Thomas v. Astrue (CONSENT)

Filing 18

MEMORANDUM OPINION AND ORDER AFFIRMING the decision of the Commissioner. Signed by Honorable Wallace Capel, Jr on 3/10/09. Copies mailed to Office of Hearings and Appeals & Chief Judge SSA.(djy, )

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 E L L A M. THOMAS, 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. ) ) ) ) ) ) ) ) ) )

C IV IL ACTION NO. 2:08cv165-WC

M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P la in tif f Ella M. Thomas applied for supplemental security income benefits under T itle XVI of the Social Security Act (the Act). See 42 U.S.C. §§ 1381­1383f. Her a p p lic a tio n was denied at the initial administrative level. Plaintiff 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 claims. The Appeals Counsel then denied Plaintiff's 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

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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ju d g m e n t by the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (D o c . #10); Def.'s Consent to Jurisdiction (Doc. #11). Based on the Court's review of the rec o rd and the briefs 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 i r m e n t s 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 sti o 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. 2

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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 (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. E a c h factor can independently limit the number of jobs realistically available to an
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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

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. ADMINISTRATIVE PROCEEDINGS P la in tif f was forty-three years old and had completed the tenth grade at the time of the h e a r in g before the ALJ. (Tr. 80, 261). Plaintiff has past relevant work experience as a c h i c k e n plant laborer. (Tr. 31). The ALJ found Plaintiff had not engaged in substantial

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g a in f u l activity during the relevant period. (Step 1). (Tr. 21). At Step 2, the ALJ found that P lain tiff suffers from the following severe impairments: essential hypertension with c a rd io v a s c u la r complications; non-insulin dependent mellitus; and obesity. Id. The ALJ n o n e th e les s found Plaintiff did not possess an impairment or combination of impairments that meet or medically equaled one of the listed impairments in 20 CFR Part 404. (Tr. 22). N e x t, the ALJ found that Plaintiff retained the RFC to "perform unskilled work at least at the s e d e n ta ry strength or exertional level, in function-by-function terms (SSRs 83-10 and 96-9p) w ith certain postural and environmental nonexertional restrictions associated with that level o f exertion." (Step 3). (Tr. 26). At Step 4, after obtaining the testimony of a VE, the ALJ f o u n d that Plaintiff could not perform her past relevant work. (Tr. 31). At step 5, after co n side rin g Plaintiff's age, education, work experience, and RFC, the ALJ determined there w e re jobs that exist in significant numbers in the national economy which Plaintiff could p e rf o rm . (Tr. 32). Consequently, the ALJ found Plaintiff had not been disabled since the a lle g e d onset date. IV. P L A I N T I F F 'S CLAIMS P la in tif f has presented three issues for the Court to consider: (1) whether the ALJ c o m m i t t e d reversible error by failing to order a consultative exam; (2) whether the ALJ c o m m itte d reversible error by failing to order a Psychiatric Review Technique Form; and (3) w h e th e r the ALJ committed reversible error when he relied on the testimony of the VE.

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V.

D IS C U S S IO N A. T h e ALJ did not err by failing to order a psychiatric review.

P la in tif f argues that the ALJ erred to the point of reversal when he failed to have a p s yc h o lo g is t or psychiatrist review Plaintiff's file because the record contained evidence of th e existence of a mental impairment. Defendant counters that the record contained adequate in f o rm a tio n on which the ALJ could make a decision without ordering additional p s yc h o lo g ic a l review. " T h e administrative law judge has a duty to develop the record where appropriate but is not required to order a consultative examination as long as the record contains sufficient e v id e n c e for the administrative law judge to make an informed decision." Ingram v. C o m m 'r . of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir. 2007). Plaintiff argues there w as sufficient evidence of a mental impairment on the record to require the ALJ to order a c o n su lta tiv e exam. Specifically, Plaintiff points this Court to her own testimony, as well as s u g g e s tio n s by her treating physicians as evidence of her mental impairment. See McCall v . Bowen, 846 F.2d 1317, 1320 (11th Cir. 1988) ("Along with [Claimant's] own testimony o f mental problems, the suggestions made by her treating physicians might well be enough to require the appointment of a psychiatrist or psychologist."). In this case, the ALJ was not obliged to order a psychological review because there w e re not sufficient suggestions of mental impairment in the record "to require the

