Kennedy v. Astrue

Filing 20

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is AFFIRMED. A separate judgment will issue. Signed by Honorable Wallace Capel, Jr on 5/11/2009. (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 J U A N IT A KENNEDY, P l a in tif f , v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 2:08cv97-WC

M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P la in tif f Juanita Kennedy applied for disability insurance benefits under Title II of the S o c ia l Security Act ("the Act"), 42 U.S.C. §§ 404 et seq., and supplemental security income b e n e fits pursuant to Title XVI of the Act, 42 U.S.C. § 1381 et seq. Her applications were d e n ie d at the initial administrative level. Plaintiff then requested and received a hearing b e f o re an Administrative Law Judge (ALJ). Following the 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 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),

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 o th 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. #10); D e f .'s Consent to Jurisdiction (Doc. #9). 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 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 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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d is a b le d ." 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.
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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

E a c h 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 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 lain tiff was fifty-five years old at the time of the hearing before the ALJ. (Tr. 198).

D u e to her pregnancy, Plaintiff dropped out of school in the fifth grade. (Tr. 203-04). P la in tif f 's past relevant work experience was as a short order cook. (Tr. 200).5 Following th e administrative hearing, and employing the five-step process, the ALJ found Plaintiff had n o t engaged in substantial gainful activity since the alleged onset date of August 11, 2004 (S tep 1). (Tr. 19). At Step 2, the ALJ found that Plaintiff suffers from the severe im p a irm e n ts of "degenerative joint disease/mild osteoarthritis of the left knee, osteoarthritis o f the right thumb, obesity, non-insulin dependent diabetes controlled with diet[,] and h yp erten sio n ." (Tr. 21). The ALJ next found that Plaintiff's "severe and not severe im p a irm e n ts , considered singularly and in combination, are not of listing level severity." ( S te p 3) (Tr. 21). Next, the ALJ found that Plaintiff retains the RFC to "perform her past r e le v a n t work" and, therefore, is not disabled. (Step 4) (Tr. 23).6 The ALJ also queried a v o c a tio n a l expert about whether Plaintiff's RFC precludes the performance of the types of jo b s identified as Plaintiff's past relevant work. Based on the expert's testimony, the ALJ c o n c lu d e d that, given her age, education, past work experience, and RFC, Plaintiff could

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Specifically, Plaintiff was employed as a cook by Shoney's for over twenty years.

(Tr. 200). Specifically, the ALJ found that Plaintiff retains the RFC "to perform work within the limitations/considerations as set forth in the functional assessment/medical source statement completed by Dr. Colley [see Tr. 133-139] . . . and with the limitations/considerations as set forth in the physical residual functional capacity assessment completed by the State Agency medical consultant [see Tr. 140-47] . . . ." (Tr. 24). 5
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p e rf o rm her past relevant work. (Tr. 22). IV. P L A I N T I F F 'S CLAIMS P la in tif f claims that the final decision of the Commissioner is not supported by s u b s ta n tia l evidence in the record and submits two discrete arguments in support of her c la im :7 (1) "the ALJ failed to develop the vocational factors including intellectual level and tran sfe rab ility of skills;" and (2) "the ALJ erred in finding [Plaintiff] capable of light work a n d her past work as a cook." Pl.'s Brief in Support of Complaint (Doc. #13) at 6-10. The C o u rt will address each of Plaintiff's claims in turn. V. DISCUSSION A. T h e ALJ's treatment/consideration of Plaintiff's purportedly poor in te lle c tu a l functioning and transferability of skills.

