Social Security Cases

Social Security Judge Reversed By Ninth Circuit Court Of Appeals

Posted on November 27, 2013 by Judge London Steverson
2013 at 11:25 PM Deletedelete  Overlays edit   Comments comments (0)

Social Security ALJ Reversed By Ninth Circuit Court of Appeals

(CN) – A woman with multiple sclerosis who was improperly denied Social Security benefits cannot recover attorneys’ fees, the 9th Circuit ruled Tuesday.

In denying benefits to Jill Campbell, an administrative law judge, or ALJ, concluded that she failed to demonstrate that she was disabled because of multiple sclerosisas of June 30, 1996, the last date she was insured.

A unanimous three-judge panel of the 9th Circuit later concluded that this holding was in error, and Campbell moved for attorneys’ fees.

This time, a divided panel sided with Social Security Commissioner Michael Astrue.

“In this case, the ALJ had to determine whether Campbell’s multiple sclerosis rendered her disabled by June 30, 1996,” the unsigned decision states. “The ALJ did not have any records from 1996 to examine. Instead, the ALJ had medical records from 1989 and 2000. The ALJ also had to consider circumstantial evidence that Campbell cared for her children and worked during that time, which justified doubts that Campbell was fully disabled. While the ALJ erred in her determination, the fact that she was trying to extrapolate what Campbell’s injury may have been in 1996 from other evidence regarding a disease which may worsen at varying rates leads this court to conclude that the ALJ’s decision was ‘substantially justified.'”

Campbell cannot collect attorneys’ fees but is entitled to recover $805 in filing costs, according to the Tuesday ruling.

Judge Kim Wardlaw dissented from the opinion, arguing that her colleagues had misinterpreted the Equal Access to Justice Act.

The dissent cites Campbell’s testimony to the ALJ her symptoms generally progressed between 1995 and 1996 with several periods where she found it difficult to get out of bed. Cambell testified that she was sometimes forced to crawl to the bathroom or scoot on her butt to descend stairs.

Wardlaw emphasized that the ALJ discounted Campbell’s testimony despite the fact that “not a single physician contradicted Campbell’s description of her disability as of her last date insured.” (Emphasis in original.)

“The commissioner was not ‘substantially justified’ in failing to apply the clearly established law that compelled the result we reached in this case,” Wardlaw added. “Nor was the government justified in defending the agency’s erroneous decision through multiple stages of litigation at taxpayer expense.”

Citing precedent, Wardlaw said that “neither Campbell nor her attorney should be made to bear the burden of the ALJ’s egregious error, and the government’s zealous defense of it. Congress enacted the EAJA to prevent precisely such outcomes

http://www.courthousenews.com/2013/11/26/astrue.pdf

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Judges Hold Hearings But Issue No Decisions

Posted on October 10, 2013 by Judge London Steverson

Furloughed attorney waits and worries that Social Security appeals will be delayed

Elisa Wayne 2

Ken Scarboro/KPCC

Elisa Wayne, a furloughed SSA attorney, holding the letter she was given to provide creditors – notifying them of her status and requesting leniency.

The Social Security Administration announced that during the partial shutdown of the federal government, benefits checks will still go out — a big relief to millions of people who depend on that income.  But the agency has still had to furlough some of its employees.

Elisa Wayne is one of them. Wayne works as an attorney in the Social Security Administration (SSA) Office of Disability Adjudication and Review.

But on the first day of the shutdown, she was in her downtown LA office for just an hour.  She left on furlough with a letter provided by her supervisor, explaining why she might not be able to make timely payments on her bills.

“They said, ‘here, make a bunch of copies, and if you need it, give it to whoever you need to, you know, to whoever your creditors are,’”  Wayne told KPCC.  Then she read some lines from the letter:

To whom this may concern:  I am writing to you on behalf of the Social Security Association employees to ask for your assistance at a time of personal financial hardship,

Congress and the president have not reached agreement on the appropriations bill for SSA.  Since SSA has no funding at this time to pay employee salaries, we have been required to furlough employees.  This action will make it exceedingly difficult for many employees to meet their financial obligations

I would appreciate any assistance you can provide in arranging the postponement,  temporary reduction or rescheduling of payments for any current financial obligation with your organization.

‘Less Freaked Out’

Wayne was also furloughed when the federal government shut down during the Clinton Administration in 1995 and 1996.  After missing a few weeks of work, she says she was paid retroactively.  She hopes that will be the case this go-round.

“I’m less freaked out than some of the new hirees who don’t really know what to expect,” Wayne said.

An attorney with more than twenty years of government service, Wayne earns more than $100,000 a year. She’s on her own and her monthly expenses include an apartment in Brentwood.  She paid her monthly rent of $2500 the day government shutdown began and hopes she won’t have to send one of those letters to her landlord next month.

“I don’t have a big cushion between paychecks, like maybe a couple hundred dollars that I can squirrel away somewhere,” Wayne says.

Shutdown makes ‘a farce’ of disability hearings

Wayne knows she’s lucky compared to the people who depend on her work. When Social Security disability benefits are denied, applicants can appeal the decision in hearings held before judges in her office.  But Wayne says she and nine other attorneys working in the downtown LA office are furloughed.

On its web site, the SSA says during the shutdown, hearings offices remain open to conduct hearings before an Administrative Law Judge.  There are 18  hearing offices in California, including locations in Los Angeles, Downey, San Bernardino, Long Beach, San Diego, Orange, and Pasadena.

Wayne says while the judges are still working and supposed to be running hearings,  “it’s really a farce, because there is nobody there to write the decisions,  which I do. ”

Wayne says that the furloughs are bound to delay an already slow decision-making process for people who are counting on their appeal, and might really need government assistance.

“This is life or death for them, waiting to hear,” Wayne says of the applicants. (Brian Watt)

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Social Security Benefits Can Be Terminated If A Judge Determines There Has Been Medical Improvement

Posted on May 2, 2012 by Judge London Steverson

SIMONE v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION

BARBARA A. SIMONE, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.

United States Court of Appeals, Eleventh Circuit.

Before HULL, MARCUS and BLACK, Circuit Judges.


Barbara Simone appeals from the district court’s order which affirmed the Administrative Law Judge‘s (“ALJ”) termination of her disability insurance benefits pursuant to 42 U.S.C. § 405(g).
On appeal, Simone argues that:
(1) substantial evidence did not support the ALJ’s determination that Simone’s medical condition had substantially improved as of May 1, 2005;
(2) substantial evidence did not support the ALJ’s determination that the improvement in Simone’s medical condition was related to her ability to do work; and
(3) the ALJ erred by failing to give greater weight to the opinion of Simone’s treating physician, Dr. Robert Bianco, regarding her ability to work. After thorough review, we affirm.
We review a Social Security decision “to determine if it is supported by substantial evidence and based on proper legal standards.”  Substantial evidence consists of “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Id. (quotation omitted). The burden rests with the claimant to prove that she is disabled and entitled to Social Security benefits. See 20 C.F.R. § 404.1512(a).
An ALJ may terminate a claimant’s benefits upon finding that there has been medical improvement in the claimant’s impairment or combination of impairments related to the claimant’s ability to work and the claimant is now able to engage in substantial gainful activity. 42 U.S.C. § 423(f)(1). To determine whether disability benefits should be terminated, the ALJ must conduct a multi-step evaluation process and determine:
(1) Whether the claimant is engaging in substantial gainful activity;
(2) If not gainfully employed, whether the claimant has an impairment or combination of impairments which meets or equals a listing;
(3) If impairments do not meet a listing, whether there has been medical improvement;
(4) If there has been improvement, whether the improvement is related to the claimant’s ability to do work;
(5) If there is improvement related to claimant’s ability to do work, whether an exception to medical improvement applies;
(6) If medical improvement is related to the claimant’s ability to do work or if one of the first groups of exceptions to medical improvement applies, whether the claimant has a severe impairment;
(7) If the claimant has a severe impairment, whether the claimant can perform past relevant work;
(8) If the claimant cannot perform past relevant work, whether the claimant can perform other work.
See 20 C.F.R. § 404.1594(f).
First, we reject Simone’s claim that substantial evidence does not support the ALJ’s determination that Simone’s medical condition had substantially improved because the ALJ ignored evidence that she also continuously suffered from other severe cardiovascular conditions, specifically carotid artery disease.
To determine if there has been medical improvement, the ALJ must compare the medical evidence supporting the most recent final decision holding that the claimant is disabled with new medical evidence.  “Medical improvement” is defined as “any decrease in the medical severity of [the] impairment(s) which was present at the time of the most recent favorable medical decision that [the claimant was] disabled . . . .” 20 C.F.R. § 404.1594(b)(1); see also 20 C.F.R. § 404.1594(c)(1).
Here, substantial evidence supports the ALJ’s finding that there had been substantial improvement in Simone’s medical condition as of May 1, 2005.
As Simone’s medical records demonstrate, a February 23, 2005, echocardiogram showed that her cardiomyopathy had improved — showing an improved ejection fraction of approximately 50 percent, on the lower limit of normal — so that it no longer met the Medical Listing. Moreover, Simone’s treating cardiologist, Dr. Bianco, said in letters and treatment notes on several occasions between February 2002 and April 2005 that Simone’s cardiomyopathy was stable, she was doing well, and she was able to exercise, at one point walking up to one mile each day. Dr. John Bolla’s March and April 2005 notes and communications also support the ALJ’s finding of substantial medical improvement, as he reported that Simone exercised 30 minutes a day, 3 times a week; carotid artery sonography revealed mild stenosis of 30 percent bilateral internal carotid arteries, resulting in a diagnosis of “minor carotid artery disease”; she was doing very well, with no clinical signs of congestive heart failure; the most recent echocardiogram had demonstrated a normal ejection fraction of 50 percent; and the holter monitor had not demonstrated any significant abnormalities.
Although March 13, 2000, arteriograms showed mild to moderate (less than 50 percent) narrowing of the internal carotid arteries, high grade stenosis (greater than 90 percent) at the origin of the external carotid arteries, and moderate stenosis (50 to 60 percent) at the origin of the left vertebral artery, other medical records between 2000 and May 1, 2005, demonstrated that Simone’s carotid artery disease was not a major focus of her medical treatment and that it perhaps even improved during this time period. Dr. Bianco’s medical notes included carotid artery disease in his assessment on April 25, 2001, but most of his later assessments did not include that diagnosis. Dr. Bianco also noted no symptoms of carotid artery disease, such as a carotid bruit, between April 25, 2001, and April 2005. Furthermore, as the ALJ noted, Simone’s February 25, 2005, Doppler sonography tests revealed mild (30 percent) bilateral internal carotid artery stenosis — which is a significant improvement over the March 2000 test results. And finally, the fact that, in 2008, Simone underwent two surgeries to treat her carotid artery disease is not relevant to whether her medical impairment had medically improved as of May 1, 2005, the date on which her disability ended.
We are also unpersuaded by Simone’s claim that substantial evidence did not support the ALJ’s determination that the improvement in Simone’s medical condition was related to her ability to do work. If the ALJ determines that there has been medical improvement, then he must determine whether that improvement is related to the claimant’s ability to do work. See 20 C.F.R. § 404.1594(f)(4). The regulations provide that “[m]edical improvement is related to [the claimant’s] ability to work if there has been a decrease in the severity . . . of the impairment(s) present at the time of the most recent favorable medical decision and an increase in [the claimant’s] capacity to do basic work activities . . . .” 20 C.F.R. § 404.1594(b)(3). The regulations provide specific instructions for how this determination will be made if the claimant’s previous disability determination was based on the fact that her impairment met or equaled the severity contemplating by the Listing of Impairments:
If [the Social Security Administration’s] most recent favorable decision was based on the fact that [the claimant’s] impairment(s) at the time met or equaled the severity contemplated by the Listing of Impairments in appendix 1 of this subpart, an assessment of [the claimant’s] residual functional capacity would not have been made. If medical improvement has occurred and the severity of the prior impairment(s) no longer meets or equals the same listing section used to make [the] most recent favorable decision, [the Social Security Administration] will find that the medical improvement was related to [the claimant’s] ability to work.. . . If there has been medical improvement to the degree that the requirement of the listing section is no longer met or equaled, then the medical improvement is related to [the claimant’s] ability to work.
20 C.F.R. § 404.1594(c)(3)(i).
In this case, the ALJ properly determined that, because the February 2005 echocardiogram showed an improved ejection fraction of 50 percent, in combination with evidence from her other medical records, Simone no longer had an impairment or combination of impairments equal to the same listing that was met at the time of her last disability determination. Simone’s initial disability determination was based on her diagnosis for cardiomyopathy and the fact that the results of the November 2001 echocardiogram showed an ejection fraction of 15 percent. This diagnosis met the requirements for Medical Listing 4.02(B), which, among other factors, required a documented ejection fraction of 30 percent or less. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, Medical Listing 4.02(B) (2002). Thus, no assessment of Simone’s residual functional capacity was made at the time of her initial disability determination. See 20 C.F.R. § 404.1594(c)(3)(i). Because Simone no longer met or equaled the same listing that she met when she was previously found disabled, substantial evidence necessarily supports the ALJ’s finding that her medical improvement was related to her ability to do work. See id.
Finally, we find no merit to Simone’s argument that the ALJ erred by failing to give greater weight to the opinion of Simone’s treating physician, Dr. Bianco, regarding her ability to work. “[T]he opinion of a treating physician is entitled to substantial weight unless good cause exists for not heeding the treating physician’s diagnosis.”  see 20 C.F.R. § 404.1527(d)(2) (providing that, generally, more weight is given to opinions from treating sources). However, we have found “good cause” to afford less weight to a treating physician’s opinion where the opinion is conclusory or inconsistent with the physician’s own medical records or where the evidence supports a contrary finding. Furthermore, the ALJ “is free to reject the opinion of any physician when the evidence supports a contrary conclusion.” 
On this record, the ALJ did not err by discounting the Dr. Bianco’s opinions regarding Simone’s ability to work. As for Dr. Bianco’s residual functional capacity evaluation, Dr. Bianco provided no information about any clinical data or other objective medical evidence on which he based his opinion, only signing the form in the space provided for that information. Dr. Bianco’s response to Simone’s counsel’s letter requesting confirmation that the residual functional capacity evaluation was not contradicted by his treatment notes provided no additional support for his opinion. And, the December 29, 2005, and April 4, 2007, letters Dr. Bianco wrote “[t]o whom it may concern,” expressing his opinion that Simone was still disabled and unable to work, were also not supported by any medical evidence.
Moreover, substantial evidence supports the ALJ’s determination that Dr. Bianco’s opinions regarding Simone’s ability to work were contradicted by his treatment notes and other medical evidence. As discussed previously, the February 2005 echocardiogram demonstrated an improved ejection fraction of approximately 50 percent, on the lower limit of normal. In addition, Dr. Bianco’s own letters and treatment notes reported on several occasions between February 2002 and April 2005 that Simone’s cardiomyopathy was stable, she was doing well, she was able to walk up to one mile each day, and she stayed active caring for her mother. Further, Dr. Bolla’s notes and communications demonstrated that Simone exercised 30 minutes a day, 3 times a week, she was doing very well, with no clinical signs of congestive heart failure; the 2005 echocardiogram demonstrated a normal ejection fraction of 50 percent; and the holter monitor had not demonstrated any significant abnormalities. Lastly, the ALJ adequately set forth his reasons for discounting Dr. Bianco’s opinions regarding Simone’s ability to work, as he explained that he gave no weight to Dr. Bianco’s opinions because they were inconsistent with Bianco’s treatment notes and objective medical evidence. Accordingly, we affirm.
AFFIRMED.
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If Your Treating Doctor Says Your Are Disabled, The Judge Must Grant You Benefits.

