White v. Astrue (CONSENT)

Filing 19

MEMORANDUM OPINION. A separate judgment will be entered. Signed by Honorable Susan Russ Walker on 4/28/2010. (cb, )

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 D E L O R IS A. WHITE, P la in tif f , v. M IC H A E L J. ASTRUE, Commissioner o f Social Security, D e f e n d a n t. ) ) ) ) ) C IV IL ACTION NO. 1:08-CV-0827-SRW ) (W O ) ) ) ) )

M E M O R A N D U M OF OPINION P la in tif f Deloris A. White brings this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) seeking judicial review of a decision by the Commissioner of Social Security (" C o m m issio n er") denying her application for disability insurance benefits and supplemental s e c u rity income under the Social Security Act. The parties have consented to entry of final ju d g m e n t by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c). Upon review of the record a n d briefs submitted by the parties, the court concludes that the decision of the Commissioner is due to be affirmed. BACKGROUND O n May 19, 2006, plaintiff filed an application for disability insurance benefits and s u p p le m e n ta l security income. On April 23, 2008, after the claim was denied at the initial a d m in is tra tiv e levels, an ALJ conducted an administrative hearing. The ALJ rendered a d e c is io n on May 27, 2008. The ALJ concluded that plaintiff suffered from the severe

impairments of "hypertension, vision defect, major depression, borderline intellectual f u n c tio n in g , lumbar degenerative disc disease, status post gunshot wound to the head, and c h ro n ic obstructive pulmonary disease (COPD)." (R. 9). He found that plaintiff's im p a irm e n ts, considered in combination, did not meet or equal the severity of any of the im p a irm e n ts in the "listings" and, further, that plaintiff retained the residual functional c a p a c ity to perform her past relevant work as a sewing machine operator. Thus, the ALJ c o n c lu d e d that the plaintiff was not disabled within the meaning of the Social Security Act. On August 19, 2008, the Appeals Council denied plaintiff's request for review and, a c c o rd in g ly, the decision of the ALJ became the final decision of the Commissioner. STANDARD OF REVIEW T h e court's review of the Commissioner's decision is narrowly circumscribed. The c o u rt does not reweigh the evidence or substitute its judgment for that of the Commissioner. Rather, the court examines the administrative decision and scrutinizes the record as a whole to determine whether substantial evidence supports the ALJ's factual findings. Davis v. S h a la la , 985 F.2d 528, 531 (11th Cir. 1993); Cornelius v. Sullivan, 936 F.2d 1143, 1145 (1 1 th Cir. 1991). Substantial evidence consists of such "relevant evidence as a reasonable p e rs o n would accept as adequate to support a conclusion." Cornelius, 936 F.2d at 1145. Factual findings that are supported by substantial evidence must be upheld by the court. The A L J 's legal conclusions, however, are reviewed de novo because no presumption of validity a tta c h e s to the ALJ's determination of the proper legal standards to be applied. Davis, 985

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F.2d at 531. If the court finds an error in the ALJ's application of the law, or if the ALJ fails to provide the court with sufficient reasoning for determining that the proper legal analysis h a s been conducted, the ALJ's decision must be reversed. Cornelius, 936 F.2d at 1145-46. D IS C U SS IO N T h e plaintiff claims disability due to headaches, memory problems, and pain in the k n e e s , ankles, hands, and fingers. (R. 126). The plaintiff suffered a gunshot wound to the h e a d in 1991, which she contends is the cause of her severe headaches. (R. 256). Since she w a s shot, the plaintiff has been employed, inter alia, as a sewing machine operator, a hand p a c k e r, and a poultry processor. (R. 44-45). D r. Kurt D. Kraft treated the plaintiff from April 22, 2003 through June 16, 2005 for c h ro n ic pulmonary disease ("COPD"), hypertension, high cholesterol, pneumonia, acid re f lu x , and leg pain. (R. 213-26). Over this two year period, the plaintiff complained of h e a d a c h e s on two different occasions. (R. 221-22, 215-16). Dr. Kraft, however, never tre a te d the plaintiff directly for her headaches. Instead, he treated the plaintiff for her other a ilm e n ts , including COPD, pneumonia, high cholesterol, and hypertension. (Id.). Over the c o u rs e of treatment rendered to the plaintiff, Dr. Kraft never opined that the plaintiff was d is a b le d , nor did he impose work related limitations. The plaintiff presented to the Wiregrass Medical Center on May 3, 2006. (R. 234-42). Her chief complaints were neck pain and headaches. She described the pain as a 10 on a 10p o in t scale. (R. 237). The examining physician diagnosed her with cervicalgia and headache. (R. 242). A CT brain scan was performed on May 3, 2006 to assess the plaintiff's complaints 3

