Carr v. Astrue (CONSENT)

Filing 17

MEMORANDUM OPINION. A separate final judgment will be entered.Signed by Honorable Charles S. Coody on 2/20/2009. (cb, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION D E B O R A H CARR, 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 S O C IA L SECURITY, D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) )

C I V IL ACTION NO. 2:08cv147-CSC (W O )

M E M O R A N D U M OPINION I . Introduction T he plaintiff, Deborah Carr ("Carr"), applied for disability insurance benefits pursuant to 42 U.S.C. § 401, et seq., and supplemental security income benefits pursuant to Title XVI, 4 2 U.S.C. § 1381, et seq., alleging that she was unable to work because of a disability. Her a p p lic a tio n was denied at the initial administrative level. Carr then requested and received a hearing before an Administrative Law Judge ("ALJ"). Following the hearing, the ALJ also d en ied the claim. The Appeals Council rejected a subsequent request for review. The ALJ's d e c isio n consequently became the final decision of the Commissioner of Social Security ("C o m m iss io n er" ).1 See Chester v. Bowen, 792 F.2d 129, 131 (11 th Cir. 1986). The case is n o w before the court for review pursuant to 42 U.S.C. § 405(g) and § 1631(c)(3). Pursuant

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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to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have consented to entry of final jud g m en t by the United States Magistrate Judge. Based on the court's review of the record in this case and the briefs of the parties, the court concludes that the decision of the C o m m is s io n e r should be affirmed. I I . 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. . . . To make this determination,2 the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. § 404.1520, §416.920. (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? (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 (11 th Cir. 1986).3 T h e standard of review of the Commissioner's decision is a limited one. This court m u s t find the Commissioner's decision conclusive if it is supported by substantial evidence. 4 2 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11 th 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 (11 th Cir. 1986). [ T h e 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 (11 th Cir. 1987). I I I . Administrative Proceedings C a rr was 50 years old at the time of the hearing before the ALJ. (R. 469-70.) She c o m p le te d high school. (R. 470). Carr's prior work experience includes working as a food s e rv e r, food service worker, retail cashier, short order cook, convenience store cashier, and

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) (Unit A).

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o rd e r selector/picker. (R. 22.) Carr alleges that she became disabled on July 1, 2000, due to high blood pressure, heart failure, kidney failure, kidney stones, and stomach pain. (R. 54, 6 9 -7 0 ). Following the hearing, the ALJ concluded that Carr suffers from severe impairments o f "coronary artery disease, gastroesophageal reflux disease, obesity, right epicondylitis, m a lin g e rin g psychological and memory problems, dysthymic disorder, hypertension, and h is to ry of recurrent kidney stones." (R. 20). Next, the ALJ determined that Carr has the re sid u a l functional capacity to sit for 1 hour without interruption and for 6 hours during an eight-hour w o rk d a y; stand for 1 hour without interruption and for 6 hours during an eighth o u r workday; walk for 1 hour without interruption and for 6 hours during an e ig h t- h o u r workday; frequently lift, carry, push, and pull up to 10 pounds; o c c as io n a lly lift, carry, push, and pull up to 20 pounds; use the hands in d i v i d u a lly or in combination for simple grasping and fine manipulation; o c c as io n a lly use the feet individually or in combination for repetitive m o v e m e n ts such as operating foot controls or push and pull; occasionally b e n d , stoop, crawl, climb stairs, crouch, kneel, and balance; never climb la d d e rs , ropes, or scaffolds; and never work at activities involving unprotected h e ig h ts , and perform no more than occasional reaching above shoulder level w ith the right upper extremity, while experiencing occasional episodes of mild to moderate pain. Any work performed by Claimant must not require c o n c e n t ra t e d or excessive exposure to pulmonary irritants. Such work must b e simple, unskilled, repetitive, routine, and low stress in nature. This work m u s t require the exercise of little independent judgment and any changes must b e of a routine nature, with no multiple or rapid changes. Such work must be p e r f o r m e d primarily alone, non-responsible in nature, and contact with the g e n e ra l public must be brief and superficial. (R . 21). Relying on the testimony of a vocational expert, the ALJ concluded that Carr is ca p ab le of performing her past relevant work, and thus, she is not disabled. (R. 22-23).

