George v. Astrue

Filing 16

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is AFFIRMED. Signed by Honorable Wallace Capel, Jr on 12/1/2009. (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 F E L IX A. GEORGE, 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. 1:08cv885WC

M E M O R A N D U M OPINION AND ORDER
I. INTRODUCTION P lain tiff Felix A. George Johnson applied for disability insurance benefits under Title II of the Social Security Act ("the Act"), 42 U.S.C. §§ 401 et seq. Plaintiff's application was d e n ie d at the initial administrative level. Plaintiff then requested and received two hearings b e f o re an Administrative Law Judge (ALJ). Following the hearings, 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), b o th parties have consented to the conduct of all proceedings and entry of a final judgment

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 y the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (Doc. #7); D e f .'s Consent to Jurisdiction (Doc. #6). 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 i r m e n t s 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 sti o 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. 2

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

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 la in tif f was forty-eight years old at the time of the alleged disability onset and had

a t least a highschool education. (Tr. 30). Plaintiff's past relevant work experience was as a production worker at a tire plant. (Tr. 29). Following the second administrative hearing, a n d employing the five-step process, the ALJ found Plaintiff had not engaged in substantial g a in f u l activity since the alleged onset date of October 7, 2003 (Step 1). (Tr. 22). At Step 2 , the ALJ found that Plaintiff suffers from the following severe impairments: "cervicalgia sec o n d ary to cervical degenerative disc disease, central stenosis, failed neck surgery s yn d ro m e , hypertension, diabetes mellitus, and bilateral CTS." (Tr. 22). The ALJ then found th a t Plaintiff does not have an impairment or combination of impairments that meets or m e d ic a lly equals one of the listed impairments. (Step 3) (Tr. 25). Next, the ALJ found that P la in tif f retains the RFC to perform light work. (Tr. 26). Given this level of RFC, the ALJ d e te rm in e d that Plaintiff is unable to perform past relevant work. (Step 4) (Tr. 29-30). The A L J also found that, considering claimant's age, education, work experience, RFC, and the M ed ical-V oca tio n al Guidelines, Plaintiff could perform jobs that exist in significant numbers in the national economy. (Tr. 30). Accordingly, the ALJ determined that Plaintiff is not d isab led. (Tr. 31). IV . P L A I N T I F F 'S CLAIMS T h e only statement in Plaintiff's brief that could be considered a claim is on page one, w h e re Plaintiff states: "That the decision of the Defendant is not supported by substantial 5

ev iden ce and applies an erroneous standard of law." Pl.'s Brief (Doc. #11) at 1. However, th is is not a proper presentation of a claim. As stated in this Court's November 5, 2008, O rd e r, "general statements of issues such as `the ALJ's decision is not supported by s u b s ta n tia l evidence' will not be considered by the court." (Doc. #2) at n.1.5 V. DISCUSSION Plaintiff's brief alleges no error by the ALJ. Rather, Plaintiff merely makes a series o f statements that one might find in a "facts" section of a brief. Plaintiff completely fails to a lle g e any wrong-doing or error by the ALJ. Plaintiff starts the "Argument" section of his brief by declaring that he suffers from a history of neck and back pain and that he also suffers from debilitating depression.6 Pl.'s

Further, Plaintiff's brief was not filed in a manner prescribed by the November 5, 2008, Order, in which the Court instructed: Plaintiff's brief shall contain a section titled "Statement of the Issues." In this section in numbered paragraphs, Plaintiff shall state in a concise, specific manner each issue which Plaintiff presents to the court for resolution. Issues not presented in the Statement of the Issues will not be considered. . . Claims or contentions by Plaintiff alleging deficiencies in the ALJ's consideration of claims or alleging mistaken conclusions of fact or law and contentions or arguments by the Commissioner supporting the ALJ's conclusions of fact or law must include a specific reference, by page number, to the portion of the record which (recites the ALJ's consideration or conclusion and (2) which supports the party's claims, contentions or arguments. Order (Doc. #2) at 2-3. Plaintiff does not even allege that the ALJ erred in determining that his depression was not disabling, much less how the ALJ might have erred. 6
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B rie f (Doc. #11) at 2. Plaintiff then states that "[t]here are conflicting Dr. studies and c o n f lic tin g RFC exams that range from `no limitations' to `meets listing'" and then proceeds to outline a few examples of what he sees as conflicting medical opinions. Id. Plaintiff then c o n c lu d e s with a prayer for relief. Id. In response, the Commissioner pointed out the inadequacies of Plaintiff's brief, then a ttem p ted to infer arguments on Plaintiff's behalf and respond. It is Plaintiff's responsibility to present arguments on his own behalf, not the Commissioner's, or the Court's. Indeed, it is Plaintiff's burden to prove he is disabled. See Jones v. Apfel, 190 F.3d 1224, 1228 (11th C ir. 1999) (refusing to consider arguments not raised before the district court). "It is not e n o u g h merely to mention a possible argument in the most skeletal way, leaving the court to d o counsel's work, create the ossature for the argument, and put flesh on its bones. [] Judges a re not expected to be mindreaders. Consequently, a litigant has an obligation to spell out its arguments squarely and distinctly, or else forever hold its peace." Z a n n in o , 895 F.2d 1, 17 (1st Cir. 1990) (internal quotations omitted). Under the normal standard of review this Court must "scrutinize the record in its e n tire ty to determine the reasonableness of the secretary's factual findings." Walker v. B o w e n , 826 F.2d 996, 999 (11th Cir. 1987). The Court has reviewed the record and finds th a t the ALJ's determinations were reasonable, supported by substantial evidence, and w ith o u t error. United States v.

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VI.

C O N C L U SIO N 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 1st day of December, 2009. /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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