Sanders v. Astrue

Filing 16

MEMORANDUM OPINION concluding that the decision of the Commissioner is supported by substantial evidence and is, therefore, AFFIRMED. Signed by Honorable Wallace Capel, Jr on 10/19/2010. (cc, )

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Sanders v. Astrue(CONSENT) Doc. 16 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 E. SANDERS, P la 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. 1:09cv1018-WC M E M O R A N D U M OPINION I. INTRODUCTION P la in tif f Kenneth E. Sanders applied for disability insurance benefits and s u p p le m e n ta l security income pursuant to Titles II and XVI of the Social Security Act (Act), 4 2 U.S.C. 401-433, 1381-1383c. Plaintiff's applications were denied at the initial a d m in is tra tiv e level. Plaintiff then requested and received two hearings before an A d m in is tra tiv e Law Judge (ALJ). Following the second 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 s e q u e n tly became the final decision of the Commissioner of Social Security (C o m m is s i o n e r).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. 1 both 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. #15); Def.'s Consent to Jurisdiction (Doc. #14). Based on the Court's review of the record and the b rie f 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 rs o n is unable to engage in any substantial gainful activity by reason of any medically d e te rm 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 Im p a irm e n ts] (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 s w 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 2 disabled." 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 Guidelines4 (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. 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 Each 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 i s s i o 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 tire ty and take account of evidence which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986). [The court must] . . . scrutinize the record in its entirety to determine the re a s o n a b le n e s s of the [Commissioner's] . . . factual findings. . . . No similar p re s u m 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 forty-two years old at the time of the hearing before the ALJ, and had a high school education (Tr. 20). Plaintiff's past relevant work experience was as a power lin e worker. Id. At Step 1, the ALJ found Plaintiff had not engaged in substantial gainful a c tiv ity since the alleged onset date. Id.5 At Step 2, the ALJ found that Plaintiff suffers from th e following severe impairments: degenerative disc disease in the lumbar spine, bilateral d e g e n e ra tiv e joint disease in the knees; and status post left knee arthroscopy. (Tr. 12). However, the ALJ determined that neither Plaintiff's impairments, nor a combination of his im p a irm e n ts, meets or medically equals one of the listed impairments. (Tr. 14). Next, the A L J found that Plaintiff retained the RFC to perform less than the full range of light work w ith certain non-exertional restrictions. Id. At Step 4, the ALJ found that Plaintiff is unable to perform past relevant work. (Tr. 20). Next, the ALJ found that, given Plaintiff's age, e d u c a tio n , work experience, and RFC, and after consulting with a vocational expert, "there a re jobs that exist in significant numbers in the national economy that claimant can perform," in c lu d in g : "cashier II, mail clerk, and [courier]." (Step 5) (Tr. 20-21). Accordingly, the ALJ d e te rm in e d that Plaintiff had not been under a disability during the relevant time period. (Tr. 2 1 ). Although the ALJ found that Plaintiff's earnings record reflected earnings "well in excess of the threshold amount for substantial gainful activity," the ALJ deferred a determination at Step 1 "for decisional purposes." (Tr. 11). 5 5 IV. P L A I N T I F F 'S CLAIMS P la in tif f presents two claims for this Court's review: (1) whether the ALJ properly a n a lyz e d Plaintiff's subjective complaints of pain; and (2) whether the ALJ properly c a lc u la te d the RFC. Pl.'s Brief (Doc. #10) at 12 & 16.6 The Court will address these claims b e lo w . A. Plaintiff's subjective complaints of pain In Sections I & III of his brief, Plaintiff argues that the ALJ erred in rejecting P la in tif f 's complaints of disabling pain. However, Plaintiff's Sections I & III appear to c o n tra d ic t each other. In Section III, Plaintiff argues that the ALJ failed to properly apply th e standard for evaluating pain as set forth by the Court of Appeals for the Eleventh Circuit. Pl.'s Brief (Doc. #10) at 15-16. The Court of Appeals for the Eleventh