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I V . Discussion C a rr's sole contention is that the ALJ failed to fulfill the requirements of Social S e c u r ity Ruling ("SSR") 82-62 when determining that she is able to return to her past r e le v a n t work. Carr's argument is as follows. T h e ALJ erred by not fulfilling the requirements of SSR 82-62 by f a ilin g to fully develop the evidence regarding the physical and mental d e m a n d s of the claimant's past relevant work and by failing to provide the d e ta ile d analysis and explanation in connection with his finding that the c la im a n t's residual RFC indicated that the claimant was capable of performing h e r past relevant work. The ALJ must fulfill the requirements of SSR 82-62 in determining that the claimant is capable of performing her past relevant w o rk . Davison v. Halter, 171 F. Supp. 2d 1282, 1285 (S.D. Ala. 2001); Bruet v . Barnhart, 313 F. Supp. 2d 1338, 1346-47 (M.D. Fla. 2004). A proper d e ter m in a tio n of whether the claimant's RFC will allow the claimant to p e rf o rm past relevant work must include a detailed description of the re q u ire m e n ts of the past relevant work. Schnorr v. Bowen, 816 F.2d 578, 581 (11 th Cir. 1987). (D o c . # 12, Pl's Br. at 2-3). While SSR 82-62 requires, in cases involving a mental or physical impairment, that c a re "be taken to obtain a precise description of the particular job duties" at issue, the ruling o n ly requires that sufficient documentation be obtained "to permit a decision as to the ind ividu al's ability to return to such past work." Although Carr relies on SSR 82-62 to assert th a t the ALJ erred in failing to fully develop the evidence or provide detailed analysis with re sp e c t to his finding that she is able to return to her past relevant work, she points to nothing in the record indicating which requirements of her past relevant work she is unable to p e rf o rm . While the Eleventh Circuit has not addressed this issue, the Tenth Circuit has held that 5

th e ALJ errs when he fails to make the requisite findings of fact at Step 4 of the sequential a n a lysis pursuant to SSR 82-62. See McIntire v. Apfel, 134 F.3d 383 (10 th Cir. 1998); W in fr e y v. Chater, 92 F.3d 1017 (10 th Cir. 1996).4 The court declines to adopt the Tenth C ircu it's reasoning because the plaintiff's burden of proof in the Tenth Circuit differs s ig n if ic a n tly from this Circuit. In this circuit, the law is clearly established that it is the p la in tif f 's responsibility to demonstrate an inability to return to her past relevant work. L u c a s v. Sullivan 918 F.2d 1567 (11 th Cir. 1990). D u rin g the hearing, the ALJ questioned both a medical expert and vocational expert. T h e medical expert testified that Carr suffers from hypertension, kidney stones, g a stro e so p h a g e a l reflux disease and gastritis, coronary artery disease, and epicondylitis (te n n is elbow). (R. 491-93). While the medical expert testified that Carr did not meet or e q u a l any of the listings, he testified that "she is impaired and that her residual functional c a p ac ity would be for light work." (R. 493). A review of the medical records is consistent w ith the opinion expressed by the medical expert regarding plaintiff's ability to work. For e x a m p le , the plaintiff underwent a consultative physical examination on December 7, 2002. (R . 193-99). Based on his physical evaluation of the plaintiff, Dr. Ramirez opined that Carr c o u ld be expected to stand and walk six hours in an eight hour workday. (R. 199). He f u rth e r opined T h e number of hours the claimant could be expected to sit in an eight-hour w o rk d a y is without restrictions. The claimant is in no need of any assistive

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These cases are not binding precedent on any Circuit other than the Tenth Circuit.