of headaches. The radiology report stated that there was a "prominent sulcal pattern of the f ro n ta l lobes" that was "thought to be due to atrophy." Also, the "metallic density along the b a s e of the brain [was] presumably from [a] previous gunshot wound." According to the re p o rt, this suggested a clinical correlation with the complaint of headaches. (R. 248). T w o days later, on May 5, 2006, the plaintiff sought treatment from Dr. David H. A rn o ld . The plaintiff complained of neck pain, and stated that she could not turn or twist her h e a d . She also reported that her "head feel[s] tight." She explained to Dr. Arnold that she h a d visited the emergency room where a CT scan was performed; she said that her CT scan w a s normal. The treatment notes indicated that "[t]he patient is generally healthy. There are n o ongoing medical problems. The patient has no serious medical illness or injuries, g e n e ra lly carries out normal daily activities without difficulty." Dr. Arnold noted that there w a s tenderness in the "posterior neck" and "bilateral trapezius" areas with spasm and d e c re a s e d "flexion extension." His assessment was muscle spasm. He prescribed medication a n d told the plaintiff to rest and apply heat. (R. 294). D r. Walter Jacobs performed a consultative mental status examination on September 1 3 , 2006. The plaintiff's chief complaint was her gunshot wound to the head. When asked to describe her symptoms, the plaintiff stated that she has headaches, joint pain, and c ra m p in g in her hands and feet. Dr. Jacobs noted that the plaintiff's referral did not contain m e d ic a l records pertaining to these allegations. The plaintiff denied ever being treated for p s yc h o lo g ic a l or emotional problems. She stated that her sleep was of "variable quality," and h e r appetite and energy were poor. She also reported that she feels sad "all the time," and th a t she cries "a lot." Dr. Jacob's assessment of the plaintiff indicated that her affect was

normal in range and intensity; her orientation was alert and fully oriented; her remote m e m o ry was intact; her conversation was logical and coherent; and her judgment and insight w e re fair. The plaintiff was able to do simple digit addition, subtraction, multiplication, and d iv is io n ; count backwards from twenty to one; and spell the word "world" forward and b a c k w a rd ; but she was not able to do reverse serial sevens. A Wechsler Memory Scale-III (W M S -III) was administered, and the plaintiff's memory score ranged from extremely low o n visual, delayed to average for working memory. "In general, her scores were low average to borderline," a result which the examiner viewed as consistent with intellectual functioning. Dr. Jacobs diagnostic impression of the plaintiff was "Major Depression, Single Episode, M i l d " with "Borderline Intellectual Functioning." He indicated that he believed that the p l a i n t if f would benefit from antidepressant medication, and that he would not expect s ig n if ic a n t change in the plaintiff from a cognitive perspective over the next six to twelve m o n th s . (R. 252 -54). D r. Vijay Vyas performed a consultative physical examination on September 19, 2006. The plaintiff complained of severe headaches due to the gunshot wound to her head. Dr. V ya s opined that all systems generally were normal. He did note that the plaintiff's shoulders w e re "vaguely tender," and that there was tenderness in both wrists "on the palmar side," in th e "proximal and middle interphalangeal joints," in the lumbar area, and in the ankles. The d o c to r also reported uncorrected vision of 20/100 in the right eye and 20/70 in the left eye. His impression was that the plaintiff had "[h]istory of gunshot wound to the head with p e rs is te n t chronic headaches"; "[a]nxiety and depression"; "[e]ssential hypertension, poorly 5

