Higgins v. Astrue

Filing 23

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is AFFIRMED. Signed by Honorable Wallace Capel, Jr on 2/27/2009. (cc, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION B E N N IE J. HIGGINS, P l a in tif f , v. M IC H A E L J. ASTRUE, Commissioner of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 1:07cv1073-WC

M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P la in tif f Bennie J. Higgins (Higgins) applied for disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. § 401 et seq. (2000) (hereinafter "the Act"). H is application was denied at the initial administrative level. Plaintiff then requested and re c eiv e d a hearing before an Administrative Law Judge (ALJ). Following the hearing, the A L J also denied the claims. Upon review, the Appeals Council remanded the case back to th e ALJ. The ALJ held a second hearing, then denied the claims again. The Appeals C o u n sel then denied Plaintiff's request for review, upholding the ALJ's decision. The ALJ's d e c isio n consequently became the final decision of the Commissioner of Social Security (C o m m issio n er).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social Security matters were transferred to the Commissioner of Social Security.

1

n o w before the Court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c), b o th parties have consented to the conduct of all proceedings and entry of a final judgment b y the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (Doc. #12); D e f .'s Consent to Jurisdiction (Doc. #13). Based on the Court's review of the record and the b rief s of the parties, the Court AFFIRMS the decision of the Commissioner. II. STANDARD OF REVIEW U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le 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 o f not less than 12 months. 4 2 U.S.C. § 423(d)(1)(A).2 T o make this determination, the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920 (2006). (1 ) Is the person presently unemployed? (2 ) Is the person's impairment severe? ( 3 ) Does the person's impairment meet or equal one of the specific im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of I m p a i rm e n t s] (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? A n affirmative answer to any of the above questions leads either to the next 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. 2
2

q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not d is a b le d ." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3 T h e burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F .3 d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying d is a b ility once they have carried the burden of proof from Step 1 through Step 4. At Step 5, th e burden shifts to the Commissioner, who must then show there are a significant number o f 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 F u n c tio n a l Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do d e s p ite his impairments and is based on all relevant medical and other evidence. Id. It also c a n contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, th e ALJ considers the claimant's RFC, age, education, and work experience to determine if th e re are jobs available in the national economy the claimant can perform. Id. at 1239. To d o this, the ALJ can either use the Medical Vocational Guidelines 4 (grids) or call a vocational e x p e rt (VE). Id. at 1239-40. T h e grids allow the ALJ to consider factors such as age, confinement to sedentary or
3

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental security income case (SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981).
4

See 20 C.F.R. pt. 404 subpt. P, app. 2. 3

lig h t work, inability to speak English, educational deficiencies, and lack of job experience. E a c h factor can independently limit the number of jobs realistically available to an in d iv id u a l. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyre q u ire d finding of "Disabled" or "Not Disabled." Id. The Court's review of the Commissioner's decision is a limited one. This Court must f in d the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U .S .C . § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of th e record which support the decision of the ALJ, but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11th Cir. 1986). [The court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings. . . . No similar p r e s um p tio n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

4

III.

ADMINISTRATIVE PROCEEDINGS P la in tif f was fifty-seven years old and had completed three years of university at the

tim e of the hearing before the ALJ. (Tr. 16). Plaintiff has past relevant work experience as a sales attendant, telephone solicitor, auto sales person, and cashier. (Tr. 85). Pursuant to th e Remand Order from the Appeals Counsel, the ALJ found Plaintiff had not engaged in su b stan tial gainful activity since the alleged onset date of 30 March 2003 (Step 1). (Tr. 14). A t Step 2, the ALJ found that Plaintiff suffers from the following severe impairments: c o g n itive disorder, NOS; post-traumatic stress disorder (PTSD); major depression, recurrent, m o d e ra te ; and low back mechanical problems versus pain syndrome. (Tr. 15). The ALJ n o n e th e les s found Plaintiff does not possess an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404. (Tr. 18). N e x t, the ALJ found that Plaintiff retains the RFC to "perform work at the medium exertional leve l, in function-by-function physical terms, as set forth in SSRs 83-10 and 96-8p" (Step 3). (T r. 20). At Step 4, after obtaining the testimony of a vocational expert, the ALJ found that P la in tif f could perform his past relevant work as a sales attendant and cashier (self-service c a p ac ity). (Tr. 23). Consequently, the ALJ found Plaintiff had not been disabled since the a lle g e d onset date. IV. P L A I N T I F F 'S CLAIMS T h e Court expended a great deal of time attempting to determine Plaintiff's claims in th is case. The beginning of Plaintiff's brief contains a few introductory facts then seems to 5