Posted on April 26, 2012 by Judge London Steverson

TALLEY v. ASTRUE

April 11, 2012.

Modern Social Security card.

Modern Social Security card. (Photo credit: Wikipedia)

MEMORANDUM OPINION AND ORDER

BETH DEERE, Magistrate Judge.
Plaintiff Brenda L. Talley appeals the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying her claim for Disability Insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”) and Supplemental Security Income (“SSI”) under Title XVI of the Act. For the following reasons, the decision of the Commissioner must be REVERSED and REMANDED.
I. Background:
Ms. Talley filed for DIB and SSI on May 15, 2008, claiming disability since June 23, 2007. Ms. Talley alleged that she was disabled as a result of diabetes, arthritis, anxiety, morbid obesity, malabsorption syndrome, agoraphobia, hypertension, supraventricular tachycardia, obsessive compulsive disorder, neuropathy, retinopathy, endometriosis, degenerative joint disease, chronic insomnia, and deep vein thrombosis. After denials initially and upon reconsideration, Ms. Talley requested a hearing before an Administrative Law Judge (“ALJ”).  The ALJ held a hearing on July 6, 2009, at which Ms. Talley appeared with her attorney and testified.  The ALJ also heard testimony from a vocational expert.
The ALJ issued a decision on November 4, 2009, finding that Ms. Talley was not disabled for purposes of the Act. On January 20, 2011, the Appeals Council denied her request for review, making the ALJ’s decision the Commissioner’s final decision.

At the time of the hearing before the ALJ, Ms. Talley was 47 years old and was living alone in a house next door to her mother and brother. (Tr. 19, 40-41) She had previous work as a registered nurse.

II. Decision of the Administrative Law Judge:
The ALJ followed the required five-step sequence to determine: (1) whether the claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a severe impairment; (3) if so, whether the impairment (or combination of impairments) met or equaled a listed impairment; (4) if not, whether the impairment (or combination of impairments) prevented the claimant from performing past relevant work; and (5) if so, whether the impairment (or combination of impairments) prevented the claimant from performing any other jobs available in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)-(g); 416.920(a)-(g).
The ALJ found that Ms. Talley had not engaged in substantial gainful activity since her alleged disability onset date but noted that she had received unemployment benefits into the first quarter of 2008, indicating she was available and willing to return to work during that period.  The ALJ also found that Ms. Talley had the following severe impairments: diabetes mellitus, back disorder (degenerative arthritis), obesity, and mood disorder.  According to the ALJ, Ms. Talley did not have an impairment or combination of impairments, however, that met or equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1526, 416.926).
The ALJ determined that Ms. Talley retained the residual functional capacity (“RFC”) to perform sedentary work except as follows: she could occasionally lift/carry ten pounds and frequently lift/carry less, stand/walk for two hours; occasionally climb, balance, crawl, kneel, stoop, and crouch. She had moderate restriction in her ability to maintain the activities of daily living, social functioning, and concentration, persistence, and pace. She was moderately limited in her ability to understand, remember, and carry out detailed instructions; make judgments on simple work related decisions; interact appropriately with the public; and respond appropriately to usual work situation and routine work changes. She could perform work where interpersonal contact was incidental to the work performed, complexity of tasks is learned and performed by rote, with few variables, little judgment was required, and supervision was simple, direct, and concrete.
The ALJ concluded that Ms. Talley could not perform her past relevant work as a registered nurse. (Tr. 58) Relying on the vocational expert’s responses to interrogatories, the ALJ concluded Ms. Talley could perform work as a production worker, credit authorizer, or interviewer and that she was not disabled within the meaning of the Act.
III. Analysis:A. Standard of Review.

In reviewing the Commissioner’s decision, this Court must determine whether there is substantial evidence in the record as a whole to support the decision.  Substantial evidence is something less than a preponderance, but it must be, “sufficient for reasonable minds to find it adequate to support the decision.”

In reviewing the record as a whole, the Court must consider both evidence that detracts from the Commissioner’s decision and evidence that supports the decision; but, the decision cannot be reversed, “simply because some evidence may support the opposite conclusion.” 
B. Severe Impairments and Residual Functional Capacity
Ms. Talley complains that the ALJ erred by failing to find that her diabetic retinopathy, supraventricular tachycardia (SVT), peripheral neuropathy, and hip pain were severe impairments.  She also complains that the ALJ’s residual functional capacity assessment is not supported by substantial evidence in the record.
Ms. Talley had the burden of showing that her impairments were severe; however, this burden is not a great one.  Rather, step two of the sequential evaluation process provides a de minimus screening device to dispose of groundless claims. 
An impairment is severe if the effect of the impairment on the claimant’s ability to perform basic work is more than slight or minimal.  Basic work activities are the abilities and aptitudes necessary to do most jobs, such as hearing, standing, walking, sitting, lifting, handling, remembering simple instructions, using judgment, and dealing with changes in a routine work setting. 20 C.F.R. §404.1521. The Commissioner must resolve any doubt as to whether the required showing of severity has been made in favor of the claimant. SSR 85-28 at *4 (1985).
Once it is determined that an individual has a severe impairment for purposes of step two, the combined effect of all impairments are considered in determining an individual’s residual functional capacity, regardless of whether the impairments are labeled severe or non-severe. 20 C.F.R. §§ 404.1545(e) and 416.945(e).
In assessing residual functional capacity, the ALJ must give appropriate consideration to all of the claimant’s impairments, and base the assessment on competent medical evidence. Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011) (citations omitted). An ALJ should consider the quality of the claimant’s daily activities and the ability to sustain activities, interests, and relate to others over a period of time. The frequency, appropriateness, and independence of the activities must also be considered. Boettcher, 652 F.3d at 866 (internal quotation marks and citation omitted).
1. Diabetic Retinopathy
Ms. Talley claims that the ALJ erred by failing to find that her diabetic retinopathy was a severe impairment. The ALJ noted that Ms. Talley had been referred for an evaluation of diabetic retinopathy and stated that her diabetes could be expected to cause vision changes.  But he did not find her diabetic retinopathy to be a severe impairment; nor did he discuss Ms. Talley’s vision when assessing her residual functional capacity.
The Commissioner does not dispute that Ms. Talley was diagnosed with diabetic retinopathy, but argues that the diagnosis, by itself, does not indicate a severe impairment. This statement of the law is true, as far as it goes. However, the ALJ still had a duty to consider Ms. Talley’s diabetic retinopathy when considering her residual functional capacity, and it appears that he failed to do so.
In November, 2009, Ms. Talley was referred for an eye examination after complaints that her eyes were hurting. The records from Ms. Talley’s visit to an opthamologist in November, 2008, indicate that she had a history of retinal bleeding and glaucoma. In a narrative report dated November 13, 2009, Gary Russell, M.D., a physician at River Valley Medical Center, wrote that, according to her ophthalmologist, Ms. Talley had diabetic retinopathy with marked decrease in her vision and at least one retinal hemorrhage that was treated with laser therapy.  On November 19, 2009, Ms. Talley was seen at River Valley Christian Clinic (“River Valley”) complaining of vision problems. She was referred to an eye doctor.
At the hearing, Ms. Talley testified that she had glasses, but that they were for distance vision and not for reading.  She stated that she was no longer able to read the newspaper because her vision was impaired.  However, she was able to read a large-print Bible. She also testified that one reason she used a cane was to help her deal with her visual impairment because she had difficulty detecting depth and color change.

In spite of considerable evidence in the record indicating that Ms. Talley’s diabetic retinopathy has more than a minimal effect on her ability to work, it does not appear that the ALJ considered it when assessing her residual functional capacity. The ALJ found that Ms. Talley was capable of working as a production worker which, according to the Dictionary of Occupational Titles, would require her to frequently use near acuity and depth perception, and to occasionally use color vision. Employment and Training Admin., U.S. Dep’t of Labor, Dictionary of Occupational Titles (4th ed. rev. 1991).

 

Further, it does not appear that any consulting or examining source offered an opinion about the extent of visual limitation caused by Ms. Talley’s retinopathy. Remand is necessary for the ALJ to more fully and fairly develop the record regarding the extent of Ms. Talley’s visual impairment, if any.
2. Peripheral Neuropathy
On November 7, 2007, Kenneth Turner, M.D., diagnosed Ms. Talley with diabetic peripheral neuropathy. On September 18, 2008, Ms. Talley complained of numbness and tingling during her visit to River Valley.
At the hearing, Ms. Talley testified that her feet and legs were cold and numb bilaterally. She stated that she had problems with strength and grip, could not open jars, and dropped things.  She had difficulty holding a glass of milk because of problems with her grip.  She also stated that her peripheral neuropathy caused her knees to buckle, leading her to use a cane. (Tr. 30) She had difficulty getting up and down the three steps leading to her house.
In his opinion, the ALJ acknowledged Ms. Talley’s diabetic neuropathy and considered whether there was documentation of neuropathy in two extremities significant enough to meet a Listing.  He also noted that her diabetes could cause “tingling and numbness” in the hands or feet.
When assessing Ms. Talley’s residual functional capacity, however, the ALJ focused his assessment only on the neuropathy in her feet. He noted that she had reported numbness, tingling, and pain in her feet.  The ALJ stressed, however, that the orthopedic specialist had found that she had normal gait, that her neurovascular status was intact, and that she had positive straight leg tests.  The ALJ concluded that Ms. Talley could sit for six hours; stand/walk for two hours; and could occasionally climb, balance, crawl, kneel, stoop, or crouch.
The ALJ did not address the evidence in the record indicating that Ms. Talley’s peripheral neuropathy also affected her hands. He did not limit her residual functional capacity in any way related to her hands and concluded she could perform work as a credit authorizer and interviewer — jobs that require frequent handling. 

The ALJ’s failure to fully account for Ms. Talley’s peripheral neuropathy in assessing residual functional capacity is error. Again, it does not appear that any examining medical professional had ordered a nerve conduction study of Ms. Talley or had offered an opinion as to the extent of the limitation caused by her peripheral neuropathy. On remand, the Commissioner should consider the effect, if any, that Ms. Talley’s peripheral neuropathy in her legs, hands, and feet has on her residual functional capacity.
3. Hip Pain
Ms. Talley alleges that it was error for the ALJ not to conclude that her hip pain was a severe impairment. The ALJ acknowledged Ms. Talley’s complaints of hip pain at various points in his opinion. He noted that Ms. Talley complained of hip pain to Dr. Turner, who recorded in treatment notes that Ms. Talley had a right hip that “pops out at times.”
The ALJ also acknowledged that Ms. Talley was examined by Owen Kelly, M.D., at Arkansas Orthopaedic Institute in November, 2007.  Dr. Kelly took x-rays of Ms. Talley that revealed some degenerative disc disease.  On examination, he noted that she had normal gait, but tenderness of the greater trochanter bursa and around the lumbosacral area. He diagnosed low back pain, degenerative disc disease, and right leg radiculopathy. He ordered an MRI of Ms. Talley’s lumbar spine, but she reported to Dr. Turner that she was unable to have the test because of her financial situation.
On October 2, 2008, Ms. Talley complained of hip pain during a visit to Stanley Teeter, M.D., at River Valley.  She was diagnosed with degenerative arthritis in her hip. Dr. Teeter prescribed Etodolac but, as the ALJ noted, that medication was discontinued due to gastritis.
At her hearing, Ms. Talley testified that Dr. Teeter had told her she had “bone against bone” on her right hip, and that her hip socket was degenerated.  She stated that he had advised her to keep as much weight as possible off of it, so she used a cane.  Additionally, Ms. Talley testified that she was not able to bend down to pick up objects that dropped on the floor.  She relied on her brother or mother to come to her house and do that for her.
The ALJ discounted the effects of Ms. Talley’s hip pain, noting that no surgical treatment was recommended. However, Dr. Kelly, the orthopedic specialist, had ordered an MRI in order to have a complete work-up on Ms. Talley, but she was not able to have the test because of her limited financial resources. She never returned to Dr. Kelly, but instead continued to seek treatment for hip pain from her general practitioners at the free clinic. 

