Posts Tagged With: Plaintiff

Being Born A Man Does Not Render A Woman Disabled

Posted on May 30, 2013 by Judge London Steverson
Social Security Poster: old man

Social Security Poster: old man (Photo credit: Wikipedia)

French v. Commissioner of Social Security (USA)

April 23, 2013

 ESPER FRENCH, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

 

 

 

 

March 12, 2013, Decided

 

OPINION

 

Plaintiff Esper French appeals Defendant Commissioner of Social
Security’s (“Commissioner”) denial of her applications for disability
insurance benefits and supplemental security income.

 For the
reasons set forth below, this Court finds that substantial evidence
supports the Commissioner’s decision.

The Court therefore RECOMMENDS that Plaintiff’s Motion for Summary Judgment be DENIED , that Defendant’s Motion for Summary Judgment be GRANTED , and that the decision of the Commissioner of Social Security be AFFIRMED .

I. BACKGROUND

Plaintiff was 52 years old on the date she alleges she became
disabled.  Plaintiff graduated from high school
and completed some college work She previously worked as a
computer-aided drafter (CAD), a general laborer, and as a care giver.  She alleges that she cannot work due to her depression, 
gender dysphoria and deafness.

A. Procedural History

On November 5, 2008, Plaintiff applied for disability insurance
benefits (“DIB”) and supplemental security income (“SSI”) asserting that
she became unable to work on January 2, 2006.  The
Commissioner initially denied Plaintiff’s disability application on May
16, 2009.

 Plaintiff then requested an ALJ administrative
hearing, and on September 27, 2010, she appeared with counsel before
Administrative Law Judge Timothy C. Scallen, who considered her case de novo  Vocational expert Elizabeth A. Pasikowski also appeared at the hearing.

In an October 20, 2010 decision, ALJ Scallen found that Plaintiff was not disabled.

 The ALJ’s decision became the final decision of the
Commissioner on April 26, 2012, when the Social Security
Administration’s Appeals Council denied Plaintiff’s request for review.

 Plaintiff filed this suit on June 27, 2012.

B. Medical Evidence

In November 1997, records from Foote Hospital show that Plaintiff was
hospitalized for psychiatric issues. An assessment at
that time indicated depression, suicidal  ideation,

In or around 2001, Plaintiff underwent a trans-gender
surgery to become female.

Plaintiff is referred to herein as “she” when
referring to evidence post-dating the gender change.

An earlier hearing on April 26, 2010 was adjourned so
that Plaintiff could obtain representation.

 ALJ Scallen
also presided over the first, abbreviated hearing,

and trans-sexual disorder/gender identity disorder.

On February 19, 1998, Plaintiff was admitted to the hospital after a
self-castration attempt.  Hospital notes indicate that
Plaintiff wanted a sex change operation, but was unable to find a

physician to perform it.  Plaintiff was taking Premarin – a hormone
replacement therapy most commonly used in post-menopausal women.  Plaintiff underwent a surgical procedure to debride his scrotum, evacuate the clot, and properly close the wound.

On May 2, 1998, Plaintiff was admitted to the hospital after
attempting to amputate his left testicle.  Emergency room
notes from May 29, 1998 indicate that Plaintiff had undergone a sexual
reassignment surgery and continued to undergo hormonal therapy. Plaintiff wanted to speak to someone in
the psychiatric unit regarding his mood swings, volatile moods, and
fears of hurting himself. Emergency room notes state that
Plaintiff’s symptoms were partly due to the hormone therapy, and also to
the adjustment to his new female role.

 Plaintiff was
diagnosed with adjustment disorder and was instructed to continue
outpatient therapy and to return if symptoms worsened.

On August 27, 2000, Plaintiff was admitted to the hospital for
depression. Plaintiff reported feeling depressed and
frustrated with the way his coworkers were treating him because of
changing his identity to a woman.  Plaintiff denied suicidal
or homicidal ideation. Plaintiff was diagnosed with
adjustment disorder, depressed mood and gender identity disorder and was
advised to follow-up with counseling.) Plaintiff was also
given instructions to return if symptoms worsened or persisted.

These notes likely reflect Plaintiff’s self-castration
attempts, as formal trans-gender surgery occurred in or around 2001.

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On September 30, 2000, a bone density test of Plaintiff’s lumbar
spine  and left hip was performed.  Testing indicated
osteopenia of the lumbar spine with a slightly increased risk of
pathological fracture.  Results also showed osteopenia of the
left hip with a slightly increased risk for pathological fracture.

In
February 2001, emergency room records indicate that Plaintiff
continued to pursue a sex change – from male to female. 
Plaintiff made comments indicating that she believed that she was a
“joke” and that “no one care[d] if [she was] dead or alive.”  The
emergency room physician indicated that Plaintiff also had suicidal
ideation.

On April 8, 2009, Dr. Eugene Rontal examined
Plaintiff’s hearing
capacity.  Dr. Rontal reported that Plaintiff had worn hearing
aids, but had lost them.  The examination revealed normal tympanic
membranes and ear canals.  An audiogram demonstrated a moderate
sensorineural hearing loss in both ears.  With a hearing aid, Plaintiff
had 96% discrimination at 50dB. Dr. Rontal opined that Plaintiff had
bilateral sensorineural hearing loss of a hereditary origin.  Dr. Rontal
further believed that a hearing aid was the only  treatment available.

On April 24, 2009, Michele Bridges prepared a case analysis for the
State concluding that Plaintiff would be able to perform some type of
low skilled work that did not heavily rely on hearing.  Ms.
Bridges also concluded that working with the public, working in a fast
food setting that relies heavily on hearing, or work requiring phone use
would be difficult.

On April 27, 2009, Dr. Donald Kuiper completed a physical residual
functional capacity assessment. In it, Dr. Kuiper opined that Plaintiff
could occasionally lift and/or carry 50 pounds, frequently lift and/or
carry 25 pounds, stand and/or walk about 6 hours in an 8-hour workday,
sit for

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a total of about 6 hours in an 8-hour workday, and was unlimited in
her ability to push and/or pull.  Dr. Kuiper noted no
postural, manipulative, visual, communicative or environmental
limitations.  After indicating that Plaintiff had no
communication limitations, Dr. Kupier concluded that Plaintiff “retains
sufficient hearing to be able to avoid normal workplace hazards and
understand occasional oral instructions.”  Dr. Kuiper noted an
audiogram and ENT exam dated April  8, 2009 which demonstrated a
non-listing level hearing and discrimination limitation. 
Further, Dr. Kupier reported that an audiogram performed in 2006
confirmed the same level of limitation.

On August 23, 2010, clinical therapist Bernadine McClung evaluated
Plaintiff and determined that Plaintiff had gender identity disorder
together with dysthymic disorder depressed mood. Ms. McClung
assessed Plaintiff’s Global Assessment Functional (GAF) Scale score at
30.  Moreover, Ms. McClung concluded that Plaintiff
exhibited “[s]erious impairment in judgment, preoccupation with becoming
and looking like a female, suicidal ideation, [and an] inability to
function in almost all areas.”  Ms. McClung further noted
that Plaintiff, “[l]ack[ed] motivation to get out of bed, [and was]
unable to obtain and keep a job.”

On September 23, 2010,
Jennifer Turecki-Kaiser, MA, prepared an
initial vocational assessment (IVA) to determine Plaintiff’s ability to
participate in vocational rehabilitation as it related to Plaintiff’s
ability to return to gainful employment. Ms. Turecki
indicated that Plaintiff was teaching herself to read lips.  Despite
this, Ms. Turecki had to repeat and rephrase herself
numerous times throughout the interview.  Ms. Turecki noted that
Plaintiff had been diagnosed with moderate, bilateral hearing loss.  Ms.
Tuercki also noted that in 2006, Plaintiff’s hearing loss rose to the
level of disability.  Ms. Turecki pointed out Plaintiff’s

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numerous unskilled labor positions and that Plaintiff was “let go”
from numerous positions due to her hearing loss and gender modification
issues.  Ms. Turecki also noted that Plaintiff was
“harassed, ridiculed and at times, felt threatened by others due to her
gender reassignment.”  Ms. Turecki concluded that
Plaintiff’s past work was at the unskilled or semi-skilled level with
the highest specific vocational preparation of 3. She noted
no transferrable skills from Plaintiff’s past work.  As
such, based on education and skill level, Ms. Turecki concluded that
Plaintiff was a candidate for unskilled work only. With
Plaintiff’s hearing loss, Ms. Turecki also concluded that only jobs that
did not require hearing should be considered.  After
reviewing Dr. Gray’s September 20, 2010 RFC assessment, Ms. McClung’s report, Ms. Bridges’ assessment, and
taking into account Plaintiff’s hearing loss and trans-gender issues,
Ms. Turecki concluded that “her impairments and symptoms [] would make
gainful competitive employment a non-realistic goal.”

C. Testimony at the Hearing Before the ALJ

1. Plaintiff’s Testimony

Plaintiff
is trans-gendered female. She lives with two roommates.  Plaintiff
reported that she did most of the housework,
although one of her roommates was a hoarder and did not allow Plaintiff
to pick up any of her belongings. Plaintiff also reported that
she cooked all of the meals. Plaintiff reported that she watched
television; however, because of her hearing loss, she directed the sound
through a walkman as high as she can get it.  Plaintiff reported being
active socially with her roommates, going to movies, parks, coffee
houses, and open microphone

Dr. Gray’s RFC assessment, while noted in Ms. McClung’s report, was not included in the administrative record.

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nights.  Plaintiff also reported reading science fiction and collecting Star Trek memorabilia.

Plaintiff
reported that her hearing  aids were stolen from her
purse and that she had not replaced them.  Plaintiff
reported having no insurance to pay for replacement hearing aids. 
Without the assistance of her hearing aids, Plaintiff testified
that she communicated through reading lips and by using some sign
language. Plaintiff testified that she was only able to
understand about 40 to 50 percent of what is going on around her due to
her lack of hearing. Plaintiff reported that she was afraid to
drive because she cannot hear a car horn and felt she was a hazard to
people on the road.  Plaintiff reported that the last time she drove was
in 2008.  Plaintiff testified that the last time she worked was in 2008
as a
care giver for an autistic child. She testified that she only
worked for three or four weeks before quitting because she felt as
though she was more of a burden than a help.  Before that,
Plaintiff reported that she worked for a temporary service at a
factory.  However, despite typically making a good first
impression on temporary employers, Plaintiff testified that soon
employers would realize that she could not pay attention   and her
supervisors would get very upset with her and would ask her to leave the
building.

