Gully v. Astrue (CONSENT)

Filing 20

MEMORANDUM OPINION AND ORDER. Signed by Honorable Wallace Capel, Jr on 6/3/09. (Attachments: # 1 appeals checklist)(vma, )

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 P A T R IC IA GULLY, P l a in tif f , v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 1:08cv245-WC

M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P la in tif f Patricia Gully applied for disability insurance benefits under Title II of the S o c ia l Security Act ("the Act"), 42 U.S.C. §§ 401 et seq., and supplemental security income b e n e fits pursuant to Title XVI of the Act, 42 U.S.C. § 1381 et seq. Her applications were d e n ie d at the initial administrative level. Plaintiff then requested and received a hearing b e f o re an Administrative Law Judge (ALJ). Following the hearing, the ALJ also denied the c la im s . The Appeals Council rejected a subsequent request for review. The ALJ's decision c o n se q u e n tly 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 n o w before the Court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c),

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.

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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. #10); D e f .'s Consent to Jurisdiction (Doc. #11). 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 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 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
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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 lig h t work, inability to speak English, educational deficiencies, and lack of job experience.
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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).
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See 20 C.F.R. pt. 404 subpt. P, app. 2. 3

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). See also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1 1 5 5 , 1158 (11th Cir. 2004) ("Even if the evidence preponderates against the C o m m is s io n e r's findings, [a reviewing court] must affirm if the decision reached is s u p p o rte d by substantial evidence."). 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 u m p t io 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).

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III.

ADMINISTRATIVE PROCEEDINGS P lain tiff was fifty-four years old at the time of the hearing before the ALJ. (Tr. 31).

P lain tiff completed high school and three and a half years of college. (Tr. 31). Plaintiff's p a st relevant work experience was as a fast food worker. (Tr. 26, 32). Following the a d m in is tra tiv e hearing, and employing the five-step process, the ALJ found Plaintiff had not e n g a g ed in substantial gainful activity since the alleged onset date of January 19, 2006 (Step 1 ). (Tr. 21). At Step 2, the ALJ found that Plaintiff suffers from the severe impairments of "o steo arthr itis of the knees, ankles, and shoulders; hypertension; and diabetes mellitus." (Tr. 2 1 ). The ALJ next found that other impairments alleged by Plaintiff 5 were not sufficiently s u p p o rte d by medical evidence to be considered "significant work-related limitations . . . for a continuous period of at least 12 months." (Tr. 22). The ALJ then found that Plaintiff "does n o t have an impairment or combination of impairments that meets or medically equals one o f the listed impairments." (Step 3) (Tr. 23). Next, the ALJ found that Plaintiff retains the R F C to "perform work at the medium exertional level with a restriction on climbing ladders, ro p e s, or scaffolds; only occasional exposure to dangerous heights or machinery; and a v o id a n c e of more than occasional exposure to direct sunlight." (Tr. 23). Given this level o f RFC, the ALJ determined that Plaintiff "is capable of performing her past relevant work a s a fast food worker." (Step 4) (Tr. 26). After consulting with a vocational expert to

These alleged impairments include "hiatal hernia, peptic ulcer disease, frequent urination, foot blisters, back pain, and marijuana abuse." (Tr. 22). 5

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co n firm that Plaintiff's past relevant work is not inconsistent with her given RFC (Tr. 43), the ALJ found that Plaintiff "has not been under a disability." (Tr. 27). IV . P L A I N T I F F 'S CLAIMS P la in tif f alleges three discrete errors requiring reversal of the ALJ's decision: (1) "the A L J failed to evaluate [Plaintiff's] residual functional capacity in accordance with Social S e c u rity Ruling 96-8p;" (2) "the ALJ failed to fulfill his duty to develop the record;" and (3) " th e ALJ made multiple inaccurate statements that further prevent the support of substantial e v id e n c e." Pl.'s Brief in Support of Complaint (Doc. #13) at 9. The Court will address each o f Plaintiff's claims in turn. V. DISCUSSION A. T h e ALJ's evaluation of Plaintiff's RFC in conjunction with SSR 96-8p.

