Olds v. Astrue (CONSENT}

Filing 17

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is AFFRIMED. A separate judgment is entered herewith. Signed by Honorable Wallace Capel, Jr on 12/17/2008. (cb, )

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 S H E I L A A. OLDS, 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. 2:07cv1017-WC

M E M O R A N D U M OPINION I. INTRODUCTION S h e ila A. Olds (Olds) applied for disability insurance benefits pursuant to Title II and T itle XVI of the Social Security Act (the Act). See 42 U.S.C. §§ 401 et. seq., 1381 et, seq. O ld s 's application was denied at the initial administrative level. Olds then requested and re c eiv e d a hearing before an Administrative Law Judge (ALJ). Following the hearing, the A L J also denied the claim. The Appeals Council rejected a subsequent request for review. T h e ALJ's decision consequently became the final decision of the Commissioner of Social S ec u rity (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The c a s e is now before the Court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 6 3 6 (c ), both parties have consented to the conduct of all proceedings and entry of a final ju d g m e n t by the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction
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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(D o c . #9); Def.'s Consent to Jurisdiction (Doc. #10). Based on the Court's review of the re c o rd and the briefs of the parties, the Court AFFIRMS 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 im p a irm 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 stio 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

Olds was forty-three years old and had completed the eighth grade at the time of the h e a rin g before the ALJ. (Tr. 203). Employing the five-step process, the ALJ found Olds had

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en g ag ed in substantial gainful activity since the alleged onset date, working as a nurse's a ss is ta n t until May of 2004, but was not presently employed. (Step 1). (Tr. 24). At Step 2, th e ALJ found Olds suffered from the severe impairments of lumbar spine degenerative disk d i s e a s e and radiculopathy. Id. Nonetheless, the ALJ found Olds did not possess an im p a irm e n t or combination of impairments that met or equaled the criteria of any listed im p airm e n t set forth in the Listing of Impairments (Step 3). (Tr. 25). At Step 4, the ALJ d eterm ined Olds did not possess the RFC to perform any past relevant work. (Tr. 26). A t Step Five, the ALJ evaluated Olds's RFC, age, education, and work experience, a s well as consulted the Medical-Vocational Guidelines regarding the availability, in s ig n if ic a n t numbers, of other work Olds could perform in the national economy. Upon c o n sid e ra tio n of this evidence, the ALJ determined Olds possessed the RFC to perform jobs th a t exist in significant numbers in the national economy. (Tr. 27). Consequently, the ALJ f o u n d Olds was not disabled within the meaning of the Act. Id. B. O ld s's Claims

O ld s 's claims are as follows: (1) whether the ALJ was required to cite to specific jobs O lds could perform in the national economy; (2) whether the ALJ erred in not finding Olds's d e p re ss io n to be a severe impairment; and (3) whether the ALJ failed to apply properly the p a in standard.

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IV .

D IS C U S S IO N A. W h e th e r the ALJ was required to cite to specific jobs Olds could perform in th e national economy.

O ld s claims that "at step five [] the ALJ failed to properly establish the existence of o th e r work that could be performed by the Plaintiff in the national economy." (Doc. #12 at 8 ). Specifically, Olds argues the Eleventh Circuit requires the ALJ to "`articulate[] specific jo b s that the claimant is able to perform' . . . [and] cite jobs that are available in significant n u m b e rs in the national economy." Id. (quoting Allen v. Sullivan, 880 F.2d 1200, 1201 (11th C ir. 1989). O ld s is correct. However, as the Court went on to say in Allen, "[i]n appropriate c irc u m s ta n c es , the grids may be used in lieu of vocational testimony." Id. at 1201-02. F u r th e rm o re , the Supreme Court in Heckler v. Campbell, 461 U.S. 458, 468-472 (1983), " h e ld that when the grids are properly used the Secretary need not introduce evidence of s p e c if ic available jobs that the claimant is able to perform despite the existing impairments." In this case, the ALJ relied exclusively on the Medical-Vocational Guideline Grids (grids). O ld s does not argue the ALJ improperly relied upon the grids, and upon a review of the re c o rd the Court finds that the grids were properly used in this case. Rather, Olds merely arg u es that the ALJ was required to specifically name jobs available to Olds. However, b e c a u se applicable Supreme Court authority relieves the ALJ from having to cite to specific job s when using the grids, the ALJ did not err.