P la in tif f contends that, given her age and "marginal education," th e ALJ should have obtained [a] psychological consultative evaluation for the p u rp o se s of establishing Plaintiff's functional level and also to conduct a m e n ta l status exam to determine Plaintiff's ability to perform basic mental w o rk -re la te d tasks such as maintaining concentration, persistence and pace, an d understanding and carrying out work instructions. . . . [T]he ALJ's failure to order [a] mental evaluation constituted a failure on his part to properly d e v e lo p the claim. P l.'s Brief in Support of Complaint (Doc. #13) at 6-7. Plaintiff also argues that argues that th e ALJ failed to take proper account of Plaintiff's purported lack of transferability of skills.
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The following are derived from the all-capped headings separately presented in the argument section of Plaintiff's brief. 6

Id . at 7-8. Plaintiff contends that all of these factors - Plaintiff's age, lack of education, and tra n sf e ra b ility of skills - were essential to a proper determination of Plaintiff's status under th e Medical Vocational Guidelines yet were essentially ignored by the ALJ. Defendant s u b m its that, given the ALJ's finding that Plaintiff could perform her past relevant work, the A L J was not required to grant any more consideration toward Plaintiff's age, intellectual f u n c tio n in g , or transferability of skills because the ALJ was not required to apply the Medical V o c a t io n a l Guidelines to the disability analysis. Def.'s Brief in Support of the

C o m m is s io n e r's Decision (Doc. #18) at 4. Nor, Defendant argues, did the ALJ err in failing to order a consultative mental examination because Plaintiff has not alleged, much less p ro v e n , that her intellectual functioning has deteriorated since she last performed relevant w o rk . Id. at 5-6. To the extent Plaintiff faults the ALJ for failing to take proper account of her age, e d u c a tio n a l level, and transferability of skills for purposes of an "accurate use of the MVR," h e r allegation of error is without merit for the reasons stated by Defendant. The ALJ clearly d e te rm in e d that Plaintiff could perform her past relevant work as a cook. Thus, the ALJ was n o t required to proceed to step five and application of the Medical Vocational Guidelines to d e ter m in e whether a claimant possessed of Plaintiff's RFC might find employment in s ig n if ic a n t numbers in the national economy. Accordingly, the ALJ can not be faulted for f a ilin g to consider certain factors to allow for an "accurate use of the MVR." P la in tif f also faults the ALJ for failing to further develop the record by way of 7

orde rin g a "psychological consultative examination for the purpose of establishing Plaintiff's fu n ctio n al intellectual level and also to conduct a mental status exam." Pl.'s Brief in Support o f Complaint (Doc. #13) at 6. However, Plaintiff presented no evidence prior to the hearing, a n d points to none now, that her intellectual functioning or "mental status" has deteriorated o r was otherwise altered from when she last performed relevant work. At the hearing before th e ALJ, Plaintiff's testimony about her purported limitations consisted only of her admission th a t she can read "[a] little bit," but also that her job was simple and apparently did not re q u ire much in the way of reading. (Tr. 204-05). "Even though Social Security courts are inquisitorial, not adversarial, in nature, c la im a n ts must establish that they are eligible for benefits. The administrative law judge has a duty to develop the record where appropriate but is not required to order a consultative e x a m in a tio n as long as the record contains sufficient evidence for the administrative law ju d g e to make an informed decision." Ingram v. Comm. of Soc. Sec. Admin., 496 F.3d 1253, 1 2 6 9 (11th Cir. 2007). As noted above, Plaintiff's own testimony about any alleged i n t e l le c tu a l or mental limitations was very limited. Moreover, absent some showing that P la in tif f 's "intellectual functioning" or "mental status" has appreciably deteriorated, the fact that she maintained her employment as a cook in a single location for over twenty years m ilita te s in favor of the ALJ's determination that her "intellectual functioning" and "mental s ta tu s " were appropriate for her past relevant work. Thus, the ALJ had sufficient evidence b e f o re him to conclude that Plaintiff's intellectual functioning and mental status did not

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p re c lu d e her performance of past work.8 B e c a u s e he determined that Plaintiff could return to her past relevant work, the ALJ d id not err in failing to consider Plaintiff's "age, educational level, and transferability of s k ills " to foster an "accurate use of the [Medical Vocational Guidelines]." Likewise, the ALJ d id not err in failing to order a consultative psychological examination because the record b e f o re him contained sufficient evidence for him to determine whether or not Plaintiff could re tu rn to her past relevant work and Plaintiff failed to offer any evidence of her allegedly p o o r "intellectual functioning" or "mental status." B. T h e ALJ's determination that Plaintiff could perform her past relevant w ork.

