Posts Tagged With: Supplemental Security Income

Joint Pains That May Pay Dividends.

Fibromyalgia Awareness

Fibromyalgia Awareness (Photo credit: Kindreds Page)

Not all joint pains can be cured with a miracle healing. If you have joint pains that will not go away, and no miracle healing has been able to cure, then you might be permanently disabled.

It is no secret that most people are likely to have “good days” and “bad days.”If your condition consists mostly of joint pains, there may be days when you feel that you can work. Your pain may fluctuate and may not always be present. You may be suffering from fibromyalgia.  Fibromyalgia is a complex medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues. If your pain or other symptoms cause a limitation or restriction that has more than a minimal effect on your ability to perform basic work activities, you could qualify for disability benefits from the Social Security Administration.

 

The Social Security Administration has issued a comprehensive statement that provides guidance on how disability claims based on fibromyalgia should be evaluated. It is contained in Social Security Ruling (SSR) 12-2p.

Rulings are published under the authority of the Commissioner of Social Security and make available to the public a series of precedential decisions relating to Federal old-age, survivors, disability, supplemental security income (SSI), and black lung benefits programs. Social Security Rulings (SSR) may be based on case decisions made at all administrative levels of adjudication, Federal court decisions, Commissioner’s decisions, opinions of the Office of the General Counsel, and other policy interpretations of the law and regulations. Rulings do not have the force and effect of the law or regulations, but they are binding on all components of the Social Security Administration (SSA), and are to be relied upon as precedents in adjudicating other cases.

 

Social Security Ruling (SSR) 12-2p, provides guidance on how the Administration will develop evidence to establish that a person has a medically determinable impairment (MDI) of fibromyalgia, and how it will evaluate this condition in disability claims and in continuing disability reviews under both Titles II (SSDC) and XVI (SSI) of the Social Security Act. The ruling, which was effective upon publication, appears in the July 25, 2012, issue of the Federal Register (77 Fed. Reg. 43640).

The new ruling relies on two alternative sets of guidelines for establishing the presence of fibromyalgia, the 1990 American College of Rheumatology (ACR) Criteria for the Classification of Fibromyalgia or the 2010 ACR Preliminary Diagnostic Criteria. Additionally, particular emphasis is given to longitudinal evidence and a recognition that one suffering from the condition is likely to have “good days” and “bad days.” This clearly increases the role played by a treating physician in establishing the presence of fibromyalgia. The detailed guidance provided by SSR 12-2p should also restrain adjudicators who might be predisposed to deny claims based on fibromyalgia when it is otherwise clearly established in accordance with the Ruling.

How fibromyalgia is to be established

Fibromyalgia is a complex medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues that has persisted for at least three months. Generally, an MDI of fibromyalgia can be established through evidence provided by “an acceptable medical source,” i.e., a physician or osteopath. However, the Administration will not rely on a diagnosis without evidence. The evidence must document that the physician reviewed the person’s medical history and conducted a physical examination.

Based on both the 1990 ACR criteria and the 2010 ACR Preliminary Diagnostic Criteria, there are three components to the specific criteria that must be used to determine that a claimant has an MDI of fibromayalgia. Both sets of criteria agree on two of the points, but have different guidelines regarding current symptomatology (point 2, below):

(1) A history of widespread pain. This means pain in all quadrants of the body that has persisted for at least three months, although the pain may fluctuate and may not always be present.

(2) 1990 ACR criteria: At least 11 positive tender points out of a possible 18 tender point sites on physical examination. These points must be both bilateral and above and below the waste. The specific location of these tender point sites are identified with a diagram in the notice. When testing these tender-point sites, the physician should apply at least 9 pounds of pressure to the site; or,

2010 ACR Preliminary Diagnostic Criteria: Repeated manifestations of six or more fibromyalgia symptoms, signs or co-occuring conditions, especially manifestations of fatigue, cognitive or memory problems, waking unrefreshed, depression anxiety disorder, or irritable bowel syndrome. A complete list of symptoms appears in the notice.

(3) Evidence that other disorders that could cause the symptoms or signs have been ruled out.

The Administration will generally request documentation for the 12-month period that precedes the application date. Evidence may also be considered from medical sources who are not “acceptable medical sources” such as psychologists, as well as from nonmedical sources such as neighbors, friends, employers, rehab counselors, teachers, and Administration personnel who have interviewed the claimant. If the evidence is insufficient, the Administration may purchase a consultative examination; however, the Ruling notes that the consultative examiner should have access to longitudinal information about the claimant. However, it is not a necessary requirement.

Once an MDI is established, the Administration will then evaluate the intensity and persistence of the person’s pain or any other symptoms and determine the extent to which the symptoms limit the person’s capacity for work. If objective medical evidence does not substantiate the person’s statements about the intensity, persistence, and functionally limiting effects of symptoms, all of the evidence in the case record will be considered, including the person’s daily activities, medications or other treatments the person uses, or has used, to alleviate symptoms; the nature and frequency of the person’s attempts to obtain medical treatment for symptoms; and statements by other people about the person’s symptoms.