P la in tif f contends that, contrary to SSR 96-8p, "the ALJ failed to identify the f u n c tio n a l limitations imposed by [Plaintiff's] medically severe impairments and assess her w o rk -re la te d abilities on a function-by-function analysis before determining that [Plaintiff] c o u ld perform medium work activity on a sustained basis." Pl.'s Brief in Support of C o m p la in t (Doc. #13) at 10 (emphasis in original). Additionally, Plaintiff claims that the A L J 's finding that Plaintiff is capable of work at the medium exertional level despite her o s te o a rth ritis of the lower extremities also runs afoul of SSR 96-8p because the ALJ p u rp o rte d ly failed to describe the evidentiary support for such conclusion and "failed to

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p ro v id e a narrative discussion describing how the evidence supported his determination that [ P la in tif f ] could remain up on her affected extremities for most of the workday." Id. at 11. P lain tiff argues that these asserted violations of the standards set forth in SSR 96-8p require re v e rs a l of the ALJ's decision. D e f en d a n t contends that, so long as it is evident the ALJ "did consider all of the e v id e n c e and found that it did not support Plaintiff's level of disability alleged," SSR 96-8p d o e s not impose upon the ALJ a strict obligation to be "more specific and explicit in his f in d in g s " regarding the claimant's "work-related abilities on a function-by-function basis." D e f .'s Brief in Support (Doc. #18) at 4. Defendant also suggests that "Plaintiff's medical re c o rd s do not offer much, if any, information related to any functional limitations associated w ith Plaintiff's impairments." Id. at 5. Thus, it is asserted, there is little from which the ALJ c o u ld have concluded that Plaintiff's functional limitations precluded the performance of m e d iu m work beyond the restrictions noted by the ALJ in setting forth Plaintiff's RFC. D e f en d a n t also argues that, because the ALJ did properly recite and discuss the "very limited m e d ic a l evidence of record," the ALJ was not required to give a "narrative discussion d e sc rib in g how the evidence supports" his conclusion that Plaintiff can perform medium w o rk . Social Security Ruling 96-8p recounts "the Social Security Administration's policies a n d policy interpretations regarding the assessment of residual functional capacity (RFC)." In pertinent part, it states as follows: "The RFC assessment is a function-by-function 7

a ss e ss m e n t based upon all of the relevant evidence of an individual's ability to do workrelated activities." SSR 96-8p. As noted by Defendant, in an unpublished decision the Court o f Appeals for the Eleventh Circuit has held that an ALJ's failure to "more specific[ally] and e x p lic it[ ly]" set forth his findings with respect to a claimant's "functional limitations and w o rk -re la te d abilities on a function-by-function basis" is excusable where it is apparent the A L J did "consider all of the evidence." Freeman v. Barnhart, 220 Fed. App'x 957, 959-60 (1 1 th Cir. 2007). See also Chavez v. Astrue, 276 Fed. App'x 627, 627-28 (9th Cir. 2008) (" C h a v e z claims that the ALJ committed legal error by determining his mental residual f u n c tio n a l capacity without performing a function-by-function assessment as required by S o c ia l Security Ruling 96-8p. This claim fails because the ALJ considered and noted `all of th e relevant evidence' bearing on Chavez's `ability to do work-related activities,' as required b y the function-by-function analysis.") (internal citations omitted). Thus, where the ALJ has "considered" all available relevant evidence pertaining to th e claimant's functional limitations, the failure to "specific[ally] and explicit[ly]" discuss t h e ALJ's assessment of the claimant's "work-related abilities on a function-by-function b a sis " does not require reversal. In this instance, it is evident that the ALJ did properly c o n sid e r all relevant evidence. The ALJ considered and discussed medical evidence from b ef o re the alleged onset date through shortly before the hearing date. (Tr. 21-22).

S p e c if ic a lly, the ALJ took note of the findings of Dr. Vyas, who conducted an examination o f Plaintiff in April, 2006, and ultimately rendered a diagnostic impression including

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o s te o a rth ritis . (Tr. 168). The ALJ referred to Dr. Vyas's findings upon examination of P la in tif f 's lower extremities. The ALJ also considered Plaintiff's testimony about her i m p a ir m e n ts and her daily activities in determining Plaintiff's RFC. (Tr. 22). Only after d isc u ss in g the relevant evidence pertaining to both actual and alleged severe impairments did th e ALJ express Plaintiff's RFC in terms of a specific exertional level. (Tr. 23). Plaintiff p o in ts to no evidence overlooked by the ALJ in formulating Plaintiff's RFC. Accordingly, it is evident that the ALJ gave adequate consideration to all "relevant evidence of [Plaintiff's] a b ility to do work-related activities" and any purported failure to explicitly assess the f u n c tio n a l limitations on Plaintiff's work-related abilities on a function-by-function approach o r provide a "narrative discussion" of the evidence supporting the ALJ's conclusion is not rev ersible error. B. T h e ALJ's failure to further develop the record.