Plaintiff also reported upsetting experiences associated with her
gender change from 1998 until 2006.  Plaintiff testified that
people would make comments like: “it might be better off if [she would]
just put the gun to [her] own head and save some heterosexual the need
to go to prison for the rest of his life.”  Plaintiff reported
that she got to a point in her gender dysphoria, that she castrated
herself. ) Due to the lack of understanding of the subject,
Plaintiff reported that this is not uncommon within the trans-gender
community. Plaintiff

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reported that she became disabled on January 2, 2006.  Despite this, Plaintiff attempted

to continue working; however, she reported that her hearing remained compromised.

Plaintiff testified that the buzzing she experienced in her ears affects her concentration.

Plaintiff did not take any medications for her depression.  Plaintiff did, however, report

taking hormone therapy medication.

2. The Vocational Expert’s Testimony

The ALJ solicited testimony from a vocational  xpert (“VE”) about job availability for a

hypothetical individual of Plaintiff’s age, education, and work experience who was capable of

performing all exertional demands, but has the following
non-exertional limitations: first of all, avoiding concentrated exposure
to excessive noise – I’m going to say simple, routine, repetitive
tasks for the reason that her concentration is interrupted by not only
the constant buzzing the way you’ve said it in your ear which interferes
with concentration, but also the psychological problems as well, no
interaction with the public, occasional interaction with coworkers,
which requires only communication at close distances, and limit to
occasional oral instructions.

The VE testified that the general laborer position would apply. However, if there

was a restriction of not being able to interact at all with co-workers, then the general laborer position

would not apply.  The ALJ then asked if the position could allow for using headphones to

drown out noise. The VE responded that it would not. 

II. THE ALJ’S APPLICATION OF THE DISABILITY FRAMEWORK

Under the Social Security Act (the “Act”), Disability Insurance Benefits  (for qualifying wage

earners who become disabled prior to expiration of their insured status) and Supplemental Security

Income “are available only for those who have a ‘disability.’” See Colvin v. Barnhart , 475 F.3d 727,

730 (6th Cir. 2007). The Act defines “disability,” in relevant part, as the:

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inability 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.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20 C.F.R. § 416.905(a) (SSI).

The Social Security regulations provide that disability is to be determined through the

application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in substantial gainful activity, benefits are denied without further analysis.

Step Two: If the claimant does not have a severe impairment or
combination of impairments that “significantly limits . . . physical or
mental ability to do basic work activities,” benefits are denied without
further analysis.

Step Three: If the claimant is not performing substantial gainful
activity, has a severe impairment that is expected to last for at
least twelve months, and the severe impairment meets or equals one of
the impairments listed in the regulations, the claimant is conclusively
presumed to be disabled regardless of age, education, or work
experience.

Step Four: If the claimant is able to perform his or her past relevant work, benefits are denied without further analysis.

Step Five: Even if the claimant is unable to perform his or her past
relevant work, if other work exists in the national economy that
plaintiff can perform, in view of his or her age, education, and work
experience, benefits are denied.

See 20 C.F.R. §§ 404.1520, 416.920; see also Heston v. Comm’r of Soc. Sec. , 245 F.3d 528, 534 (6th

Cir. 2001). “The burden of proof is on the claimant throughout the first four steps . . . . If the

analysis reaches the fifth step without a finding that the claimant is not disabled, the burden transfers

to the [Commissioner].” Preslar v. Sec’y of Health and Human Servs. , 14 F.3d 1107, 1110 (6th

Cir. 1994).

At step one, ALJ Scallen found that Plaintiff had not engaged in substantial gainful activity

since the alleged disability onset date of January 2, 2006. (Tr. 24.) At step  two, he found that

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Plaintiff had the following severe impairment: deafness. Next, the ALJ concluded that this impairment did not meet or
medically equal a listed impairment.  Between steps three and
four, the ALJ determined that Plaintiff had the residual functional
capacity to perform “a full range of work at all exertional levels but
with the following nonexertional limitations: avoid concentrated
exposure to excessive noise; simple, routine, repetitive tasks; no
interaction with the public; occasional interaction with co-workers;
tasks which only require communication at close contact.”
At step four, the ALJ found that Plaintiff was able to perform her past
work as a general laborer.  The ALJ therefore concluded that
Plaintiff was not disabled as defined by the Social Security Act. 

III. STANDARD OF REVIEW

This Court has jurisdiction to review the Commissioner’s final
administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review
under this statute is limited: the Court “must affirm the Commissioner’s
conclusions absent a determination that the Commissioner has failed to
apply the correct legal standard or has made findings of fact  unsupported by substantial evidence in the record.” Longworth v. Comm’r of Soc. Sec. , 402 F.3d 591, 595 (6th Cir. 2005) (internal quotation marks omitted).

Substantial evidence is “more than a scintilla of evidence but less
than a preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”

Rogers v. Comm’r of Soc. Sec. , 486 F.3d 234, 241 (6th Cir.
2007). If the Commissioner’s decision
is supported by substantial evidence, “it must be affirmed even if the
reviewing court would decide the matter differently and even if
substantial evidence also supports the opposite conclusion.” Cutlip v. Sec’y of Health & Human Servs. , 25 F.3d 284, 286 (6th

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Cir. 1994); see also Mullen v. Bowen
, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting that the
substantial evidence standard “presupposes . . . a zone of choice within
which the decisionmakers can go either way, without interference by the
courts” ).

When reviewing the Commissioner’s factual findings for substantial
evidence, the Court is limited to an examination of the record and must
consider that record as a whole. Bass v. McMahon , 499 F.3d 506, 512-13 (6th Cir. 2007); Wyatt v. Sec’y of Health & Human Servs.
, 974 F.2d 680, 683 (6th Cir. 1992). The Court “may look to any
evidence in the record, regardless of whether it has been cited by the
Appeals Council.” Heston v. Comm’r of Soc. Sec. , 245 F.3d 528,
535 (6th Cir. 2001). There is no requirement, however, that either the
ALJ or this Court discuss every piece of evidence in the administrative
record. Kornecky v. Comm’r of Soc. Sec. , 167 F. App’x 496, 508
(6th Cir. 2006). Further, this Court does “not try the case de novo,
resolve conflicts in evidence, or decide questions of credibility.” Bass , 499 F.3d at 509; Rogers , 486 F.3d at 247.

IV. ANALYSIS

Plaintiff raises two claims of error – first, that the ALJ failed to
properly determine the effects of her hearing loss on her ability to
work; and second, that the ALJ improperly omitted depression and gender
identity disorder from the list of severe impairments at step two.

A.  The ALJ Properly Determined The Effects Of Plaintiff’s Hearing Loss On Her Ability To Work

Plaintiff argues that the ALJ failed to properly determine the
effects of her hearing loss on her ability  to work. This Court disagrees and concludes that the ALJ’s
determination that Plaintiff could return to work as a general laborer
is supported by substantial evidence.

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The ALJ accommodated Plaintiff’s hearing problems by including
limitations in the RFC including avoidance of concentrated exposure to
excessive noise, communication at close range (presumably to accommodate
her need to read lips), no interaction with the public, and only
occasional interaction with co-workers. Moreover, ALJ Scallen
accommodated the “buzzing” in Plaintiff’s ears which reportedly affected
her concentration by limiting Plaintiff to jobs with “simple, routine,
repetitive tasks . . .” 

To support these limitations, the ALJ
noted the April 8, 2009
consultative examination by ENT specialist Dr. Eugene Rontal, who
observed no reports of tinnitus, aural discharge, or dizziness. The ALJ
also noted that the examination revealed normal tympanic
membranes and ear canals, and that an audiogram demonstrated moderate
sensorineural hearing loss in both ears.  ALJ Scallen
further noted that although a hearing aid brought the Plaintiff’s
hearing  discrimination to 96% at 50dB, Plaintiff reported losing
her hearing aids and has not replaced them.  The ALJ noted
that a 2006 audiogram confirmed the same level of limitation.  These
objective findings, the ALJ concluded, demonstrated that
Plaintiff had a non-listing level hearing and discrimination limitation.

Plaintiff claims that it was error for the ALJ to consider a lack of
treatment for her hearing loss; however, SSR 96-7p instructs that “the
individual’s statements may be less credible if the level or frequency
of treatment is inconsistent with the level of complaints.” See also Gwizdala v. Comm’r of Soc. Sec
., No. 98-1525, 1999 WL 777534, at *5 (6th Cir. Sept. 16, 1999) (ALJ
may consider claimant’s refusal to adhere to medical recommendations,
including the use of hearing aids).

Plaintiff also complains that the ALJ failed to consider evidence that she lacked the insurance

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to
replace the allegedly stolen hearing aids. However, Plaintiff brings
forth no evidence establishing that she
could not have afforded replacement hearing aids through insurance or
other means. On this point, this Court has recently concluded that it is
proper for an ALJ to consider a claimant’s failure to seek
emergency room treatment or low cost health care options. See Hashemi v. Comm’r of Soc. Sec. , No. 11-13629, 2012 WL 3759033, at  (E.D. Mich. Aug. 6 2012).

The ALJ also noted that Plaintiff sought no other treatment or
monitoring for her hearing loss, even on an emergency basis, which
suggests that her hearing loss was not as severe as alleged. Further,
the ALJ noted that Plaintiff was able to effectively communicate by lip
reading – and did so during the administrative hearing in this case –
without the need for any kind of interpretative assistance.

Relatedly, Plaintiff claims that substantial evidence does not
support the ALJ’s conclusion that she can return to work as a general
laborer. Plaintiff argues that the RFC limitation that she “avoid
concentrated exposure to excessive noise” coupled with her testimony at
the hearing regarding the noise in the factory in which she worked,
preclude a return to her prior work as a general laborer.