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d e v ic e s . T h e amount of weight the claimant can lift and carry frequently is 10 pounds a n d occasionally 20 pounds. This is not so much because of difficulty with her m u s c le s , but the claimant has mostly fatty tissue rather than muscle mass. W ith regard to postural limitations, activities requiring flexion of the knee jo in t, such as bending and kneeling, as well as crouching, might provide d iffi cu lty for this claimant. There were handwritten notes in the claimant's m e d ic a l records stating that x-rays of the left hip, knee, and foot from an e a rlie r date were negative for any pathology. There was no actual radiology re p o rt. (sic) available to me. It would be a good idea to reexamine this issue w ith current films. T h e re are no manipulative limitations in this claimant's ability to handle small o b jec ts, turn doorknobs, and write. As stated she can oppose her thumb to e a c h of the fingers on the same hand without any problems. (R. 199). C arr also underwent a psychological evaluation on December 12, 2002. (R. 200-205). T h e examining psychologist diagnosed Carr as "[m]alingering psychological and memory p ro b le m s ." (R. 204). He further opined that "[t]here is no reason to believe that her p s yc h o lo g ic a l problems have interfered with her ability to function independently, or re stric te d her behavior, activities, or social functioning as she has a history of employment a n d maintaining friendships." (Id.). Finally, the ALJ posed detailed hypothetical questions to the vocational expert d esc rib ing the plaintiff's limitations and residual functional capacity. The vocational expert te stif ie d about the plaintiff's past relevant work. B a se d on what we have in the records we have several different jobs here in th e relevant period and that would include a food server, which would be light, 7

low level of semiskilled. A food service worker, light, unskilled, retail cashier, lig h t, low level of semiskilled, short-order cook, light, low level of semiskilled, c o n v e n ie n c e store cashier, light, unskilled and she indicated that she sat for tw o hours. An order selector, packer, medium, unskilled, as she performed it, lig h t . . . (R . 500). In response the ALJ's hypothetical question detailing Carr's limitations and re stric tio n s , the vocational expert testified that Carr could perform all of her past relevant w o rk , as she performed the jobs, at a light level. (R. 501-03). The vocational expert clearly te stif ie d that Carr could perform her past relevant work as it is typically performed in the n a tio n a l economy and as she performed it. (R. 504). The vocational expert also testified that h is description of Carr's past work as light work was consistent with the Dictionary of O c c u p atio n a l Titles. Consequently, the ALJ is entitled to rely on the testimony of the v o c a tio n a l expert to conclude that the plaintiff could perform her past relevant work. The court concludes that the ALJ properly applied SSR 82-62, and made the requisite f in d in g s of fact. In determining that Carr could perform her past relevant work, the ALJ a rtic u la te d the weight given to each physician's opinion, including the medical expert, and h e articulated the reasons for weighting them in determining the plaintiff's ability to perform w o rk . (R. 22). The ALJ also considered the vocational expert's testimony. (R. 22-23). The d e c isio n indicates that the ALJ made a thorough analysis of the testimony and considered all o f the objective medical evidence in reaching his decision. Pursuant to the substantial e v id e n c e standard, this court's review is a limited one; the entire record must be scrutinized to determine the reasonableness of the ALJ's factual findings. Lowery v. Sullivan, 979 F.2d

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8 3 5 , 837 (11 th Cir. 1992). Given this standard of review, the court finds that the ALJ's d e c is io n was supported by substantial evidence. V . Conclusion T h e court has carefully and independently reviewed the record and concludes that the A L J did not err as a matter of law, the decision of the Commissioner is supported by su b sta n tial evidence and is due to be affirmed. Thus, this case will be dismissed with p r e ju d ic e . A separate final judgment will be entered. D o n e this 20 th day of February, 2009.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

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