Further, the ALJ noted that none of Ms. Talley’s doctors had restricted her activities. However, Ms. Talley’s testimony contradicts this assertion. She testified that Dr. Teeter had advised her to keep as much weight off of her hip as possible. The ALJ’s opinion does not offer any explanation for discrediting this testimony.
Further, Dr. Russell, one of Ms. Talley’s treating physicians, stated that Ms. Talley was unable to sit or stay in one position for an extended period of time. While the ALJ did not have Dr. Russell’s assessment at the time he wrote his opinion, the Court may consider that opinion, which was available to, and considered by, the Appeals Council. The court’s role is to determine whether the ALJ’s decision is supported by substantial evidence including the evidence submitted after the determination was made.
The ALJ’s conclusion that Ms. Talley could perform sedentary work and could occasionally climb, balance, crawl, kneel, stoop, and couch is not supported by substantial evidence in the record.
4. Mental Impairments
Ms. Talley also claims that the ALJ erred in assessing her mental impairments. The ALJ concluded Ms. Talley had moderate restriction in activities of daily living; in her social functioning; and in concentration, persistence, and pace.  He noted that she was hospitalized in 2001 following a suicide attempt.  The ALJ found that Ms. Talley’s mood disorder was a severe impairment, but he concluded that she maintained the residual functional capacity for unskilled work.
Ms. Talley points out that the ALJ declined to discuss the mental consultative examination performed by Don Ott, Psy.D., on September 17, 2008.  Dr. Ott observed that, during the examination, Ms. Talley’s affect was rigid and flat. He stated that she made very little eye contact, and that her voice was tired and resigned. She seemed distracted and talked excessively during the evaluation.  Dr. Ott concluded that Ms. Talley’s social interaction was “fairly limited.”  Her concentration was impaired, and her capacity to cope with the mental demands of work was deficient. Dr. Ott diagnosed Ms. Talley with major depressive disorder, recurrent, moderate and assigned a GAF score of 50-60.
The Commissioner points out that the ALJ addressed Dr. Ott’s opinion by stating, “the opinions of the claimant’s examining and treating physicians are given substantial weight consistent with 20 C.F.R. 404.1527.” Further, he argues that Dr. Ott’s opinion is not contradictory to the ALJ’s assessment of Ms. Talley’s residual functional capacity, pointing out that Dr. Ott “never opined as to Plaintiff’s actual limitations in concentration or any work-related domain.” 

The ALJ’s handling of Dr. Ott’s opinion was inadequate. As explained in Social Security Ruling 96-6p, administrative law judges and the Appeals Council are not bound by findings made by State agency or other program physicians and psychologists, but they cannot ignore these opinions and must explain the weight given to the opinions in their decisions. SSR 96-6p (1996). Dr. Ott’s opinion that Ms. Talley’s concentration was impaired and that her ability to cope with the mental demands of work was deficient should have at least been addressed by the ALJ in his opinion.
The ALJ’s assessment of Ms. Talley’s treatment records was also deficient. In his opinion, the ALJ based his residual functional capacity assessment on the July, 2008 assessment of Richard H. Sundermann, Jr., M.D. (Tr. 443-44) Dr. Sundermann recounted Ms. Talley’s history of depression and anxiety. He noted that she had been unable to afford Effexor and had switched to a generic, but had been unable to afford even an adequate dose of the generic drug. He diagnosed Ms. Talley with moderate, recurrent major depressive disorder and prescribed Effexor, which he could supply to her through a patient assistance program.
The ALJ states the Effexor resulted in fewer suicidal thoughts and an improved mood. He summarized the remaining treatment notes by stating that Ms. Talley continued to attend therapy sessions and medication management, “with a few more changes in the medications and improvement of her mood.” Based on this analysis of Ms. Talley’s treatment records, the ALJ concluded that she could perform unskilled work.
The ALJ’s assessment that Ms. Talley’s depression and anxiety were controlled with medication and therapy is not supported by substantial evidence in the record. In April, 2008, Ms. Talley complained of increased anxiety and depression to Dr. Turner. He referred her to Counseling Associates noting that, “[s]he is not actually suicidal but needs more intensive care for depression than I can provide alone.”  In May of 2008, Ms. Talley called Dr. Turner’s office seeking samples of Effexor because she could not purchase her medication.  He was unable to provide samples of Effexor and changed her medication to Cymbalta.
On June 4, 2008, Ms. Talley presented to Counseling Associates complaining of anxiety and depression since she was a child. She reported daily symptoms of depression and anxiety, stating that her social anxiety was so severe that she remained isolated and felt like a failure. She was initially diagnosed with major depressive disorder, recurrent, moderate, without psychotic features, and anxiety disorder with agoraphobia. She was assigned a GAF score of 50. (Tr. 331-336)
On July 9, 2008, Dr. Sundermann evaluated Ms. Talley. He noted that she had a difficult time digesting her food and medicine because she had undergone gastric bypass surgery in 2001. He stated that Prozac, which Ms. Talley had previously taken with good result, had stopped working. She reported a failed suicide attempt years earlier, which had resulted in her being psychiatrically hospitalized for seven days.  Dr. Sundermann prescribed Effexor XR and therapy.
On August 26, 2008, Ms. Talley began therapy with Erin Willcutt, LAC. On September 8, 2008, Ms. Talley was evaluated by Sam Hernandez, APN. Progress notes from the visit indicate that Ms. Talley reported that her depression seemed worse and that she wanted to stay in bed most of the time.  She was observed to have a flat affect and admitted to having fleeting suicidal thoughts with a plan at times. Nurse Hernandez increased her Effexor, and Ms. Talley agreed to allow her brother to help her manage her medications. 

During a therapy session on September 12, 2008, Ms. Talley seemed to be doing better.  But on October 1, 2008, her therapist noted that her response to treatment has been “marginal,” and her anxiety level was very high.  On October 6, 2008, Ms. Talley returned to Nurse Hernandez, who noted that she seemed to be doing quite a bit better.
Ms. Talley returned to see Ms. Willcutt on October 14, 2008. Ms. Willcutt noted that Ms. Talley seemed to be doing a little better, but still has difficulty getting motivated to do things to improve her situation.  During visits on November 12, 2008, and December 9, 2008, Ms. Talley reported doing better.  On December 11, 2008, Nurse Hernandez diagnosed major depressive disorder, recurrent, moderate and continued her on Effexor and individual therapy.
On January 15, 2009, Ms. Talley reported feeling a little more depressed, but she returned on February 4, 3009, to report feeling better.
Ms. Willcutt noted that at her session on March 6, 2009, Ms. Talley had a depressed mood. She noted that Ms. Talley was not doing as well as she had been at her last visit and reported feeling very depressed after her mother had yelled at her.
Ms. Talley was examined by Roy Ragsdill, M.D., on April 7, 2009. Ms. Talley complained to Dr. Ragsdill of problems with her mother and social anxiety. He suggested adding dependent personality traits to her diagnosis and noted that Ms. Talley had only a “partial response to Effexor” but that he was “reluctant” to change her medications.  He continued her medications and suggested an increase in therapy to weekly.
Ms. Willcutt reported that on April 21, 2009, Ms. Talley’s response to therapy was “minimal” and her thought patterns were “very negative.” Ms. Willcutt suggested that they increase their sessions.
On May 5, 2009, Ms. Talley was noted to have a very depressed mood, negative thought process, and very tearful behavior. Ms. Talley admitted to thoughts of wanting to die and not wanting to go on, but denied any plan or intent to harm herself. Ms. Willcutt discussed possible acute care with Ms. Talley, but she rejected the idea because she had formerly worked at the acute unit and felt this would make her feel like more of a failure. 

Ms. Willcutt noted that cognitive therapy was minimally successful and noted her intention to meet with her case manager and discuss the case with Ms. Talley’s psychiatrist.  Ms. Willcutt recommended an increased level of care for Ms. Talley with weekly therapy and meetings twice per month with her case manager.
Notes from Ms. Talley’s May 20, 2009 therapy session indicate that she exhibited depressed mood, negative thought process, and no change in behavior of functioning. On June 16, 2009, Dr. Ragsdill examined Ms. Talley. He noted that her mood was somewhat better, but discussed with her the possibility of adding lithium as an augmentation to her treatment. Ms. Talley rejected the idea.
Notes from Ms. Talley’s therapy session with Ms. Willcutt on November 18, 2009, indicate that Ms. Talley’s response to therapy was not positive.  She stated, “Brenda is very depressed and apathetic about her current living situation. She was very negative in session and reports having no energy to do or work on current situation. She reports feeling like `Brenda’ is slipping away.”  Ms. Willcutt noted that “Brenda is isolating and avoiding friends, family, and appointments when possible.” She recommended that Ms. Talley increase the frequency of her therapy sessions and case management appointments.
Ms. Willcutt met with Ms. Talley again on December 9, 2009.  She noted that Ms. Talley’s mood was depressed and overwhelmed; her thoughts were negative; and her behavior was anxious. Ms. Talley reported difficulties living with her mentally ill mother and brother. Ms. Willcutt noted that Ms. Talley’s activity level was “significantly reduced.”
On December 9, 2009, Ms. Talley was also seen by her psychiatrist, Dr. Ragsdill. He noted that Ms. Talley was walking with a cane, was anxious, and did not want to go out much. He assessed that she was having an “incomplete response” to her antidepressant regimen. He increased her Effexor to the maximum dose and added lithium.
In a treatment and prognosis summary dated December 13, 2009, Ms. Willcutt noted that Ms. Talley’s depression and anxiety had increased over the past several months. She pointed out that Ms. Talley’s thought patterns were increasingly negative and her anxiety was more apparent. She stated that she had agreed with her current diagnosis of major depressive disorder, recurrent, moderate to severe and anxiety disorder NOS and stated that, in her opinion, Ms. Talley’s prognosis was guarded, due to the recurrent nature of her mental disorder and severe stressors.
Evidence from treating sources are generally accorded great weight because they are most able to provide a longitudinal picture of a claimant’s impairments. 20 C.F.R. § 416.927. The ALJ had access to Ms. Talley’s treatment records from Counseling Associates through June, 2009, but opted to focus on the first few months of her treatment, when she showed some signs of improvement. The Appeals Council had access to Ms. Talley’s records through December, 2009, but concluded that the information did not provide a basis for changing the ALJ’s decision. The Court disagrees. 

The treating source records, taken as a whole, indicate that Ms. Talley’s depression and anxiety had not improved on medication but, in fact, steadily declined after March of 2009. The ALJ erred by failing to address Dr. Ott’s opinion and by relying on a six-month snapshot of Ms. Talley’s treatment records when assessing her mental residual functional capacity.
IV. Conclusion
After consideration of the record as a whole, the Court concludes that the decision of the Commissioner is not supported by substantial evidence. The Commissioner’s decision is reversed and remanded for action consistent with this opinion. 
IT IS SO ORDERED.
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If Am Employer Will Allow Reasonable Accommodations To Allow A Person To Work, He Is Not Disabled

Posted on April 11, 2012 by Judge London Steverson

HIBSHMAN v. ASTRUE

 

 

 

MEMORANDUM OPINION AND ORDER
D BETH DEERE, Magistrate Judge.
Plaintiff Steven L. Hibshman appeals the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying his claim for Supplemental Security income (“SSI”) under Title XVI of the Social Security Act (the “Act”). For reasons set out below, the decision of the Commissioner is AFFIRMED.
I. Background:
On April 17, 2008, Mr. Hibshman protectively filed for SSI alleging disability beginning the same date due to depression, anxiety, agoraphobia, asthma, high blood pressure, reflux, back and neck pain, and migraine headaches. Mr. Hibshman’s claims were denied initially and upon reconsideration. At his request, an Administrative Law Judge (“ALJ”) held a hearing on January 27, 2010, at which Mr. Hibshman appeared with his lawyer. At the hearing, the ALJ heard testimony from Mr. Hibshman and a vocational expert (“VE”).
The ALJ issued a decision on August 16, 2010, finding that Mr. Hibshman was not disabled for purposes of the Act. On November 5, 2010, the Appeals Council denied his request for review, making the ALJ’s decision the Commissioner’s final decision.
Mr. Hibshman was thirty-seven years old at the time of the hearing. He had an eighth-grade education and had worked as a carpenter and lumber yard laborer.  At the time of the hearing, he lived with his wife and children.

II. Decision of the Administrative Law Judge:
The ALJ followed the required five-step sequence to determine: (1) whether the claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a severe impairment; (3) if so, whether the impairment (or combination of impairments) met or equaled a listed impairment; (4) if not, whether the impairment (or combination of impairments) prevented the claimant from performing past relevant work; and (5) if so, whether the impairment (or combination of impairments) prevented the claimant from performing any other jobs available in significant numbers in the national economy. 20 C.F.R. § 416.920(a)-(g).
The ALJ found that Mr. Hibshman had not engaged in substantial gainful activity since his alleged onset date. And he found that Mr. Hibshman had the following severe impairments: anterior compression T-11, degenerative joint disease of the hands and right knee, hypertension, asthma, depression, and anxiety. The ALJ found Mr. Hibshman did not have an impairment or combination of impairments, however, that met or equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § 416.926).
The ALJ determined Mr. Hibshman had the residual functional capacity to perform light work, except that he would have to have a sit/stand option, and was limited to jobs that involved simple tasks, simple job instructions, and only incidental contact with the public. He found Mr. Hibshman could not perform his past relevant work.  Relying on the testimony of the VE, he found, however, that Mr. Hibshman had the residual functional capacity to perform jobs that existed in significant numbers in the national economy.
III. Analysis:
A. Standard of Review
In reviewing the Commissioner’s decision, this Court must determine whether there is substantial evidence in the record as a whole to support the decision.  Substantial evidence is “less than a preponderance, but sufficient for reasonable minds to find it adequate to support the decision.”