controlled"; "[g]eneralized arthralgia and lumbosacral pain, could be Degenerative Joint D is e a s e , cannot rule out gout or other etiology"; and "[h]istory of smoking with some chronic c o u g h ." (R. 256-59). Dr. Vyas did not suggest that the plaintiff was disabled, nor did he im p o s e any functional limitations. On October 2, 2006, Wiregrass Total Eye Care performed a consultative visual e x a m in a tio n on the plaintiff. The plaintiff's corrected vision was reported as 20/40 in the rig h t eye and 20/50 in the left eye for distance and 20/30 for both eyes for reading. The visual e x a m in e r diagnosed the plaintiff with refractive amblyonia, astigmatism, cupping of optic n e rv e s in excess of statistical normal, and photosensitivity. Normal muscle function was n o te d with probable useful binocular vision with glasses. The examination revealed that the p la in tif f "perhaps" has depth perception, and that her color perception was not normal. The e x a m in e r noted that the plaintiff would need more tests to determine her depth and color p e rc e p tio n after her visual acuity was corrected with glasses. Her prognosis was "probably g o o d ," with the treatment recommendation of bifocals. The only limitation placed on the p la in tif f was to avoid bright ambient lighting conditions. (R. 260-61). D r. Donald Hinton completed a Mental RFC Assessment on October 3, 2006. Dr. H in to n concluded that the plaintiff is moderately limited in her ability: to understand and re m e m b e r detailed instructions, to carry out detailed instructions, to maintain attention and c o n c e n tra tio n for extended periods, and to respond appropriately to change in the work s e ttin g . His assessment noted that the plaintiff is "[a]ble to understand and remember simple a n d detailed but not complex instructions"; "[a]ble to sustain attention/concentration for two 6

hour periods to complete a regular workday at an acceptable pace and attendance schedule"; n o t significantly limited in social interaction; and "able to respond to (at least) s im p le /in f re q u e n t changes in routine." (R. 284-86). O n November 1, 2006, a disability examiner completed a Physical Residual F u n c tio n a l Capacity (RFC) Assessment, indicating that the plaintiff was capable of work a c tiv itie s at a light exertional level with no climbing of ladders, rope, or scaffolds; avoidance o f all exposure to unprotected heights and hazardous machinery; and no more than occasional w o rk in bright sunlight. The assessment also noted that the plaintiff's far visual acuity was lim ite d . (R. 276-83). Dr. Arnold continued to treat the plaintiff through May 30, 2007. Dr. Arnold treated th e plaintiff for COPD, hypertension, and arthralgia. (R. 292-97). Dr. Arnold's treatment n o te s for May 8, 2007 described the plaintiff as a "healthy adult," and found that all of her s ys te m s were normal. (R. 292). On May 30, 2007, he again noted no abnormal findings on p h ys ic a l examination and specifically that the plaintiff had "no unusual headaches" and "no b lu rre d vision." (R. 291). During the course of treatment rendered by Dr. Arnold, he never o p in e d that the plaintiff was disabled, nor did he impose any work related limitations. In 2005, the plaintiff quit her job as a sewing machine operator. She testified at the a d m in is tra tiv e hearing, conducted on April 23, 2008, that she quit because the work "made [ h e r] back hurt, [her] knee got where they would swell, [her] ankle would swell and [her] h e a d would be pounding like it was trying to explode." (R. 24). She later testified, when the A L J asked her why she could no longer do her job as a sewing machine operator, that it was 7