But Plaintiff’s argument has been rejected by the Sixth Circuit. In Studaway v. Sec’y of Health & Human Servs.
, 815 F.2d 1074, 1076 (6th Cir. 1987),  the Sixth Circuit held
that the Act requires that a plaintiff show his impairments are “so
severe that he is ‘unable to do his previous work. . . .’” The Court
specified: “[h]e must prove an inability to return to his former type of work and not just to his former job.” Id. (emphasis in original) (internal quotation marks omitted); accord Clendening v. Comm’r of Soc. Sec. , 482 F. App’x 93, *7 (6th Cir. 2012) (“The relevant inquiry is

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whether [the claimant] could still perform that type of work and not necessarily the specific job that he had in the past.”); see also Villa v. Heckler , 797 F.2d 794, 798 (9th Cir. 1986); Gray v. Heckler , 760 F.2d 369, 372 (1st Cir. 1985); De Loathe v. Heckler , 715 F.2d 148, 151 (4th Cir. 1983); Jock v. Harris
, 651 F.2d 133, 135 (2d Cir. 1981). Because the VE testified that
general laborer work existed at a level consistent with Plaintiff’s RFC,
this Court is compelled to affirm. See Studaway , 815 F.2d at 1076.

B.  Severe Impairments

At step two the ALJ determined that Plaintiff had one severe
impairment, deafness. (Tr. 24.) Plaintiff contends that the ALJ
improperly omitted depression and gender identity disorder from the list
of severe impairments. However,
Plaintiff fails to recognize that once step two is “cleared” by finding
that some severe impairment exists – in this case, deafness

– the ALJ must then consider a plaintiff’s “severe and nonsevere
impairments in the remaining steps of the sequential analysis.” Anthony v. Astrue
, 266 Fed. App’x 451, 457 (6th Cir. 2008) “The fact that some of [a
plaintiff’s] impairments were not deemed to be severe at step two is
therefore legally irrelevant.” Id. Consequently, any alleged
omission of Plaintiff’s depression and/or gender identity disorder from
the list of severe impairments does not necessarily undermine the ALJ’s
decision. See Anthony , 266 Fed. App’x at 457; Talos v. Comm’r of Soc. Sec ., No. 11-13207, 2012 WL 1392156, at *8 (E.D. Mich. Mar. 26, 2012); Maziarz v. Sec. of Health & Human Servs. , 837 F.2d 240, 244 (6th Cir. 1987).

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The Court has reviewed the ALJ’s decision and concludes that he
properly considered Plaintiff’s depression and gender identity disorder
in the remaining steps of the sequential analysis.

Specifically, the ALJ discussed Plaintiff’s mental health treatment
during 1997 for depression and suicidal ideation.  Next,
the ALJ discussed, in detail, Plaintiff’s emergency room visits during
February and May 1998 after he attempted to remove his testicles. ALJ Scallen noted Plaintiff’s history of gender dysphoria,
identifying as a transgender while seeking a sex change operation.  ALJ Scallen noted a break in treatment until August 2000, at which
time Plaintiff presented to the emergency room exhibiting symptoms of
depression regarding his sexual identity, but denied suicidal ideation.  ALJ Scallen noted Plaintiff’s return to the emergency room in February 2001 with suicidal ideation, but was discharged. ALJ Scallen also noted that Plaintiff worked for years with the noted conditions. And, importantly, ALJ Scallen identified no records of treatment for
Plaintiff’s mental health conditions since the alleged onset date of
disability.

This Court concludes that the ALJ properly considered Plaintiff’s
mental health impairments and a failure to find that Plaintiff’s
depression or gender identity disorder constituted a severe impairment
at step two does not constitute reversible error.

V. CONCLUSION AND RECOMMENDATION

For the reasons set forth above, this Court finds substantial
evidence supports the Commissioner’s decision. The Court therefore RECOMMENDS that Plaintiff’s Motion for Summary Judgment (Dkt. 12) be DENIED , that Defendant’s Motion for Summary Judgment.  The ALJ rated the severity of Plaintiff’s mental
impairments and the RFC reflects the degree of limitation the ALJ found
in the “paragraph B” mental function analysis.

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14) be GRANTED , and that, pursuant to 42 U.S.C. § 405(g), the decision of the Commissioner of Social Security be AFFIRMED .

 

s/Laurie J. Michelson

LAURIE J. MICHELSON

UNITED STATES MAGISTRATE JUDGE

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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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Illegal Immigrants, Social Security Benefits, and The Freedom Of Information Act

Posted on April 10, 2012 by Judge London Steverson
The seal of the United States Department of He...

The seal of the United States Department of Health and Human Services. The symbol represents the American People sheltered in the wing of the American Eagle, suggesting the Department’s concern and responsibility for the welfare of the people. The colors are reflex blue and gold. This seal is now just used for mainly legal purposes; the department has a separate logo which is used for its visual identity. More information here and here. (Photo credit: Wikipedia)

 

RODRIGUEZ-CERVANTES v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES 

RAUL RODRIGUEZ-CERVANTES, Plaintiff, v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.

 

Civil Action No. 11-1387 (JEB). 

 

United States District Court, District of Columbia. 

 

 

April 6, 2012.

 

RAUL RODRIGUEZ-CERVANTES, Plaintiff, Pro Se.
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant, represented by Fred Elmore Haynes, U.S. ATTORNEY’S OFFICE.
SOCIAL SECURITY ADMINISTRATION, Defendant, represented by Fred Elmore Haynes, U.S. ATTORNEY’S OFFICE.

 

 

 

MEMORANDUM OPINION
JAMES E. BOASBERG, District Judge.
Plaintiff Raul Rodriguez-Cervantes, a federal prisoner incarcerated in Post, Texas, brings this pro se suit under the Freedom of Information Act, 5 U.S.C. § 552. In so doing, Plaintiff seems to have put the cart before the horse. Plaintiff has brought a FOIA suit before first having his FOIA request denied. Indeed, he has brought a FOIA suit before even submitting a FOIA request. As such, the Court will grant Defendants’ Motion for Summary Judgment and dismiss the case without prejudice.
I. Background
On December 15, 2010, Plaintiff sent a letter to Defendant Social Security Administration (SSA) seeking assistance regarding applying for social security benefits.  The letter stated in relevant part:
I worked in the United States for about 15 years and always paid my social security deductions. Now I am a federal prisoner and upon the expiration of my sentence I will be removed to Mexico, my native country. At this time, I would like to know if there is any way/application to get my social security benefit before the age established by the S.S. policies. My question is due to the fact that I will be deported from this country and I do not know whether I should have a relative or friend in this country (which I do not have) to get those benefits or I should file some forms to get it in advance of the age required by the S.S. Administration.
Id.

SSA responded with a standard form letter in which it informed Plaintiff that “[n]either Social Security benefits not SSI payments are payable to prisoners just because they are being released or because they have been in prison.” In addition to providing Plaintiff with a phone number to call if he wished to file for social security benefits, SSA enclosed in the letter two brochures entitled “Social Security: What Prisoners Need To Know” and “Social Security: Entering The Community After Incarceration—How We Can Help.” 
On April 8, 2011, Plaintiff sent another letter to SSA stating:
This is a request for Social Security Disability Benefits.
In suport of my request, a deportation from the United States will be executed as soon as my current sentence be completed. The term of deportation is undefined. Although, my age is not the required in accordance with the proceedings, however, there is undisputable that a deportation will satisfy more than the necessary disability [sic].
Accordingly, please provide me with the necessary information in order to proceed with my request.
According to Plaintiff, on April 20, 2011, the agency responded with “an identical letter as the [prior one].”
Finally, on May 12, 2011, Plaintiff sent yet another letter to SSA stating:

I am an inmate incarcerated at the Giles W. Dalby Correctional Facility in Post, Texas. Since I can’t visit your office in Lubbock and I have no access to a computer, I am requesting that you please send me an application so that I may apply for my social security benefits.
Opp., Exh. 2 (Plaintiff’s Letter). This time, SSA responded with “Social Security Earnings Information,” and Plaintiff was informed that SSA was “returning [his] request for information from [his] earnings record” because “[i]n light of the current budget situation, [SSA has] suspended the Request[-]a[-]Social[-]Security[-]Statement service.” Opp., Exh. 1 (SSA Letter). Plaintiff was, however, given the option to go online to estimate his retirement benefits using SSA’s online Retirement Estimator. Id.
No other record exists of Plaintiff’s seeking to obtain information from SSA. Plaintiff has nonetheless brought this FOIA suit seeking the “disclos[ure] . . . [of] his entire record as maintained within the System of Records of the Social Security Administration Office on December 15, 2010, together with any other records pertinent to the said request.” Before the Court now is Defendant’s Motion for Summary Judgment.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”  “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record.” The moving party bears the burden of demonstrating the absence of a genuine issue of material fact.  “[A] material fact is `genuine’ . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party” on an element of the claim. Factual assertions in the moving party’s affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. 
FOIA cases typically and appropriately are decided on motions for summary judgment. In a FOIA case, the Court may grant summary judgment based solely on information provided in an agency’s affidavits or declarations if they are relatively detailed and when they describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Such affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by `purely speculative claims about the existence and discoverability of other documents.'” 
III. Analysis