In reviewing the record as a whole, the Court must consider both evidence that detracts from the Commissioner’s decision and evidence that supports the decision; but, the decision cannot be reversed, “simply because some evidence may support the opposite conclusion.” 
Mr. Hibshman’s main complaint is that the ALJ did not properly consider his low Global Assessment of Functioning (“GAF”) scores that ranged from 45 to 55. The Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (“DSM-IV”), published by the American Psychiatric Association, states that a GAF score of 41 to 50 generally indicates serious impairment in social, occupational, or school functioning. (DSM-IV 32) The DSM-IV is, however, a classification of mental disorders that was developed for use in clinical, educational, and research settings. Specific diagnostic criteria included in the DSM-IV are meant to serve as guidelines to augment clinical judgment and are not meant to be used in a cookbook fashion. A GAF score does not have a direct correlation to the severity requirements in mental disorders listings. 65 Fed.Reg. 50746, 50764-65 (2000).
Here, the ALJ acknowledged Mr. Hibshman’s GAF scores but explained why they were not controlling. As the ALJ noted, a GAF score of 45 was assigned to Mr. Hibshman in a treatment plan that was electronically co-signed by Terry Brown, D.O., and dated January 3, 2008. During his evaluation, Mr. Hibshman admitted that he had not been participating in individual therapy or case management since November, 2006. Further, progress notes from October of 2007, December of 2007, and March of 2008, indicate that Mr. Hibshman was getting along well with others, including his children. A progress note from August of 2008, notes that Mr. Hibshman had experienced a real change with medication and was getting out in public.
As the ALJ noted, throughout the records from Health Resources of Arkansas, Mr. Hibshman was assigned GAF scores of differing levels, but only two of these scores were assigned by an acceptable medical source as defined in the Social Security Regulations. 20 C.F.R. § 416.913(a); (licensed social worker not deemed an acceptable medical source). Too, his GAF score of 45 assigned by Dr. Brown must be considered together with the score assigned by Nancy A. Bunting, Ph.D. Dr. Bunting assessed Mr. Hibshman at 50-60 on the GAF scale after examining and testing him during a consultative examination on March 19, 2010. The sixteen other GAF scores for Mr. Hibshman, that were not assigned by an acceptable medical source, ranged from 45 to 65.
The ALJ did not err in his assessment of the GAF scores. He considered these scores, along with the other evidence in the record, but did not err by not giving the scores greater weight.  (ALJ may afford greater weight to medical evidence and testimony than to GAF scores when the evidence requires it).
C. Residual Functional Capacity

Mr. Hibshman claims the ALJ’s determination of his residual functional capacity (“RFC”) is not supported by substantial evidence because the ALJ did not properly account for his mental impairments. (#13 at p. 10) The ALJ bears “the primary responsibility for assessing a claimant’s residual functional capacity based on all relevant evidence.” A claimant’s residual functional capacity is a medical question, and at least some medical evidence must support the ALJ’s RFC determination.  The ALJ may reject the opinion of any medical expert that is inconsistent with the medical record as a whole. 
Here, the ALJ found that Mr. Hibshman was capable of performing light work,3 except that he had to have a sit/stand option. Additionally, the ALJ found that, because of Mr. Hibshman’s mental conditions, he was limited to work involving simple tasks, simple job instructions, and only incidental contact with the public.
Mr. Hibshman does not dispute that he was capable of light work with a sit/stand option, but claims the ALJ did not properly consider his mental impairments when assessing his RFC. Specifically, Mr. Hibshman argues that his treatment records from Health Resources of Arkansas, and specifically the GAF scores assigned to him, indicate that he had “very substantial limitations.”
Again, the ALJ appropriately considered and discussed Mr. Hibshman’s GAF scores. The ALJ also considered and discussed, at some length, the treatment records from Health Resources of Arkansas. Progress notes from Health Resources indicate that Mr. Hibshman was getting along well with others, including his children, and that he was getting out more when he was on prescribed medication. On May 7, 2009, Mr. Hibshman reported that he only came to therapy because “they are making me”; and a note from the following week indicates he had reduced his Xanax intake because his anxiety was controlled.
The ALJ also considered reports from two separate consultative psychological examinations of Mr. Hibshman performed by Dr. Bunting. On her first examination of Mr. Hibshman on July 9, 2008, Dr. Bunting diagnosed panic disorder without agoraphobia and major depressive disorder. She stated that a number of symptoms required to meet the criteria for these two diagnoses were “not really there,” because the symptoms “seem to be presently ameliorated by his medications.” She stated that during the examination Mr. Hibshman was able to communicate and interact in a socially adequate manner, but that he had a limited capacity to cope with typical cognitive demands and to sustain concentration. Dr. Bunting also noted that he was “guarded” and “appeared to give only minimal level of effort.” She stated that during the examination, he displayed a “bad attitude” and “a willingness to exaggerate symptoms.”
As the ALJ notes, Dr. Bunting reported that the exaggeration of symptoms, poor effort, and poor cooperation persisted at the second consultative examination.  Dr. Bunting administered the Minnesota Multiphasic Personality Inventory-2. She noted the profile was invalid, however, because Mr. Hibshman was responding to questions in “random fashion” and stopped paying attention, resulting in what she termed a “fake-bad” profile.
She also administered a Computerized Assessment of Response Bias (“CARB”) test which is given when a person is believed to be malingering.  The results from the CARB test showed very poor effort and were consistent with those of examinees who are consciously exaggerating the extent and nature of their symptoms or impairments.  Finally, Dr. Bunting noted that Mr. Hibshman gave “minimal effort on the Wechsler Adult Intelligence Scale-III (“WAIS-III”) examination which resulted in a full scale IQ of 71.

Dr. Bunting concluded that Mr. Hibshman: (1) was able to communicate and interact in a socially adequate manner; (2) was able to communicate in an intelligible and effective manner; (3) had the capacity to cope with the typical mental/cognitive demands of basic work-like tasks (noting his score on the IQ test was “very likely an underestimation of his abilities”); (4) had some ability to attend and sustain concentration on basic tasks; (5) was able to sustain his persistence during the testing session and interview; and (6) had some ability to complete work-like tasks within an acceptable time frame.
Mr. Hibshman argues that the ALJ failed to properly consider the opinions and findings of Joan Shepard, L.P.C., who completed a mental residual functional capacity questionnaire. In her response to the questionnaire, Ms. Shepard concluded that Mr. Hibshman had no useful ability to function in 18 of 25 areas used for evaluating an individual’s mental ability for unskilled work. Mr. Hibshman’s reliance on Ms. Shepard’s opinion is misplaced.
First, Ms. Shepard is a licensed counselor, not a licensed physician or psychologist. Under 20 C.F.R. § 416.913(a), a licensed or certified psychologist qualifies as an “acceptable medical source” who can provide evidence to establish a medically determinable impairment. The ALJ may consider “other sources” such as therapists and counselors to show the severity of an impairment and how it affects the claimant’s ability to work, but not to establish the impairment. See 20 C.F.R. § 416.913(d).
Second, the ALJ may reject any opinion that is inconsistent with the medical record as a whole. Martise v. Astrue, 641 F.3d at 909, 926 (8th Cir. 2011) (treating physician’s opinion properly discounted when inconsistent with treatment notes or with medical evidence as a whole). In this case, Ms. Shepard’s opinion is not consistent with the treatment records from Health Resources of Arkansas or with the opinions of Dr. Bunting.
There is substantial evidence to support the ALJ’s conclusion that Mr. Hibshman had the residual functional capacity for light work with a sit/stand option where the work is limited to jobs that involve simple tasks, simple job instructions, and only incidental contact with the public.
IV. Conclusion:
There is sufficient evidence in the record as a whole to support the Commissioner’s determination that Steven Hibshman was not disabled within the meaning of the Act. Accordingly, his appeal is DENIED, and the Clerk is directed to close the case, this 6th day of April, 2012.


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If You Can Still Do Your Past Relevant Work, You Are Not Disabled

Posted on April 11, 2012 by Judge London Steverson

GAY v. ASTRUE

United States District Court, M.D. Alabama, Northern Division.

 

 

 

MEMORANDUM OPINION AND ORDER
TERRY F. MOORER, Magistrate Judge.
Joseph Allen Gay, (“Plaintiff” or “Gay”) applied for supplemental security income (SSI) under Title XVI of the Social Security Act (“the Act”),  in October 2009. . Gay alleged that he became disabled on February 4, 2007 after a motor vehicle accident. Gay timely filed for and received a hearing before an administrative law judge (“ALJ“) who rendered an unfavorable decision on January 25, 2011.  Gay in turn petitioned for review to the Appeals Council who rejected review of Gay’s case on March 25, 1011.  As a result, the ALJ’s decision became the final decision of the Commissioner of Social Security (“Commissioner”). The parties have consented to entry of final judgment by the United States Magistrate Judge.
The Court’s review of the Commissioner’s decision is a limited one. The Court’s sole function is to determine whether the ALJ’s opinion is supported by substantial evidence and whether the proper legal standards were applied. 
“The Social Security Act mandates that `findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.'” Thus, this Court must find the Commissioner’s decision conclusive if it is supported by substantial evidence. Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. 
If the Commissioner’s decision is supported by substantial evidence, the district court will affirm, even if the court would have reached a contrary result as finder of fact, and even if the evidence preponderates against the Commissioner’s findings. The Court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. The Court “may not decide facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner],” but rather it “must defer to the Commissioner’s decision if it is supported by substantial evidence.”

 

The Court will also reverse a Commissioner’s decision on plenary review if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law. There is no presumption that the Commissioner’s conclusions of law are valid. 
II. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB“) provides income to individuals who are forced into involuntary, premature retirement, provided they are both insured and disabled, regardless of indigence.  The Social Security Act’s Supplemental Security Income (“SSI”) is a separate and distinct program. SSI is a general public assistance measure providing an additional resource to the aged, blind, and disabled to assure that their income does not fall below the poverty line. Eligibility for SSI is based upon proof of indigence and disability. However, despite the fact they are separate programs, the law and regulations governing a claim for DIB and a claim for SSI are identical; therefore, claims for DIB and SSI are treated identically for the purpose of determining whether a claimant is disabled. Applicants under DIB and SSI must provide “disability” within the meaning of the Social Security Act which defines disability in virtually identical language for both programs. A person is entitled to disability benefits when the person is unable to
Engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.
A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
The Commissioner of Social Security employs a five-step, sequential evaluation process to determine whether a claimant is entitled to benefits.

STEP (1) Is the person presently unemployed?

STEP (2) Is the person’s impairment(s) severe?
STEP (3) Does the person’s impairment(s) meet or equal one of the specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
STEP (4) Is the person unable to perform his or her former occupation?
STEP (5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of “not disabled.”

The burden of proof rests on a claimant through Step 4. Claimants establish a prima facie case of qualifying disability once they meet the burden of proof from Step 1 through Step 4. At Step 5, the burden shifts to the Commissioner, who must then show there are a significant number of jobs in the national economy the claimant can perform.

To perform the fourth and fifth steps, the ALJ must determine the claimant’s Residual Functional Capacity (RFC). RFC is what the claimant is still able to do despite his impairments and is based on all relevant medical and other evidence. Id. It also can contain both exertional and nonexertional limitations. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and work experience to determine if there are jobs available in the national economy the claimant can perform.  To do this, the ALJ can either use the Medical Vocational Guidelines (“grids”) or hear testimony from a vocational expert (VE). 
The grids allow the ALJ to consider factors such as age, confinement to sedentary or light work, inability to speak English, educational deficiencies, and lack of job experience. Each factor can independently limit the number of jobs realistically available to an individual. Id. at 1240. Combinations of these factors yield a statutorily-required finding of “Disabled” or “Not Disabled.” 
III. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
Gay testified that he was 53 years old and completed ninth grade.  Gay has not worked since 1998, nine years prior to his alleged onset date of February 4, 2007. In the past 15 years, Gay has worked as a forklift driver and furnace loader. Gay testified that he is now unable to work because of headaches, and balance and memory problems.  Gay claims that he has headaches about three to four times a week and he rates the headache pain as a ten on a ten point scale. Id. He testified that he has to lie down and rest for about four hours to relieve the pain.  Furthermore, Gay testified that his prescription Lortab does not eliminate his lower back pain.  He also testified that he has muscle spasms which start in his right arm and extend into his neck. Since August 2009, Gay has performed certain household chores, but he testified that the activities take longer to complete because of his dizziness.  Specifically he testified when he cuts wood, his hands stiffen and he has to sit down
The ALJ found that Gay had not engaged in substantial gainful activity since August, 24, 2009, the application date. He found that Gay’s status post-motor-vehicle accident in February 2007, his headaches, low back pain and hypertension were severe, but that he did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (2011).  The ALJ found that Gay retained the residual functional capacity (“RFC”) to perform the full range of medium work which involves lifting no more than 50 pounds at a time with frequent lifting or carrying up to 25 pounds. (Medium, unskilled.)  Alternatively, the ALJ found that Gay could perform other work that exists in significant numbers in the national economy by applying Medical-Vocational Rule 203.19.  Thus, the ALJ concludes that Gay was not disabled as defined by the Act.
IV. MEDICAL HISTORY

Gay’s medical records are spotty. The first submitted records show Gay was injured in a motor vehicle accident on February 6, 2007, was hospitalized and discharged on February 10, 2007.  The accident occurred when Gay ran a red light while intoxicated and struck another car.  Gay was admitted to the hospital on a ventilator and placed in the intensive care unit. Gay sustained a pulmonary contusion and subarachnoid hemorrhage from the wreck, but was neurologically intact, awake, alert and able to move all extremities. He made good progress over the next few days and was discharged on February 10, 2007.  The next records show Gay received medication management for hypertension while incarcerated in the Coffee County Jail in March and April of 2010.

In June, 2010, Gay saw Dr. John M. Allgood, a family practitioner, for the first time and requested medication for hypertension and pain.  He also complained of difficulty swallowing, and vision problems, lower back pain, dizziness, fainting and numbness in his feet. Id. Plaintiff had a normal examination. Specifically, Dr. Allgood found Gay had a normal general appearance and his cardiovascular, musculoskeletal and neurological systems were also normal. Dr. Allgood ordered laboratory tests , and found Gay had an H. pylori infection. He prescribed antibiotics and blood pressure medications for Gay.
Gay saw Dr. Allgood again on July 29, 2010 with complaints of shortness of breath, back and shoulder pain, spasms in his right upper arm and choking. Dr. Allgood found Gay’s blood pressure was elevated and he assessed esophageal reflux and intercostal myositis.  He prescribed antibiotics and medication for esophageal reflux.  On September 8, 2010 Gay complained of a bad cold and requested a muscle relaxer and pain medication.  Dr. Allgood diagnosed acute bronchitis, esophageal reflux and intervertebral disc degeneration and prescribed medications.  On November 10, 2010, Gay complained that he continued to have “some trouble swallowing” and needed refills of his pain medications.  Dr. Allgood diagnosed dysphagia, joint pain, and hypertension.  He prescribed pain medication and a muscle relaxant, as well as medication for esophageal reflux.
In connection with his application for benefits, Gay underwent two consultative examinations. Gay was seen by Dr. James O. Colley, a general surgeon, on November 23, 2009 for a physical and neurological examination  In December, 2009, Eugene E. Fleece Ph.D, a State agency physician, conducted a mental evaluation of Gay. Gay complained to Dr. Colley about constant headaches, difficulty swallowing, low back pain, sinusitis, possible obstructive sleep apnea, poor balance and hypertension. He said over-the-counter medications did not help his headaches and that his memory is failing.  Gay said that he could walk about a half a mile, sit without any difficulty, stand for about an hour before having balance problems, care for his own personal needs, sweep for 20-30 minutes, make the bed, do laundry and dishes, cook, and shop, but did not do yard work or drive. He stated that since his accident, he has reduced his drinking from about a case and a half of beer to a six-pack of beer per week.
Dr. Colley reported on physical examination that Gay spoke clearly was well-built, well-nourished, fully oriented and in no acute distress. Gay had normal gait, station and coordination and was able to squat and stand without assistance. He had full range of spinal and joint motion except for mild pain on full passive range of right shoulder motion. Gay had no trouble getting on and off the exam table and moving from a seated position to a standing position. (Tr. 222, 224-225). Gay also had full strength and normal sensation and reflexes. (Tr. 225). Dr. Colley noted a normal examination but diagnosed traumatic headaches, sinusitis, a history of dysphagia and alcohol abuse and myofacial upper thoracic spine pain. (Tr. 226).
Dr. Fleece stated in his “Mental Summary” of Gay that “[w]e don’t have any reason to think there is anything substantial to evaluate in terms of down memory, so would not suggest a CE.” In making this determination, Dr. Fleece asked his assistant, Gail F. Johnson, to contact Gay and ask him to give examples of his memory impairment. Gay gave the example of having to use a grocery list, and failing to remember the days of the week. Dr. Fleece dismissed the first as “not impressive” and the second as “very common”.  Furthermore, Dr. Fleece noted that Gay “rambled a good deal” when asked to give examples of memory impairments “as if he was trying to produce something in support of his allegation.”
Dr. Fleece also discounted Gay’s 2007 automobile accident as a cause of any “cognitive damage” because there were no records of such impairment over the last two years. Dr. Fleece noted Gay’s “vague” complaints of memory, understanding and dealing with others, but concluded he “does not sound withdrawn” because he cooks out with friends, watches games, and has a fianceé. Moreover, Dr. Fleece was unimpressed by Gay’s claim of confusion with changes, noting “he handles money well in all areas.”
V. ISSUES

