Jones v. Astrue (CONSENT)

Filing 19

MEMORANDUM OPINION, it is ORDERED that the decision of the Commissioner is AFFIRMED. Signed by Honorable Wallace Capel, Jr on 6/23/2009. (wcl, )

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 K E N N E T H JONES, P l a in tif f , v. M IC H A E L J. ASTRUE, C o m m is s io n e r of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 1:08cv459-WC

M E M O R A N D U M OPINION
I. INTRODUCTION P la in tif f Kenneth Jones applied for disability insurance benefits pursuant to Title XVI o f the Social Security Act (the Act). See 42 U.S.C. §§ 401 et. seq., 1381 et, seq. Plaintiff's a p p l ic a t io n 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 claim. The Appeals Council rejected a subsequent request for review. T h e ALJ's decision consequently became the final decision of the Commissioner of Social S ec u rity (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The c a s e is now before the Court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 6 3 6 (c ), both parties have consented to the conduct of all proceedings and entry of a final

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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ju d g m e n t by the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (D o c . #11); Def.'s Consent to Jurisdiction (Doc. #10). Based on the Court's review of the re c o rd and the briefs of the parties, the Court AFFIRMS the Commissioner's decision. 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 i m p a i r m 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 s tio 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 ."

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.

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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. 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. E a c h factor can independently limit the number of jobs realistically available to an

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.

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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 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). III. ISSUES A. Introduction

Plaintiff was twenty-nine years old and had completed the tenth grade at the time of th e hearing before the ALJ. (Tr. 17). Employing the five-step process, the ALJ found

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P la in tif f had not engaged in substantial gainful activity since August 22, 2005, the a p p li c a ti o n date. (Step 1). (Tr. 15). At Step 2, the ALJ found Plaintiff suffered from the s e v e re impairments of: history of congestive heart failure, diabetes mellitus, hypertension, a s th m a , and history of cardiomyopathy. Id. Nevertheless, the ALJ found Plaintiff did not p o s s e ss an impairment or combination of impairments that met or equaled the criteria of any lis te d impairment set forth in the Listing of Impairments (Step 3). (Tr. 16). At Step 4, the A L J determined Plaintiff did not possess the RFC to perform his past relevant work as a co n stru ctio n worker and machine operator. (Tr. 21). At Step Five, the ALJ evaluated P la in tif f 's RFC, age, education, and work experience, consulted a VE, and determined P la in tif f possessed the RFC to perform jobs that exist in significant numbers in the national e c o n o m y. (Tr. 22). Consequently, the ALJ found Plaintiff was not disabled within the m e a n in g of the Act. Id. B. P la in tiff's Claims

P lain tiff 's claims are as follows: (1) Whether the ALJ erred in determining Plaintiff's m e n ta l impairments are non-severe; and (2) Whether the ALJ's RFC determination lacks the s u p p o rt of substantial evidence. The Court will address both of these issues below.

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IV .

D IS C U S S IO N A. W h e th e r the ALJ erred in determining Plaintiff's mental impairments are n o n - se v ere .

T h e ALJ expressly determined that Plaintiff's "alleged mental impairments of sch izop h ren ia, psychotic disorder, depression and personality disorder are non-severe im p a irm e n ts . The record as a whole reflects that these alleged conditions have not s ig n if ic a n tly limited [Plaintiff]." (Tr. 15). Plaintiff takes exception to this determination and p o in ts this Court to the potent anti-psychotic medications prescribed to Plaintiff and the m e d ic a l opinions expressed by the Clinical Director and Therapist at SpectraCare as evidence o f mental impairments that impose workplace limitations. (Doc. #13 at 7-8). P la in tif f bears the burden of proving he has a severe impairment or combination of im p a irm e n ts . Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.1999). "An impairment or c o m b i n a tio n of impairments is not severe if it does not significantly limit [Plaintiff's] p h ysic a l or mental ability to do basic work activities." 20 C.F.R. § 404.1521(a); see also C r a y to n v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997). The ALJ determined that P lain tiff 's alleged mental impairments were not severe enough to limit his ability to perform w o r k or basic daily activities. In his decision, the ALJ noted that Plaintiff had received very limited treatment for h is alleged mental illnesses. (Tr. 15). As the ALJ stated, there is only one treatment note in th e record that reflects Plaintiff's claimed mental symptoms and condition. Id. As to the

