Floyd v. Astrue

Filing 16

MEMORANDUM OPINION: The Court has carefully and independently reviewed the record and concludes the decision of the Commissioner is supported by substantial evidence and is, therefore, AFFIRMED. A separate judgment will issue. Signed by Honorable Wallace Capel, Jr. on 10/29/2010. (dmn)

Floyd 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 V IC K IE H. FLOYD, 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. 1:09cv1062-WC

M E M O R A N D U M OPINION
I. INTRODUCTION P la in tif f Vickie H. Floyd applied for disability insurance benefits and supplemental s e c u rity income pursuant to Titles II and XVI of the Social Security Act (Act), 42 U.S.C. §§ 4 0 1 -4 3 3 , 1381-1383c. Plaintiff's applications were denied at the initial administrative level. Plaintiff then requested and received a hearing before an Administrative Law Judge (ALJ). Following the hearing, the ALJ also denied the claims. The Appeals Council rejected a s u b s e q u e n t request for review. The ALJ's decision consequently became the final decision o f the Commissioner of Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 1 2 9 , 131 (11th Cir. 1986). The case is now before the Court for review under 42 U.S.C. § 4 0 5 (g ). Pursuant to 28 U.S.C. § 636(c), both parties have consented to the conduct of all

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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proceedings and entry of a final judgment by the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (Doc. #10); Def.'s Consent to Jurisdiction (Doc. #9). Based o n the Court's review of the record and the briefs of the parties, the Court AFFIRMS the d e c is io n 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
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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.
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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

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).

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III.

ADMINISTRATIVE PROCEEDINGS P l a i n t if f was forty-two years old at the time of the hearing before the ALJ, and had

a n eighth-grade education. (Tr. 13). Plaintiff's past relevant work experience was as a n e w s p a p e r stuffer, and as a stocker at Wal-Mart Id. At Step 1, the ALJ found Plaintiff had n o t engaged in substantial gainful activity since the alleged onset date. (Tr. 12). At Step 2, th e ALJ found that Plaintiff suffers from the following severe impairments: mechanical low back pain; bilateral plantar fasciitis with nodule formation; hypothyroidism; chronic sinusitis; a s th m a ; and tension headaches. Id. However, the ALJ determined that neither Plaintiff's im p a irm e n ts, nor a combination of her impairments, meets or medically equals one of the lis te d impairments. Id. Next, the ALJ found that Plaintiff retained the RFC to perform a r e d u c e d range of sedentary work. Id. At Step 4, the ALJ found that Plaintiff is unable to p e rf o rm past relevant work. (Tr. 18). 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," i n c l u d in g : surveillance system monitor; addresser; and order clerk (Step 5) (Tr. 18-19). A c c o rd in g ly, the ALJ determined that Plaintiff had not been under a disability during the re le v a n t time period. Id.

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IV.

P L A I N T I F F 'S CLAIMS P la in tif f presents five claims for this court's review: (1) "[w]hether the ALJ erred by

f a ilin g to properly consider Dr. Zweig's medical source opinion;" (2) "[w]hether the ALJ e rre d by failing to properly apply the pain standard;" (3) "[w]hether the ALJ's finding that P la in tif f can work on a full time basis is not supported by substantial evidence;" (4) " [ w ]h e th e r the ALJ erred as a matter of law in failing to provide a complete hypothetical to t h e vocational expert;" and (5) "[w]hether the ALJ failed to properly evaluate Plaintiff's v is u a l impairments." Pl.'s Brief (Doc. #12) at 4-14. The court will address these claims b e lo w . A. W h e th e r the ALJ erred by failing to properly consider Dr. Zweig's medical s o u r c e opinion.

In this first claim, Plaintiff argues that the ALJ erred in either failing to properly c o n s id e r Dr. Zweig's medical opinion, or to properly articulate his reasons for rejecting Zweig's opinion. Plaintiff is correct that, generally, a treating physician's opinion is given s u b s ta n tia l or considerable weight. See Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th C ir. 2004). In addition, if an ALJ rejects a treating physician's opinion, which the ALJ may d o , he must clearly articulate his reasons for doing so. Id. Plaintiff argues that the ALJ failed to discuss or discredit the medical leave form c o m p le te d by Dr. Zweig, in which the doctor opined that Plaintiff needed "continuous leave" f ro m her current employment. Plaintiff contends that, although the ALJ's opinion discusses 6

Dr. Zweig's treatment notes, it fails to make mention of this medical leave form, and thus, th e re is insufficient information for this court to review the ALJ's decision. H o w e v e r, the problem with this argument is that the ALJ's decision was consistent w ith Dr. Zweig's opinion. Dr. Zweig's opinion that Plaintiff should be on continuous leave f ro m her position at Wal-Mart is consistent with the ALJ's determination that Plaintiff could n o t perform past relevant work, see (Tr. 18), and that Plaintiff only retained the RFC to p e rf o rm a reduced range of sedentary work. Accordingly, there was no rejection of Dr. Z w e ig 's opinion and no merit to Plaintiff's claim. B. W h e th e r the ALJ erred by failing to properly apply the pain standard.