Gay raises five issues for judicial review:
(1) Whether the ALJ failed to fulfill his duty to develop the record by not providing an RFC supported by a physician’s opinion? 
(2) Whether the ALJ failed to fulfill his duty to develop the record by not following the Psychiatric Review Technique Form. (PRTF)? 
(3) Whether the ALJ failed to address all the limitations of the claimant’s severe impairments in the RFC assessment? 
(4) Whether the ALJ considered past relevant work that was not substantial, gainful activity in finding that Gay is able to perform his past work as a forklift driver and furnace loader? 
(5) Whether the ALJ erred in relying on the testimony of Patrick Sweeney, the VE? 
VI. DISCUSSION

Substantial Evidence Supports the ALJ’s Finding that Plaintiff Could Perform a Full Range of Medium Work.6
The ALJ concluded that Gay had the residual functional capacity (“RFC”) to perform a full range of medium work.  The Commissioner’s decision is due to be affirmed “if it is supported by substantial evidence and the correct legal standards were applied.”  “Substantial evidence is less than a preponderance, but rather such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” 
In making this finding, the ALJ stated that he carefully considered the record as a whole. Indeed, the ALJ thoroughly summarized Gay’s complaints of headaches, dizziness, low back pain and high blood pressure and their severity as presented by Gay at the hearing before the ALJ. However, the ALJ noted a lack of any medical treatment for Gay from February, 2007 until he received treatment for hypertension during his incarceration at the Coffee County Jail in March and April 2010. The ALJ also relied on Dr. Colley’s consultative exam findings made in November, 2009, which detailed no objective findings which would corroborate Plaintiff’s complaints of pain, and Dr. Allgood’s treatment notes, beginning in June, 2010, which also showed few objective findings and in which he recommended only the most conservative treatment possible.  Thus, the court concludes that the ALJ’s determination is one that a reasonable person would accept, and therefore, substantial evidence exists to support the ALJ’s conclusion as to Gay’s RFC. 
Gay further argues that “the correct legal standards were [not] applied”,  since the RFC finding was not directly supported by a treating or examining physician’s opinion as required by Coleman v. Barnhart, 264 F.Supp. 1007. However, this court has previously addressed this very argument in, and distinguished Coleman on the basis of its facts and because the Coleman court gave no citation to any source of law requiring a physician’s assessment for the purposes of making an RFC determination. 
This court further explained that it was persuaded by the reasoning of Judge Foy Guin in Langley v. Astrue. Indeed, Langley disagreed with the Coleman reasoning finding that it “attempt[s] to place the burden of proving the claimant’s RFC on the Commissioner at step five” and this shifting of the burden is “inconsistent with the Commissioner’s regulations, Supreme Court precedent and unpublished decisions in this Circuit.”  Accordingly the Court concludes that Gay’s argument fails and the ALJ did not err in finding Plaintiff’s RFC without the benefit of a physician’s assessment in the record.
The ALJ Reasonably Evaluated Plaintiff’s Alleged Mental Problems.
Gay argues that the Commissioner’s decision should be reversed because the ALJ failed to fulfill his duty to develop the record by not completing a Psychiatric Review Technique Form (“PRTF”) or at least using its mode of analysis. The Commissioner argues that even if the ALJ should have included a PRTF, either by appending the document or incorporating the analysis, that the error was harmless and should not be a cause for reversal of the ALJ’s decision. See Diorio v. Heckler, 721 F.2d 726 (11th Cir. 1983) (holding error harmless where appropriate facts are applied to reach a conclusion and are supported by the record.)

The ALJ, discounted Gay’s allegations of mental problems stating that although he
“alleged some complaints in his activities of daily living; [Gay] however, testified that he is able to cook out with friends, watch sports games and he reported that he has a fiancee.” [sic]
Moreover, the record demonstrates that Gay could read and write, perform basic math, understand and respond to questions at the hearing before the ALJ, provide for his own personal care, prepare meals, do housework and some yard work and walk where he needed to go.  Additionally the record demonstrates that Gay was able to provide detailed and comprehensive information about his past medical history to Dr. Colley and Dr. Allgood.  Further, during the consultative examination with Dr. Colley, Gay was consistent, gave good effort, had clear speech, and was fully alert and oriented.  It is significant that Gay did not complain of any cognitive difficulties to his treating physician, Dr. Allgood and the record contains no medical source observations of any sort of cognitive or mental problems.
Additionally, Eugene E. Fleece Ph.D, a State agency physician, stated in his “Mental Summary” of Gay that “[w]e don’t have any reason to think there is anything substantial to evaluate in terms of down memory, so would not suggest a CE.” Dr. Fleece also discounted Gay’s 2007 automobile accident as a cause of any “cognitive damage” because there were no records of such impairment over the last two years. Dr. Fleece noted Gay’s “vague” complaints of memory, understanding and dealing with others, but concluded he “does not sound withdrawn” because he cooks out with friends, watches games, and has a fianceé. Moreover, Dr. Fleece was unimpressed by Gay’s claim of confusion with changes, noting “he handles money well in all areas.” Accordingly, the court concludes because substantial evidence exists to support the ALJ’s conclusion that Gay’s allegations of mental problems were not supported by the record, the ALJ’s failure to include a PRTF, was harmless error and is not a ground for reversal of the ALJ’s decision. 
The ALJ did not commit reversible error by considering past relevant work that was not substantial, gainful activity.
Gay’s earnings record demonstrates that he did not earn at least an average of $500.00 per month from 1991 to 1998. According to regulations, “past relevant work” is described as work Plaintiff performed within the past fifteen years that was substantial, gainful activity and lasted long enough for the claimant to learn to do it. Generally, monthly earnings do not qualify as substantial gainful activity when Plaintiff earned less than or equal to $500.00 per month between January 1990 and June 1999. 
The Commissioner admits that the ALJ erred in concluding that Gay’s work within the past 15 years was “past relevant work” as defined under the Act. The court concludes, however, that this error was harmless because the ALJ made an alternative finding at step five. Specifically, the ALJ found that on the basis of Plaintiff’s residual functional capacity for a full range of medium work, Medical-Vocational Rule 203.19 allowed for the determination that Plaintiff was not disabled.  The burden of showing that an error is harmful normally falls upon the party attacking the agency’s determination. When an incorrect application of the regulations results in harmless error because the correct application would not alter the ALJ’s ultimate conclusion, there is no basis for reversal. Thus, the court concludes the ALJ did not commit reversible error by considering past relevant work that was not substantial, gainful activity.

The ALJ did not commit reversible error by relying on the testimony of the Vocational Expert.
Gay argues that the ALJ erred in relying on the testimony of Mr. Sweeney, the VE, because it does not support the ALJ’s decision. Specifically, Gay argues that the ALJ quoted the VE as testifying that “claimant was able to return to all of this past relevant work within his [RFC]. Gay, however, also points out that the VE noted he was unsure that Gay’s “past relevant work” qualified as “substantial gainful employment.” For the reasons stated supra the court concludes that any alleged error based on analysis involving Gay’s “past relevant work” is harmless because of the ALJ’s alterative finding that Plaintiff’s residual functional capacity for a full range of medium work allowed for the determination that Plaintiff was not disabled pursuant to Medical-Vocational Rule 203.19. 
Next, Gay points to the following hypothetical as further evidence that the ALJ erred in relying on the testimony of the VE.
THE COURT: Consider a hypothetical individual with the same age, education, and work experience as the claimant who has the physical capabilities and limitations as testified to by the claimant. Can such a hypothetical individual do any competitive work?
SWEENEY: Well, based on his testimony, the thing that would come to my attention most is the pain, the reported pain level of 10, which at that level, taking that at face value, that would preclude employment, but nothing else that I heard really.
  The court recognizes that the VE accepted Gay’s “reported pain level of 10 . . . at face value” in concluding that an individual who experiences such pain would be unable to work.  However, the ALJ made no reference to this statement in his opinion; nor did anyone further question the VE as to whether the entire record supported Gay’s statements of disabling pain. Thus, the hypothetical is limited to the assumption made by the VE based on the “face value” of Gay’s complaints of pain and does not include any assessment of Gay’s credibility.
If proof of disability is based upon subjective evidence and a credibility determination is critical to the decision, “the ALJ must either explicitly discredit such testimony or the implication must be so clear as to amount to a specific credibility finding.”  The reasons given for discrediting pain testimony must be based on substantial evidence. Thus, the court now turns its attention to the ALJ’s conclusion with respect to Gay’s allegations of pain and the reasons for that conclusion.

The ALJ concluded “[a]fter careful consideration of the evidence” that Gay’s
“medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.”
In support of this conclusion, the ALJ pointed to Gay’s own testimony and to various medical facts and opinions in the record. With respect to the headaches, the ALJ recognized that Gay reported some limitations on his daily routine, but noted that Gay is able to cook out with friends, watch sports, and is engaged. Furthermore, the ALJ assigned “significant weight” to the assessment of Dr. Fleece, consultative expert, who opined that Gay “was not cognitively impaired.”  Additionally, the ALJ assigned “great weight” to the opinions and findings of consultative examiner, Dr. Colley, who reported Gay’s “examination was essentially unremarkable.” Dr. Colley further noted Gay “had full range of motion of all extremities with no deformities . . . normal gait, normal station and normal coordination.” Finally, the ALJ recognized that Gay “has not required hospitalizations or emergency room visits for any of his impairments”; and “[i]n fact, there is little medical evidence to support his allegations.” Accordingly, the court finds that the ALJ “explicitly” discredited Gay’s allegations of pain, and the reasons given by the ALJ are supported by “substantial evidence”. Thus, the court concludes that in the context of this case the ALJ did not err in the limited use of the VE’s testimony.
VII. CONCLUSION
Pursuant to the findings and conclusions detailed in this Memorandum Opinion, the Court concludes that the ALJ’s non-disability determination is supported by substantial evidence and proper application of the law. It is, therefore, ORDERED that the decision of the Commissioner is AFFIRMED. A separate judgment is entered herewith.
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Children Can Collect Social Security Benefits If They Have Physical Or Mental Impairments

Posted on April 11, 2012 by Judge London Steverson

LOWRY v. ASTRUE

SHAVONNE LOWRY, on behalf of J.B., an infant, Plaintiff-Appellant, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.

United States Court of Appeals, Second Circuit.

                                                    April 6, 2012.

Present: REENA RAGGI, CHRISTOPHER F. DRONEY, Circuit Judges, KIYO A. MATSUMOTO, District Judge.*

SUMMARY ORDER
Shavonne Lowry appeals from the district court’s judgment affirming the Commissioner of Social Security’s (“Commissioner”) determination that Lowry’s infant son, J.B., was not disabled and, therefore, ineligible for Supplemental Security Income (“SSI”). We review the administrative record de novo, and will set aside the Commissioner’s decision “only if the factual findings are not supported by substantial evidence or if the decision is based on legal error.”   “Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Lowry argues that the administrative law judge (“ALJ”) erred in (1) finding that J.B.’s asthma did not meet or medically equal a presumptively disabling condition specified in the Listing of Impairments, (2) failing to obtain the treating physician’s opinion on that point; and (3) failing adequately to explain his finding that plaintiff was not credible as to the functional effect of J.B.’s asthma. We assume the parties’ familiarity with the facts and record of prior proceedings, referencing them only as necessary to explain our decision to affirm.
1. Asthma Listing Determination
For an SSI claimant’s asthma to meet the requirements of the Listing of Impairments and qualify as a presumptively disabling condition, the claimant must, inter alia, suffer at least six asthma attacks within a twelve month period, “in spite of prescribed treatment and requiring physician intervention.” “Attacks of asthma” are “prolonged symptomatic episodes lasting one or more days and requiring intensive treatment, such as intravenous bronchodilator or antibiotic administration or prolonged inhalational bronchodilator therapy in a hospital, emergency room or equivalent setting.”  An inpatient hospitalization lasting more than 24 hours qualifies as two attacks.
On appeal, Lowry identifies five hospital visits, including one hospitalization lasting more than 24 hours, during the twelve months between March 2006 and March 2007 that, she argues, meet the definition of asthma attacks requiring physician interventions. We agree with the Commissioner that substantial evidence supported the ALJ’s determination that J.B. did not suffer six asthma attacks within the identified twelve-month period. Specifically, the ALJ noted treatment records showing that J.B. had normal oxygen saturation levels during his hospital visits, and found that J.B. did not receive “intensive treatment” during all five identified visits, as would be necessary for each to count as an attack of asthma under applicable regulations. Indeed, treatment records show that J.B.’s hospital visit on December 12, 2006, one of the five visits Lowry identifies as a physician intervention required by the onset of an asthma attack, was actually a pre-planned checkup with a pulmonary specialist who noted that J.B. had taken medication for a wheeze that morning and obtained relief. 