The sole basis for Plaintiff’s FOIA claim seems to be that SSA did not produce “his entire record as maintained within [SSA’s] System of Records” in response to his December 15 letter, which merely requested “to know if there is any way/application to get my social security benefits before the age established by the S.S. policies.” The natural question raised by this claim is whether the December 15 letter—or indeed any of Plaintiff’s other letters to SSA—somehow amounts to a FOIA request. Although common sense offers an answer to this question, the Court will probe further.
A valid FOIA request must (i) “reasonably” describe the records sought and (ii) must be made “in accordance with [the requested agency’s] published rules stating the time, place, fees (if any), and procedures to be followed.” [s] specifically to the FOIA.”  Importantly, “an agency’s obligations commence upon receipt of a valid request; failure to file a perfected request therefore constitutes failure to exhaust administrative remedies.” And, as is well settled, a FOIA suit cannot be sustained where the plaintiff has failed to exhaust his administrative remedies. (“It goes without saying that exhaustion of remedies is required in FOIA cases.”)). Since SSA requires that all FOIA requests actually “ask for records,” any purported request that does not do so is invalid. A requester that fails to ask for records, therefore, fails to exhaust his administrative remedies.
Even if given the liberal interpretation that Plaintiff urges, his December 15 letter is by no means a FOIA request, and the circumstances plainly suggest he did not intend it to be one. Plaintiff’s letter contains no explicit or even implicit request for the production of any records. Indeed, in his own words, Plaintiff characterizes the letter as one “seeking assistance for benefits under the grounds of his deportation.” In addition, neither of Plaintiff’s two other letters to SSA was a FOIA request or anything that could be liberally construed to amount to a request for records. Plaintiff requests information about how to apply for social security benefits, asks whether or not he qualifies for those benefits given his circumstances, and seeks an application for social security benefits. He does not, however, request the production of records. As his letters merely pose questions to SSA or ask for assistance in applying for social security benefits, they do not constitute valid FOIA requests. Whether or not Plaintiff was satisfied by the responses to his questions or the level of assistance he was receiving, a FOIA suit is not the proper means by which to obtain a different response.
Finally, the fate of Plaintiff’s suit is sealed with his concession that “there may not have record of a freedom information request, but, however there his request for benefits [sic].” Plaintiff himself admits that he has no FOIA request before SSA. He has, therefore, brought a FOIA suit without first filing a FOIA request and exhausting available remedies. It cannot survive.
The Court last notes that Plaintiff’s objective throughout may simply be to acquire an application for social security benefits. To that end, Defendant has offered to arrange for Plaintiff to request a copy of his earnings record and to provide him with an application for benefits. The Court appreciates the assistance.
IV. Conclusion
As the Court finds that Plaintiff has failed to exhaust his administrative remedies, the Court will grant Defendant’s Motion for Summary Judgment. A separate Order consistent with this Opinion will issue dismissing the case without prejudice.

 

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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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If Your Treating Physician Says You Are Disabled, The Social Security Judge MUST Find You Disabled.

Posted on March 21, 2012 by Judge London Steverson

KOSOWSKI v. ASTRUE

United States District Court, M.D. Florida, Jacksonville Division.

March 19, 2012.

Stacey Ayn Kosowski, Plaintiff, represented by L. Jack Gibney, Jr., Law Office of L. Jack Gibney.
Commissioner of Social Security, Defendant, represented by John F. Rudy, III, US Attorney’s Office – FLM.

 

 

OPINION AND ORDER
JAMES R. KLINDT, Magistrate Judge.
I. Status
Stacey Ayn Kosowksi (“Plaintiff”) is appealing the Commissioner of the Social Security Administration’s final decision denying her claims for disability insurance benefits (“DIB“) and supplemental security income (“SSI“). Her alleged inability to work stems from back injuries, nerve damage, chronic pain, and depression.  Plaintiff filed an application for DIB. Plaintiff alleges a disability onset date of October 1, 2005.
Plaintiff’s claims were denied initially,  and were denied upon reconsideration, An Administrative Law Judge (“ALJ”) held a hearing on November 21, 2008 regarding Plaintiff’s claims.  After the hearing, the ALJ issued a Decision dated March 30, 2009.  Plaintiff requested a review of the ALJ’s Decision,  and on November 17, 2010, the Appeals Council denied Plaintiff’s request for review,  making the ALJ’s written Decision the final decision of the Commissioner.
On January 7, 2011, Plaintiff commenced this action under 42 U.S.C. § 405(g) and § 1383(c)(3), by timely filing the Complaint (Doc. No. 1) seeking review of the Commissioner’s final decision. The available administrative remedies have been exhausted, and the case is properly before the Court.
Plaintiff raises one issue on appeal: whether the ALJ properly considered and gave appropriate weight to the opinion of Plaintiff’s treating physician, Tai Q. Nguyen, M.D. 
After reviewing the record and the parties’ respective memoranda, the undersigned finds the final decision of the Commissioner is due to be reversed and remanded for the reasons explained herein.
II. The ALJ’s Decision

When determining whether an individual is disabled, an ALJ must follow the five-step sequential inquiry set forth in the Code of Federal Regulations (“Regulations”), determining as appropriate whether the individual: 1) is currently employed; 2) has a severe impairment; 3) has an impairment that meets or medically equals one listed in the Regulations; 4) can perform past relevant work; and 5) retains the ability to perform any work in the national economy.
The claimant bears the burden of persuasion through step four and, at step five, the burden shifts to the Commissioner. 
Here, the ALJ performed the required five-step sequential inquiry.  At step one, the ALJ observed Plaintiff “has not engaged in substantial gainful activity since October 1, 2005, the alleged disability onset date.”  (emphasis and citation omitted). At step two, the ALJ found that Plaintiff suffers from “the following severe impairments: a lumbar spine disorder status post three surgeries, chronic pain disorder, and depression.”  (emphasis and citation omitted). At step three, the ALJ stated Plaintiff “does 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.” . The ALJ determined Plaintiff has the following residual functional capacity (“RFC”):
[Plaintiff can] perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except [Plaintiff] cannot engage in activities that involve climbing ladders, ropes, or scaffolds. [Plaintiff] can occasionally climb ramps or stairs, and occasionally engage in balancing, kneeling, crouching, crawling, and stooping. [Plaintiff] must avoid exposure to dangerous work hazards. [Plaintiff] is limited to routine, repetitive work tasks.
 At step four, the ALJ ascertained Plaintiff “is unable to perform any past relevant work.”  At step five, after “[c]onsidering [Plaintiff’s] age, education, work experience, and [RFC,]” the ALJ found “there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform.”   The ALJ concluded Plaintiff was not under a disability from October 1, 2005 through the date of the Decision.
This Court reviews the Commissioner’s final decision as to disability pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ’s conclusions of law, findings of fact “are conclusive if . . . supported by `substantial evidence’ . . . .” 
“Substantial evidence is something `more than a mere scintilla, but less than a preponderance.'”
 The substantial evidence standard is met when there is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 
It is not for this Court to re-weigh the evidence; rather, the entire record is reviewed to determine whether “the decision reached is reasonable and supported by substantial evidence.”
IV. Discussion

Plaintiff raises one issue before this Court. Plaintiff alleges the ALJ did not properly consider and give appropriate weight to the opinion of Plaintiff’s treating physician, Dr. Nguyen. Pl.’s Mem. at 4-7. Plaintiff contends the ALJ should have afforded Dr. Nguyen’s opinion great weight because “Dr. Nguyen is a neurosurgeon who has treated and examined [P]laintiff and has performed a prior surgery on [P]laintiff and is in the best position to evaluate [P]laintiff’s condition.” Id. at 5. Furthermore, Plaintiff asserts that “[t]here is no other treating physician who has actually examined Plaintiff and no doctor who has a longer relationship with her.” Id. at 6.
On October 25, 2006, Plaintiff sought treatment from Dr. Nguyen. Tr. at 288. Dr. Nguyen recorded Plaintiff’s chief complaints as follows: “bilateral upper gluteal pain, bilateral gluteal pain, and right lower extremity pain. . . . She also complain[ed] of numbness in the last 3 toes of her right foot.” Tr. at 288. Dr. Nguyen opined that Plaintiff had a possible recurrent disk herniation of L4-5 on her right side. Tr. at 288. Based on the severity of Plaintiff’s complaints, Dr. Nguyen “recommended an exploration and possible surgical decompression of the nerve root.” Tr. at 288. Plaintiff was scheduled for the operation. Tr. at 288.
On November 9, 2006, Dr. Nguyen performed a hemilaminotomy and diskectomy L4-5 on Plaintiff’s right side. Tr. at 297. After this procedure, Plaintiff’s “disks were satisfactorily excised,” “the nerve was found to be free from compression,” and “hemostasis was obtained.” Tr. at 297. Two days following this surgery, Plaintiff’s pain level was controlled, she was able to ambulate to the bathroom without difficulty, and she was discharged from the hospital.6 Tr. at 299-300.
On February 28, 2007, Dr. Nguyen saw Plaintiff for a follow-up appointment related to Plaintiff’s chronic back pain and urinary incontinence. Tr. at 290-91. Dr. Nguyen noted that Plaintiff still continued to complain of pain in her right leg.  Dr. Nguyen’s assessment of Plaintiff’s condition was that she “has a low back syndrome, and she is not considered to be a surgical candidate.”  Dr. Nguyen recommended Plaintiff seek treatment from a pain management clinic.
In October 2008, Dr. Nguyen noted that he had evaluated Plaintiff on March 12, 2008, and he made the following findings.  Dr. Nguyen opined Plaintiff could lift and/or carry less than ten pounds frequently, she could occasionally stand and/or walk for less than two hours in an eight-hour workday, and she could sit for less than six hours in an eight-hour workday.  Dr. Nguyen determined that Plaintiff had physical limitations that prevented her from pushing and/or pulling with her arms and legs.  Plaintiff could never climb, balance, kneel, crouch, or stoop. Tr. at 442. Lastly, Plaintiff was limited in reaching in all directions. Tr. at 443. Dr. Nguyen concluded that Plaintiff had been suffering from these limitations since July 1995. Tr. at 445.
The Regulations instruct ALJs how to weigh the medical opinions of treating physicians properly. See 20 C.F.R. § 404.1527(d). Because treating physicians “are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant’s] medical impairment(s),” a treating physician’s medical opinion is to be afforded controlling weight if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence” in the record. 20 C.F.R. § 404.1527(d)(2). When a treating physician’s medical opinion is not due controlling weight, the ALJ must determine the appropriate weight it should be given by considering factors such as the length of treatment, the frequency of examination, the nature and extent of the treatment relationship, as well as the supportability of the opinion, its consistency with the other evidence, and the specialization of the physician. 20 C.F.R. § 404.1527(d).
If an ALJ concludes the medical opinion of a treating physician should be given less than substantial or considerable weight, he or she must clearly articulate reasons showing “good cause” for discounting it.  Good cause exists when (1) the opinion is not bolstered by the evidence; (2) the evidence supports a contrary finding; or (3) the opinion is conclusory or inconsistent with the treating physician’s own medical records. The ALJ must “state with particularity the weight he [or she] gave the different medical opinions and the reasons therefor.” 
Here, the ALJ reviewed Plaintiff’s medical history as contained in the record. The ALJ assigned “little weight” to Dr. Nguyen’s opinion because “a less than sedentary [RFC] is too restrictive in light of the medical evidence.”  The ALJ did not articulate any other reasoning or explanation as to why “little weight” was afforded to Dr. Nguyen’s opinion.
On its face, the reason given by the ALJ for affording Dr. Nguyen’s opinion little weight may be considered a “good cause” reason; however, the ALJ did not explain her reasoning with any specificity or provide any evidentiary support for her reason.. The ALJ’s lack of explanation to support the decision to give little weight to Dr. Nguyen’s opinion impedes judicial review and therefore warrants reversal.
Defendant contends that the “ALJ properly considered an opinion from Plaintiff’s treating physician” and then Defendant goes on to review the medical evidence of record and provide reasons why the ALJ’s Decision was proper.  Although Defendant’s contentions are potentially convincing, if accepted as true, the Court “cannot uphold a decision by an administrative agency . . . if, while there is enough evidence in the record to support the decision, the reasons given by the trier of fact do not build an accurate and logical bridge between the evidence and the result, or the reasons are not included in the decision. Given these standards, this Court cannot substitute the contentions in Defendant’s Memorandum for the actual findings, or lack thereof, made by the ALJ.
V. Conclusion
After a thorough review of the record, the undersigned cannot find that substantial evidence supports the Commissioner’s final decision because the ALJ did not provide sufficient reasons for discrediting the opinion of Dr. Nguyen, Plaintiff’s treating physician. In accordance with the foregoing, it is
ORDERED:
1. The Clerk of Court is directed to enter judgment pursuant to sentence four of 42 U.S.C. § 405(g) and § 1383(c)(3), REVERSING the Commissioner’s final decision and REMANDING this matter with the following instructions:
(a) Reevaluate Dr. Nguyen’s opinion and state with particularity the weight afforded to Dr. Nguyen’s opinion; if the opinion is discounted, adequate reasons showing good cause for discounting it shall be provided and shall be supported by substantial evidence.
(b) Take such other action as may be necessary to resolve these claims properly.
2. The Clerk is further directed to close the file.
3. If benefits are awarded on remand, Plaintiff’s counsel shall have thirty (30) days from receiving notice of the amount of past due benefits to seek the Court’s approval of attorney’s fees pursuant to 42 U.S.C. § 406(b). See Bergen v. Comm’r Soc. Sec., 454 F.3d 1273 (11th Cir. 2006).
DONE AND ORDERED.
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Widow Lost Her Appeal Of Denial Of Social Security Benefits. She Had No Lawyer.