Here, Plaintiff argues that the ALJ failed to properly apply the standard for evaluating p a in as set forth by the Court of Appeals for the Eleventh Circuit. Pl.'s Brief (Doc. #12) at 6 -8 . The Court of Appeals for the Eleventh Circuit has articulated its pain standard, g o v e rn in g the evaluation of a claimant's subjective testimony about pain, as 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). The ALJ properly applied this pain standard to Plaintiff's claims and found that P la in tif f 's "medically determinable impairments could reasonably be expected to cause the 7

alleged symptoms." (Tr. 16). Plaintiff centers her argument around the medical evidence s h e presented in support of her condition of plantar fibromatosis and argues that it supports a finding of a medically determinable impairment that could reasonably be expected to cause th e alleged symptom of pain. As stated above, the ALJ agreed and determined that Plaintiff m e t the pain standard; thus, Plaintiff's arguments are misdirected. However, the analysis d o e s not end there. After a claimant meets the pain standard, the ALJ then turns to the q u e s tio n of the credibility of Plaintiff's subjective complaints. See Foote v. Chater, 67 F.3d 1 5 5 3 , 1560 (11th Cir. 1995). In this case, the ALJ determined that Plaintiff's "statements concerning the intensity, p e rs is te n c e and limiting effects of [the symptoms of pain] are not credible to the extent they a re inconsistent with the above" RFC, and that "while the record contains evidence of the e x is te n c e of these impairments, the objectively demonstrable evidence of record fails to s u p p o rt that the claimant is as impaired as she alleged." (Tr. 16 & 17). The ALJ made this d e te rm in a tio n because: (1) no "credible treating or consultive physician has opined that the c la im a n t was disabled because of any physical condition or from any resulting symptoms;" (2 ) Plaintiff's testimony of her daily activities, including self-care, cooking, laundry, visiting, a n d playing games on the computer; (3) the clinical findings of "normal;" and (4) Plaintiff's a p p a re n t successful surgery for plantar fibromatosis and Dr. Vanderzyl's examination. (Tr. 1 6 -1 7 ). The ALJ also pointed to the "paucity" of medical evidence in the case and discounted 8

Plaintiff's arguments that this was due to a lack of health insurance, by pointing to the free c o m m u n ity clinics in Plaintiff's community and citing to SSR 82-59, which provides that: Under circumstances such as those described below, an individual's failure to f o ll o w prescribed treatment will be generally accepted as "justifiable" and, th e re f o re , such "failure" would not preclude a finding of "disability" or that d is a b ility continues. ... The individual is unable to afford prescribed treatment which he or she is w illin g to accept, but for which free community resources are unavailable. T h e ALJ stated that there was no evidence in the record that Plaintiff sought treatment from a n y of the community clinics, or "even inquired about the availability of such treatment." (Tr. 17). While Plaintiff points to record evidence to suggest that she did seek community tre a tm e n t, those records do not indicate she sought treatment for any pain related to her p la n ta r fibromatosis. In fact, the Newton Family Health records show that on her first visit, s h e complained of a stiff neck and sometimes suffering from pain in her arm. (Tr. 288). The re p o rt goes on to say that Plaintiff indicated to the examiner that her disability hearing related to asthma, obesity, and depression, but makes no mention of pain. Id. The report concludes th a t there is no pain to palpation of Plaintiff's rotator cuff. Id. On her second visit, Plaintiff received a "Pap test," routine breast exam, and asked for a flu shot, but the report is silent as to pain. (Tr. 287). Further, the ALJ found that, as to the remaining allegations, those "conditions are c o n tro lle d with medication." (Tr. 17). Accordingly, the ALJ found Plaintiff's complaints

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to be incredible. Upon a review of the ALJ's decision, this court finds that the ALJ did in d e e d follow the proper procedure as outlined in this Circuit for the evaluation of subjective c o m p l a in ts of pain, and that the ALJ's findings with respect to Plaintiff's credibility are s u p p o rte d by substantial evidence. The question is not whether or not Plaintiff suffered pain. Rather, whether she suffered disabling pain. Plaintiff is unable to point to credible evidence th a t supports her argument that due to disabling pain she could not perform work consistent w ith the RFC, and this court finds no error in the ALJ's determination. C. W h e th e r the ALJ's finding that Plaintiff can work on a full time basis is not s u p p o r te d by substantial evidence.