Determination of disability after fibromyalgia is established

Once an MDI of fibromyalgia is established, it will then be considered in the five-step sequential evaluation process. At step two, when determining severity, the ruling states, “If the person’s pain or other symptoms cause a limitation or restriction that has more than a minimal effect on the ability to perform basic work activities, we will find that the person has a severe impairment(s).” Because fibromyalgia is not a listed impairment, the Administration at step three, will determine whether FM medically equals a listing (for example, listing 14.09D in the listing for inflammatory arthritis), or whether it medically equals a listing in combination with at least one other medically determinable impairment.

When determining the residual functional capacity for an individual basing a claim on fibromyalgia, all relevant evidence in the record will be considered. However, the Administration specially notes that it will “consider a longitudinal record whenever possible because the symptoms of FM can wax and wane so that a person may have ‘bad days and good days.’” At steps four and five, the usual vocational considerations apply. However, the Administration states that “[w]idespread pain and other symptoms associated with FM, such as fatigue, may result in exertional limitations that prevent a person from doing the full range of unskilled work in one or more of the exertional categories in appendix 2 of subpart P of part 404 (appendix 2). … Adjudicators must be alert to the possibility that there may be exertional or nonexertional (for example, postural or environmental) limitations that erode a person’s occupational base sufficiently to preclude the use of a rule in appendix 2 to direct a decision.”

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If Your Treating Doctor Says Your Are Disabled, The Judge Must Grant You Benefits.

TALLEY v. ASTRUE

April 11, 2012.


Modern Social Security card.

Modern Social Security card. (Photo credit: Wikipedia)

MEMORANDUM OPINION AND ORDER

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

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

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

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

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

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

 

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

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

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

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

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

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

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

HIBSHMAN v. ASTRUE

 


 

 

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

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

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

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

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


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

GAY v. ASTRUE

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

 


 

 

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

 

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

STEP (1) Is the person presently unemployed?

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

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

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

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

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

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

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

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

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

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

BLACK v. CULBERTSON

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

 

Before EDMONDSON, MARTIN and ANDERSON, Circuit Judges.

 

 


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

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

SLATER v. ASTRUE

March 23, 2012.

Demon Victorell Slater, Plaintiff, represented by Quinn Eric Brock, Brock & Stout.
Michael J. Astrue, Commissioner of Social Security, Defendant, represented by Dorrelyn K Dietrich, Social Security Admin, Office of General Counsel Region VIII, John Jay Lee, Social Security Administration, & Robert Randolph Neeley, U.S. Attorney’s Office.

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

OSMORE v. ASTRUE

COULETTE OSMORE v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration

No. 11-35212.

United States Court of Appeals, Ninth Circuit.

Filed March 20, 2012.

Before: PAEZ and FERNANDEZ, Circuit Judges, and GWIN, District Judge.***

 

 


MEMORANDUM
Coulette Osmore appeals the district court’s judgment reversing the Commissioner’s final decision that Osmore was not disabled within the meaning of Title XVI of the Social Security Act, 42 U.S.C. §1383c(a)(3), and remanding the matter for further administrative proceedings. With her appeal, Osmore seeks an order that, on remand, the Adminstrative Law Judge (ALJ) must complete an entirely new evaluation of Osmore’s Supplemental Security Income and Disability Insurance Benefits applications. We affirm.

 