because she "can't move [her] hands the way [she] used to," and because she "can't sit th e re ." (R. 40). The plaintiff also testified that she suffered from headaches (R. 24, 27, 31), a n d double vision. (R. 27). A vocational expert testified that a person with the functional lim ita tio n s described in the Physical (R. 276-83) and Mental (R.284-87) RFC Assessments, w ith the additional limitations of occasional far acuity, hearing, and exposure to dust, fumes, a n d gases, could perform the plaintiff's past relevant work as a sewing machine operator. (R. 46). T h e ALJ concluded that the plaintiff suffered from the following severe impairments: h yp e rte n s io n , vision defect, major depression, borderline intellectual functioning, lumbar d e g e n e ra tiv e disc disease, status post gunshot wound to the head, and chronic obstructive p u lm o n a ry disease (COPD). (R. 9). The ALJ determined that the [plaintiff] has the [RFC] to perform light work as defined in 20 C .F .R . 404.1567(b) and 20 C.F.R. 416.967(b) with no climbing of la d d e r s , rope, or scaffolds; no exposure to dangerous heights or m a c h in e ry; and no more than occasional far acuity; exposure to bright s u n lig h t; exposure to dust, fumes, or gases; and hearing. The [plaintiff] h a s retained the ability to understand, remember, and carry out very s h o rt and simple instructions with only occasional changes in the work s e ttin g . (R . 14). The ALJ assigned "significant weight" to the records provided by Dr. Arnold, and th e opinion embodied in the Mental RFC Assessment performed by Dr. Donald E. Hinton. (Id.). The ALJ noted that "[t]he record does not contain any opinions from treating or e x a m in in g physicians indicating that the [plaintiff] is disabled or even has limitations greater th a n those [described in his RFC assessment]." (R. 16).

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The plaintiff challenges the Commissioner's decision, arguing that the ALJ erred as a matter of law when he failed to find that the plaintiff's headaches were a severe im p a irm e n t. (Plaintiff's brief, p. 5). Pursuant to 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), th e ALJ is required to apply a five-step sequential evaluation process when determining w h e th e r a claimant is disabled. Powell on behalf of Powell v. Heckler, 773 F.2d 1572, 1575 (1 1 th Cir. 1985). The second-step of the sequential evaluation process requires the ALJ to d e te rm in e whether the claimant has a medically determinable impairment that is "severe" or a combination of impairments that is "severe." 20 C.F.R. §§ 404.1520(c), 416.920(c). The s e v e rity of an impairment "must be measured in terms of its effect upon ability to work, and n o t simply in terms of deviation from purely medical standards of bodily perfection or n o rm a lity." McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986). In this case, the ALJ found that plaintiff has a "severe" impairment of "status post g u n s h o t wound to the head[,]"-- thus, necessarily concluding that this impairment results in w o r k -re la te d limitations. (R. 9). As noted above, plaintiff told Dr. Vyas that she has had s e v e re headaches ever since 1991, when her ex-husband shot her in the head. (R. 256). 1 T h e ALJ discussed plaintiff's complaints of headaches, and specifically noted that when she s o u g h t treatment at the ER for neck pain and headache in May 2006, the CT scan showed f ro n ta l lobe atrophy and "a metallic density at the base of the claimant's brain . . . that r e s e m b le d a bullet fragment." (R. 10). The ALJ's failure to identify "headaches" as a

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Plaintiff continued to work until 2005. (R. 104, 127).

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separate "severe" impairment ­ as opposed to considering it as a symptom resulting from the g u n s h o t wound ­ does not constitute error. Additionally, even if "headache" is separate from the severe impairment of "status p o s t gunshot wound to the head," any error in failing to list it is harmless because the ALJ f o u n d that the plaintiff suffered from other "severe" impairments and, accordingly, proceeded beyond step two of the sequential analysis. See McKiver v. Barnhart, 2005 WL 2 2 9 7 3 8 3 , at *11 (D. Conn. 2005)(explaining that the failure to make explicit determination a t step two is, at most, a harmless error when the ALJ does not screen out the plaintiff's c la im at step two, but rather continues with the five-step sequential process); Street v. B a rn h a rt, 340 F. Supp. 2d 1289, 1293-94 (M.D. Ala. 2004)(explaining that the ALJ's failure to list low IQ as severe impairment was harmless error where ALJ referred to plaintiff's " b o rd e rlin e intellectual functioning" in his decision and considered plaintiff's "severe and n o t severe impairments" in combination in subsequent analysis). Furthermore, at step three o f the analysis, the ALJ is required to consider the combined effect of all of a claimant's im p a irm e n ts, including those not determined to be "severe" at step two. The ALJ stated at s te p three that "[t]he claimant does not have an impairment or combination of impairments th a t meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P , Appendix 1." (R. 13). This statement sufficiently indicates that the ALJ considered the c u m u la tiv e effects of all the plaintiff's impairments, both severe and non-severe. See Wilson v . Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002)(accepting the ALJ's statement that the