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m e d ica tio n , the ALJ found it significant, that prior to the only medical exam relating to m e n ta l issues in the record, Plaintiff's "medications were refilled without any notations as to treatment or evaluation," and that the treatment notes reflect that Plaintiff informed his p h ys ic ia n "that he had stopped taking all of his medications except for one." Id. The ALJ properly followed 20 C.F.R. § 416.920a (2008), in determining that Plaintiff w a s not limited in his ability to maintain activities of daily living, social functioning, c o n c en tra tio n , persistence, and pace, and had experienced no episodes of decompensation (T r. 15). The medical record evidence in this case supports the ALJ's determination. The n o te s by the other treatment providers state that Plaintiff had a normal mood and affect. See (T r. 231, 240-41, 286). Further Plaintiff's treatment notes indicate that he repeatedly stated h e did not need assistance with daily activities. See (Tr. 232, 241, 320). A s to the medical opinions expressed by the Clinical Director and Therapist at S p ec traC ar e , the non-treating and non-examining director and co-director of SpectraCare o p ined that Plaintiff suffered from a long history of delusions and paranoid thoughts. (Tr. 2 9 0 -9 2 ). While the ALJ was required to consider their opinions, "standing alone [they] do n o t constitute substantial evidence. Of course, the ALJ may reject any medical opinion if the e v i d e n c e supports a contrary finding." Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir. 1 9 8 7 ) (internal citations omitted).5 As stated above, the medical record evidence in this case

Plaintiff also argued that the ALJ should have ordered clarification from the non-treating and non-examining director and co-director as to their opinions since he doubted how they arrived at their opinions. However, the ALJ was not obligated to recontact the director or co-director, because

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is not consistent with the SpectraCare opinions. Further, the ALJ properly noted that the S p ec traC ar e treatment notes were vague and failed to reflect signs or symptoms of Plaintiff's im p airm en t s. (Tr. 20). A c c o rd in g ly, this Court finds Plaintiff did not meet his burden to prove his mental im p a irm e n ts were severe, and the record in this case supports the ALJ's determination. B. W h e th e r the ALJ's RFC determination lacks the support of substantial e v id e n c e .

Plaintiff's argument here relates to the ALJ's assignment of determinative weight to D r. Williams. Plaintiff does not object to this assignment, but argues that such an assignment is inconsistent with the RFC. (Doc. #13 at 9). The ALJ's RFC determination was that P la in tif f could perform light unskilled work, which included the ability to occasionally lift o r carry up to 20 pounds and sit, stand, or walk for at least six hours in an eight-hour w o rk d a y (Tr. 16-21). Plaintiff argues that Dr. Williams's statements that Plaintiff became s h o rt of breath on periodic exertion, but was generally able to take a shower without b ec o m in g short of breath, and that he could walk up one flight of stairs "if pressed," are in c o n sis te n t with the ALJ's RFC determination. The Court does not agree. D r. Williams states in his report that Plaintiff is "disabled in the sense he cannot p e rf o rm strenuous labor." (Tr. 160). It was this opinion to which the ALJ assigned

substantial evidence in the record existed to support the ALJ's determination. See Couch v. Astrue, 267 Fed. App'x. 853, 855 (11th Cir. 2008); see also Osborn v. Barnhart, 194 Fed. App'x. 654, 668 (11th Cir. 2006).

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d eterm inativ e weight. In other words, by assigning determinative weight to Dr. Williams's o p in io n , the ALJ was precluded from making a determination that Plaintiff's RFC could e n ta il anything significantly more than light unskilled work. Further, the context of the ALJ's findings is important. There was evidence in the re c o rd that Plaintiff might be able to perform more than light work. Plaintiff himself testified th a t he could "sit all day" and could lift 50 pounds (Tr. 322-23). Treatment notes reveal P lain tiff 's physical examinations were repeatedly normal (Tr. 125, 144-46, 217), and that his lu n g s were clear to auscultation and his heart had normal rate and rhythm (Tr. 150, 160-61, 2 3 1 ). Dr. Banner noted that Plaintiff had 5/5 strength in his upper and lower extremities and a full range of motion in his shoulders, elbows, wrists, hips, knees, back, and ankles. See (Tr. 1 9 ). Thus, the ALJ's determination that Dr. Williams's opinion was determinative as to the lev e l of work Plaintiff could perform was to Plaintiff's favor. The ALJ's finding, in this co n text, is as follows: "The undersigned herein has assigned determinate weight to Dr. W illiam s's opinion that [Plaintiff] would not be able to perform strenuous labor due to his c o n d itio n , and has found that [Plaintiff] would be limited to the performance of work at a lig h t, or less strenuous, level of exertion." (Tr. 19). The Court finds no error with this a ss ig n m e n t, as the record evidence supports such a determination and it is not inconsistent w ith the RFC. W ith in this subsection, Plaintiff also raises claims that the ALJ failed to provide a ra tio n a le for his implicit finding that Plaintiff's obesity was non-severe and that the ALJ 9

