Lucas v. Astrue

Filing 25

MEMORANDUM OPINION AND ORDER that the Court concludes the ALJ's non-disability determination and denial of benefits is supported by substantial evidence; that the decision of the Commissioner is AFFIRMED. Signed by Honorable Wallace Capel, Jr on 10/22/2008. (cc, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION V A N E L L A G. LUCAS, 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. 3:07cv673-WC

M E M O R A N D U M OPINION I. INTRODUCTION P la in tif f Vanella G. Lucas (Lucas) applied for disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. § 401 et seq. (2000) (the Act), alleging she w a s unable to work because of a disability. Lucas's application was denied at the initial a d m in is tra tiv e level. Lucas then requested and received a hearing before an Administrative L a w Judge (ALJ). Following the hearing, the ALJ also denied the claims. The Appeals C o u n c il rejected a subsequent request for review. The ALJ's decision consequently became the final decision of the Commissioner of Social Security (Commissioner).1 See Chester v. B o w e n , 792 F.2d 129, 131 (11th Cir. 1986). The case is now before the Court for review u n d e r 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c), both parties have consented to the c o n d u c t of all proceedings and entry of a final judgment by the undersigned United States
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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M a g is tra te Judge. Pl.'s Consent to Jurisdiction (Doc. #10); Def.'s Consent to Jurisdiction (D o c. #9). Based on the Court's review of the record and the briefs of the parties, the Court A F F I R M S 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

Lucas was thirty-nine years old and had completed the twelfth grade at the time of the h e a rin g before the ALJ. (Tr. 30 & 66). Lucas's prior work experience included employment

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as a Sterile Processing Technician (semi-skilled, light), Cashier - K Mart (semi-skilled, light), C e rtif ie d Nursing Assistant (semi-skilled, light to medium), Sterilizer, Medical, Operating R oom Technician (semi-skilled, light), and Pharmacy Technician - CVS (semi-skilled, light). (T r. 29). Employing the five step process, the ALJ found Lucas had not engaged in substantial g a i n f u l activity at any time relevant to the decision (Step 1). (Tr. 30). At Step 2, the ALJ f o u n d Lucas suffered from the following severe impairments: status post right tibial pilon f ra c tu re , open reduction internal fixation surgery; status post right Lisfranc joint dislocation w ith open reduction internal fixation surgery; status post right medial cuneiform split f ra c tu re with open reduction internal fixation surgery; status post right metatarsal cuboid d is lo c a tio n with open reduction internal fixation surgery; right ankle joint range of motion lim ita tio n ; chronic pain syndrome right leg; and obesity. Id. Nonetheless, the ALJ found L u c a s did not possess an impairment or combination of impairments that met or equaled the c rite ria of any listed impairment set forth in the Listing of Impairments (Step 3). Id. At Step 4 , the ALJ determined Lucas did not possess the residual functional capacity (RFC) to p e rf o rm any relevant past work. Id. A t Step Five, the ALJ evaluated Lucas's RFC, age, education, and work experience, a s well as testimony from a vocational expert (VE) regarding the availability in significant n u m b e rs of other work Lucas could perform in the national economy. Upon consideration o f this evidence, the ALJ determined Lucas possessed the RFC to perform jobs that exist in 5

s ig n if ic a n t numbers in the national economy. Id. Consequently, the ALJ found Lucas was n o t disabled within the meaning of the Act. Id. B. L u c a s's Claims

L u c a s presents three issues for this Court to consider: (1) Whether the ALJ properly d isc re d ited the opinion of Lucas's treating physician; (2) Whether the ALJ properly

d e te rm in e d Lucas's RFC; and (3) Whether the ALJ properly considered Lucas's alleged n e e d for a cane. IV. D IS C U S S IO N A. W h e th e r the ALJ properly discredited the opinion of Lucas's treating p h y s ic ia n .