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plaintiff did not have an impairment or combination of impairments listed in Appendix 1 as e v id e n c e he considered the combined effects of the plaintiff's impairments). The plaintiff relies on Williams v. Barnhart, 186 F. Supp. 2d 1192 (M.D. Ala. 2002), to argue that the ALJ's failure to make express findings regarding the severity of her h e a d a c h e s is reversible error. In Williams, the ALJ "simply failed to address" some of the c la im a n t's alleged impairments in the decision, and the decision did not "reveal the extent to which the ALJ evaluated those symptoms or impairments beyond step two of the s e q u e n tia l evaluation process." See id. at 1197-98. In this case, by contrast, the ALJ th o ro u g h ly examined the medical evidence, and discussed the plaintiff's complaints of h e a d a c h e s at step four of the sequential analysis while determining her RFC. (R. 14-15). Under these circumstances ­ even assuming that plaintiff's headaches are a separate im p a irm e n t ­ the ALJ's failure to list "headaches" explicitly at step two is not a reversible e rro r. See Perry v. Astrue, 280 Fed. Appx. 887, 894 (11th Cir. 2008)(unpublished o p in io n )(e x p la in in g that the ALJ did not err by not specifically identifying the severe im p a irm e n ts at step two because he enumerated and evaluated all the alleged impairments a n d symptoms in determining the claimant's RFC); Nigro v. Astrue, 2008 WL 360654, at *2 (M .D . Fla. 2008)(noting that the ALJ did not err at step two by not making an express d e te rm in a tio n regarding the severity or non-severity of the claimant's impairments because h e thoroughly discussed the evidence relating to all of the claimant's impairments and took th e m into account in determining the claimant's RFC).

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The plaintiff further argues that the ALJ erred by not specifying the weight assigned to Dr. Vyas' report. (Plaintiff's brief, p. 8). Specifically, the plaintiff contends that the ALJ's f a ilu re to indicate expressly the weight he gave to Dr. Vyas' diagnostic impression that she s u f f e re d from "chronic persistent headaches" is particularly problematic "because the VE te s tif ie d that someone with chronic headaches resulting in marked limitation in the ability to m a in ta in attention and concentrate throughout the work day would have no appropriate work in the national economy." (Id.).2 A n ALJ is required to "state with particularity the weight he gave different medical o p in io n s and the reasons thereof." Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987). D r. Vyas noted an "impression" of, inter alia, "[h]istory of gunshot wound to the head with p e rs is te n t chronic headaches." (R. 259). Even if the ALJ erred by neglecting to state the e v id e n tia ry weight he assigned to Dr. Vyas' diagnostic impression explicitly, the error is h a rm le s s and does not warrant reversal. First, as noted above, the ALJ determined that p la in tif f suffers from the severe impairment of "status post gunshot wound to the head," th e re b y concluding that she has work-related limitations as a result of the gunshot wound. Thus, even if he did not explicitly say so, it appears that the ALJ credited Dr. Vyas'

The VE testified that if plaintiff were limited as stated in the RFC ultimately found by the ALJ ­ with the additional limitations "that because of chronic headaches, she would . . . have a marked limitation in the ability to maintain attention and concentration throughout the workday. . . . [and] a marked limitation in the ability to interact appropriately with coworkers and supervisors" ­ she would not be able to sustain any work in the national economy. (R. 45-47). However, Dr. Vyas did not indicate any such marked limitations, nor did any other treating or consulting physician do so. While plaintiff testified to marked or extreme limitations due to headaches, she does not argue that the ALJ's credibility determination was flawed. Plaintiff acknowledges that "the ALJ is not required to accept all testimony as true." (Plaintiff's brief, p. 8).

