Taylor v. Astrue (CONSENT)

Filing 15

MEMORANDUM OPINION. Signed by Honorable Wallace Capel, Jr on 11/16/2009. (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 O R E T T A TAYLOR, 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. 2:08cv971-WC

M E M O R A N D U M OPINION
I. INTRODUCTION P la in tif f Loretta Taylor applied for disability insurance benefits under Title II of the S o c ia l Security Act ("Act"), 42 U.S.C. §§ 401 et seq., and for supplemental security income (S S I ) under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. 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 hearings, 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 e r).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. #9); D e f .'s Consent to Jurisdiction (Doc. #10). 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 la in tif f was forty-four years old at the time of the hearing before an ALJ and had a

h ig h school education. (Tr. 27). Plaintiff's past relevant work experience included work as a fast food manager, nurse's assistant, security guard, and cashier. (Tr. 27 & 34). 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 November 25, 2004 (S tep 1). (Tr. 24). At Step 2, the ALJ found that Plaintiff suffers from the following severe im p a i rm e n t s: "status post meniscus repair of the right knee, mild osteoarthritis of the knees, s ta tu s post surgery for removal of bone spur and ganglion cyst of the right foot, mild carpal tu n n e l syndrome of the right hand, hypertension with mild left ventricular dysfunction, and o b e sity." (Tr. 26-27). The ALJ then found that Plaintiff does not have an impairment or c o m b i n a tio n of impairments that meets or medically equals one of the listed impairments. (S te p 3) (Tr. 27). Next, the ALJ found that Plaintiff retains the RFC to: p e rf o rm light exertional work with the following modifications: She can o c c as io n a lly climb stairs and ramps but never climb ladders, ropes or s c a ff o ld s . She can occasionally kneed and crouch. She can frequently use her h a n d s for handling, fingering and feeling. She must not work at activities in v o lv in g unprotected heights or moving mechanical parts. (Tr. 27). Given this level of RFC, and after hearing the testimony of an VE, the ALJ

d eterm ine d that Plaintiff is able to perform past relevant work. (Step 4) (Tr. 34). A cc o rdin g ly, the ALJ determined that Plaintiff is not disabled. (Tr. 35).

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IV .

P L A I N T I F F ' S CLAIM P lain tiff presents one claim for this Court's consideration: whether the ALJ properly

a p p lie d the United States Court of Appeals for the Eleventh Circuit's pain standard. Pl.'s B rie f (Doc. #12) at 6. V. D IS C U S S IO N P lain tiff claims the ALJ failed to apply the Eleventh Circuit's three-part pain standard w h en considering Plaintiff's subjective complaints of pain. The three-part pain standard e x p re ss e d by the Eleventh Circuit "requires (1) evidence of an underlying medical condition a n d either (2) objective medical evidence that confirms the severity of the alleged pain a ris in g from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain." Holt v. S u lliv a n , 921 F.2d 1221, 1223 (11th Cir. 1991). If Plaintiff establishes evidence of an u n d e rlyin g medical condition and either part two or three of the test, the ALJ must then make a credibility determination about Plaintiff's descriptions of her pain. "If the ALJ decides not to credit a claimant's testimony as to her pain, he must articulate explicit and adequate re a so n s for doing so . . . . [a] clearly articulated credibility finding with substantial supporting e v id e n c e in the record will not be disturbed by a reviewing court." Foote v. Chater, 67 F.3d 1 5 5 3 , 1561-62 (11th Cir. 1995). Plaintiff asserts that "Dr. Sam[]elson's records clearly document an underlying m e d ic a l condition that could reasonably be expected to give rise to the pain claimed by 6

P la in tif f ," and "that the records of Dr. Sam[]elson were not adequately considered by the A L J." Pl.'s Brief (Doc. #12) at 7. Thus, Plaintiff is arguing that she met the first and third p ro n g s of the three-part test. T h i s argument is rather curious considering the ALJ's decision. This is not a case w h e re the ALJ failed to properly apply the three-part test. Further, it is not a case where the A L J properly applied the test but determined Plaintiff could not meet the requirements for c o n sid e ra tio n of her subjective complaints. Rather, this is a case where the ALJ applied the th re e part test and found "that the claimant's medically determinable impairments could re a so n a b ly be expected to produce the alleged symptoms." (Tr. 28). Thus, the ALJ found e v id e n c e of an underlying medical condition (part one of the test) and found the condition c o u ld reasonably be expected to give rise to the alleged pain (part three of the test). See Holt, 9 2 1 F.2d at 1223. Thus, Plaintiff's complaint that the ALJ failed to properly consider Dr. S a m e lso n 's records, which "clearly document an underlying medical condition that could re a so n a b ly be expected to give rise to the pain claimed by Plaintiff," is without merit. The A L J did consider Dr. Samelson's records and, more importantly, found that Plaintiff could e sta b lish an underlying medical condition that could reasonably be expected to give rise to th e pain alleged. After applying the pain standard, the ALJ went on to make his credibility d e te rm in a tio n ; The ALJ found that Plaintiff's "statements concerning the intensity, duration a n d limiting effects of these symptoms are not entirely credible." (Tr. 28). Plaintiff does not 7

c h a lle n g e the ALJ's credibility determination. However, this Court has reviewed the d e te rm in a tio n , along with the entire record in this case, and finds it to be without error. The ALJ "articulate[d] explicit and adequate reasons," Foote, 67 F.3d at 1561, for his d e te rm in a tio n , citing: the lack of medical records regarding treatment for Plaintiff's hand p ro b le m s ; the lack of medical records to support the allegation of disabling pain; the lack of a diagnosis of disabling pain; the lack of record evidence of Plaintiff's own complaints of p a in ; the inconsistency in Plaintiff's testimony at the hearing (March 2007) that she was c u rre n tly taking Mobic every day, while her prescription sheets showed she had only received a four month supply of Mobic in May of 2005; and Plaintiff's failure to use an assistive d e v ic e for walking. (Tr. 28-34). Thus, the ALJ properly articulated his reasons for

d is c re d itin g Plaintiff's complaints as to the severity of her pain.5 " [ A ] clearly articulated credibility finding with substantial supporting evidence in the re c o rd will not be disturbed by a reviewing court." Foote v. Chater, 67 F.3d 1553, 1561-62 (1 1 th Cir. 1995). The Court finds the ALJ's determination to be supported with substantial e v id e n c e and, thus, affirms his decision. VI. C O N C L U SIO N 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.

The ALJ discusses his reasons for finding Plaintiff "not entirely credible" over s e v e n pages of his decision. See (Tr. 28-34). 8

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D O N E this 16th day of November, 2009. /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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