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B.

W h e t h e r the ALJ erred in not finding Olds's depression to be a severe im p a irm e n t.

Olds argues her depression is severe and the ALJ erred when he determined that Olds s u f f ere d from the "non-severe impairment [of] depression." (Tr. 24). Based on the record, th e ALJ determined Olds's depression "imposes no more than minimal limitations on her d a ily activities, social functioning, and ability to maintain concentration, persistence, and p ac e." (Tr. 25). O ld s points to the consultive evaluation of Dr. Hall and the opinion of the none x a m in in g state agency psychiatrist, Dr. Vargas. (Doc. #12 at 9-10). However the ALJ s p e c if ic a lly addressed both doctors' opinions. The ALJ stated that Dr. Vargas's opinion was n o t supported by the preponderance of evidence, and that while Dr. Hall's report revealed d if f ic u lty completing some testing, Olds's ability to watch television programs, shop, cook, clea n , and drive evidence her ability to maintain concentration. (Tr. 25). The ALJ's re je c tio n of Dr. Hall's consultive examination and Dr. Vargas's non-examining opinion was p ro p e r. While the ALJ was required to consider their opinions s ta n d in g alone [they] do not constitute substantial evidence. See Spencer ex r e l. Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir.1985) (per curiam). Of c o u r s e , the ALJ may reject any medical opinion if the evidence supports a c o n tr a r y finding. Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir.1985) (per c u r ia m ) . S h a r f a r z v. Bowen, 825 F.2d 278, 280 (11th Cir. 1987) (emphasis added). Here the ALJ s p e c if ie d the reason for rejecting the doctors' opinions was based contrary medical evidence. 7

T h e record, which includes Olds's own testimony concerning her daily activities and her re p o rts to her treating physician, supports this determination. C. W h e th e r the ALJ failed to apply properly the pain standard.

Before an ALJ can consider the subjective pain testimony of a claimant, the claimant m u s t satisfy two parts of a three-part test. First, the claimant must show "evidence of an u n d erlying medical condition, and [second] either (1) objective medical evidence to confirm th e severity of the alleged pain arising from that condition, or (2) that the objectively d e ter m in e d medical condition is of a severity that can reasonably be expected to give rise to th e alleged pain." Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). O ld s argues the ALJ failed to follow this three-part test and consider her testimony o f pain despite establishing the underlying medical condition of degenerative lumbar disk d is e a se and radiculopathy. The Commissioner argues that while the ALJ may not have a rtic u la te d the three-part pain standard it is clear he applied it correctly. T h e three-part pain standard is a gateway which allows the ALJ to consider whether a claimant's pain is disabling. In this case, the ALJ did consider Olds's claims of pain. The A L J stated that he "granted [Olds] an abundant benefit of the doubt concerning her alleg atio n s of back and lower extremity symptoms, including pain." (Tr. 26). Thus, Olds's c laim that the ALJ did not properly apply the three-part test and consider her claims of pain is without merit.

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A f te r considering Olds's subjective pain testimony, the ALJ determined that it was n o t supported by the medical evidence. "20 C.F.R. § 404.1529 provides that once such an im p a irm e n t is established, all evidence about the intensity, persistence, and functionally lim itin g effects of pain or other symptoms must be considered in addition to the medical s ig n s and laboratory findings in deciding the issue of disability." Foote, 67 F.3d at 1561. T h e medical signs and laboratory findings evidenced that Olds's pain was manageable and n o t disabling. Olds's pain testimony by itself is not sufficient to establish disability, and b e c au s e the medical evidence was contrary to Olds's claim, disability could not be e s ta b lis h e d . See Id. Therefore, the ALJ's determination that Olds's pain was not disabling w a s correct. V. C O N C L U SIO N P u r s u a n t to the findings and conclusions detailed in this Memorandum Opinion, the C o u r t concludes that the ALJ's non-disability determination is due to be affirmed. It is, th e re f o re , ORDERED that the decision of the Commissioner is AFFIRMED. A separate ju d g m e n t is entered herewith. DONE this 17th day of December, 2008. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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