P la in tif f asserts that the ALJ erred in finding Plaintiff could return to her past relevant w o rk as a cook. She claims that the ALJ's finding was based, in part, on his erroneous belief that Plaintiff quit working for reasons unrelated to her impairments. Pl.'s Brief in Support o f the Complaint (Doc. #6) at 8-9. Plaintiff also argues that the ALJ arrived at his

Arguably the only evidence cited by Plaintiff (see Doc. #13 at 6) as indicative of her inadequate "intellectual functioning" or "mental status" is the observation of the Alabama Disability Determination Service interviewer that, during the interview, Plaintiff had difficulty with concentrating and writing. (Tr. 74). However, the interviewer also observed that Plaintiff did not struggle with "understanding," "coherency," or "answering." Id. The interviewer also believed that Plaintiff "wants to work if there were something that she could do while not being on her feet all day." (Tr. 74-75). Accordingly, Plaintiff's reliance on the interviewer's observations about her " concentrating" and "writing" appears somewhat misplaced. Given the interviewer's other observations and the lack of any other evidence or testimony from Plaintiff herself, nothing in the record reasonably should have caused the ALJ to order a consultative psychological examination. 9

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d e te rm in a tio n as a result of his improper rejection of the opinion of her treating physician, D r. Williams, and the improper crediting of the consultative examination of Dr. Colley (Tr. 1 3 3 -3 9 ) and the RFC assessment of the State Agency physician (Tr. 140-47). Id. at 9. D e f en d a n t maintains that the ALJ properly determined that Plaintiff's RFC permitted her re tu rn to her past relevant work. In setting forth Plaintiff's RFC, the ALJ wrote "[t]here is evidence that the claimant s to p p e d working for reasons not related to the allegedly disabling impairments. When she f ile d for disability benefits, the claimant reported: I lost my job because the Shoney's closed d o w n ." (Tr. 23). Citing to other statements made by Plaintiff in the same report, Plaintiff c o n te n d s that the ALJ erroneously determined that Plaintiff stopped working for reasons u n r e la te d to her alleged disabilities. However, the other statements attributed to Plaintiff f ro m that report - essentially that her hours were already being reduced due to her ailments b e f o re the closure - are of limited, if any, value considering that Plaintiff resumed working a s a cook in the same location as the former Shoney's after she made the statements c o n ta in e d in the disability report. See Tr. 201-02.9 Indeed, Plaintiff held this second job for a n additional two years, only quitting when "Choo Choo's" itself also closed. Because P la in tif f procured employment and worked for an additional two years after she lost her job w ith Shoney's, it was not unreasonable for the ALJ to merely point to existing evidence that

According to Plaintiff, another restaurant - "Choo Choo's" - briefly inhabited the space formerly occupied by Shoney's and similarly employed her as a cook. (Tr. 201). 10

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P la in t if f may have quit her job(s) due to reasons unrelated to her ailments. P la in tif f also appears to challenge the ALJ's decision to discount the opinion of her tre a tin g physician in favor of the opinion of the consultative examiner, Dr. Colley, and the sta te agency RFC assessment. The treating physician, Dr. Williams, completed a disability q u e s tio n n a ire (Tr. 178) and a medical source statement (Tr. 179-80). The gist of these two d o c u m e n ts is that, according to Dr. Williams, Plaintiff is unable to maintain permanent fulltim e employment due to her hypertension and "marked anxiety," and that she suffers from s e v e re physical functional limitations which had been prevalent for three or four years. The A L J afforded Dr. Williams's opinion "little weight" because it appeared to the ALJ that Dr. W illia m s was relying heavily upon the subjective reports of Plaintiff with little scrutiny of h e r claims. (Tr. 22). The ALJ also found that Dr. Williams's opinion was not bolstered by h is own reports and that, in any event, Dr. Williams had only sporadically seen Plaintiff over th e years. When confronted with the opinion of a claimant's treating physician, the ALJ must a f f o rd it substantial and considerable weight unless "good cause" is shown to the contrary. C r a w fo r d v. Comm'r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004). See also Bliss v. C o m m 'r of Soc. Sec., 254 Fed. App'x 757, 758 (11th Cir. 2007) ("An ALJ may reject the o p in io n of a treating physician, which ordinarily receives substantial weight, where `good c a u se ' is established."). "`[G]ood cause' exists when the: (1) treating physician's opinion w a s not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating 11