Plaintiff contends that the ALJ failed to adequately develop the record because "the A L J's administrative determination that [Plaintiff] retained the residual functional capacity to perform the exertional requirements of medium work activity fails to enjoy the support fro m either a treating or examining physician." Pl.'s Brief in Support (Doc. #13) at 13. It a p p e a rs that Plaintiff is asserting that this failure to order a "new medical source statement" is tantamount to the ALJ "act[ing] as both judge and physician." Id. Plaintiff concludes that, " [ i]n furtherance of his duty to develop a full and fair administrative hearing, the ALJ should h av e sought such opinions from either [Plaintiff's] treating providers or Dr. Vyas before 9

m a k in g his RFC finding." Id. at 14. Defendant maintains that the record evidence - both medical and, importantly, nonm e d ic a l - supported the ALJ's RFC determination. Defendant highlights portions of the A L J's opinion which evince his consideration of Plaintiff's inconsistent efforts to obtain tre a tm e n t for her allegedly disabling impairments, the general lack of evidentiary support for P la in tif f 's claims of such disabling impairments, Plaintiff's apparent success at treating certain her impairments with prescribed treatments, and Plaintiff's own testimony and written s ta te m e n ts about her pain and her daily activities, including the consequences of her a p p lic a tio n for, and receipt of, unemployment compensation. Thus, Defendant concludes, th e available evidence fully supported the ALJ's RFC determination. "Even though Social Security courts are inquisitorial, not adversarial, in nature, c la im a n ts must establish that they are eligible for benefits. The administrative law judge has a duty to develop the record where appropriate but is not required to order a consultative e x a m in a tio n as long as the record contains sufficient evidence for the administrative law ju d g e to make an informed decision." Ingram v. Comm. of Soc. Sec. Admin., 496 F.3d 1253, 1 2 6 9 (11th Cir. 2007); see also Good v. Astrue, 240 Fed. App'x 399, 404 (11th Cir. 2007) (re je c tin g claim that ALJ reversibly erred in failing to order a consultative examination b e c au s e no treating or examining physician had recommended such an examination and the

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rec o rd contained sufficient evidence to permit the ALJ's RFC determination).6 In this case, adequate evidence supported the ALJ's RFC determination such that he w a s not required to order any additional functional capacity evaluation or otherwise develop th e record. The ALJ considered the detailed findings of Dr. Vyas's consultative examination (T r. 165-68) and the opinion of the DDS physician who, based on available records, believed th a t Plaintiff suffered from no severe impairments. (Tr. 169). The ALJ also considered P la in tif f 's own statements about her pain and found them only partly credible.7 Additionally, th e ALJ believed it pertinent that Plaintiff had only sought medical care on an inconsistent b a sis and that she had also applied for unemployment compensation after leaving work, th e re b y representing that she was not disabled and could return to work. Given the evidence a v a ila b le to the ALJ, as well as the lack of any medical professional's recommendation for a n additional physical examination of Plaintiff, the ALJ was not required to further develop th e record and his RFC determination is supported by substantial evidence. To the extent P la in tif f believes additional evidence could have affected the ALJ's RFC determination, she

Indeed, one of the cases relied upon by Plaintiff in alleging that the ALJ failed to properly develop the record, Coleman v. Barnhart, 264 F. Supp. 2d 1007, 1010 (S.D. Ala. 2003), found error, as in Good, based partly on the fact that no consultative physical capacities examination was ordered by the ALJ despite a specific recommendation for such by a consulting cardiologist. See id. at 1010-11. Despite including a lengthy excerpt from Coleman in her brief, Plaintiff failed to discuss this salient aspect of the decision and does not indicate any part of the record in which a physician similarly recommended a physical capacities evaluation for her. Nor does Plaintiff indicate that she requested such an examination or sought one from her own treating providers at any point during the administrative proceedings.
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Plaintiff does not challenge the ALJ's credibility determinations. 11

h a s failed in her obligation to obtain such evidence in order to establish her entitlement to b e n e f its . C. T h e ALJ's multiple allegedly inaccurate statements.