Posted on March 16, 2012 by Judge London Steverson

Female Claimant Without An Attorney Lost Her Appeal Of Denial Of Widow’s Benefits By Social Security.

by London Steverson on Friday, March 16, 2012 at 6:07pm ·

MILES v. SOCIAL SECURITY ADMINISTRATION

PATRICIA ANN MILES v. SOCIAL SECURITY ADMINISTRATION, COMMISSIONER.

No. 11-13042, Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Filed March 15, 2012.

Before BARKETT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM.

Patricia Ann Miles appeals, pro se, (that means she did not have an attorney. She tried to do it herself. That is her right, but a person who represents herself, has a fool for a client.) the district court’s order affirming the Social Security Administration’s (“SSA”) denial of her application for widow’s insurance benefits . Miles argues that the Administrative Law Judge‘s (“ALJ”) determination regarding her March 1998 residual functioning capacity (“RFC“) was not supported by substantial evidence.1 More specifically, she contends that the ALJ erred by: (1) not considering the record evidence reflecting three doctors’ opinions that she was unable to work due to severe damage to her back; (2) discounting the opinion of her chiropractor that she was completely disabled; and (3) finding that her testimony was not fully credible.

Our review in this case is limited to the materials contained in the certified administrative record.2 We review the SSA’s legal conclusions de novo, and its factual findings to determine whether they are supported by substantial evidence.  Substantial evidence is defined as “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.”. “If the [SSA’s] decision is supported by substantial evidence we must affirm, even if the proof preponderates against it.”

Under the Social Security Act, the widow of a fully-insured individual is entitled to benefits if she establishes that she is at least 50, but less than 60 years of age, and is disabled. See 20 C.F.R. § 404.335(c). Thus, to collect widow’s Social Security benefits, Miles had to prove that she was disabled, as defined under 20 C.F.R. § 404.1505. The ALJ found, and the parties did not contest, that the prescribed period within which Miles had to demonstrate her disability ran from March 1, 1991 to March 31, 1998. See 42 U.S.C. § 402(e)(1); 20 C.F.R. § 404.336(c) (detailing the eligibility period for widow’s Social Security benefits).

The Social Security Regulations outline a five-step evaluation process used to determine whether a claimant is disabled.  The evaluation considers each step in turn, asking: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) whether, based on an RFC assessment, the claimant can perform any of her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform, given the claimant’s RFC, age, education, and work experience.

The ALJ determined that Miles met the first two steps of the SSR’s five-step process. At the third step, however, the ALJ found that Miles’s impairments did not meet or equal a listed impairment. Proceeding to the fourth step, the ALJ also found that Miles retained the RFC to perform her past relevant work (PRW), despite her impairment, during the claim period (1991-1998). See 20 C.F.R. §§ 416.920(e), (f). Concluding that Miles had the requisite RFC, the ALJ had no need to proceed to the fifth and final step of the analysis. See id. § 416.920(a)(4)(iv).

 

Miles argues that substantial evidence does not support the ALJ’s findings relating to her RFC during the prescribed period, and she asserts three specific errors that led to the ALJ’s allegedly erroneous conclusion. First, Miles argues that the ALJ did not consider all the record’s medical evidence, and that he did not accord proper weight to the statements of her treating physicians. Miles is correct that the record contains evidence from a few doctors suggesting that, as early as 2001, she was disabled. But that evidence does not guarantee the success of her claim. 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1) (clarifying that a treating physician’s opinion that a claimant is “disabled” is not dispositive, as that ultimate conclusion is a regulatory determination left to the ALJ). Here the ALJ found “good cause” not to heed those medical opinions, determining that they were without any explanation or basis in clinical findings, and were contradicted by the other record evidence. See Phillips, 357 F.3d at 1240-41 (listing these as permissible bases for finding “good cause” to disregard the opinion of a treating physician). Instead, the ALJ relied on the more detailed medical opinions provided by three other examining physicians to find that, prior to April 1, 2003, Miles had the RFC to perform light work, except for repetitive lifting.

Second, Miles argues that the ALJ erred by discounting her chiropractor’s opinion that she was completely disabled. However, an ALJ has no duty to give significant or controlling weight to a chiropractor’s views because, for SSA purposes, a chiropractor is not a “medical source” who can offer medical opinions. See 20 C.F.R. §§ 404.1513, 416.913, 404.1527(a)(2); Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004). Further, as stated above, even a medical source’s statement that a claimant is “unable to work” or “disabled” does not bind the ALJ, who alone makes the ultimate determination as to disability under the regulations. See 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1).

Third, Miles disputes that the ALJ’s determination as to her credibility was supported by substantial evidence, where the ALJ found that Miles’s testimony regarding the intensity, persistence and limiting effects of her symptoms were “not entirely credible prior to April 1, 2003.” The ALJ is permitted to reach a conclusion that differs from the subjective testimony of a claimant. See Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) (“After considering a claimant’s complaints of pain, the ALJ may reject them as not creditable . . . .”). In making this finding, the ALJ was required to articulate his reasons for discrediting the subjective testimony. See Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see also Foote v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995) (“A clearly articulated credibility finding with substantial supporting evidence in the record will not be disturbed by a reviewing court.”). The ALJ did so here, concluding that, despite Miles’s testimony to the contrary, the entirety of the record evidence showed that she possessed the ability to perform significant work activities.

The ALJ reviewed all the evidence before him, accorded more weight to some evidence than to other evidence, and explained his reasons for doing so. We therefore conclude that the ALJ’s determinations are supported by substantial evidence, and we will not disturb his decision. See Miles, 84 F.3d at 1400.

AFFIRMED.

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Commissioner Of Social Security Admin Reversed On Appeal.

Posted on March 16, 2012 by Judge London Steverson

BAYS v. COMMISSIONER OF SOCIAL SECURITY

KENNETH BAYS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

Case No. 6:10-cv-1577-Orl-DAB.

United States District Court, M.D. Florida, Orlando Division.

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March 14, 2012.

Kenneth Bays, Plaintiff, represented by Shea A. Fugate, Law Office of Shea Fugate.
Commissioner of Social Security, Defendant, represented by John F. Rudy, III, US Attorney’s Office – FLM.

