Smith v. Astrue

Filing 16

MEMORANDUM OPINION. Signed by Honorable Charles S. Coody on 9/27/2010. (cc, ) Copies mailed to Office of Hearings and Appeals and SSA Chief Judge.

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Smith v. Astrue (CONSENT) Doc. 16 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 A N N IE F. SMITH, 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 SOCIAL S E C U R IT Y , D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) ) C I V IL ACTION NO. 2:09CV916-CSC M E M O R A N D U M OPINION I . Introduction. T h e plaintiff applied for supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. 1381 et seq., alleging that she was unable to work b e c au s e of a disability. Her application was denied at the initial administrative level. The p la in tif f then requested and received a hearing before an Administrative Law Judge (" A L J" ). Following the hearing, the ALJ also denied the claim. The Appeals Council re je c te d a subsequent request for review. The ALJ's decision consequently became the fin al decision of the Commissioner of Social Security (Commissioner).1 See Chester v. B o w e n , 792 F.2d 129, 131 (11 th Cir. 1986). The case is now before the court for review 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 p u rs u a n t to 42 U.S.C. 405 (g) and 1383(c)(3).2 Based on the court's review of the re c o rd in this case and the briefs of the parties, the court concludes that this case should b e remanded to the Commissioner for further proceedings. 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 p e rio d of not less than 12 months... To make this determination 3 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 " n o t disabled." Pursuant to 28 U.S.C. 636(c), the parties have consented to entry of final judgment by the United States Magistrate Judge. 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. 3 2 2 M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11 th Cir. 1986).4 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 ev iden ce . 42 U.S.C. 405(g); Ingram v. Comm. of Soc. Sec. Admin., 496 F.3d 1253, 1260 (1 1 th Cir. 2007). "Substantial evidence is more than a scintilla, but less than a p re p o n d e ra n c e. It is such relevant evidence as a reasonable person would accept as a d e q u a t e to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). A re v ie w in g court may not look only to those parts of the record which supports the d e c is io n of the ALJ but instead must view the record in its entirety and take account of e v id e n c e which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F .2 d 1179, 1180 (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 re su m p tio n of validity attaches to the [Commissioner's] . . . legal c o n c lu s io n s , including determination of the proper standards to be applied in evaluating claims. W a lk e r v. Bowen, 826 F.2d 996, 999 (11 th Cir. 1987). I I I . The Issues A . Introduction. The plaintiff was 54 years old at the time of the hearing before th e ALJ and has an 11 th grade education. The plaintiff's prior work experience includes 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). 4 3 work as a poultry deboner. Following the administrative hearing, the ALJ concluded that th e plaintiff has severe impairments of obesity and arthritis. Nonetheless, the ALJ c o n c lu d e d that the plaintiff was not disabled because the plaintiff has the residual f u n c tio n a l capacity to perform light work. B . As stated by the plaintiff, the issues in this care are 1 . The Commissioner's decision should be reversed, because there is a b so lu te ly no support for the ALJ's Residual Functional Capacity (RFC) assessment as th e record is devoid of any RFC assessments from any physicians whatsoever. 2. The Commissioner's decision should be reversed, because the ALJ erred b y failing to find Ms. Smith's transient ischemic attacks a severe impairment. (D o c . # 13, at 7) I I I . Residual Functional Capacity Assessment T h e plaintiff contends that in the absence of a residual functional capacity a ss e ss m e n t by a physician, the ALJ's determination that the plaintiff can perform light w o rk is not supported by substantial evidence. A person's "residual functional capacity (R F C ) is the most . . . [a person] can still do despite . . . [his or her] limitations." 20 C .F.R . 