Apparently conceding that J.B. did not receive “intravenous bronchodilator or antibiotic administration or prolonged inhalational bronchodilator therapy” during all five identified visits, Lowry asserts in her reply brief that the intensive-treatment requirement can be satisfied not only by the treatments identified in § 3.00(C), but also by treatments of similar intensity. Even if we were to agree with this argument and not deem it waived, the only treatments of comparable intensity that Lowry identifies were administered to J.B. in January and March of 2008, nearly a year outside of the twelve-month period in which she maintains that J.B. suffered six asthma attacks. Accordingly, we conclude that substantial evidence supported the ALJ’s finding that J.B.’s asthma did not satisfy the requirements of the Listing of Impairments for asthma.

2. Duty To Develop the Record
Lowry argues that the ALJ nevertheless committed legal error in failing adequately to develop the administrative record. Specifically, she argues that the ALJ was obligated to re-contact J.B.’s treating physician, Dr. Mary DeGuardi, to obtain additional opinion evidence, because Dr. DeGuardi’s post-hearing submission to the ALJ failed particularly to state her opinion whether J.B.’s asthma met or medically equaled the listing for asthma set forth at 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 103.03. We disagree.
Although an ALJ has an affirmative duty to develop the administrative record even when a claimant is represented by counsel, “where there are no obvious gaps in the administrative record, and where the ALJ already possesses a complete medical history, the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim,” (stating that before ALJ will determine that claimant is “not disabled, [ALJ] will develop [claimant’s] complete medical history”). Here, the ALJ satisfied his duty by obtaining J.B.’s complete medical history, which consisted of extensive patient treatment records prepared by numerous healthcare providers, including Dr. DeGuardi and a pulmonologist. This was sufficient for the ALJ objectively to determine that J.B. had not suffered six asthma attacks within a twelve-month period as required to meet the Listing of Impairments. (noting ALJ’s obligation to re-contact treating physician for additional information is triggered only when evidence received from treating physician “is inadequate for [ALJ] to determine whether [claimant is] disabled”).2 Because the issue of whether J.B.’s asthma satisfied Listing of Impairments requirements was “reserved to the Commissioner,” Dr. DeGuardi’s opinion on the point had no “special significance” to the ALJ’s determination and, thus, did not need to be solicited. 
Nor did Dr. DeGuardi’s post-hearing submission create “a conflict or ambiguity” in her earlier treatment reports requiring the ALJ to re-contact her. The fact that J.B. “sometimes” required physician intervention for “nebulizer treatments in [a medical] office,” Post-Hearing Statement of Dr. Mary DeGuardi, Oct. 16, 2008, App. at 262, did not contradict treatment notes showing that J.B. had received nebulizer treatments during some of his hospital visits. Dr. DeGuardi’s post-hearing statement did not establish that J.B. had received such treatments in a hospital setting six times in a twelve-month period or that such treatments constituted “intensive treatment,” as the regulations required to compel a finding of disability.
3. Functional Equivalence Determination
Even if a child’s condition does not satisfy the Listing of Impairments, a child may still be considered disabled if the impairment, either alone or in combination with other impairments, is sufficiently severe to result in limitations that functionally equal the Listing of Impairments. See 20 C.F.R. §§ 416.924(a), 416.926a(a). That is the case when a child’s impairment results “in `marked’ limitations in two domains of functioning or an `extreme’ limitation in one domain.”

Lowry submits that the ALJ erred in finding that J.B.’s asthma did not satisfy this standard because the ALJ failed meaningfully to explain his reasons for not crediting certain evidence. “When, as here, the evidence of record permits us to glean the rationale of an ALJ’s decision, we do not require that he have mentioned every item of testimony presented to him or have explained why he considered particular evidence unpersuasive or insufficient to lead him to a conclusion of disability.”  The ALJ’s rationale for his adverse credibility decision is evident from his references to the medical record, which included treatment notes indicating that J.B. endured a hospital stay greater than 24 hours only once, and maintained good oxygen saturation levels despite his asthma, as well as to opinions from two state agency medical consultants who found that J.B. did not suffer a severe limitation in any of his domains of function. This was substantial evidence supporting the ALJ’s decision not to credit Lowry’s and other witnesses’ statements as to the severity of J.B.’s impairment from asthma.
4. Conclusion
We have considered Lowry’s remaining arguments on appeal and conclude that they are without merit. Accordingly, the judgment is AFFIRMED.
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How Much Can My Attorney Charge Me If I Win My Social Security Benefits Case?

Posted on March 29, 2012 by Judge London Steverson

BLACK v. CULBERTSON

DENNIS W. BLACK  v. RICHARD A. CULBERTSON, His Former Attorney and  COMMISSIONER Michael Astrue.

 

Before EDMONDSON, MARTIN and ANDERSON, Circuit Judges.

 

 


Dennis W. Black, proceeding pro se, appeals the district court‘s order granting his lawyer’s petition for authorization to charge Black reasonable attorney’s fees, pursuant to 42 U.S.C. § 406(b). 
Black, represented by his lawyer Richard Culbertson, filed a complaint in the district court, seeking judicial review of the Social Security Commissioner’s final decision denying his application for social security disability insurance (DIB) and supplemental security income (SSI). The district court ruled in Black’s favor, reversing the Commissioner’s final decision and remanding the case for additional proceedings. The court also granted Black’s petition for attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), and directed the Commissioner to pay Culbertson $4,584.02 in attorney’s fees.
After the Commissioner awarded Black past-due benefits on remand, Culbertson filed a petition seeking authorization to charge Black reasonable attorney’s fees under section 406(b) for his representation in the district court. Culbertson attached a contingency fee agreement in which Black agreed to pay Culbertson 25% of his past-due benefits if the district court reversed or remanded the Commissioner’s denial of benefits and if Black was then awarded past-due benefits. The agreement also provided that, if the court awarded attorney’s fees under the EAJA, the amount of the EAJA award would be subtracted from the amount Black owed Culbertson based on his past-due benefits award. In a second amended report and recommendation (“R&R”), the magistrate judge recommended that the court authorize Culbertson to charge Black $25,769.49 in reasonable attorney’s fees, consistent with the terms of the contingency fee agreement. The district court overruled Black’s objections and adopted the magistrate’s second amended R&R.
On appeal, Black argues that the district court erred in granting Culbertson’s petition for authorization to charge reasonable attorney’s fees. We review an award of attorney’s fees for an abuse of discretion.
A district court may award reasonable attorney’s fees as part of its judgment in favor of a Social Security claimant who was represented by a lawyer.  The attorney’s fee may not be more than “25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment,” and the court must determine whether the requested fee is reasonable based on the services rendered. Id. If an attorney receives attorney’s fee under both the EAJA and section 406(b), he must refund the smaller fee to his client, but “may choose to effectuate the refund by deducting the amount of an earlier EAJA award from his subsequent [section] 406(b) fee request.” Id. at 1274.
On remand from the district court, the Commissioner awarded Black a total of $129,672 in past-due Social Security benefits. Pursuant to the contingency fee agreement between Black and Culbertson, Culbertson’s fee for a successful suit would equal 25% of Black’s past-due benefits award ($32,418) minus the amount Culbertson received in EAJA awards (totaling $6,648.51), which amounted to $25,769.49. This fee is consistent with the parties’ agreement and with the statutory limitations. In addition, the district court determined — and Black does not dispute — that this fee was reasonable based on Culbertson’s representation. Thus, we see no abuse of discretion in the district court’s award of attorney’s fees.

AFFIRMED.
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A Low IQ Score May Qualify You For Social Security Benefits.

Posted on March 27, 2012 by Judge London Steverson

SLATER v. ASTRUE

March 23, 2012.