d is c u ss the ALJ's authority to determine the credibility of witnesses. The first section of the b rie f ends with counsel for Plaintiff informing the Court he is "desirous and prone to next la y out the pattern from the record of factual evidence that with overwhelming logic merges th e objective medical evidence with the picture and testimony of attending and total d is a b [ ility]." (Doc. #16 at 3). The next section of Plaintiff's brief, which actually contained le g a l authority, set forth the Eleventh Circuit's three part "pain standard" that applies when a claimant attempts to establish disability through his or her own testimony of pain or other s u b je c tiv e symptoms. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). Thus, the C o u rt was genuinely confused when the argument portion of Plaintiff's brief, titled " A p p lyin g the Law to the Record," did not discuss anything related to Plaintiff's subjective c o m p la in ts of pain or other subjective symptoms. Rather, Plaintiff argued: T h e Claimant's past relevant work should be ruled out according to the MRFC d a te d 8/8/03. This conclusion came out as a result of his inability to carry out d e ta ile d instructions Exhibit 9E Page 3. Mr. Higgins' service in the Army o c c u rre d from August 21, 1969, to August 20, 1971. On July 21, 2004, the VA c h a n g ed one of their earlier decisions granted on evaluation of 100 percent for P o st Traumatic Stress Disorder (Ex. 20E Page 4). In Plaintiff/Claimant's testimony he related his PTSD to being a soldier in V ie tn a m and being in charge of body bags and sending soldiers' bodies back h o m e . He continues to have Vietnam flashbacks which qualified him for a 100 p e rc e n t [Veterans Administration (VA)] disability rating. While the VA rating is not tantamount to a favorable ALJ decision, it should be used as evidence o f a severe impairment qualifying for benefits. T h e Plaintiff/Claimant has ben [sic] under a disability, as defined in the Social S ec u rity Act, from March 30, 2003, through today (20 C.F.C. § 404.1520(c)).

6

( D o c . #16 at 4-5). The above serves as the entirety of Plaintiff's arguments. T h e Government is also confused as to Plaintiff's claim. In its brief, the Government s ta te s: "Plaintiff's sole specific issue appears to be whether the ALJ properly evaluated the cre d ibility of his subjective complaints." (Doc. #21 at 3) (emphasis in original). The Court d is a g re e s, although it certainly understands the Government's confusion. The Court believes P la in tif f 's claims are: (1) The ALJ erred in finding that Plaintiff could perform past relevant w o rk; and (2) The ALJ erred in not using the VA rating of disability as evidence of a severe im p a i rm e n t qualifying Plaintiff for benefits.5 V. D IS C U S S IO N A. T h e ALJ did not err in finding that Plaintiff could perform past relevant w o rk .

P lain tif f argues that the Vocational Report, dated 8 August 2003, (Tr. 143-144), shows th a t Plaintiff could not perform past relevant work. The Vocational Report states that Plaintiff's past relevant work as an auto salesperson a n d telemarketer would be "ruled out" due to limitations. (Tr. 143). While the ALJ found th a t Plaintiff could perform his past relevant work as a sales attendant and cashier (selfse rv ice capacity), consistent with the Vocational Report he "ruled out" Plaintiff's ability to p erf o rm his past work as an auto salesperson and telemarketer, because they were

Pleadings which are signed by a lawyer should not leave the Court and opposing parties guessing about their construction, especially about a matter as basic as the nature of a party's claims. 7

5

" se m is k ille d " positions and the others were "unskilled." (Tr. 24). The author of the V o c a tio n a l Report only considered Plaintiff's ability to perform his past work as an auto s a le sp e rs o n and telemarketer because she had been unsuccessful in documenting all of P la in tif f 's past relevant work. (Tr. 144) ("Reasonable attempts to document all of the C la im a n t 's past relevant work have been unsuccessful."). Thus, the ALJ's decision was co n sisten t with the Vocational Report,6 and Plaintiff has failed to show any error. B. T h e ALJ erred in not using the VA rating of disability as evidence of a s e v e r e impairment qualifying Plaintiff for benefits.

P la in t if f contends that the ALJ erred in not using the VA rating of disability as e v id e n c e of a severe impairment that would qualify Plaintiff for benefits. However, the ALJ d id consider the VA's findings. The ALJ's report mentions the VA's determination several tim e s , and the ALJ specifically stated that he gave full consideration to the VA's findings. H o w e v e r, the ALJ also correctly stated that "[a]s noted in Social Security Ruling 06-03p, the S o c ia l Security Administration is not bound by another agency's disability determination sinc e different rules and standards are applied in reaching a conclusion of disability." (Tr. 2 2 ). See SSR 06-03p; see also Kemp v. Astrue, 2009 WL 163019, *3 (11th Cir. 2009) (q u o tin g Rodriguez v. Schweiker, 640 F.2d 682, 686 (5th Cir.1981)) ("A VA rating is c e r ta in l y not binding on the Secretary, but it is evidence that should be considered and is

Further, an ALJ's decision does not have to conform to a Vocational Report. The Vocational Report was made without the benefit of all the evidence before the ALJ, including all of Plaintiff's medical and vocational records and testimony produced at the hearing, including that of experts. 8

6

en titled to great weight."). T h e re f o re , the ALJ did consider the VA's determination of disability and ascribed it the proper weight. This Court finds no error. V I. CONCLUSION In addition to reviewing Plaintiff's claims, the Court has carefully and independently re v ie w e d the entire record and concludes the decision of the Commissioner is AFFIRMED. A separate judgment will issue. D O N E this 27th day of February, 2009. /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

9