L u c a s argues the ALJ erred by failing to afford proper weight to Doctor Caroline F o la sh a d e 's (Dr. Folashade) Medical Source Statement (MSS). The Commissioner argues th e ALJ properly disregarded Dr. Folashade's conclusions as they were not supported by o b je c tiv e medical evidence. " T h e law of this circuit is clear that the testimony of a treating physician must be g iv e n substantial or considerable weight unless `good cause' is shown to the contrary." L e w is v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). "Good cause" may exist where: (1 ) "the [treating physician's] opinion was not bolstered by the evidence;" (2) "the evidence su p p o rted a contrary finding;", or (3) "the [treating physician's] opinions were conclusory o r inconsistent with their own medical records." Id. The ALJ must clearly articulate, 6

h o w e v e r, the reasons for giving less weight to the opinion of a treating physician, and the f a ilu re to do so constitutes reversible error. Id. In this case the ALJ expressly stated that he gave little weight to Dr. Folashade's o p in i o n . The ALJ stated his reasons as follows: T h e doctor apparently relied quite heavily on the subjective report of sym p to m s and limitations provided by the claimant, and seemed to uncritically a c ce p t as true most, if not all, of what the claimant reported. The doctor did not h a v e the benefit of reviewing the other medical reports contained in the current re c o rd . . . The record reflects significant gaps in the claimant's history of tre a tm e n t. At the time of the hearing, there was no additional "diagnostic" m e d ic a l evidence of record since December 2003, at Emory Hospital and C lin ic , for the medical expert to review. (T r. 28). As pointed out by the Commissioner, Dr. Folashade did not begin treating Lucas u n til April of 2005, yet Dr. Folashade determined that Lucas was unable to perform even sed en tary work since 2003. (Tr. 27-28). That determination is inconsistent with the plethora o f medical treatment notes, examinations, and findings in the record from 2003 - 2005. See (T r. 26-29). Thus, the ALJ, properly determined that Dr. Folashade's opinion was

u n s u p p o rte d by the evidence. T h e ALJ also found that Dr. Folashade's determination was inconsistent with her own tre a tm e n t notes. As the ALJ noted: "[Dr. Folashade's] own reports failed to reveal the type o f significant clinical and laboratory abnormalities (normal MRI of the lumbar spine and m in im a l questionable compression fracture at T3) one would expect if the claimant were in f a ct disabled, and the doctor did not specifically address this weakness." (Tr. 28). Although 7

L u c a s had claimed she was in disabling pain, Dr. Folashade's notes indicate a six month p e r io d of time in which Lucas took no pain medication. Dr. Folashade's notes also lack sig n if ica n t abnormal findings, such that would support a finding that Lucas was unable to p e rf o rm even sedentary work. Therefore, the ALJ clearly articulated "good cause" for rejecting Dr. Folashade's o p in io n , by determining that the doctor's opinion was not supported by the record and the d o c to r ' s treatment notes did not support her final opinion. Accordingly, the ALJ properly d is c re d ite d Dr. Folashade's opinion. B. Whether the ALJ Properly Determined Lucas's RFC

T h e ALJ determined Lucas had the RFC to: p e rf o rm light work with a sit/stand option, within the limitations as set forth in the medical source opinion (physical) completed by Dr. Pacquiao (Exhibit 9 F , pages 3-5) with the following additions/changes: she can sit 6 hours w ith o u t interruption 2 hours, she can stand 4 hours without interruption 30 m in u tes , she cart walk 4 hours without interruption 30 minutes, she can lift, c a rry, push and pull frequently up to 10 pounds over and occasionally up to 20 p o u n d s , she should avoid climbing ladders, ropes, and scaffolds, she should a v o id activities involving unprotected heights, she should avoid being around m o v in g and hazardous machinery or driving motorized vehicles, and she e x p e r ien c e s mild to moderate pain which occasionally affects her ability to m a in ta in concentration, persistence and pace. (T r. 28A). Lucas argues the "ALJ failed to include Dr. Pacquiano's limitation to only r e a c h in g overhead (Tr. 420). He also failed to address Dr. Pacquiano's opinion that Ms. L u c a s is capable of only occasional use of the right leg." (Doc. # 17 at 9-10).