Circuit has articulated its pain standard, governing the evaluation of a claimant's subjective testimony about pain, a s follows: In order to establish a disability based on testimony of pain and other s ym p to m s , the claimant must satisfy two parts of a three-part test showing: (1) e v id e n c e of an underlying medical condition; and (2) either (a) objective m e d ic a l evidence confirming the severity of the alleged pain; or (b) that the o b je c tiv e ly determined medical condition can reasonably be expected to give rise to the claimed pain. W ils o n v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). Plaintiff states that the ALJ failed Although Plaintiff's brief sets forth three claims for relief, as is explained in this opinion, the first and third issue are intertwined and will be discussed together. 6 6 to apply this standard or to even reference it in his opinion. Pl.'s Brief (Doc. #10) at 15. This directly conflicts with Plaintiff's statement in Section I of his brief that "the ALJ d e te rm in e d that the claimant's underlying physical or mental impairment could reasonably b e expected to produce the claimant[']s pain." Id. at 12. Indeed, the central argument in S e c tio n I is that, after first applying the pain standard, at the next step the ALJ improperly re je c te d Plaintiff's subjective complaints. In other words, Plaintiff argues in Section III that th e process by which the ALJ improperly rejected Plaintiff's complaints of pain (in Section I) never happened. This is a conflicting argument. P la in tif f 's Section I is correct. The ALJ did apply and recite the pain standard, and f o u n d that Plaintiff's "medically determinable impairments could reasonably be expected to c a u s e the alleged symptoms." (Tr. 19). The ALJ then turned to the question of the c re d ib ility of Plaintiff's subjective complaints of pain. See, Foote v. Chater, 67 F.3d 1553, 1 5 6 0 (11th Cir. 1995). Plaintiff argues in Section I that the ALJ erred in finding the c o m p la in ts to be incredible and failed to articulate his reasons with specificity. See Marbury v . Sullivan, 957 F.2d 837, 839 (11th Cir. 1992) ("If the ALJ refused to credit subjective pain te s tim o n y where such testimony is critical, he must articulate specific reasons for questioning th e claimant's credibility."). T h e ALJ found that Plaintiff's "statements concerning the intensity, persistence and lim itin g effects of [the symptoms of pain] are not credible to the extent they are inconsistent w ith the above" RFC. (Tr. 19). Throughout the decision, the ALJ specified his basis for not 7 finding Plaintiff's complaints credible. The ALJ cited to the fact that both Dr. Konsens and D r. DeHaven released Plaintiff to light work. (Tr. 16-17). The ALJ also pointed out that P la in tif f 's treatment has been generally routine, that no doctor has opined that Plaintiff was d is a b le d , and that Plaintiff's recent work history and daily activities were inconsistent with h is testimony of disabling pain. (Tr. 15-19). Thus, Plaintiff is incorrect that the ALJ failed to articulate specific reasons for re je c tin g Plaintiff's subjective complaints of pain. Further, the court has reviewed the re a s o n s set forth by the ALJ and finds them to be supported by substantial evidence and w ith o u t error. B. The RFC P la in tif f challenges the RFC findings by Dr. Vanderzyl as "fundamentally flawed," b e c a u s e he "used x-rays to confirm his impressions yet it is clearly documented by [ P la in tif f 's ] primary physician Dr. DeHaven that the claimant's spinal problems were not id e n tif ie d on x-ray but rather only showed on an MRI of the spine, thereby putting [the] c re d ib ility of Dr. Vanderzyl's impressions in question." Pl.'s Brief (Doc. #10) at 14. The C o m m is s io n e r counters, stating "Plaintiff is mistaken. Dr. Vanderzyl specifically referenced P la in tif f 's MRI when discussing the medical record (Tr. 287)." Def.'s Brief (Doc. #12) at 11. T h e Commissioner is correct; Dr. Vanderzyl specifically discussed his review of a D V D copy of Plaintiff's MRI when making the RFC determination. (Tr. 287). The court also 8 notes that after ordering and reviewing the MRI, Dr. DeHaven released Plaintiff to light duty s ta tu s . (Tr. 280). T h e court has reviewed the RFC determination and finds that it is supported by s u b s ta n tia l evidence. V. C O N C L U S IO 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 supported by substantial evidence and is, therefore, A F F IR M E D . A separate judgment will issue. D O N E this 19th day of October, 2010. /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE 9

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