P la in tif f contends "the ALJ made multiple inaccurate statements that further prevent th e support of substantial evidence." Pl.'s Brief in Support (Doc. #13) at 14. Specifically, P la in tif f points to the ALJ's statements about Plaintiff's "need for frequent urination" and th e severity of her diabetic condition as examples of such "inaccurate" statements.8 Notably, a lth o u g h Plaintiff concludes that the ALJ's allegedly "inaccurate" statements about these c o n d itio n s somehow deprive his opinion of the support of substantial evidence, Plaintiff does n o t explain how any such inaccuracies ultimately compromise the ALJ's disability d e te rm in a tio n . Defendant maintains that the ALJ's targeted statements are not inaccurate and th a t , even assuming some inaccuracy, they are harmless. In rejecting Plaintiff's alleged frequent need for urination as a severe impairment, the A L J remarked that any allegation about the seriousness of the condition was not "supported b y the medical evidence in the record nor has any evidence been presented that such a

Plaintiff also includes an allegation about the ALJ's treatment of her foot blister condition in this portion of her brief. However, Plaintiff does not indicate what the ALJ said about the condition that was "inaccurate." Rather, she simply argues that the ALJ "summarily dismissed" the condition "without seeking clarification from a medical doctor so as to determine if that condition could be related to her diabetic condition/neuropathy." Pl.'s Brief in Support (Doc. #13) at 15. However, for the reasons stated supra, because the evidence in the record supported the ALJ's determination about the frequency and severity of the condition, the ALJ was not required to order an additional physician examination. 12

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p ro b le m is unable to be cured by compliance with a medication regimen." (Tr. 23). To illu s tra te the ALJ's purported inaccuracy, Plaintiff points to a single record, dated before the o n s e t date of Plaintiff's alleged disability, in which the preparer noted Plaintiff's complaint o f "occasional polyuria." (Tr. 142). The ALJ was justified in concluding that this dated and is o la te d reference to Plaintiff's complaint of polyuria does not support a finding that the c o n d itio n constitutes a severe impairment. Moreover, Plaintiff has not alleged that the s e c o n d component of the ALJ's statement - that there is no evidence that the condition can n o t be successfully treated with a "medication regimen" - is inaccurate. When the two sta tem e n ts are read in context with each other it is apparent that the ALJ's decision not to f in d Plaintiff's alleged polyuria a severe impairment is supported by substantial evidence. In expressing Plaintiff's RFC, the ALJ remarked that "there is no reference in the tre a tm e n t notes to indicate that the claimant's diabetes has been incapable of being controlled w ith regular medical treatment, and the record contains no indication of end-organ damage, su c h as nephropathy, retinopathy, or kidney involvement." (Tr. 25). Plaintiff points to s p e c if ic medical records which, it is alleged, indicate that her diabetic condition was " a n yth in g but controlled." 9 Plaintiff then concludes that "the ALJ's quoted language

in d ic a te s that he does not adequately understand the symptoms and resulting limitations" of P la in tif f 's diabetes. However, the records highlighted by Plaintiff do not reveal that

Plaintiff does not, however, challenge the accuracy of the ALJ's statement about the apparent lack of "end-organ damage." 13

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P la in tif f 's condition was "uncontrollable." Rather, they simply illustrate the continued m o n ito rin g of Plaintiff's condition and her health care providers' efforts to advise her on w a ys to treat her diabetes through diet, exercise, and medication.1 0 None of the records in d ic a te that Plaintiff was unable to successfully moderate her condition despite her faithful ad h ere n ce to the advice and treatments of medical professionals. Thus, the ALJ's

d e ter m in a tio n that the record does demonstrate that Plaintiff's diabetes is uncontrollable is s u p p o rte d by substantial evidence. VI. CONCLUSION T h e Court has carefully and independently reviewed the record and concludes the d e c is io n of the Commissioner is AFFIRMED. A separate judgment will issue. D O N E this 3rd day of June, 2009.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

Indeed, one of the records cited by Plaintiff indicates that, in June, 2006, Plaintiff's abnormally high hemoglobin A1C reading had actually dropped from a higher reading in March, 2006. See Tr. 171. Although the lower measurement still exceeded normal levels, any improvement in her condition obviously detracts from her apparent contention that the condition is "uncontrollable." 14

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