Demon Victorell Slater, Plaintiff, represented by Quinn Eric Brock, Brock & Stout.
Michael J. Astrue, Commissioner of Social Security, Defendant, represented by Dorrelyn K Dietrich, Social Security Admin, Office of General Counsel Region VIII, John Jay Lee, Social Security Administration, & Robert Randolph Neeley, U.S. Attorney’s Office.
MEMORANDUM OPINION AND ORDER
TERRY F. MOORER, Magistrate Judge.
Demon V. Slater (“Plaintiff” or “Slater”) originally applied for supplemental security income under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 1381 et seq., on August 23, 2007. After being denied, Slater timely filed for and received a hearing before an administrative law judge (“ALJ“) who rendered an unfavorable decision on February 18, 2010. Slater subsequently petitioned for review to the Appeals Council who rejected review of Slater’s case on March 17, 2011.  As a result, the ALJ’s decision became the final decision of the Commissioner of Social Security (“Commissioner”). Id. Judicial review proceeds pursuant to 42 U.S.C. § 405(g), and 28 U.S.C. § 636(c). After a thorough review of the record in this case and the briefs of the parties, the Court concludes that the decision of the Commissioner should be REVERSED and this case REMANDED to the Commissioner for further proceedings.
I. NATURE OF THE CASE
Slater seeks judicial review of the Commissioner’s decision denying his application for disability insurance benefits. United States District Courts may conduct limited review of such decisions to determine whether they comply with applicable law and are supported by substantial evidence. 42 U.S.C. § 405. The court may affirm, reverse and remand with instructions, or reverse and render a judgment. Id.
The Court’s review of the Commissioner’s decision is a limited one. The Court’s sole function is to determine whether the ALJ’s opinion is supported by substantial evidence and whether the proper legal standards were applied. 
“The Social Security Act mandates that `findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.'” Thus, this Court must find the Commissioner’s decision conclusive if it is supported by substantial evidence. Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion.
If the Commissioner’s decision is supported by substantial evidence, the district court will affirm, even if the court would have reached a contrary result as finder of fact, and even if the evidence preponderates against the Commissioner’s findings. The Court “may not decide facts anew, re-weigh the evidence, or substitute [its] judgment for that of the [Commissioner],” but rather it “must defer to the Commissioner’s decision if it is supported by substantial evidence.” 
The Court will also reverse a Commissioner’s decision on plenary review if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law.
III. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB“) provides income to individuals who are forced into involuntary, premature retirement, provided they are both insured and disabled, regardless of indigence. See 42 U.S.C. § 423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate and distinct program. SSI is a general public assistance measure providing an additional resource to the aged, blind, and disabled to assure that their income does not fall below the poverty line. Eligibility for SSI is based upon proof of indigence and disability.  However, despite the fact they are separate programs, the law and regulations governing a claim for DIB and a claim for SSI are identical; therefore, claims for DIB and SSI are treated identically for the purpose of determining whether a claimant is disabled.  Applicants under DIB and SSI must provide “disability” within the meaning of the Social Security Act which defines disability in virtually identical language for both programs.  A person is entitled to disability benefits when the person is unable to
Engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.
A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
The Commissioner of Social Security employs a five-step, sequential evaluation process to determine whether a claimant is entitled to benefits. 
(1) Is the person presently unemployed?
(2) Is the person’s impairment(s) severe?
(3) Does the person’s impairment(s) meet or equal one of the specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?3
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of “not disabled.”
The burden of proof rests on a claimant through Step 4.  Claimants establish a prima facie case of qualifying disability once they meet the burden of proof from Step 1 through Step 4. At Step 5, the burden shifts to the Commissioner, who must then show there are a significant number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s Residual Functional Capacity (“RFC”). Id. at 1238-39. RFC is what the claimant is still able to do despite his impairments and is based on all relevant medical and other evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and work experience to determine if there are jobs available in the national economy the claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical Vocational Guidelines (“grids”) or hear testimony from a vocational expert (VE). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary or light work, inability to speak English, educational deficiencies, and lack of job experience. Each factor can independently limit the number of jobs realistically available to an individual. Id. at 1240. Combinations of these factors yield a statutorily-required finding of “Disabled” or “Not Disabled.” Id.
IV. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
Slater, age 36 at the time of the hearing, completed the twelfth grade and received a certificate of completion. Slater had special education classes in high school and has limited reading and writing abilities. Slater performed past relevant work as an industrial cleaner (unskilled, medium). Slater has not engaged in substantial gainful activity since his alleged disability onset date of August 23, 2007. Slater has not “ever really worked,” except for a couple positions which spans from a few days to a few weeks. Slater’s mother supports him from her fixed income. Slater claims he is unable to work because he suffers from major depression, anxiety, diabetes, depression, and an IQ score that falls within the range of mental retardation.  Slater received disability benefits in the past until the benefits were terminated upon his incarceration.
Slater’s alleged disabilities stem from multiple sources.A doctor diagnosed Slater as suffering from diabetes in 1997. He received regular treatment to control his diabetes, while he received disability benefits and also while incarcerated, but upon release Slater has been unable to afford his medications except when he was able to attain his medications free of charge. Id. Slater alleges that his diabetes has caused him to be admitted to the hospital and the doctors have had to increase his insulin dosage. Slater alleges that he has diabetic neuropathy which causes pain and numbness in his lower legs, feet, and sometimes in his left hand. Id. Slater also alleges that he suffers from hypertension (high blood pressure). Id. Slater is also unable to afford the medications to control his neuropathy and hypertension.
Since Slater’s release from incarceration, he alleges that he suffers from anxiety and major depression. Slater alleges that his anxiety and depression cause him to randomly begin crying, to feel shortness of breath and pain in his chest, and difficulty sleeping. Slater claims that when on his medication these symptoms subside and he is able to sleep well, but at the moment he is unable to afford his medications. Slater also claims that he has difficulty getting along with other people and mostly keeps to himself. Slater alleges that he suffers from mental retardation as defined in the listings of impairments section 12.05. IQ tests reveal Slater has a score of 64 in verbal intelligence IQ, 62 in performance IQ, and a full scale IQ of 60.  Slater was in special education classes in high school and alleges that he cannot read or spell very well.  Slater also claims that while watching television he is unable to concentrate or follow the storyline.
Slater received treatment from various medical practitioners and the ALJ considered the medical records from these practitioners.  The records of Charles A. Wood, M.D. from September and October of 2002 show that Slater was monitored for hypertension, diabetes, and peripheral neuropathy.  Slater had elevated glucose and hemoglobin A1C levels. Id. Also, Dr. Woods found Slater suffers from depression post a suicide attempt. 
In November of 2007, Mark B. Ellis, D.O. performed a consultative physical evaluation. Id. Slater reported to Dr. Ellis that he sufferes from depression, poor reading skills, diabetes, neuropathy with bilateral leg burning and numbness, decreased sensation to light touch in the feet, and leg weakness.  Dr. Ellis found decreased sensation to light touch from Slater’s knees down “becoming more prominent” at the feet, as well as decreased sensation on the bottom and back of Slater’s feet. Dr. Ellis’ diagnostic impression was “poorly controlled diabetes with diabetic neuropathy; and hypertension, high cholesterol, and depression all by history.” Dr. Ellis recommended optimal diabetic care; however, a month later Slater was admitted to Dale Medical Center for uncontrolled diabetes mellitus with a glucose level of 700, blurred vision, nausea, vomiting, hypertension, and neuropathy. 
Also in November of 2007, Randall Jordan, Psy.D saw Slater for a consultative mental evaluation. Slater reported depression with chronic sadness, sleep disturbances, and being in special education classes while in school. Id. Dr. Jordan noted that Slater exhibited restricted affect, compromised memory, and below average fund of information. Dr. Jordan administered a Wechsler Adult Intelligence Scale Third Edition (“Wechsler”) which tested Slater on verbal, performance, and full scale IQ. Slater earned scores of 64, 62, and 60, respectively. Dr. Jordan noted that these scores are indicative of intellect in the range of mental retardation. Id. However, Dr. Jordan also noted a diagnostic impression of malingering.
In June of 2009, Slater returned to Dale Medical Center with complaints of chest pain. In July of 2009, Slater underwent a stress test which revealed “resting baseline hypertensive heart disease and a marked accelerated hypertensive response to chemical stress.”  After being released from Dale Medical Center, Connie Chandler, M.D. followed Slater for chest pain, diabetes, and hyperlipidemia.  Slater received numerous medications to control his symptoms. Id. The ALJ noted that no noticeable physical symptoms or complications associated with hyperlipidemia were evidenced, and because of such the ALJ found that it has no effect on Slater’s ability to work.  In August of 2009, Dr. Fernando Lopez at Spectra Care saw Slater for his “depressive disorder” and “psychotic features.”  Slater claimed he had “sleep disturbances with intermittent nightmares, visual hallucinations, panic attacks, nervousness, and paranoia.” Id. Dr. Lopez proscribed psychotropic medications to Slater to manage his depressive and psychotic symptoms. Id.
V. ISSUES
Slater raises two issues for judicial review:
(1) Whether the ALJ failed to consider if Slater’s medically determinable impairments met or equaled listing 12.05(C); and
(2) Whether the ALJ’s Residual Functional Capacity finding failed to include the required “function-by-function” assessment. See Doc. 12 at 3.
VI. DISCUSSION AND ANALYSIS
The plaintiff raises several issues and arguments related to this Court’s ultimate inquiry of whether the Commissioner’s disability decision is supported by the proper legal standards and substantial evidence.  “[n]o presumption of validity attaches to the Secretary’s determination of the proper legal standards to be applied in evaluating claims”). However, the Court pretermits discussion of the plaintiff’s specific arguments because the Court concludes that the ALJ erred as a matter of law at step three of the sequential analysis. Ergo, the ALJ’s conclusion that the plaintiff is not disabled is not supported by substantial evidence.
The ALJ notes:
At step three, the undersigned must determine whether the claimant’s impairment or combination of impairments meets or medically equals the criteria of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925, and 416.926). If the claimant’s impairment or combination of impairments meets or medically equals the criteria of a listing and meets the duration requirement (20 CFR 416.909, the claimant is disabled.
The burden of proof rests on a claimant to establish a prima facie case of qualifying disability. Phillips, 357 F.3d at 1237-39. Slater argues that “the ALJ failed to consider whether Mr. Slater’s medically determinable impairments met or equaled listing 12.05(C).” (Pl. Br. 3). Slater provided sufficient medical evidence to meet the prima facie requirement in Phillips, 357 F.3d at 1237-39. The record is replete with references to anxiety and depression, with the ALJ also noting the “full scale IQ scores of 64, 62, and 60.”  Plaintiff directly argues the listing of 12.05(C) in the record of the hearing as well as testifying to other limiting factors.
In Fitts v. Massanari, the court “notes that the ALJ made an error more fundamental regarding the listings in that he never once mentioned Listing 12.05, specifically 12.05(C), in his decision denying benefits.”  The court held that the ALJ erred in failing to include mild mental retardation in the list of severe impairments and in failing to analyze the evidence in light of the specific requirements of listing 12.05. Id. at *2. In Fitts the court noted that the ALJ’s finding documented both a physical impairment which imposed an “additional and significant work-related limitation of function” and that the record also contained evidence of a valid verbal, performance or full scale IQ score of 60 through 70. Id.
The Court recognizes that a valid IQ score does not mean that conclusive evidence of mental retardation exists, however the validity of IQ score must be addressed by the ALJ. Thomas v. Barnhart,  (11th Cir. Dec. 7, 2004)(where the Eleventh Circuit specifically noted that the ALJ did not specifically address the validity of the claimant’s IQ score of 69 and there was “significant evidence” that the score was valid and remanded the case so that the ALJ may properly consider the validity of the claimant’s IQ score.). While the Court concludes there is some question as to the validity and accuracy of the IQ score of Slater, there is no analysis done by the ALJ for the Court to consider. See e.g. Outlaw v. Barnhart, 197 Fed.Appx. 825 (11th Cir. 2006) (where the court held that a “valid IQ score is not conclusive of mental retardation when the IQ score is inconsistent with other evidence in the record about claimant’s daily activities.”).
The Commissioner argues that Slater did not carry his burden to produce evidence that he met the criteria of the listing. (Def. Br. 13, at 7). “[A] claimant must have a diagnosis included in the Listings and must provide medial reports documenting that the conditions meet the specific criteria of the Listings and the duration requirement.”  The ALJ must consider whether the claimant meets or equals the listings presented by the claimant.  While the ALJ does not need to mechanically recite the fact that a claimant does not meet a listing in his decision, and that the failure to meet the listing may be implied from the record, the ALJ must develop a full and fair record sufficient for this Court to review.  Additionally, the Court notes that Slater bears a burden “of proving that he is disabled, and consequently, he is responsible for producing evidence in support of his claim.” The Court makes the limited ruling that the issue of mental retardation pursuant to the listing 12.05(C) was raised sufficiently by Slater to show a prima facie case of a possible ailment that, by itself, can be found to be disabling, or disabling in conjunction with other disabilities, and the ALJ failed to address it in either the hearing or the opinion.  The Court notes that the ALJ directly addressed and discussed the Listings for 12.04 and 12.06, looking at the “paragraph B” and “paragraph C” requirements, but conspicuously failed to address the 12.05(C) Listing that was directly argued by the Claimant.
Furthermore, because the ALJ did not recognize the evidence that Slater suffers from mental retardation, he did not properly consider the effects of this impairment on Slater’s ability to work. Consequently, the Court cannot determine whether the ALJ’s conclusion that Slater is not disabled is properly supported by substantial evidence.  It is plain that the plaintiff suffers from physical and non-physical impairments, but it is less clear as to the effect of those impairments. “Even a `mild’ mental impairment may `prevent [a] claimant from engaging in the full range of jobs contemplated by the exertional category for which the claimant otherwise qualifies.'” 
For these reasons, the Court concludes that the Commissioner erred as a matter of law, and that the case warrants remand for further proceedings regarding whether the IQ score is valid, and if there are other mental or physical impairments that would cause the claimant to meet the listing under 12.05(C). The ALJ must consider every impairment alleged by the plaintiff and determine whether the alleged impairments are sufficiently severe — either singly or in combination — to create a disability.  All of the plaintiff’s impairments must be considered in combination even when the impairments considered separately are not severe. In light of the ALJ’s failure to fully and fairly consider the evidence in the record of the plaintiff’s possible mental retardation, the Court concludes that the ALJ failed to meet his burden in this regard. As a result of his failure to consider the plaintiff’s impairments in combination, doubt is necessarily cast upon the ALJ’s conclusion that the plaintiff is not disabled.
V. ConclusionAccordingly, this case will be reversed and remanded to the Commissioner for further proceedings consistent with this opinion. A separate order will be entered.
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A Social Security Judge Can Tell When A Claimant Lies Under Oath.

Posted on March 23, 2012 by Judge London Steverson

GORREMANS v. ASTRUE

United States District Court, D. Idaho. March 16, 2012.

Mickael Gorrmans, Plaintiff, represented by Louis Garbrecht.
Commissioner Michael J. Astrue, Defendant, represented by Benjamin J Groebner, SOCIAL SECURITY ADMINISTRATION & Joanne P Rodriguez, US ATTORNEY’S OFFICE.

 

 

RONALD E. BUSH, Magistrate Judge.
Now pending before the Court is Petitioner Mickael Gorremans’ Petition for Review filed September 16, 2010, seeking review of the Social Security Administration’s final decision to deny his disability benefits. This action is brought pursuant to 42 U.S.C. § 405(g). Having carefully reviewed the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order.
I. ADMINISTRATIVE PROCEEDINGS
On January 9, 2009, Mickael Gorremans (“Petitioner”) applied for SSI disability benefits, alleging a disability onset date of December 24, 2008, when he was 56 years old.  Petitioner’s claim was initially denied and, again, denied on reconsideration. Petitioner timely filed a Request for Hearing before an Administrative Law Judge (“ALJ”).  On February 9, 2010, ALJ James W. Sherry held a hearing in Spokane, Washington at which time Petitioner, represented by attorney Louis Garbrecht, appeared and testified.  A vocational expert, K. Diane Kramer, also appeared and testified.  At the time of the hearing, Petitioner had past relevant work as a groundskeeper, machine operator, janitor, floor cleaner/buffer, certified nurses assistant, and home health aide.
On April 8, 2010, the ALJ issued a decision, denying Petitioner’s claims, finding that Petitioner was not disabled within the meaning of the Social Security Act.  Petitioner timely requested review from the Appeals Council on June 3, 2010. The Appeals Council then denied review on August 23, 2010  rendering the ALJ’s decision the Commissioner’s final decision. Plaintiff now seeks judicial review of the Commissioner’s decision to deny benefits. Petitioner contends the ALJ erred by not giving controlling weight to the opinion of his treating physician, Dr. Dirks, and improperly rejecting Petitioner’s own testimony. He also argues that the residual functional capacity finding is not supported by the record and that Medical-Vocational Guideline 202.06 directs a finding of disabled.
II. STANDARD OF REVIEW