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"impression." Additionally, as the ALJ noted in his decision, Dr. Vyas did not indicate or re c o m m e n d any work-related limitations. (R. 12). Even if Dr. Vyas' diagnosis of "[h]istory o f gunshot wound to the head with persistent chronic headaches" were not encompassed w ith in the ALJ's finding of "status post gunshot wound to the head," a diagnosis alone does n o t establish severity and is an insufficient basis for a finding of disability. Findings re g a rd in g severity, residual functional capacity and ­ ultimately ­ disability depend, instead, o n the work-related limitations resulting from medically determinable impairments. See Wind v. Barnhart, 133 Fed. Appx. 684, 690 (11th Cir. 2005)(at step two severity d e te rm in a tio n , "a diagnosis . . . is insufficient; instead, the claimant must show the effect of th e impairment on her ability to work"); Sellers v. Barnhart, 246 F. Supp. 2d 1202, 1211 (M .D . Ala. 2002). Dr. Vyas' diagnostic impression of "[h]istory of gunshot wound to the h e a d with persistent chronic headaches," without any indication of resulting functional lim ita tio n s , does not contradict the ALJ's step two determination, his RFC determination, or h is ultimate conclusion that the plaintiff is not disabled. Cf. Caldwell v. Barnhart, 261 Fed. A p p x . 188, 190-91 (11th Cir. 2008)(failure to state weight given to medical opinion was h a rm le s s error where the functional limitations stated in that opinion did not contradict the A L J 's findings). T h e plaintiff argues further that the ALJ erred as a matter of law when he failed to o rd e r additional medical testing of the plaintiff's vision impairments. (Plaintiff's brief, p . 11). The ALJ is charged with developing a fair and full record. Todd v. Heckler, 736 F.2d 6 4 1 , 642 (11th Cir. 1984). Consultative examinations are not required by statute; however, 13

the Commissioner's regulations provide for them where warranted.3

See 20 C.F.R.

§ § 404.1517, 416.917. While it is reversible error for an ALJ not to order a consultative e x a m in a tio n when the evaluation is necessary for him to make an informed decision, Reeves v . Heckler, 734 F.2d 519, 522 n. 1 (11th Cir.1984), the ALJ is not required to order a c o n s u lta tiv e examination unless the record, medical and non-medical, establishes that such a n examination is necessary to enable the ALJ to render a decision. Holladay v. Bowen, 848 F .2 d 1206, 1210 (11th Cir.1988)(citing Ford v. Sec.of Health & Human Svcs., 659 F.2d 66, 6 9 (5th Cir.1981))(emphasis added). Thus, the regulations "[do] not require absolute c e rta in ty; [they] require[] only substantial evidence to sustain the Secretary's findings." Holladay v. Brown, 848 F.2d 1206, 1210 (11th Cir. 1988). In evaluating whether the record c o n ta in s sufficient evidence for the ALJ to make an informed decision, "we are guided by w h e th e r the record reveals evidentiary gaps which result in unfairness or clear prejudice." R o b in so n v. Astrue, 2010 WL 582617, at *6 (11th Cir. 2010) (citing Brown v. Shalala, 44 F .3 d 931, 935 (11th Cir.1995))(quotations omitted). Here, there was substantial evidence in the record to allow the ALJ to make an

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Those regulations provide: ( a ) ( 1 ) General. The decision to purchase a consultative examination for you will be made a fte r we have given full consideration to whether the additional information needed (e.g., c lin ic a l findings, laboratory tests, diagnoses, and prognosis) is readily available from the r e c o r d s of your medical sources. ( b ) Situations requiring a consultative examination. A consultative examination may be p u r c h a s e d when the evidence as a whole, both medical and non-medical, is not sufficient to support a decision on your claim.

2 0 C.F.R. §§ 404.1519, 416.917 (emphasis added).