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a d m in is tra tiv e law judge to question [Plaintiff's] mental capacity and order a consultative e x a m in a tio n ." Ingram, 496 F.3d at 1269. There is no diagnosis in the record that Plaintiff su ff ers from a mental illness. As evidence of a mental impairment, Plaintiff relies on Dr. H a g g e r ty' s statements that Plaintiff had "word search difficulty" and was "slow to express h e rs e lf " (Tr. 248), and on two occasions mentioned in her medical records in which she f o rg o t to bring her blood sugar levels to her doctor's office,. (Tr. 228). Plaintiff also relies o n the ALJ's determination that Plaintiff's testimony regarding the existence of memory and c o n c en tra tio n problems was credible. P la in tif f is only partly right regarding the ALJ's determination of credibility. The ALJ s ta te d that "claimant's assertions regarding the existence of memory and concentration p ro b le m s are credible; however, the degree of limitation alleged is not supported by the c re d ib le evidence." (Tr. 22). Specifically, the ALJ found that the objective medical

e v id e n c e did not support Plaintiff's claims of severity. Id. Thus, Plaintiff's testimony is not c re d ib le evidence of a mental impairment requiring consultative examination. F u rth er, after making the statements relied upon by Plaintiff regarding her memory a n d word difficulty, Dr. Haggerty stated that Plaintiff was still "[c]apable of low stress jobs." (T r. 248). Dr. Haggerty also indicated that Plaintiff's mental health was not an issue when h e completed the RFC form. (Tr. 248) Thus, Dr. Haggerty's statements and findings were co n sisten t with the ALJ's determination regarding the severity or existence of Plaintiff's m e n t a l limitations. 7

W h ile the record contains ample evidence concerning Plaintiff's mental abilities, with th e exception of her own discredited testimony, it is void of examples of Plaintiff's mental. T h u s the ALJ was not required to order a consultative examination. See Ingram, 496 F.3d a t 1269. Plaintiff's claim that the ALJ erred by failing to order a psychiatric review is

w ith o u t merit. B. T h e ALJ did not err by failing to order a Psychiatric Review Technique F orm .

P lain tiff argues that, because she presented a colorable claim of mental impairment, th e ALJ was required "to complete a Psychiatric Review Technique Form (PRTF), append i t to the decision, or incorporate its mode of analysis into his findings and conclusions; f a ilu re to do so requires remand." (Doc. #13 at 6). Plaintiff's claim here is closely tied to h e r first claim. Plaintiff relies on her arguments regarding the presentation of a mental im p a irm e n t. Because the Court has rejected Plaintiff's claim that she has presented a c o lo ra b le claim of mental impairment, see supra, the Court finds the ALJ was not required t o complete a PRTF. See Moore v. Barnhart, 405 F.3d 1208, 1214 (11th Cir. 2005) (" [ W ] h e re a claimant has presented a colorable claim of mental impairment, the social sec u rity regulations require the ALJ to complete a PRTF.") (emphasis added). C. T h e ALJ did not commit reversible error when he relied on the testimony o f the VE.

P la in tif f argues that the ALJ failed by not asking the VE whether any conflict existed

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b e tw e e n his testimony and the Dictionary of Occupational Titles (DOT). The Government c o n c e d e s that "the vocational expert's testimony `generally should be consistent' with in f o rm a tio n in the DOT, [and] SSR 00-4p requires that the ALJ inquire about possible c o n f licts between the [VE]'s testimony and the DOT." (Doc. #14 at 13). The question in th is case thus becomes whether the ALJ's failure to inquire as to any possible conflicts co n stituted reversible error. If the ALJ was aware of any conflict between the VE's testimony and the DOT, the th e ALJ was required to inquire as to the reasons for the conflicts and failure to do so may w a rr a n t reversal. See Leonard v. Astrue, 487 F. Supp. 2d 1333 (M.D. Fla. 2007). However, in this case there is no known or even apparent inconsistency between the DOT and the VE's te stim o n y. Indeed, Plaintiff fails to point to any inconsistency between the two. Further, the V E testified that he consulted the Bureau of Labor Statistics census data 5 and that each ce n su s code he provided to the ALJ corresponded to the DOT codes. (Tr. 277). B e c au s e there is no allegation of conflict, and the VE provided substantial evidence o f available jobs Plaintiff could perform, this Court finds the ALJ's failure to inquire as to p o s s ib le conflicts between the DOT and the VE's testimony was harmless error. See R e n fr o w v. Astrue, 496 F.3d 918, 922 (8th Cir. 2007) ("[T]he ALJ's error in failing to ask the

Census reports are a permissible source of information on which the VE can rely. See 20 C.F.R. § 404.1566(d) (2008) ("For example, we will take notice of-- . . . (1) Dictionary of Occupational Titles, . . . ; . . . (3) Census Reports, . . . published by the Bureau of the Census; . . . ."). 9

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v o c a tio n a l expert about possible conflicts between his testimony and the Dictionary of O c c u p a tio n a l Titles was harmless, since no such conflict appears to exist."); see also Miller v . Comm'r. of Soc. Sec., 241 Fed. App'x 631 n.1 (11th Cir. 2007) (applying the harmless e rro r standard where ALJ found advanced age claimant to be approaching advanced age, b ec au se evidence showed other jobs were available that claimant could perform.). V I. CONCLUSION In addition to reviewing Plaintiff's claims, the Court has carefully and independently re v ie w e d the entire record and concludes the decision of the Commissioner is AFFIRMED. A separate judgment will issue. D O N E this 10th day of March, 2009. /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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