404.1545(a)(1). An assessment of a person's "residual functional capacity [is] b a se d on all the relevant evidence in . . . [the] case record." Id. The Commissioner's re g u la tio n s spell out what evidence is considered in making this determination. E v i d e n c e we use to assess your residual functional capacity. We will assess yo u r residual functional capacity based on all of the relevant medical and o th e r evidence. In general, you are responsible for providing the evidence w e will use to make a finding about your residual functional capacity. (See 404.1512(c).) However, before we make a determination that you are not d isab led , we are responsible for developing your complete medical history, in c lu d in g arranging for a consultative examination(s) if necessary, and m a k in g every reasonable effort to help you get medical reports from your o w n medical sources. (See 404.1512(d) through (f).) We will consider a n y statements about what you can still do that have been provided by m e d ic a l sources, whether or not they are based on formal medical e x a m in a tio n s . (See 404.1513.) We will also consider descriptions and o b s e rv a tio n s of your limitations from your impairment(s), including lim ita tio n s that result from your symptoms, such as pain, provided by you, yo u r family, neighbors, friends, or other persons. (See paragraph (e) of this s e c tio n and 404.1529.) 2 0 C.F.R. 404.1545(a)(3). In short, under the Commissioner's regulations a residual functional capacity d e te rm in a tio n is made by the ALJ based on all of the evidence including medical e v id e n c e . H o w e v e r, the determination of the Plaintiff's residual functional capacity is a n administrative finding reserved to the Commissioner and must be based u p o n all the relevant evidence such as medical signs and clinical findings, e ffe c ts of treatment, medical source statements, and reports of daily a c tiv itie s. 20 C.F.R. 416.945(a); Social Security Ruling 96-5p, 61 Fed.Reg. 3 4 4 7 1 (1996). The ALJ may reject a physical capacities evaluation if the to ta lity of evidence supports a contrary finding. Sharfarz v. Bowen, 825 F.2 d 278, 280 (11th Cir.1987). L e w is v. Apfel, 2000 WL 207018, 7 (S.D .Ala.,2000). T h e plaintiff first saw Dr. Bish on June 15, 2007, at which time the plaintiff had no c o m p la in ts of pain. Dr. Bish diagnosed the plaintiff with hypertension and arthritis, p re s c rib in g only over-the-counter pain medication for arthritis. (R. at 123) On S e p te m b e r 6, 2007, the plaintiff was examined by a consulting physician, Dr. Banner. (R. 5 a t 128) During this examination, the plaintiff told Dr. Banner she had "pain all over for g r e a te r than ten years . . . " Id. She also said she was uable to sit, stand or walk for p ro lo n g e d periods and had increased pain with the use of her hands. Id. On examination, D r. Banner found no motor weakness, no atrophy of any muscle group in any extremity, n o rm a l muscle tone and satisfactory fine and gross motions in both hands. Id. "Patient w a s able to button and unbutton clothing without difficulty." Id. On January 2, 2008, the plaintiff was admitted to the hospital complaining of d iz z in e ss and numbness on the right side of her body. She was treated for transient is c h e m ic attacks (TIA) with anticoagulants. (R. at 136) Doppler evaluations of her right a n d left carotid arteries showed "no evidence of flow-limiting stenosis . . . " (R. at 149) A n MRI of the plaintiff's brain did disclose "[c]hanges consistent with a subacute right p e riv e n tricu lar infract . . . " (R. at 150) An MRA of the plaintiff's brain was essentially n o rm a l, (R. at 152), as was an EEG. (R. at 153) D r. Bish saw the plaintiff on February 1, 2008 for a follow-up visit. At that time, th e plaintiff was taking blood pressure medicine; Plavix, an antiplatelet drug used to p re v e n t blood clots; and a statin for cholesterol control. Following the examination, Dr. B ish prescribed an additional medication for hypertension control. In addition to the medical evidence, the ALJ considered the plaintiff's activities of d a ily living, noting that the plaintiff shops, does household chores, sweeps the lawn, c o o k s, goes to church and picks up trash. The ALJ found these activities to be "fairly 6 lim ite d ." In addition, the ALJ, while finding that the plaintiff had a condition which c o u ld be reasonably expected to produce pain, further found the medical evidence did not s u p p o rt a finding that her pain precluded work activity. This finding is wholly consistent w ith the medical evidence. The plaintiff uses only over-the-counter pain medicine and ra re ly complains of pain to her treating physician. U n q u e stio n a b ly, the responsibility for assessing residual functional capacity b e lo n g s to the ALJ at the administrative law judge hearing level. 