Memorandum Opinion & Order
DAVID A. BAKER, Magistrate Judge.
Plaintiff brings this action pursuant to the Social Security Act (the Act), as amended, Title 42 United States Code Section 405(g), to obtain judicial review of a final decision of the Commissioner of the Social Security Administration (the Commissioner) denying his claim for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) benefits under the Act.
The record has been reviewed, including a transcript of the proceedings before the Administrative Law Judge (ALJ), the exhibits filed and the administrative record, and the pleadings and memoranda submitted by the parties in this case. Oral argument has not been requested.
For the reasons that follow, the decision of the Commissioner is REVERSED and REMANDED.
I. BACKGROUND
A. Procedural History
Plaintiff filed for a period of disability, DIB and SSI benefits on January 27, 2008. R. 113-17, 120-23. He alleged an onset of disability on November 8, 2006, due to pain in the lower back, right leg, knee, and hip. R. 54-56, 132, 162-166, 183. His application was denied initially and upon reconsideration. R. 58-61, 62-72. Plaintiff requested a hearing, which was held on September 9, 2009, before Administrative Law Judge Marc Mates (hereinafter referred to as “ALJ”). R. 24-52. In a decision dated October 16, 2009, the ALJ found Plaintiff not disabled as defined under the Act through the date of his decision. R. 11-23. Plaintiff timely filed a Request for Review of the ALJ’s decision. R. 9. The Appeals Council denied Plaintiff’s request on June 25, 2010. R. 5-8. Plaintiff filed this action for judicial review on October 25, 2010. Doc. No. 1.
B. Medical History and Findings Summary
Plaintiff was born on October 13, 1966 and was 40 years old on the alleged disability onset date and forty-three years old at the time of the hearing; had graduated from high school. R. 29, 168. Prior to November 8, 2006, the alleged onset date of disability. R. 113, 120. Plaintiff had worked as a laborer, as a brick layer, and as a roofer. R. 137-145, 163.
Plaintiff’s medical history is set forth in detail in the ALJ’s decision. Approximately twenty years prior to the onset date, Plaintiff was involved in a motorcycle accident and suffered (along with other injuries not relevant here) a fracture of the right femoral shaft, necessitating surgery and placement of a fixation rod in his right leg. R. 205-10, 217. For many years, Plaintiff did not have pain from this accident, however, around the beginning of 2008, he began to experience pain in the lower back, in the right leg from a cracked rod in the femur from the accident, in the knee, and hip; he also complained of high blood pressure and anxiety. R. 54-56, 132, 162, 164, 166, 183. After reviewing Plaintiff’s medical records and Plaintiff’s testimony, the ALJ found that Plaintiff suffered from complications of an internal orthopedic device (right femur) and spondylolisthesis of L5 upon SI, which were “severe” medically determinable impairments, but not impairments severe enough to meet or medically equal one of the impairments listed in Appendix 1, Subpart P, Regulations No. 4. R. 17. The ALJ determined that Plaintiff retained the residual functional capacity (RFC) to perform sedentary work which does not involve climbing, although he can engage in all other postural activities, including stooping and crouching, on an occasional basis, with pushing and pulling of the lower extremities is also limited to occasional, and no more than moderate exposure to vibration and hazards. R. 17. In making this determination, the ALJ found that Plaintiff’s statements regarding his limitations concerning the intensity, persistence, and limiting effects of his symptoms were not credible to the extent they were inconsistent with the ALJ’s residual functional capacity assessment. R. 18. Based upon Plaintiff’s RFC, the ALJ determined that he could not perform past relevant work. R. 21. Considering Plaintiff’s vocational profile and RFC, the ALJ applied the Medical-Vocational Guidelines (the grids), 20 C.F.R. Pt. 404, Subpt. P, App. 2, and, based on the testimony of the vocational expert (“VE”), the ALJ concluded that Plaintiff could perform work existing in significant numbers in the national economy as routing clerk, surveillance system monitor, and grader/sorter. R. 22. Accordingly, the ALJ determined that Plaintiff was not under a disability, as defined in the Act, at any time through the date of the decision. R. 22.
Plaintiff now asserts five points of error. First, he argues that the ALJ erred by by finding he had the RFC to perform sedentary work contrary to statements by his treating physician. Second, Plaintiff argues that the ALJ erred in failing to determine that the claimant suffered from the severe impairment of Spina Bifida Occulta. Third, he contends the ALJ erred by improperly applying the pain standard. Fourth, Plaintiff asserts that the ALJ erred in failing to consider the side effects of his medications. Fifth, he argues that the ALJ erred in evaluating his credibility. All issues are addressed, although not in the order presented by Plaintiff. For the reasons that follow, the decision of the Commissioner is REVERSED and REMANDED.
II. STANDARD OF REVIEW
The scope of this Court’s review is limited to determining whether the ALJ applied the correct legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390 (1971). The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). 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. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“If the Commissioner’s decision is supported by substantial evidence, this Court must affirm, even if the proof preponderates against it.” Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004). “We may not decide facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner.]” Id. (internal quotation and citation omitted). Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire record to determine reasonableness of factual findings).
The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R. §§ 404.1520, 416.920. First, if a claimant is working at a substantial gainful activity, he is not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or combination of impairments which significantly limit his physical or mental ability to do basic work activities, then he does not have a severe impairment and is not disabled. 20 C.F.R. § 404.1520(c). Third, if a claimant’s impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is disabled. 20 C.F.R. § 404.1520(d). Fourth, if a claimant’s impairments do not prevent his from doing past relevant work, he is not disabled. 20 C.F.R. § 404.1520(e). Fifth, if a claimant’s impairments (considering his residual functional capacity, age, education, and past work) prevent his from doing other work that exists in the national economy, then he is disabled. 20 C.F.R. § 404.1520(f).
III. ISSUES AND ANALYSIS
A. A severe impairment
Plaintiff argues that the medical evidence showed he suffered from a severe impairment resulting from spina bifida occulta because this condition resulted in significant limitations, and the impairment was well-documented. The Commissioner argues that the ALJ did not err because he found a severe impairment in Plaintiff’s lower back (R. 17), even if it was for lumbar spondylolistheses and not spina bifida occulta, and he continued in the analysis to consider Plaintiff’s impairments in the next step in the evaluation process.
At Step 2 of the five-step evaluation process, the ALJ is called upon to determine whether a claimant’s impairments are severe. By definition, this inquiry is a “threshold” inquiry. It allows only claims based on the most trivial impairments to be rejected. In this Circuit, an impairment is not severe only if the abnormality is so slight and its effect so minimal that it would clearly not be expected to interfere with the individual’s ability to work, irrespective of age, education, or work experience. A claimant need show only that his impairment is not so slight and its effect not so minimal. McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986).
There are ample complaints of back pain from Plaintiff in the record. An x-ray of Plaintiff’s lumbar spine on January 25, 2008 revealed an incomplete fusion of the ossification centers of the left transverse process at L1 and an incomplete fusion of the posterior elements of L5; and there was grade 1/2 spondylolistheses of L5/S1 and narrowing of the disc space. R. 231. An x-ray of the pelvis also indicated an incomplete fusion of the posterior elements of L5 and a fracture intramedullary rod within the femur; however there were no abnormalities in the pelvis or hip. R. 232-33. During an exam on February 27, 2008, orthopedic surgeon Jack R. Steel, M.D., diagnosed Plaintiff with spina bifida occulta and complication of an internal orthopedic device in his right femur. R. 235.
“If the Commissioner’s decision is supported by substantial evidence, this Court must affirm, even if the proof preponderates against it.” Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004). “We may not decide facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner.]” Id. (internal quotation and citation omitted). Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire record to determine reasonableness of factual findings).
The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R. §§ 404.1520, 416.920. First, if a claimant is working at a substantial gainful activity, he is not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or combination of impairments which significantly limit his physical or mental ability to do basic work activities, then he does not have a severe impairment and is not disabled. 20 C.F.R. § 404.1520(c). Third, if a claimant’s impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is disabled. 20 C.F.R. § 404.1520(d). Fourth, if a claimant’s impairments do not prevent his from doing past relevant work, he is not disabled. 20 C.F.R. § 404.1520(e). Fifth, if a claimant’s impairments (considering his residual functional capacity, age, education, and past work) prevent his from doing other work that exists in the national economy, then he is disabled. 20 C.F.R. § 404.1520(f).
III. ISSUES AND ANALYSIS
A. A severe impairment
Plaintiff argues that the medical evidence showed he suffered from a severe impairment resulting from spina bifida occulta because this condition resulted in significant limitations, and the impairment was well-documented. The Commissioner argues that the ALJ did not err because he found a severe impairment in Plaintiff’s lower back (R. 17), even if it was for lumbar spondylolistheses and not spina bifida occulta, and he continued in the analysis to consider Plaintiff’s impairments in the next step in the evaluation process.
At Step 2 of the five-step evaluation process, the ALJ is called upon to determine whether a claimant’s impairments are severe. By definition, this inquiry is a “threshold” inquiry. It allows only claims based on the most trivial impairments to be rejected. In this Circuit, an impairment is not severe only if the abnormality is so slight and its effect so minimal that it would clearly not be expected to interfere with the individual’s ability to work, irrespective of age, education, or work experience. A claimant need show only that his impairment is not so slight and its effect not so minimal. McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986).
There are ample complaints of back pain from Plaintiff in the record. An x-ray of Plaintiff’s lumbar spine on January 25, 2008 revealed an incomplete fusion of the ossification centers of the left transverse process at L1 and an incomplete fusion of the posterior elements of L5; and there was grade 1/2 spondylolistheses of L5/S1 and narrowing of the disc space. R. 231. An x-ray of the pelvis also indicated an incomplete fusion of the posterior elements of L5 and a fracture intramedullary rod within the femur; however there were no abnormalities in the pelvis or hip. R. 232-33. During an exam on February 27, 2008, orthopedic surgeon Jack R. Steel, M.D., diagnosed Plaintiff with spina bifida occulta and complication of an internal orthopedic device in his right femur. R. 235.
The finding of any severe impairment, based on either a single impairment or a combination of impairments, is enough to satisfy step two because once an ALJ proceeds beyond step two, he is required to consider the claimant’s entire medical condition, including impairments an ALJ determined were not severe. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987); see also Phillips, 357 F.3d at 1238. The ALJ must make specific and well-articulated findings as to the effect of the combination of all of the claimant’s impairments. Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984). However, a clear statement that an ALJ considered the combination of impairments constitutes an adequate expression of such findings. See Jones v. Dep’t of Health & Human Servs., 941 F.2d 1529, 1533 (11th Cir. 1991).
In this case, although the ALJ did not find Plaintiff had a severe impairment of spina bifida occulta — or even mention it separately — the ALJ did find that Plaintiff’s spondylolistheses of L5/S1 of the lumbar spine was severe and caused Plaintiff some limitations (i.e., to sedentary work with postural limitations) from pain in Plaintiff’s lower back. Moreover, although Dr. Steel diagnosed Plaintiff with spina bifida occulta, he did not prescribe any specific restrictions or limitations based on that diagnosis, and instead focused on the broken rod in Plaintiff’s femur that was causing hip pain. Doc. 235. Even assuming the ALJ erred when he concluded Plaintiff’s spina bifida occulta was not severe a impairment, that error was harmless because the ALJ progressed to the next step in the five-step evaluation process and considered all of Plaintiff’s impairments in combination — including his lower back restrictions—at later steps in the evaluation process. See R. 17-20.
B. RFC and the treating physicians’ opinions.
Plaintiff argues that the ALJ in determining that the claimant has the residual functional capacity to perform sedentary work when Plaintiff’s treating physician, Dr. Velleff, indicated Plaintiff had a more restrictive residual functional capacity, and no other examining physician indicated that the claimant had the residual functional capacity as determined by the ALJ. The Commissioner argues that the ALJ is not confined to simply adopting a treating physician’s opinions and the ALJ properly gave little weight to the limitations opined by Dr. Velleff.
Residual functional capacity is an assessment based on all relevant evidence of a claimant’s remaining ability to do work despite his impairments. 20 C.F.R. § 404.1545(a); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The focus of this assessment is on the doctor’s evaluation of the claimant’s condition and the medical consequences thereof. Id.
While it is true, as the Commissioner argues, that the ALJ determines Plaintiff’s RFC, he must give substantial weight to the opinion, diagnosis and medical evidence of a treating physician unless there is good cause to do otherwise. See Lewis, 125 F.3d at 1440; Edwards, 937 F.2d at 583; 20 C.F.R. §§ 404.1527(d), 416.927(d). If a treating physician’s opinion on the nature and severity of a claimant’s impairments is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with the other substantial evidence in the record, the ALJ must give it controlling weight. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Where a treating physician has merely made conclusory statements, the ALJ may afford them such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant’s impairments. See Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986); see also Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987).
From late January to March 2008, Plaintiff was treated at KDMC Family Care Center for complaints of right knee, hip and back pain. R. 237-38. On February 27, 2008, Dr. Steel reviewed the x-rays and told Plaintiff that “removal of the prominent proximal rod will alleviate the symptoms of discomfort at the lateral hip. Removal of the distal portion of the rod would be difficult since the nail is broken. He is primarily interested in the prominent proximal rod and would feel more secure if the remainder of the rod were left in place. The surgery would be done as an outpatient. He would probably need to use his cane post-op in the left hand for awhile post op.” R. 235-36. Dr. Steel discussed the risks and benefits of removing the broken rod from the right femur and Plaintiff was unsure if he wanted to have the rod removed. R. 235.
