The documentary evidence
and an analysis of Plaintiff's testimony supports the ALJ's "RFC"
determination and his hypothetical question to the "VE". Therefore,
pursuant to SSR 00-4p, the vocational expert's testimony is consistent with the
information contained in the Dictionary of Occupational Titles. Thus, Plaintiff
failed to prove that a material inconsistency actually existed between the
"VE"'s testimony and the "DOT".
The ALJ applied the correct legal standards in
evaluating Plaintiff's case, and substantial evidence supports the ALJ's
finding that Plaintiff was not disabled.
C. CONCLUSION
For the foregoing reasons, the ALJ's decision is
consistent with the requirements of law and supported by substantial evidence.
Therefore, based on the application for a period of disability and disability
insurance benefits protectively filed on February 15, 2006, Plaintiff is not
disabled under sections 216(I) and 223(d) of the Social Security Act.
Based on the application for Supplemental
Security Income protectively filed on February 15, 2006, Plaintiff is not
disabled under section 1614(a)(3)(A) of the Social Security Act.
Accordingly, the decision of the Commissioner is
AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk of the
Court is directed to enter judgment dismissing this case and thereafter, to
close the file.
DONE AND ENTERED.
1. Both parties have consented to the exercise
of jurisdiction by a magistrate judge, and the case has been referred to the
undersigned by an Order of Reference signed by Judge Richard A. Lazzara dated
September 1, 2009. (Doc. 16).
2. Rheumatologists may be better qualified to
determine the effects of fibromyalgia because not all doctors are trained to
recognize this disorder. See Stewart, 2000 U.S. App. LEXIS 33214, at *8 (citation
omitted); see also Burroughs v. Massanari, 156 F.Supp. 2d 1350, 1367 (N.D. Ga
2001 (acknowledging that a specialist in rheumatology is better qualified to
diagnose fibromyalgia and determine its effects on an individual); 20 C.F. R. §
404.1527(d)(5) (stating that specialists' opinions on medical issues related to
their area of specialty are generally given more weight).
3. Transferability of job skills is not material
to the determination of disability because using the Medical-Vocational Rules
as a framework supports a finding that the claimant is "not
disabled," whether or not the claimant has transferable job skills. (SSR
82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
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