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informed decision. The record was thoroughly developed including consultative physical, m e n ta l and visual examinations, twelve years of medical records, a Physical and Mental RFC A s se s s m e n t, and the plaintiff's own testimony. The ALJ addressed the consultative visual e x a m in a tio n , and noted that the plaintiff's "vision improved remarkably with best correction; h e r prognosis was `probably good'; and the only activity that needed to be avoided was that w ith bright ambient lighting conditions." (R. 12). The visual consultative examiner noted th a t plaintiff's color perception ­ "[t]ested [without] correction" ­ was not "normal," and th a t her depth perception was "perhaps" present, but indicated that color blindness and depth p e rc e p tio n should be tested after plaintiff's visual acuity had been corrected for two months. (R. 261). However, the plaintiff does not allege that she is color blind or lacks depth p e rc e p tio n , nor does she allege that any deficiencies in color or depth perception were the re a s o n she quit her job as a sewing machine operator. The plaintiff's only complaints c o n c e rn in g her eyesight were occasional blurred or double vision (R. 27, 215). When the A L J asked plaintiff why she quit her job as a sewing machine operator, however, the plaintiff d id not refer to any vision deficiencies. She first replied that she quit working because her b a c k , ankle and head hurt, her knee would swell, and she could not handle the pressure. (R. 23-24). Later, when the ALJ asked why she could no longer work as a sewing machine o p e ra to r, plaintiff stated that it was because she "can't move [her] hands the way [she] used to ," and because she "can't sit there." (R. 40). In the disability report completed with her a p p lic a tio n , plaintiff stated, "I last worked at a sewing factory. I had to stop working due to p ro b le m s with my hands and fingers." (R. 126). The plaintiff's lack of any complaint 15

concerning her color vision or depth perception, coupled with the visual examiner's sole lim ita tio n of avoidance of ambient light conditions (R. 261), constitutes substantial evidence in the record for the ALJ to make an informed decision. Therefore, the plaintiff has failed to demonstrate evidentiary gaps in the record which have resulted in prejudice requiring re m a n d . The plaintiff also argues that the ALJ erred as a matter of law when he determined that th e plaintiff could perform her past relevant work as a sewing machine operator. (Plaintiff's b rie f , p. 10). Specifically, the plaintiff contends that the ALJ's determination is not supported b y substantial evidence because: (1) the DOT's Selected Characteristics of Occupations s ta te s that work as a sewing machine operator requires "occasional" color vision and " f re q u e n t" depth perception; and (2) the consultative visual examination indicated that the p la in tif f "has problems with depth perception" and "may in fact be color blind but at a m in im u m her color perception was not normal." (Id.). Plaintiff further argues that "[t]he ALJ h a s not shown any reason to refute the medical opinion regarding [her] depth and color p e rc e p tio n limitations," and that "his failure to discredit the depth perception and color p e rc e p tio n limitations requires this court to take them as true." (Id. at p. 11). The plaintiff overstates the vision examiner's report. The vision examiner indicated th a t depth perception is "perhaps" present, and put a question mark where the examination f o rm states, "Color Blind." (R. 261). While he did write "No" where the form has a space to indicate that color perception is "normal," he further noted that plaintiff was "[t]ested w ith o u t correction." As to both depth and color perception, the examiner indicated that 16

plaintiff would need to be tested after her visual acuity had been corrected. (Id.). A fair re a d in g of the report is that the examiner could not determine whether plaintiff suffered from c o lo r or depth perception problems until after her visual acuity was corrected. As discussed a b o v e , the plaintiff has not claimed that she has color or depth perception problems, nor did s h e claim or testify that such problems prevented her from performing her job as a sewing m a c h in e operator. The plaintiff bears a heavy burden of showing that she is unable to p e rf o rm her past relevant work. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005); B a rn e s v. Sullivan, 932 F.2d 1356, 1359 (11th Cir. 1991). The consultative vision e x a m in a tio n does not establish, as plaintiff argues, that she is unable to perform her past re le v a n t work as a sewing machine operator. CONCLUSION U p o n review of the record as a whole, the court concludes that the decision of the C o m m is s io n e r is supported by substantial evidence and a proper application of the law. Accordingly, the decision is due to be AFFIRMED. A separate judgement will be entered. D o n e , this 28th day of April, 2010.

/s / Susan Russ Walker SUSAN RUSS WALKER C H IE F UNITED STATES MAGISTRATE JUDGE

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