On March 5, 2008, James Aphrem, D.O., reviewed Dr. Steel’s report, prescribed pain medication, and referred Plaintiff to pain management. R. 238. A week later, Plaintiff presented to Thomas K. Velleff, M.D., for complaints of lower back pain, right leg pain, and status-post rod problems in the right leg. R. 285. Dr. Velleff noted the broken rod needed to be removed; he also prescribed medications, and recommended that Plaintiff follow up with an orthopedic physician for removal of the rod. R. 286. From April to September 2008, Plaintiff saw Dr. Velleff five more times. R. 287-92. At that time, Dr. Velleff prescribed medications, but did not limit Plaintiff in any activities. R. 285-91. Eleven months later, on August 19, 2009, Dr. Velleff, filled out a form entitled “Medical Opinion Re: Ability To Do Work-Related Activities (Physical)1” and opined that Plaintiff could lift ten pounds occasionally; lift less than ten pounds frequently; stand and walk less than two hours in an 8-hour day; sit about two hours in an eight hour day; could sit for twenty to thirty minutes before changing positions; stand for twenty to thirty minutes before changing positions; and could never twist, stoop, crouch, climb stairs or climb ladders. R. 294-96. Such limitations would limit Plaintiff to less than sedentary work. See R. 22 (VE testified that a hypothetical person with such limitations would not be able to perform any other work).
The ALJ discounted Dr. Velleff’s opinion:
In determining the claimant’s residual functional capacity, little weight has been afforded to the recent treating source opinion from Thomas Velleff, M.D., as it is found to be overly restrictive, inadequately supported, and inconsistent with the weight of the evidence of record as a whole. In the August 2009 assessment, Dr. Velleff indicates that claimant is capable of lifting/carrying ten pounds, but can stand/walk less than two hours and sit about two hours in an eight hour work day. He further provides, among other limitations, that claimant can sit, stand, or walk no more than twenty-to-thirty minutes at a time before changing position; needs an opportunity to shift position at will from sitting or standing/walking; and needs to lie down at unpredictable intervals during a normal work shift. The degree of limitation ascribed by Dr. Velleff appears overly restrictive, and seems to reference only claimant’s complaints of back and hip pain in support. The undersigned accordingly ascribes little weight to Dr. Velleff’s August 2009 assessment.
By contrast, the degree of work-related restriction assessed by the State agency medical consultants appears reasonable and consistent with the weight of the evidence of record as a whole, thus warranting greater weight (Exhibits 10F and 12F). These consultants allowed claimant to lift more weight, but limited standing and/or walking to two hours total in an eight hour work day, essentially limiting claimant to sedentary work. They also ascribed environmental limitations, as reflected in the above residual functional capacity finding.
Claimant’s treatment history is well-documented and supportive of work-related restriction, but the evidence shows that he has received limited treatment overall and improvement is expected with surgical intervention, if elected. . . . Aside from the broken intramedullary rod, studies have shown the fracture to be well-healed (see, e.g., Exhibits 3F, 4F, SF, and 6F). With respect to claimant’s pelvis, studies have shown no evidence of acute or significant abnormality. Claimant was formally referred for pain management in March 2008 (see Exhibit 7F), but there is no documentation that he has pursued more aggressive treatment. There is also no evidence of leg length discrepancy (see Exhibit 6F).
The February 2008 remarks of Dr. Steel have been considered. Dr. Steel indicated that removal of the prominent proximal rod would alleviate claimant’s symptoms of discomfort at the lateral hip; removal of the distal portion of the rod would be difficult because of the broken nail (Exhibit 6F). Dr. Steel did not otherwise render an opinion as to claimant’s work-related capabilities. State agency medical consultant Dr. David Swan indicated, however, that “[r]emoval of the distal broken fragment which apparently was the cause of the pain could be carried out as an outpatient in a relatively minor procedure” (Exhibit 10F, p. 3). With regard to claimant’s back complaints, while a lumbar spine series indicated some spondylolysis and narrowing of the LS/S1 disk space, it otherwise showed all other disk spaces to be well-maintained and there was no evidence of fracture or destructive process (Exhibit SF). Examination of the back showed no tenderness, no muscle spasm, no pain, and normal posture and gait (Exhibit 2F). There are no references of record to significant motor dysfunction, sensory loss, or reflex abnormality, and no indication that claimant has pursued more aggressive treatment for his back complaints to date, which might support a further reduction in claimant’s residual functional capacity.
Prior to treatment in early 2008, claimant seemingly managed his pain with over-the-counter pain medication. Although he alleges current side effects of medication to include drowsiness, a restriction against exposure to work hazards (such as dangerous moving machinery and heights) would seemingly provide enough precaution to address those allegations. As previously discussed, there is no basis within the record to establish additional limitations, and the undersigned is persuaded that the foregoing limitations contain all inferences regarding the claimant’s impairments and the degree of severity thereof which are raised by the objective and credible evidence of record, and that a further degree of work-related restriction is unwarranted.
Plaintiff contends that the ALJ erred in discounting Dr. Vellef’s opinion because there was objective medical evidence of Plaintiff’s impairment2. Doc. 16. Plaintiff argues that Dr. Velleff’s opinion is supported by the evidence of record, in that objective testing confirmed that Plaintiff had problems with his hip and the broken rod in his leg. R. 235. As explained in the prior section, Dr. Steel reviewed a CT scan of the right femur and noted that it showed a healed midshaft fracture with a Kuntschner nail in place with the nail protruding from the greater trochanter by about 2-3 inches; “removal of the prominent proximal rod will alleviate the symptoms of discomfort at the lateral hip,” but “[r]emoval of the distal portion of the rod would be difficult since the nail is broken.” R. 235. The lumbar spine x-ray also indicated an incomplete fusion of the ossification centers of the left transverse process at L1; an incomplete fusion of the posterior elements of L5; Grade ½ spondyloslysis of L5 upon S1; and narrowed disc space at L5-S1. R. 228. Plaintiff argues that Dr. Velleff’s opinion should have been accorded more weight than that of the non-examining physicians or the ALJ, who cannot come to his own conclusions regarding the limitations of Plaintiff by substituting his judgment for that of the medical and vocational experts.
The Commissioner argues that the ALJ properly discounted Dr. Velleff’s opinion because, significantly, he had not treated or evaluated Plaintiff for almost one year at the time that he completed the “checkbox/fill-in-the-blank” form indicating severe functional restrictions. R. 294-96. The Commissioner cites the ALJ’s determination that Dr. Velleff “offered very little support or explanation for the severe limitations opined in this form and because they were “inconsistent with the record as a whole.” R. 19. The Commissioner also argues that, as noted by the ALJ (R. 19), the severe limitations opined by Dr. Velleff were inconsistent with the weight of the record evidence as a whole. The Commissioner also argues that the ALJ properly gave little weight to the limitations opined by Dr. Velleff based on benign physical exam findings, including normal gait, normal muscle bulk/contour/tone, the absence of any lumbar pain/spasm/tenderness, and a negative straight leg raise test (R. 220-28), and argues that there is no disc herniation, even though Dr. Velleff indicated that there was on the form he completed. R. 295.
The ALJ’s rejection of Dr. Velleff’s opinion, and implicit discounting of Dr. Steel’s remarks that the “removal of the distal portion of the rod would be difficult because of the broken nail,” i.e., that it was possible that it would never be removed, was not based on substantial evidence. The ALJ concluded that “[a]side from the broken intramedullary rod, studies have shown the fracture to be well-healed,” and there was no problem with Plaintiff’s pelvis. R. 20. However, that does not negate the fact that there was objective medical evidence of a condition that Dr. Steel and Dr. Velleff opined was causing Plaintiff significant pain to warrant the suggested surgery. Plaintiff testified that Dr. Steel told him that surgery possibly would help. R. 38. He told
Plaintiff he could do surgery on the femur and take the top of it out, but “more than likely it would shatter the bone” so he would have to go in and replace the whole femur.” R. 38. Dr. Steel told Plaintiff that surgery on the top part “might help with a little bit of” the hip pain but “no guarantee,” and would not affect the back pain. R. 39. Dr. Steel said that the surgery to replace the whole femur would cost $50,000; the more simple operation just to replace the top broken piece (with no guarantee of success) would cost $5,000. R. 39-40. Plaintiff could not afford even the less expensive surgery. Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988) (“While a controllable medical condition is generally not disabling, if the claimant cannot afford the treatment and can find no way to obtain it, poverty may excuse the non-compliance.”). The ALJ failed to even comment on Plaintiff’s inability to afford the surgery that was the central underpinning to the ALJ’s finding that Plaintiff failed to “pursue more aggressive treatment.” R. 20. The ALJ also discounts the severity of the broken rod in Plaintiff’s femur because “there is also no evidence of leg length discrepancy” (citing Ex. 6F – R. 235-36) even though no physician cited that as evidence Plaintiff was not impaired or limited. The ALJ’s decision is not supported by substantial evidence. To the extent there is some question about Dr. Velleff’s opinion because he has “discipline on file” with the State of Florida (R.297), the ALJ may order a consultative examination with a different physician, such as an orthopedic surgeon without a problematic record, on remand.
To the extent Plaintiff argues that the ALJ erred in stating Plaintiff’s restrictions concerning exposure to vibration and hazards, the Commissioner does not dispute that the ALJ’s RFC determination did not match “verbatim” those opined by the state agency physicians (R. 268, 279), but argues any discrepancy was harmless error because the operative hypothetical to the VE accurately described the limitation as “avoiding moderate exposure to vibration and hazards.” The Court need not reach this issue, but on remand the ALJ will consider the appropriate restriction for exposure to vibration and hazards.
C. Pain and credibility.
Plaintiff asserts that the ALJ erred in evaluating his leg and hip pain and by finding his subjective complaints credible only to the extent they are not inconsistent with the RFC as determined by the ALJ. R. 18. The Commissioner again argues that benign examination findings in Plaintiff’s lower back and the availability of surgery to fix the pain in Plaintiff’s leg/hip negate his statements regarding limitations.
Pain is a non-exertional impairment. Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The ALJ must consider all of a claimant’s statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence. 20 C.F.R. § 404.1528. In determining whether the medical signs and laboratory findings show medical impairments which reasonably could be expected to produce the pain alleged, the ALJ must apply the Eleventh Circuit’s three-part “pain standard”:
The pain standard requires (1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain.
Foote, 67 F.3d at 1560, quoting Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). Pain alone can be disabling, even when its existence is unsupported by objective evidence, Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992), although an individual’s statement as to pain is not, by itself, conclusive of disability. 42 U.S.C. § 423(d)(5)(A).
The ALJ did not refer to the Eleventh Circuit’s pain standard since Plaintiff’s case was handled in the West Virginia area (where he first filed it); however, the ALJ did cited the applicable regulations and Social Security Rulings. R. 17. The ALJ discussed in pertinent part Plaintiff’s hip and femur issues without really discounting their severity, except to the extent Dr. Steel had recommended surgery and Plaintiff did not pursue the surgery:
The evidence clearly supports that claimant has limitations stemming from his musculoskeletal and orthopedic difficulties; however, the evidence of record fails to support the degree of severity and/or functional limitation described by claimant-i.e., disabling impairment. The evidence of record supports that claimant has severe impairments limiting him to a reduced range of sedentary work, most notably, as a result of standing/walking limitations of no more than two hours out of an eight-hour work day.
As discussed above, claimant sustained injuries in a 1987 motorcycle accident. Most notably, he sustained a compound midshaft fracture of the right femur with involvement of the right knee (Exhibit IF). At the time, he required emergent internal fixation and repair of the extensor laceration of the right knee and closed reduction and pinning of the distal radial fracture. The evidence indicates that he recovered satisfactorily. But, in February 2008, Jack Steel, M.D., of the Scott Orthopedic Center, noted claimant’s increased right hip problems related to a complication of the internal orthopedic device (Exhibit 6F). Dr. Steel noted that diagnostic studies showed a healed right midshaft fracture but a nail broken within the bone just proximal to the lesser trochanter. Dr. Steel recommended surgery, and told claimant that removal of the prominent proximal rod could alleviate his lateral hip discomfort. (Removal of the distal portion of the rod, however, would be difficult because of the broken nail.) On physical examination, Dr. Steel observed palpable tenderness of the right hip from the superior aspect of the greater trochanter extending into the buttock, and pain on internal and external rotation.
In addition, the record includes diagnostic studies suggesting grade 1 to 2 spondylolisthesis of L5 upon S1 and a narrowed LS/S1 disk space (Exhibit SF). A January 2008 progress note reflects claimant’s report of back pain, but no leg pain or muscle weakness (Exhibit 2F). On physical examination, he had no tenderness to palpation of the lumbosacral spine, no pain, no muscle spasm, negative straight leg raising tests, and normal posture and gait. Accordingly, Maria Sy, M.D., recommended NSAIDs, heat, and physical therapy as needed. In light of these findings, partial credibility is afforded to claimant’s subjective reports of pain and limitation to the extent consistent with the residual functional capacity described above. However, for reasons set forth below, the evidence supports a finding that despite some impairment and residual limitation, claimant retains the ability to engage in a reduced range of work activity.
R. 18-19 (emphasis added).
Where an ALJ decides not to credit a claimant’s testimony about pain, the ALJ must articulate specific and adequate reasons for doing so, or the record must be obvious as to the credibility finding. Jones v. Dep’t of Health and Human Servs., 941 F.2d 1529, 1532 (11th Cir. 1991) (articulated reasons must be based on substantial evidence). A reviewing court will not disturb a clearly articulated credibility finding with substantial supporting evidence in the record. Foote, 67 F.3d at 1561-62; Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir. 1988).
As explained above, the ALJ’s findings regarding limitations from Plaintiff’s femur/hip impairment was not based on substantial evidence. Similarly, the ALJ’s discounting of Plaintiff’s credibility as to his hip pain due to the broken rod in his femur, and his inability to afford the surgery to repair it, was not based on substantial evidence. On remand, the ALJ will properly apply the Eleventh Circuit pain standard in deciding Plaintiff’s credibility regarding the non-exertional impairment of pain.
IV. CONCLUSION
Accordingly, the Court REVERSES and REMANDS the Commissioner’s decision pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file.
DONE and ORDERED.
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Overpayment. We Made A Mistake. We Want all The Money Back. Now.