e rre d when he failed to include any non-exertional limitations in his RFC. As stated above, P la in tif f has the burden to prove his claims are severe. Jones, 190 F.3d at 1228. As the C o m m iss io n e r stated in his brief, "neither Plaintiff nor his attorney raised the issue of obesity o r alleged that obesity imposed any additional work-related limitations (Tr. 303-329). A d d itio n a lly, Plaintiff did not allege that obesity was a disabling condition in his Disability R e p o rt (Tr. 92)." (Doc. #16 at 10-11). Furthermore, Plaintiff has failed to show how his o b e s ity affects his ability to perform light work. This issue was addressed by the Court of Appeals for the Ninth Circuit in Burch v. B a r n h a r t, 400 F.3d 676, 683 (9th Cir. 2005) as follows: A n ALJ is not required to discuss the combined effects of a claimant's im p a irm e n ts or compare them to any listing in an equivalency determination, u n le ss the claimant presents evidence in an effort to establish equivalence. A s the Social Security Ruling explains, each case should be evaluated based o n the record. SSR 02-01p (2002). The district court properly noted: There was no evidence before the ALJ, and n o n e in the record, which states that claimant's obesity limits her functioning. N e ith er treatment notes nor any diagnoses addressed claimant's limitations due to obesity. The medical record is silent as to whether and how claimant's o b e sity might have exacerbated her condition. Moreover, claimant did not p re se n t any testimony or other evidence at her hearing that her obesity im p a ire d her ability to work. Even on appeal, Burch has not pointed to any evidence of functional lim ita tio n s due to obesity which would have impacted the ALJ's analysis . . .W e therefore conclude that the ALJ did not commit reversible error by failing to consider Burch's obesity. 10

A s in Burch, there is nothing in the medical evidence in this case to suggest that Plaintiff's o b e sity would effect his ability to work.6 See also e.g., Forte v. Barnhart, 377 F.3d 892, 896 (8 th Cir. 2004) (Rejecting Plaintiff's argument that the ALJ committed reversible error by f a ilin g to address his obesity where no treating doctors suggested obesity imposed any a d d itio n a l work-related limitations and Plaintiff did not testify that his obesity imposed a d d itio n a l restrictions). This Court agrees with the reasoning in Burch and, likewise, finds n o error in this case. Neither does the Court find that the ALJ erred in failing to include non-exertional lim ita tio n s of fatigue in his RFC findings. It is axiomatic that the ALJ would not include lim ita tio n s in the RFC he had determined to be incredible. Here, the ALJ found that P la in tif f 's claims of fatigue were incredible because Plaintiff had failed to follow prescribed tre a tm e n t. (Tr. 21, 188, 286, & 294); see Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th C ir. 2003) (allowing an ALJ to consider noncompliance with prescribed treatment in d is c re d itin g allegations of disability, where noncompliance was supported by medical e v id e n c e in the record). Accordingly, no error occurred. V. C O N C L U SIO N P u r s u a n t to the findings and conclusions detailed in this Memorandum Opinion, the

As the Commissioner correctly states: "while the medical evidence of record generally demonstrates that treatment providers noted Plaintiff's weight as part of physical examinations and instructed him to lose weight, no treatment provider indicated that obesity resulted in any restrictions on Plaintiff's ability to perform work-related activities (Tr. 118-77, 186-299)." (Doc. #16 at 11).

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C o u r t concludes that the ALJ's non-disability determination is due to be affirmed. It is, th e re f o re , ORDERED that the decision of the Commissioner is AFFIRMED. A separate ju d g m e n t is entered herewith. DONE this 23rd day of June, 2009. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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