20 C.F.R. 4 0 4 .1 5 4 6 (c ). But as noted, in making the residual functional capacity determination, the A L J must properly consider all of the evidence before him. In this case, he did not. I V. Transient Ischemic Attacks In early 2008, the plaintiff had a transient ischemic attack and was admitted to the h o s p ita l where she had an MRI, an MRA, and EEG and other tests. As already noted a b o v e , these tests confirmed a "subacute right periventricular infract." The plaintiff is a p p a re n tly taking Plavix for this condition. [A]n "impairment is not severe only if the abnormality is so slight and its effect so m in im a l that it would clearly not be expected to interfere with the individual's ability to w o rk , irrespective of age, education or work experience." McDaniel v. Bowen, 800 F.2d a t 1031. "[T]he severity of a medically ascertained disability must be measured in terms of its effect upon ability to work, and not simply in terms of deviation from purely medical standards of bodily perfection or normality." McCruter v. Bowen, 791 F.2d 7 1544, 1547 (11th Cir. 1986). A t the hearing before the ALJ the plaintiff testified that if she were "hanging out so m e clothes, right, I'll get dizzy and have to set down. Be about to fall." (R. at 28) In re sp o n s e to other questions, the plaintiff reiterated, "Like if I do stuff, I get dizzy and I be a b o u t to fall. I just catch on and hold something. I need to sit down, just take a little b re a k ." In discussing the plaintiff's testimony about dizziness, this is what the ALJ said: C laim a n t alleges to have problems with dizziness. Hypertension is her only im p a irm e n t that would sometimes cause vertigo. However, such vertigo is g e n e ra lly caused by very poorly controlled hypertension. In this case, the e v id e n c e reveals Claimant had been off her blood pressure medication for so m e time when Dr. Bish first examined her on June 15, 2007. (Exhibit 1 F ) . Dr. Bish started her on medication and since that time, her blood p re ss u re has been better controlled. Claimant even testified that it is well c o n tr o lle d . (R . at 16) T h e ALJ completely overlooks the subacute right periventricular infract which the plaintiff experienced in January 2008 when, ostensibly, her blood pressure was under c o n tro l. Plainly, the episode which the plaintiff experienced and which caused her h o s p ita liz a tio n was serious. Unfortunately, the record does not disclose whether it has c o n tin u in g serious consequences. The ALJ's conclusion that hypertension could be the o n ly cause of her dizziness is not supported in the record by any medical evidence. V. Conclusion T h e court cannot find that the residual functional capacity determination by the A L J is supported by substantial evidence because his own opinion demonstrates that he 8 d id not properly consider all of the plaintiff's impairments. The ALJ found that the TIAs w e re non-severe, but as reflected above, the plaintiff testified that she gets dizzy to the e x ten t that she feels like she may fall. The ALJ ascribes these episodes of dizziness to h yp erten sio n , but there is no evidence to support that conclusion. Indeed, the plaintiff's 2 0 0 8 hospitalization was triggered by dizziness and numbness. The plaintiff testified that s h e continues to get dizzy, and as explained above, the ALJ ignored evidence that the in f a rc t or TIA's may cause that condition, improperly speculating instead that only hypertension was the cause. F o r the foregoing reasons, the court concludes that the Commissioner's decision m u s t be reversed and this case remanded for further proceedings. On remand, the C o m m is s io n e r must properly determine whether the plaintiff's neurological condition is a s e v e re condition and, if so, determine the plaintiff's residual functional capacity including a n y limitations imposed by that condition. A separate order will be entered. D o n e this 27 th day of September, 2010. /s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE 9

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