In this section, Plaintiff argues that it was error for the ALJ to conclude that Plaintiff c o u ld work a regular forty-hour week. Plaintiff's argument is based on Dr. Zweig's re c o m m e n d a tio n that Plaintiff's hours be reduced to thirty-five hours per week, and Dr. W e z n e r's opinion that she be approved for intermittent working for four hours at a time. Plaintiff contends that the ALJ inappropriately relied on consultive physician Dr. Vanderzyl's o p in io n over those of treating physicians Dr. Zweig and Dr. Wezner's. As with the first issue, Plaintiff's argument is without merit. Dr. Zweig's and Dr. W e z n e r's opinions related to Plaintiff's past relevant work, which the ALJ determined P la in tif f could not perform. See (Tr. 18). Their opinions related to Plaintiff's ability to stand f o r long periods of time and are adequately addressed in the RFC determination that Plaintiff c o u ld only perform a reduced range of sedentary work. Accordingly, there was no rejection

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of Dr. Zweig's and Dr. Wezner's opinions and, hence, no merit to Plaintiff's claim. D. W h e th e r the ALJ erred as a matter of law in failing to provide a complete h y p o th e tic a l to the vocational expert.

P la in tif f argues that, because the ALJ gave determinative weight to Dr. Vanderzyl and f a ile d to include all of the limitations expressed by Dr. Vanderzyl in the hypothetical posed to the VE, the hypothetical was incomplete. Plaintiff is correct that "[i]n order for a v o c a tio n a l expert's ["VE"] testimony to constitute substantial evidence, the ALJ must pose a hypothetical question which comprises all of claimant's impairments." Wilson v. Barnhart, 2 8 4 F.3d 1219, 1227 (11th Cir. 2002). However, "[t]he ALJ is not required to include f in d in g s in the hypothetical that he properly finds are unsupported." Arrington v. Soc. Sec. A d m in . 358 F. App'x 89, 85 (11th Cir. 2009) (citing Crawford v. Comm'r Of Soc. Sec., 363 F .3 d 1155, 1161 (11th Cir. 2004)). P la in tif f specifically complains that the ALJ failed to include Dr. Vanderzyl's opinion th a t Plaintiff can never balance and could only occasionally climb ramps or stairs. See (Tr. 2 7 6 ). However, as the Commissioner points out, the ALJ clearly rejected this portion of Dr. V a n d e rz yl's assessment when he determined the RFC, which, rather oddly, was consistent w ith Dr. Vanderzyl's opinion that Plaintiff did not need an assistive device for ambulation. See (Tr. 274). Accordingly, because the ALJ determined that Plaintiff did not suffer from a balancing problem, he was not required to include the limitation in the hypothetical. F u rth e r, even if the ALJ erred in failing to include a balancing limitation, the error 11

was rendered moot by the ALJ's determination that Plaintiff could only perform a reduced ra n g e of sedentary work. As the Commissioner rightly states, "[t]he representative sedentary jo b s identified by the vocational expert and accepted by the ALJ do not require balancing." Def.'s Brief (Doc. #13) at 14; see Dictionary of Occupational Titles, §§ 379.367-010 (s u rv e illa n c e system monitor), 209.587-010 (addresser), and 249.362-026 (order clerk); see a ls o , Turner v. Astrue, 09cv867, Doc. #15 at 24-25 (M.D. Al, June 30, 2010) (ALJ's failure to include "stooping" in RFC was harmless error where available jobs described by VE did n o t require "stooping."). E. W h e th e r the ALJ failed to properly evaluate Plaintiff's visual impairments.

In this final section, Plaintiff argues that the ALJ failed to develop or consider P la in tif f 's visual limitations. Plaintiff is correct that an ALJ has a duty to develop a full and f a ir record. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). "Nevertheless, th e claimant bears the burden of proving that [s]he is disabled, and, consequently, [s]he is re s p o n s ib le for producing evidence in support of h[er] claim." Id. Here, Plaintiff merely o f f e rs her own testimony in support of her claim of impaired vision. However, Plaintiff's te s tim o n y alone is not sufficient. See 20 C.F.R. §§ 404.1508 and 404.1527 ("A physical or m e n ta l impairment must be established by medical evidence consisting of signs, symptoms, a n d laboratory findings, not only by your statement of symptoms."). This is especially true h e re , because the Plaintiff gave inconsistent testimony regarding her vision. While Plaintiff

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testified to some vision problems,5 she also testified that her daily activities involved w a tc h in g television, reading the bible and newspaper, and playing computer games. (Tr. 333 5 ). P la in tif f provided insufficient evidence to support any claim of a vision limitation, and th e ALJ had no duty to develop a vision claim on Plaintiff's behalf. 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 29th day of October, 2010. /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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Plaintiff stated that she was "like far sighted." (Tr. 31) 13