p h ys ic ia n 's opinion was conclusory or inconsistent with the doctor's own medical records." P h i llip s v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004). "The ALJ must clearly a rtic u la te the reasons for giving less weight to the opinion of a treating physician, and the f a ilu re to do so is reversible error." Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1 9 9 7 ). See also MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (holding the A L J "must specify what weight is given to a treating physician's opinion and any reason for g iv in g it no weight"). "Where the ALJ articulated specific reasons for failing to give the o p i n i o n of a treating physician controlling weight, and those reasons are supported by s u b s ta n tia l evidence," a reviewing court may not "disturb the ALJ's refusal to give the o p in io n controlling weight." Carson v. Comm'r of Soc. Sec., 2008 WL 4962696 at *1 (11th C ir. Nov. 21, 2008). In this instance, as discussed above, the ALJ clearly articulated the reasons why he d is c o u n te d the opinion of Plaintiff's treating physician and those reasons are supported by su b stan tia l evidence. Among those reasons were the infrequent and distant nature of Dr. W illia m s 's treating relationship with Plaintiff and that the "(1) treating physician's opinion w a s not bolstered by the evidence [Plaintiff points to no evidence, other than her complaints, w h ic h bolsters Dr. Williams's opinion about her purported severe functional limitations]; (2) e v id e n c e supported a contrary finding [inter alia, Dr. Colley's examination supported the A L J 's finding of a far less restricted RFC]; [and] (3) treating physician's opinion was c o n c lu s o ry or inconsistent with the doctor's own medical records [Dr. Williams's own

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re c o rd s do not support the severe functional limitations reflected in his medical source s ta te m e n t]." Phillips, 357 F.3d at 1240-41. Accordingly, "good cause" supported the ALJ's d e c is io n to discount the opinion of Plaintiff's treating physician. See Sryock v. Heckler, 764 F .2 d 834, 835 (11th Cir. 1985) ("The ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion."). H av in g determined to discount Dr. Williams's opinion, the evidence in the record su p p o rts the ALJ's finding that Plaintiff could return to her past relevant work. After his c o n su lta tiv e examination, Dr. Colley provided detailed findings as to Plaintiff's functional c a p a c itie s . (Tr. 133-39). Subsequently, the state agency physician completed an RFC a ss e ss m e n t which reached largely similar findings. (Tr. 140-47). To the extent Plaintiff f a u lts the ALJ for relying upon the findings of Dr. Colley's consultative examination or the sta te agency RFC assessment in reaching an RFC determination, her claim is without merit. S u c h opinions, where credible, are important pieces of evidence which an ALJ must c o n s id e r. See, e.g., 20 C.F.R. § 416.927(f)(2)(I). Plaintiff alludes to nothing, other than her o w n subjective complaints and the properly discounted opinion of Dr. Williams, to refute th e findings of Dr. Colley and the state agency physician. Finally, to ensure that a person w ith the RFC attributed to Plaintiff could indeed perform Plaintiff's past relevant work, the A L J obtained the opinion of a vocational expert. After receiving the ALJ's hypothetical w h ic h embraced the functional limitations reasonably included in the opinions of Dr. Colley a n d the state agency physician, the expert confirmed that a person possessing the RFC

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a t tr ib u te d to Plaintiff could perform Plaintiff's past relevant work. Thus, given all of the e v id e n c e in the record, substantial evidence supports the ALJ's finding that Plaintiff could p e rf o rm her past relevant work. VI. CONCLUSION 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 11th day of May, 2009.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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