McCarthy v. Astrue

Filing 15

MEMORANDUM OPINION AND ORDER AFFIRMING the decision of the Commissioner, as further set out. Signed by Honorable Wallace Capel, Jr on 9/25/09. (djy, )

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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 B E R T D. McCARTHY, 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.: 2:08cv838-WC M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P la in tif f Elbert D. McCarthy applied for disability insurance benefits and s u p p le m e n ta l security income (SSI) under Titles II and XVI of the Social Security Act, 42 U .S .C . 401-433, 1381 et seq. (hereinafter "the Act"). Plaintiff's application was 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. 1 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. #14); D e f .'s Consent to Jurisdiction (Doc. #13). Based on the Court's review of the record and the b rie f s 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 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 2 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. 3 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). 4 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). 4 III. ADMINISTRATIVE PROCEEDINGS P la in tif f was forty-one years old on his alleged disability onset date (Tr. 23) and had th e equivalent of a high school education (GED) (Tr. 23, 82). Plaintiff's primary past re le v a n t work experience included work as a truck driver, roofer, construction worker, and lo g g e r/lo g g in g truck driver (Tr. 23, 78). 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. (Step 1). (Tr. 18). At Step 2, the ALJ found that P la in t if f suffered from the severe impairments of cervical degenerative disc disease and post a o rta repair surgery (chest pain). Id. The ALJ nonetheless found Plaintiff does not possess a n impairment or combination of impairments that meets or medically equals one of the listed im p a irm e n ts . (Tr. 20). Next, the ALJ determined Plaintiff's RFC (Step 3). Id. At Step 4, th e ALJ found that Plaintiff could not perform his past relevant work. (Tr. 23). At Step 5, th e ALJ determined that, considering claimant's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy. (Tr. 23-24). T h u s , the ALJ determined Plaintiff was not disabled as defined under the Act. (Tr. 24). IV. P L A I N T I F F ' S CLAIM P lain tiff sets forth only one claim for this Court's review: whether the ALJ failed to d e v e lo p the record regarding Plaintiff's alleged mental impairments. 5 V. D IS C U S S IO N Whether the ALJ failed to develop the record regarding Plaintiff's alleged mental im p a ir m e n ts . Plaintiff argues the ALJ failed to develop a full and fair record in this case regarding P la in t if f ' s alleged memory problems and anxiety. Pl's. Brief (Doc. #10) at 1. Plaintiff argues: th e evidence of record suggested the possible presence of a mental impairment o r impairments: The claimant alleged a memory problem at the time of the in itia l application and anxiety [Tr. 77, 279-80] and the medical treatment re c o rd s of Charles S. Thompkins at Crenshaw Community Hospital on 1 1 /2 3 /2 0 0 5 wherein Dr. Thompkins stated that "This man is very anxious a b o u t himself. I think a lot of that stems from the old injury he had." [Tr. 3043 0 5 ]. Id. The Commissioner argues that it was Plaintiff who failed to develop the record re g a rd in g Plaintiff's alleged mental impairments and the ALJ was under no duty to develop th e se claims, which were not supported by the record. G e n e ra lly, an ALJ has a duty to develop a full and fair record. See Ellison v. B a r n h a r t, 355 F.3d 1272, 1276 (11th Cir. 2003). "Nevertheless, the claimant bears the b u rd e n of proving that he is disabled, and, consequently, he is responsible for producing e v id e n c e in support of his claim." Id. "In determining whether the claimant has satisfied this in itia l burden, the examiner must consider four factors: (1) objective medical facts or clinical f in d in g s ; (2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the c la im a n t's age, education, and work history." Jones v. Bowen, 810 F.2d 1001, 1005 (11th 6 C ir. 1986) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir.1983)). In the present case, there is no discussion in the ALJ's decision regarding Plaintiff's a lleg e d nonexertional impairments. While this might seem odd considering Plaintiff's claim b e f o r e this Court, a review of the record reveals why the ALJ did not develop or discuss th e se claims. Plaintiff never raised or suggested the impairments to the ALJ, nor did he a tte m p t to provide the ALJ with evidentiary support or testimony during his hearing reg ard ing the impairments. The only evidence in the record supporting Plaintiff's "memory p rob lem " is his allegation of such on his disability application. (Tr. 77) ("I have memory p ro b lem s from time to time."). The only evidence supporting Plaintiff's claim of anxiety is th e above referenced quote of Dr. Thompkins, yet Plaintiff failed to present any testimony in support of this claim or even raise it as a claim before the ALJ. Thus, Plaintiff provides no medical evidence in support of his allegation of a m em o ry problem and failed to raise anxiety before the ALJ. However, there is record e v id e n c e contrary to Plaintiff's allegation of a memory problem. Plaintiff cites this Court to D r. Rankart's medical records in which he states: I do not see a need to develop the allegation of memory problems. Records d e sc rib e the claimant as alert and fully oriented at the emergency room and an a ss e ss m e n t indicated "no [traumatic brain injury] identified." Since the [motor v e h ic le accident], [medical evidence of record] indicates the claimant has not c o m p l a in e d of memory difficulties and there has been no physician o b s e rv a t io n of cognitive/memory problems. (T r. 279-80). Thus, as Dr. Rankart notes, there is no physician observation or other medical 7 re c o rd evidence to support Plaintiff's claim of memory loss. Further, Plaintiff denied a m em o ry loss problem in 2005 during a physical exam with Dr. Crawford. (Tr. 281-84). H e r e , the record is not only devoid of medical support for Plaintiff's claim of memory loss, it contains medical evidence contrary to Plaintiff's claim. Thus, the ALJ was under no o b lig a tio n to develop this claim. Plaintiff's failure to raise his anxiety in his application for disability or offer it as a b a sis for disability at his hearing before the ALJ relieves the ALJ from the duty to develop th e claim. See Street v. Barnhart, 133 Fed. App'x 621, 627 (11th Cir. May 18, 2005) ("[A]s i t has been persuasively held[,] an `administrative law judge is under no obligation to in v e stig a te a claim not presented at the time of the application for benefits and not offered a t the hearing as a basis for disability.'") (quoting Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1 9 9 6 )). Plaintiff could have easily cured the lack of evidence in support of his claim of a n x i e ty by presenting evidence or testimony or at the very least rasing the issue before the A L J .5 "Stated another way, if [Plaintiff's] alleged mental condition was an impairment s e v e re enough to rise to the level of a disability, it was his burden to prove as much to the A L J under steps two to four of the determination process." Street, 133 Fed. App'x at 630. IV . CONCLUSION T h e Court has carefully and independently reviewed the record and concludes the Further, Dr. Thompkins opinion "does not give rise to an inference that, because [Plaintiff was anxious possibly due to an old injury], he suffers from a psychological, mental, or intellectual impairment of any kind." Street, 133 Fed. App'x at 630. 8 5 d e c is io n of the Commissioner is AFFIRMED. A separate judgment will issue. D O N E this 25th day of September, 2009. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE 9

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