Smith v. Astrue (CONSENT)

Filing 18

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is AFFIRMED. Signed by Honorable Wallace Capel, Jr on 7/22/2009. (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 L A U R A SMITH, P l a 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. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 2:08cv513-WC

M E M O R A N D U M OPINION AND ORDER
I. INTRODUCTION P lain tiff applied for disability insurance benefits under Title II of the Social Security A c t ("the Act"), 42 U.S.C. §§ 401 et seq and for supplemental security income under Title X V I of the Act. Her application was denied at the initial administrative level. Plaintiff then re q u e ste d and received a hearing before an Administrative Law Judge (ALJ). Following the h e a r in g , the ALJ also denied the claims. The Appeals Council rejected a subsequent request f o r review. The ALJ's decision consequently became the final decision of the Commissioner o f Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1 9 8 6 ). The case is now before the Court for review under 42 U.S.C. § 405(g). Pursuant to 2 8 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings and entry

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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o f a final judgment by the undersigned United States Magistrate Judge. Pl.'s Consent to J u ris d ic tio n (Doc. #9); Def.'s Consent to Jurisdiction (Doc. #8). Based on the Court's review o f the record and the briefs of the parties, the Court AFFIRMS the decision of the C o m m i s s io n e r . 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 la in tif f was approximately forty-seven years old at the time of the hearing before the

A L J and was a high school graduate. (Tr. 15). Plaintiff's past relevant work experience in c lu d e d work as a poultry dresser. (Tr. 25, 301). Following the administrative hearing, and e m p lo yin g the five-step process, the ALJ found Plaintiff had not engaged in substantial g a in f u l activity since the alleged onset date of May 15, 2005 (Step 1). (Tr. 15). At Step 2, th e ALJ found that Plaintiff suffers from the following severe impairments: right shoulder im p in g e m e n t; right shoulder acromioclavicular arthritis status-post arthroscopy; mild carpal tu n n e l syndrome; paresthesias; lumbar spondylosis; degenerative disc disease; lumbar ste n o sis ; facet joint arthritis; status-post laminectomy; hypertension; myalgia; and obesity (T r. 21). The ALJ then found that Plaintiff does not have an impairment that meets or m e d ic a lly equals one of the listed impairments (Step 3). Id. Next, the ALJ found that, thro u g h May of 2006, Plaintiff retained the RFC to perform a limited range of sedentary w o rk and from June 2006 through the date of his decision, Plaintiff retained the RFC to p e rf o rm a limited range of light work. (Tr. 26). Next, the ALJ determined that Plaintiff was in c a p a b le of performing past relevant work. (Tr. 25). At Step Five, the ALJ evaluated Plaintiff's RFC, age, education, and work experience, a s well as testimony from a VE regarding the availability in significant numbers of other w o rk Plaintiff could perform in the national economy. Upon consideration of this evidence, t h e ALJ determined Plaintiff possessed the RFC to perform jobs that exist in significant 5

n u m b e rs in the national economy. (Tr. 26). Consequently, the ALJ found Plaintiff was not d is a b le d within the meaning of the Act. Id. IV . P L A I N T I F F 'S CLAIMS P la in tif f alleges two errors requiring reversal of the ALJ's decision: (1) whether the A L J properly considered Plaintiff's pain in making his disability determination, and (2) w h e th e r the ALJ's credibility finding was specific enough to satisfy the requirements of S o c ial Security laws and regulations. The Court will address each of Plaintiff's claims in tu rn . V. DISCUSSION A. W h e th e r the ALJ properly considered Plaintiff's pain in making his d is a b ility determination.