To be upheld, the Commissioner’s decision must be supported by substantial evidence and based on proper legal standards. 42 U.S.C. § 405(g). Findings as to any question of fact, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g). In other words, if there is substantial evidence to support the ALJ’s factual decisions, they must be upheld, even when there is conflicting evidence. 
“Substantial evidence” is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.  The standard requires more than a scintilla but less than a preponderance, and “does not mean a large or considerable amount of evidence.”
With respect to questions of fact, the role of the Court is to review the record as a whole to determine whether it contains evidence that would allow a reasonable mind to accept the conclusions of the ALJ.  The ALJ is responsible for determining credibility and resolving conflicts in medical testimony, resolving ambiguities, and drawing inferences logically flowing from the evidence. Where the evidence is susceptible to more than one rational interpretation in a disability proceeding, the reviewing court may not substitute its judgment or interpretation of the record for that of the ALJ. 
With respect to questions of law, the ALJ’s decision must be based on proper legal standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ’s construction of the Social Security Act is entitled to deference if it has a reasonable basis in law. See id. However, reviewing federal courts “will not rubber-stamp an administrative decision that is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying the statute.” 
III. DISCUSSION
A. Sequential Process
In evaluating the evidence presented at an administrative hearing, the ALJ must follow a sequential process in determining whether a person is disabled in general (see 20 C.F.R. §§ 404.1520, 416.920) — or continues to be disabled (see 20 C.F.R. §§ 404.1594, 416.994) — within the meaning of the Social Security Act.
The first step requires the ALJ to determine whether the claimant is engaged in substantial gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). SGA is defined as work activity that is both substantial and gainful. “Substantial work activity” is work activity that involves doing significant physical or mental activities. 20 C.F.R. §§ 404.1572(a), 416.972(a). “Gainful work activity” is work that is usually done for pay or profit, whether or not a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant has engaged in SGA, disability benefits are denied, regardless of how severe her physical/mental impairments are and regardless of her age, education, and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not engaged in SGA, the analysis proceeds to the second step. Here, the ALJ found that Petitioner had not engaged in SGA since January 9, 2009, the application date. (AR 16).
The second step requires the ALJ to determine whether the claimant has a medically determinable impairment, or combination of impairments, that is severe and meets the duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is “severe” within the meaning of the Social Security Act if it significantly limits an individual’s ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment or combination of impairments is “not severe” when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual’s ability to work. 20 C.F.R. §§ 404.1521, 416.921. If the claimant does not have a severe medically determinable impairment or combination of impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ found that Petitioner had the following severe impairments: “multilevel cervical degenerative disk disease with facet arthrosis, status post disectomy and fusion and cervical laminectomy at C3 & C4 with autograft; and central cord syndrome.” (AR 16).
The third step requires the ALJ to determine the medical severity of any impairments; that is, whether the claimant’s impairments meet or equal a listed impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the answer is yes, the claimant is considered disabled under the Social Security Act and benefits are awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant’s impairments neither meet nor equal one of the listed impairments, the claimant’s case cannot be resolved at step three and the evaluation proceeds to step four. Id. Here, the ALJ concluded that Petitioner does not have an impairment (or combination of impairments) that meets or medically equals a listed impairment (AR 16).
The fourth step of the evaluation process requires the ALJ to determine whether the claimant’s residual functional capacity is sufficient for the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual’s residual functional capacity is her ability to do physical and mental work activities on a sustained basis despite limitations from her impairments. 20 C.F.R. §§ 404.1545, 416.945. Likewise, an individual’s past relevant work is work performed within the last 15 years or 15 years prior to the date that disability must be established; also, the work must have lasted long enough for the claimant to learn to do the job and be engaged in substantial gainful activity. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here, the ALJ ruled that Petitioner has the residual functional capacity to perform the full range of medium work as defined in 20 C.F.R. § 416.967(c). The ALJ also determined that Petitioner could perform his past relevant work as a janitor, certified nurse’s assistant, home health aide, and groundskeeper. The ALJ determined that this work does not require performance of work-related activities precluded by Petitioner’s residual functional capacity. (AR 21).
In the fifth and final step, if it has been established that a claimant can no longer perform past relevant work because of his impairments, the burden shifts to the Commissioner to show that the claimant retains the ability to do alternate work and to demonstrate that such alternate work exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). If the claimant is able to do other work, he is not disabled; if the claimant is not able to do other work and meets the duration requirement, he is disabled. Because the ALJ found Petitioner capable of performing past relevant work, he did not have to proceed to step five. However, the ALJ did found that even if Petitioner was restricted to less than a full range of light work, there were jobs that existed in significant numbers in the regional and national economies, of cleaner I and electronics assembler, that Petitioner could perform. (AR 21).
B. Analysis
1. Petitioner Credibility
Petitioner contends that the ALJ gave insufficient reasons for rejecting his testimony. In his opinion, the ALJ stated the claimant’s statements concerning the “intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.” The ALJ further stated that the objective evidence established that Petitioner is capable of performing basic work activities. The ALJ remarked that Petitioner did not follow through with physical therapy as recommended by his treating physician, Dr. Dirks, because he could not afford it and that he only medicates his pain with over-the-counter medications every other day. The ALJ also noted that while the claimant described daily activities which are fairly limited, great weight was not given to this evidence because the “allegedly limited daily activities cannot be objectively verified with any reasonable degree of certainty” and because of the difficulty attributing “that degree of limitation to the claimant’s medical condition, as opposed to other reasons, in view of the relatively weak medical evidence . . .”  The ALJ further concluded:
The claimant’s statements on the function report are not entirely credible. He said he can perform his personal care slowly. He is able to prepare simple meals. He claims he is fairly limited in several areas as a result of paralysis. He claimed he cannot do any housework, he cannot drive, and he cannot handle money. He also stated that he is under doctor’s orders to not go outside. There is no evidence in the record of continued paralysis in the upper extremities. The treatment notes show the claimant’s strength in his upper extremities has continued to improve (at least 4/5 strength). Furthermore, there is no reference in the treatment record to any doctor directing the claimant to not go outside. The claimant testified he has problems gripping and grasping items with his hands; however, after the first surgery, it is noted to have improved (4/5 strength after first surgery). Furthermore, this testimony is not consistent with the claimant’s testimony that he is able to fish, which shows he is able to hold on to a fishing pole and reel in a fishing line, which requires an ability to grip and grasp items.
The claimant testified he has difficult reaching overhead, but there is no indication in the treatment notes of any limitations in this area. There are no range of motion tests and no significant signs of weakness. The claimant asserted he has problems with stairs; however, he also said he has several flights of stairs at home to climb and descend. This suggests the claimant is able to climb and descend stairs with little difficulty. The bulk of treatment notes do not support the claimant’s assertions regarding his limitations in walking and standing. It has been noted the claimant has no difficult with ambulation. Finally, the claimant stated he can only sit for no more than ½ hour; yet, the hearing lasted longer than ½ hour and the claimant showed no signs of needing to change positions.
(AR 19-20).
The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.  The ALJ’s findings must be supported by specific, cogent reasons.  If a claimant produces objective medical evidence of an underlying impairment, an ALJ may not reject a claimant’s subjective complaints of pain based solely on lack of medical evidence.  Unless there is affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for rejecting pain testimony. The reasons an ALJ gives for rejecting a claimant’s testimony must be supported by substantial evidence in the record.
In evaluating credibility, the ALJ may engage in ordinary techniques of credibility evaluation, including consideration of a claimant’s reputation for truthfulness and inconsistencies in claimant’s testimony, or between claimant’s testimony and conduct, as well as claimant’s daily activities, claimant’s work record and testimony from physicians and third parties concerning the nature, severity and effect of the symptoms of which claimant complains.  Also, the ALJ may consider: location, duration and frequency of symptoms; factors that precipitate and aggravate those symptoms; amount and side effects of medications; and treatment measures taken by claimant to alleviate those symptoms. See Soc. Sec. Ruling (SSR) 96-7p. Here, the ALJ focused on inconsistencies in claimant’s testimony as well as between his claimed limitations and the support for those limitations in the medical record. The ALJ noted that while Petitioner claimed to have great difficulty grasping and gripping many everyday items, he also testified that he would go fishing which would be inconsistent with the claimed limitations.1 Additionally, the ALJ remarked that although Petitioner stated he could not sit for longer than 20 to 30 minutes at a time, the hearing lasted longer than 30 minutes and he did not appear to need to switch positions. The ALJ also observed that Petitioner testified to extreme limitations in his upper extremities as well as with walking and standing, yet the medical evidence demonstrated improved strength (at least 4/5) in his upper extremities after his surgeries and indicated no problems with ambulation. While lack of medical evidence cannot be the sole reason for rejecting pain testimony, “medical evidence is still a relevant factor in determining the severity of the claimant’s pain and its disabling effects.”  The ALJ also focused on treatment measures taken by Petitioner, which he testified was to use over-the-counter pain medication every other day. Over-the-counter pain medication is an example of “evidence of `conservative treatment'” that “is sufficient to discount a claimant’s testimony regarding severity of an impairment.” 
Where, as here, there is substantial evidence in the record to support the ALJ’s credibility finding, the Court will not engage in second-guessing.  In other words, if the evidence can support either outcome, the Court may not substitute its judgment for that of the ALJ. The Court reviews the administrative record as a whole to determine whether substantial evidence supports the ALJ’s decision.  The issue is not whether the Court agrees with the ALJ’s credibility assessment, but whether the assessment is supported by the requisite findings and record evidence. Here, it is, and the Court will not substitute its own assessment for that of the ALJ.
2. Treating Physician’s Opinion
Petitioner argues that the ALJ improperly rejected the opinion of his treating physician, Dr. Dirks, by relying on the opinion of a non-examining physician.
Ninth Circuit case law distinguishes among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians).  Generally, more weight is accorded to the opinion of a treating source than to nontreating physicians.  In turn, an examining physician’s opinion is entitled to greater weight than the opinion of a nonexamining physician.  If the treating physician’s opinion is not contradicted by another doctor, it may be rejected only for “clear and convincing” reasons. If the treating doctor’s opinion is contradicted by another doctor, the Commissioner may not reject the treating physician’s opinion without providing “specific and legitimate reasons” supported by substantial evidence in the record for doing so. 
An ALJ is not required to accept an opinion of a treating physician if it is conclusory and not supported by clinical findings.  Additionally, an ALJ is not bound to a physician’s opinion of a petitioner’s physical condition or the ultimate issue of disability.  If the record as a whole does not support the physician’s opinion, the ALJ may reject that opinion.  Items in the record that may not support the physician’s opinion include clinical findings from examinations, conflicting medical opinions, conflicting physician’s treatment notes, and the claimant’s daily activities. 
The ALJ provides a detailed description of Petitioner’s medical records, which come from his treating surgeon, Dr. Dirks. On January 27, 2009, following Petitioner’s second surgery, Dr. Dirks stated that Petitioner was not released back to work and the issue should be reevaluated in three months.  On April 9, 2009, he opined that Petitioner was “disabled and unable to return to work at this stage.”  On November 3, 2009, the last treatment note from Dr. Dirks, he stated that he supported Petitioner in his quest for obtaining Social Security disability as he did “not believe he will be able to have gainful employment at this time.” (AR 304).
In regard to Dr. Dirks’ opinions as to disability, the ALJ gave his opinion little weight and stated:
Dr. Dirks provides no range of motion testing in the treatment notes. His treatment notes show the claimant’s condition has improved after both surgeries. Muscle strength testing shows the claimant has at least 4/5 strength in the upper extremities. There is no evidence of ongoing paralysis in the upper extremities. Although the doctor stated the claimant is `disabled,’ it is not clear that the doctor was familiar with the definition of `disability’ contained in the Social Security Act and regulations. The possibility always exists that a doctor may express an opinion in an effort to assist a patient with whom he or she sympathizes for one reason or another. Another reality which should be mentioned is that patients can be quite insistent and demanding in seeking supportive notes or reports from their physicians, who might provide such a note in order to satisfy their patient’s requests and avoid unnecessary doctor/patient tension. While it is difficult to confirm the presence of such motives, they are more likely in situations where the opinion in question departs substantially from the rest of the evidence of record, as in the current case.
While a treating physician’s opinion is entitled to great weight, the ALJ is not bound by his or her opinion on the ultimate issue of disability.  This is especially true if the opinion is conclusory and not supported by the clinical findings.  The ALJ does not discount the medical records from Dr. Dirks, instead he provides a thorough discussion of Petitioner’s medical history.  However, the ALJ found that Dr. Dirks’ opinion of disability departed “substantially” from the rest of the evidence in the record and conflicted with his own treatment notes and the clinical findings.  Under the Social Security regulations, the ALJ is not required to follow a treating physician’s opinion that a claimant is “disabled” or “unable to work.” 20 C.F.R. § 416.927(e)(1). Additionally, these opinions of treating physicians are not entitled to any special significance. Id. at § 416.927(e)(3). Lastly, while, as Petitioner contends, the ALJ did give significance to the Physical Residual Functional Capacity Assessment completed by a non-examining physician, this assessment was not used as a basis for rejecting Dr. Dirks’ opinion on disability. Instead, the ALJ provided specific and legitimate reasons for giving Dr. Dirks’ opinion regarding disability little weight.
3. Residual Functional Capacity Finding
Petitioner contends there is not substantial evidence in the record to support the ALJ’s finding of a medium residual functional capacity. A claimant’s residual functional capacity is the most he can do despite his limitations. 20 C.F.R. § 404.1545(a). An ALJ considers all relevant evidence in the record when making this determination. Id. The regulations define “medium work” as “lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 416.967(c).
In finding that the Petitioner could perform the full range of medium work, the ALJ relied, in part, on the opinions of two non-examining state agency physicians who reviewed the medical record and opined that Petitioner could perform medium work. (AR 286-98, 299). Petitioner contends that the ALJ should not rely on these opinions because they were made without the November 3, 2009 treatment note of Dr. Dirks which stated that he “continued to show signs and symptoms of central cord syndrome” and that he “continues to exhibit poor walking ability and poor strength.” (AR 304). Although the ALJ gave “significant weight” to the assessment of the state agency physician, Dr. Dickey, this was not the only evidence he relied upon in forming his assessment. The ALJ also evaluated the medical evidence from Dr. Dirks, including this November 3, 2009 treatment note, and Petitioner’s own testimony.  See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (finding the ALJ was not required to incorporate opinion evidence which was permissibly discounted). The ALJ commented on the November 3, 2009 treatment note and remarked that other treatment notes found “claimant’s strength was measured as at least 4/5 and it has been noted the claimant’s ambulation is good.” (AR 19). The ALJ has considered all the relevant evidence in making his residual functional capacity finding and it is supported by substantial evidence.
Although it was not raised by Petitioner, when evaluating the ALJ’s residual functional capacity finding, the Court sua sponte examined whether the ALJ should have further developed the record in this case. Under Ninth Circuit law, an ALJ has “an independent duty to fully and fairly develop the record and to assure that the claimant’s interests are considered.”  The ALJ must supplement the record if there is “ambiguous evidence” or the ALJ has found “the record is inadequate to allow for proper evaluation of the evidence.”  When reviewing this, the Court determined that the evidence was in conflict, rather than ambiguous and the ALJ’s duty to develop the record was not invoked. Even though this is a case in which the Court has some misgivings about the result and those misgivings may have caused the Court to decide the case differently, the ALJ is entitled to deference when the decision is supported by substantial evidence.  In other words, if the evidence can support either outcome, the Court may not substitute its judgment for that of the ALJ. 
4. Medical-Vocational Guideline 202.06
Petitioner contends that under Medical Vocational Guideline 202.06, he should be found disabled. Medical Vocational Guideline 202.06 directs a finding of disability where a claimant is limited to light work, is of advance age (55 and older), has a high school education and does not have transferrable skills. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table 2, Rule 202.06.
In his decision, after finding that Petitioner was capable of performing past relevant work, thus directing a finding of not disabled, the ALJ went on to state that even if claimant was “restricted to less than a full range of light work . . . the vocational expert testified [he] could perform the jobs of cleaner I and electronics assembler, jobs which exist in significant numbers in the regional and national economy.”
Petitioner is correct that under Ninth Circuit law, a vocational expert’s testimony cannot “supplant or override a disability conclusion dictated by the Guidelines.” The Commissioner contends that any error made by the ALJ in this regard is “harmless error.”
The Ninth Circuit has affirmed “under the rubric of harmless error where the mistake was nonprejudicial to the claimant or irrelevant to the ALJ’s ultimate disability conclusion.”  For example, in Matthews v. Shalala, the ALJ failed to include one of claimant’s limitations in his hypothetical to the vocational expert.  However, because the claimant had failed, at step four, to show that he could not return to his past work, the burden remained on him and the ALJ was not required to rely on the vocational expert’s testimony to show that the claimant could perform other kinds of work. Id. The court concluded: “The vocational expert’s testimony was thus useful, but not required . . . Any error would have been harmless.” Id.
Similarly, in this case, the ALJ concluded that Petitioner had the residual functional capacity to perform the full range of medium work (AR 16) and thus could perform his past relevant work.  The ALJ then found, alternatively, that even if Petitioner was limited to light work, significant jobs that he could perform existed in the national economy.  This was an unnecessary step that the ALJ was not required to perform having found Petitioner capable of performing past relevant work and not disabled at step four. Accordingly, if an error was made by the ALJ in not following the Medical-Vocational Guidelines, it was harmless.
IV. CONCLUSION
The ALJ is the fact-finder and is solely responsible for weighing and drawing inferences from facts and determining credibility. If the evidence is susceptible to more than one rational interpretation, one of which is the ALJ’s, a reviewing court may not substitute its interpretation for that of the ALJ.
The evidence upon which the ALJ relied can reasonably and rationally support his well-formed conclusions, despite the fact that such evidence may be susceptible to a different interpretation. Indeed, in this case, this Court might well have found differently if was to decide the case de novo. However, such a statement is drawn from a cold record, and it is not this Court’s role to alter the ALJ’s decision without some appropriate basis under the law for doing so, consistent with its role as a reviewing court only. Here, the ALJ’s decision as to Petitioner’s alleged disability is based on proper legal standards and supported by substantial evidence. Therefore, the Court concludes that the Commissioner’s determination that Petitioner is not disabled within the meaning of the Social Security Act is supported by substantial evidence in the record and is based upon an application of proper legal standards.
Accordingly, the Commissioner’s decision is affirmed.
V. ORDER
Based on the foregoing, Petitioner’s Petitioner for Review (Dkt. 1) is DENIED, the decision of the Commissioner is AFFIRMED, and this action is DISMISSED in its entirety, with prejudice.

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