Evaluation of the Medical Evidence
The Commissioner says that, on remand, he will both consider the effects of Osmore’s mental impairments and allow Osmore to argue that medication side effects limit her residual functional capacity. Accordingly, Osmore’s claim that the ALJ improperly disregarded evidence of Osmore’s depression and medication side effects is moot (“An appeal is moot if there exists no `present controversy as to which effect relief can be granted.'”  On remand, the ALJ must consider Osmore’s mental impairments and medication side effects.
The ALJ did not err by failing to discuss specifically Osmore’s MRI and CT scan results. “[I]n interpreting the evidence and developing the record, the ALJ does not need to discuss every piece of evidence.“Here, Osmore’s MRI results were consistent with her CT scan results. Both revealed that Osmore has the severe impairment spondylolisthesis. The ALJ properly considered Osmore’s medical records—including records that evaluated her MRI and CT scan—in evaluating Osmore’s impairments.
The ALJ provided specific and legitimate reasons for rejecting Dr. Tim Truschel’s (a treating physician) opinion: other treating and non-treating physicians’ opinions, along with Osmore’s treatment records, contradicted Dr. Truschel’s opinion. A non-examining physician’s opinion may constitute substantial evidence to disregard the opinion of an examining physician if it is consistent with other independent evidence in the record and the ALJ does not rely on the non-examining physician’s report alone
The ALJ did not err in evaluating the medical records from Osmore’s twelve other physicians. The ALJ noted Osmore’s history of back pain, cited several of Osmore’s physicians’ medical opinions and treatment records, and appropriately developed and considered the record. 
Evaluation of Other Evidence
The ALJ did not err in discrediting Osmore’s symptom testimony based on inconsistencies with 1) the objective medical evidence and 2) Osmore’s daily activities.  (Inconsistencies with clinical observations can “satisfy the requirement of a clear and convincing reason for discrediting a claimant’s testimony.”); (The ALJ may reject the claimant’s testimony when inconsistent with the claimant’s daily activities and contrary to the medical evidence.).
The ALJ did not err in failing to consider Osmore’s lay-witness evidence. In 2004, Osmore’s husband and sister prepared reports for Osmore’s prior Social Security benefits applications; the present application concerns disability beginning March 2005. Accordingly, these out-of-date lay-witness reports are not probative evidence of Osmore’s 2005 disability status.  (“[T]he evidence which the Secretary ignored was neither significant nor probative.”). On remand, however, Osmore may seek leave to submit additional evidence from lay witnesses.
Other Claims of Error
The district court explained that because “the ALJ erred in evaluating the medical evidence in the record concerning [Osmore’s] mental impairments and limitations,” the ALJ also erred “in assessing [Osmore’s] residual functional capacity.” In its judgment reversing and remanding, the district court ordered the ALJ to make a new determination of Osmore’s residual functional capacity and of Osmore’s ability to perform past relevant and current work. Accordingly, Osmore’s remaining allegations of error—regarding the ALJ’s determination of Osmore’s residual functional capacity and ability to perform past relevant and current work—are also moot. See W. Coast Seafood, 643 F.3d at 704.
AFFIRMED.
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If Your Treating Physician Says You Are Disabled, The Social Security Judge MUST Find You Disabled.

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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Social Security Judges Will Not Grant Benefits to Former Drug Users, No Matter What Treating Physician Rule Says.

 

BLACK v. ASTRUE

 

 

KRISTINA R. BLACK  v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration.

 

No. 11-35379.

 

United States Court of Appeals, Ninth Circuit.

 

  Filed March 19, 2012.

Before: PAEZ and MURGUIA, Circuit Judges, and TUCKER, District Judge.

 

MEMORANDUM*

Plaintiff-Appellant Kristina Black appeals the district court’s judgment affirming the Commissioner of Social Security‘s denial of her applications for Child’s Insurance Benefits and Supplemental Security Income benefits under the Social Security Act. Black alleged disability due to depressive disorder severe with psychotic features, polysubstance abuse, obesity, chronic back pain, and anxiety disorder.

We review de novo the district court’s order affirming the Commissioner’s denial of benefits to ensure that the Commissioner’s decision was supported by substantial evidence and a correct application of the law.

 

The Administrative Law Judge (“ALJ”) applied the five-step sequential evaluation process to determine if Black is disabled. 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920.

At STEP ONE, the ALJ determined that Black had not been engaged in substantial gainful activity (SGA) since September 1, 2006, the alleged disability onset date.

At STEP TWO, the ALJ found that Black had two severe impairments: (1) major depressive disorder, chronic, severe with psychotic features, and (2) polysubstance abuse.

At STEP THREE, the ALJ determined that Black did not have an impairment that meets the criteria of an impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ then found that Black had the residual functional capacity to perform a full range of work but with non-exertional limitations.

At STEP FOUR, the ALJ concluded that Black is capable of performing her past relevant work (PRW) as a dishwasher, and therefore is not disabled.

At STEP FIVE, alternatively, the ALJ concluded that Black is not disabled because there are other jobs that exist in significant numbers in the economy that she can perform, including work as a night cleaner.

 

The ALJ erred at STEP TWO by not considering whether Black’s anxiety disorder is a severe impairment. Treating physician Dr. Woyna diagnosed Black as suffering from anxiety disorders and Black alleged that she was disabled in part due to anxiety disorder.

By disregarding the anxiety disorder diagnosis, the ALJ failed to offer the “specific and legitimate reasons” required to reject a treating doctor’s conclusions. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). Substantial evidence does not support the ALJ’s conclusion that the anxiety disorder is not a severe impairment in the absence of any mention of the disorder.

We cannot determine whether the error was harmless because the ALJ did not provide a statement of reasons for rejecting evidence relevant to Black’s residual functional capacity, and

THEREFORE we do not know whether the ALJ’s omission was “inconsequential to the ultimate nondisability determination.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006).

We therefore reverse and remand to the district court with instructions to remand to the ALJ to consider all of the evidence. We do not reach Black’s other claims of error.

REVERSED and REMANDED.

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Commissioner Of Social Security Admin Reversed On Appeal.

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.

http://www.amazon.com/Judge-London-Steverson/e/B006WQKFJM

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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