P la in tif f argues that the ALJ failed to consider Plaintiff's subjective complaints of p a in . Plaintiff's exact argument in this claim is that "the ALJ found [Plaintiff] not to be c r e d ib le , but did not properly go through the credibility analysis required under Social S ec u rity Ruling 96-7p." (Doc. #13 at 9). Plaintiff does not argue that the finding by the ALJ w a s improper, but that the ALJ failed to follow the proper credibility analysis. Before an ALJ can consider the subjective pain testimony of a claimant, the claimant m u st satisfy two parts of a three-part test. The law requires the ALJ "to consider a claimant's su b jec tiv e testimony of pain if [he] finds evidence of an underlying medical condition, and e ith e r (1) `objective medical evidence to confirm the severity of the alleged pain arising from 6

th a t condition or (2) [that] the objectively determined medical condition must be of a severity w h ic h can reasonably be expected to give rise to the alleged pain.'" Jackson v. Bowen, 801 F .2 d 1291, 1294 (11th Cir. 1986) (quoting Mason v. Bowen, 791 F.2d 1460, 1462 (11th Cir. 1 9 8 6 ). Thus, the consideration of subjective testimony of pain is contingent on a claimant m e e tin g two requirements of the three part test. H e re , in applying this test, the ALJ determined that Plaintiff does have "an underlying m e d ic a lly determinable impairment that could reasonably cause pain, but not to the extent a lleg e d ," (Tr. 23), and "[t]he record does not contain objective signs and findings that could re a so n a b ly be expected to produce the degree and intensity of pain and limitations alleged. T h e re are no diagnostic studies to show abnormalities that could be expected to produce such s ym p to m s ." (Tr. 24). Thus, the ALJ determined Plaintiff could not meet either of the second p ro n g s of the three-part test and the record supports the ALJ's determination. Accordingly, b e c au s e Plaintiff could not satisfy the test, the ALJ was not required to even consider P la in tif f 's subjective testimony of pain. Further, despite the finding that Plaintiff could not satisfy the test, the ALJ did co n side r Plaintiff's pain testimony found it to be incredible. Plaintiff points this Court g e n e ra lly to SSR 96-7p and nakedly asserts that the ALJ failed to follow the ruling. Plaintiff f a ils to point to any specific portion of the ruling that she claims the ALJ failed to follow. Even though any error by the ALJ in making the credibility determination would be h a rm le ss , because the ALJ was not required to consider the testimony, this Court has 7

re v ie w e d SSR 96-7p and the ALJ's decision and finds no error. The ALJ's determination that Plaintiff did not meet the test to consider subjective pain testimony and the ALJ's d e ter m in a tio n that Plaintiff's pain testimony was not credible are supported by the record in th is case. B. W h e th e r the ALJ's credibility finding was specific enough to satisfy the r e q u ir e m e n t s of Social Security laws and regulations.

H e re , Plaintiff argues that the ALJ failed to make sufficient specific findings when m a k in g the credibility determination regarding Plaintiff's subjective pain testimony. A lth o u g h an ALJ must clearly articulate specific reasons supported by the record when m a k in g a credibility determination of a claimant's subjective testimony, see Jones v. Dep't o f Health & Human Servs., 941 F.2d 1529, 1532 (11th Cir. 1991), as stated above, Plaintiff f a ile d to meet the test to require the ALJ to consider the subjective testimony of pain. Thus, a n y lack of specificity in the ALJ's findings would be harmless. F u r th e r, even if the ALJ was required to specify his reasons for rejecting the s u b je c tiv e testimony of pain, that requirement was met. Here, the ALJ detailed the evidence a n d testimony he considered in making his determination that Plaintiff's claims were not cre d ible. The record reveals that, in making this decision, the ALJ reviewed the entire record a n d specifically addressed: Plaintiff's testimony; her allegations of extreme pain (including le v e l 8-9 back pain); her activities and self-reported functional abilities; medical diagnoses a n d test results; objective findings on physical examinations; medical source opinions;

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m e d ic a tio n s ; response to treatment; and inconsistencies between Plaintiff's allegations and o th e r evidence of record. (Tr. 15-16, 21-24). This is not a case where the ALJ failed to specify the reasons for his credibility d eterm inatio n . In fact, the ALJ's decision here is very detailed and well reasoned. Plaintiff's claim that the ALJ erred by not specifically setting forth the reasons for finding Plaintff's s u b je c tiv e testimony incredible is without merit. 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 22nd day of July, 2009.

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

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