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F irs t, Dr. Pacquiano did not limit Lucas to only reaching overhead, see (Tr. 420), and s e c o n d , the ALJ did address Dr. Pacquiano's opinion that Lucas is capable of occasional use o f the right leg. Id. In fact, according to Dr. Pacquiano's report, Lucas also was limited to o c c a s io n a l use of her left leg. Id. The ALJ clearly took those determinations into

c o n s id e ra tio n when he relied on Dr. Pacquiano's opinions when determining Lucas's RFC. T h e ALJ's additions/changes to Dr. Pacquiano's opinion weighed in Lucas's favor. Where D r. Pacquiano determined that Lucas could sit for four hours at a time, the ALJ determined L u c a s could only sit for 2 hours without interruption. (Tr. 28A). With the exception of that f in d i n g , which benefitted Lucas, there was nothing in the ALJ's determination that was in c o n s is te n t with Dr. Pacquiano's determinations. T h e ALJ properly determined Lucas's RFC, and the determination is supported by s u b s ta n tia l evidence. C. W h e th e r the ALJ Properly Considered Plaintiff's Alleged Need for a Cane

F in a lly, Lucas argues "[she] was prescribed a cane on September 12, 2003 . . . None o f the treating or examining doctors of record have prohibited her from using the cane as u n n e c es s a ry . . . Yet without explanation, the ALJ failed to address Ms. Lucas's cane usage o r how it impacts upon her ability to perform work-related functions." (Doc. #17 at 11). L u c a s relies on Social Security Ruling 96-9p, which states in relevant part: M e d ica lly required hand-held assistive device: To find that a hand-held a ss is tiv e device is medically required, there must be medical documentation e sta b lis h in g the need for a hand-held assistive device to aid in walking or 9

s ta n d in g , and describing the circumstances for which it is needed (i.e., whether a ll the time, periodically, or only in certain situations; distance and terrain; and a n y other relevant information). The adjudicator must always consider the p a rtic u la r facts of a case. S S R 96-9p, 61 Fed. Reg. 34482 (July 2, 1996). Thus, in order for the ALJ to find Lucas's u s e of a cane as medically necessary, there must be medical documentation establishing a n e e d for the cane. It is clear from the record that the ALJ did consider Lucas's use of a cane. The ALJ's d e c is io n mentions of Lucas's use of a cane several times, including: the ALJ's summary of L u c a s's testimony (Tr. 19); Doctor Labib's prescription for the cane (Tr. 21); Lucas's s ta te m e n t to Doctor Underwood regarding advice Lucas had received from another doctor r e g a rd in g the use of the cane (Tr. 22); and the mention of the cane in Doctor Golomb's c o n su ltiv e physical examination. W h ile these mentions of the cane by the ALJ are important to note, in relation to d e c id in g whether he considered Lucas's use of a cane in making his ultimate determination, it is equally important to note that the ALJ's discussion of the cane was a clear rejection of it as a medical requirement. The ALJ included in his decision Lucas's own mention to D o c t o r Underwood that Lucas "was starting to have a little bit more aches and pains as a r e su l t of ambulating with a crutch." (Tr. 21). The ALJ also pointed out that on 3 August 2 0 0 4 , Lucas told Doctor Underwood "an orthopedist in Atlanta, where she had been living p re v io u sly, [said] that she really should be walking without a cane but she stated that her gait

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w a s not steady and she was not sure whether she really should be using it or not." (Doc. # 2 2 ). In addition, when the ALJ discussed Doctor Labib's prescription for the cane, the ALJ sp e c if ied that the prescription was given at Lucas's request. (Tr. 19); see also (Tr. 326). Clearly the ALJ complied with SSR 96-9p and considered the particular facts of L u ca s's case and determined that Lucas's use of a cane was not medically necessary. In a d d itio n there is no credible medical documentation establishing the need for the cane and in fact the evidence in the record suggests the opposite may be true. V. CONCLUSION P u r s u a n t to the findings and conclusions detailed in this Memorandum Opinion and O r d e r, the Court concludes the ALJ's non-disability determination and denial of benefits is s u p p o rte d by substantial evidence. It is, therefore, ORDERED that the decision of the C o m m is s io n e r is AFFIRMED. A separate judgment is entered herewith. DONE this 22nd day of October, 2008. /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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