Posted on February 16, 2012 by Judge London Steverson

What Should You Do When the Social Security Administration Says it Paid You Too Much?

(Daviau v. Astrue)

 

After the initial shock, when you pick yourself up from the floor, what should you do if you get a letter from the Social Security Administration saying that they have paid you too much money by mistake?

First, you should consult an experienced Social Security Disability Lawyer, like Attorney Peter Lago, Downey, CA..

Daviau v. Astrue concerns an action filed by Plaintiff Catherine Daviau, who received Social Security Disability Insurance (SSDI) benefits from 1988 to March 1996 and again from October 1996 until 2004. In August 2004, the Social Security Administration (SSA) notified Plaintiff that it was immediately ceasing her benefits payments. Specifically, the SSA indicated that it had continued to pay Plaintiff benefits during a trial work period (TWP) – beneficiaries can work for a nine month period within a 60-month span without losing benefits; currently, the TWP automatically begins in any month in which the person‘s earnings exceed $720 – as well as an extended period of eligibility (EPE), during which the SSA pays benefits to a person whose TWP has expired for every month during a 36-month span in which the person earns below a certain threshold amount ($1,010 in 2012).

The SSA further informed Plaintiff that, according to its calculations, the government should have stopped paying her benefits in April 2002. However, the SSA continued to pay Plaintiff monthly benefits until August 2004, resulting in an overpayment of more than $17,000, which the agency was now seeking to collect. Roughly four months later, the SSA denied Plaintiffs request to waive collection of the alleged overpayment. Following an in-person conference with SSA staff, her waiver request was again denied.

The matter than went before an SSA Administrative Law Judge (ALJ) in an administrative hearing at which Plaintiff appeared without a Social Security disability lawyer. The ALJ found that Plaintiff was “not without fault” in the overpayment and therefore not entitled to waiver.

On appeal, however, the District Court for the Northern District of New York found that the ALJ’s decision was not supported by substantial evidence. In order to successfully seek waiver of a benefits overpayment, a person must show that: 1) the overpayment was not his or her fault; and 2) paying it back would cause the person financial hardship or be unfair for some other reason. In determining the benefits recipient’s fault, the SSA or a reviewing judge should consider any false statements, failure to provide material information or acceptance of a payment that the recipient knew or should have known was incorrect.

In this case, according to the court, Plaintiff reasonably relied on information from SSA staff indicating that she remained eligible for benefits, despite her work activity. SSA regulations provide that “[w]here an individual . . . accepts [an] overpayment because of reliance on erroneous information from an official source within the Social Security Administration . . . with respect to the interpretation of a pertinent provision of the Social Security Act or regulations pertaining thereto,. . . such individual, in accepting such overpayment, will be deemed to be `without fault'”.

Plaintiff stated both in her waiver request and at the administrative hearing that she was in regular communication with the SSA in person as well as via phone and letter and that during these conversations SSA staff “stated that they will let me know when I am no longer entitled to benefits.” Plaintiff further stated that when the SSA finally told her she was not entitled to benefits, it also told her that she was overpaid, yet still continued putting checks in her account. As the ALJ made no determination regarding Plaintiff’s credibility on this matter, there was no support for ignoring her statements, the court ruled. As a result, the court reversed the ALJ’s decision and remanded the case for further proceedings.

The court’s ruling does not necessarily mean that Plaintiff will be given a waiver, only that the case goes back to the ALJ. A person facing an overpayment action by the SSA should consult an experienced disability attorney who understands the laws and regulations concerning overpayment and can assist in filing a waiver request and appeal, if necessary.

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