Lanier v. Astrue
Order that the decision of the Commissioner of Social Security denying plaintiff's benefits be AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 8/7/2012. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
WILLIE DELORIS LANIER,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
) CIVIL ACTION NO. 11-00356-N
Plaintiff Willie Deloris Lanier filed this action seeking judicial review of a final
decision of the Commissioner of Social Security (“Commissioner”) that she was not
entitled to disability insurance benefits (“DIB”) under Titles II of the Social Security
Act (the Act), 42 U.S.C. §§ 401-433. Pursuant to the consent of the parties (doc. 15), this
action has been referred to the undersigned Magistrate Judge to conduct all proceedings
and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed. R.Civ.P.
73. See Doc. 17. Further, plaintiff’s unopposed motion to waive oral arguments (doc.
14) was granted on July 27, 2012 (doc. 16). Upon consideration of the administrative
record (doc. 8) and the parties’ respective briefs (docs. 9 and 12), the undersigned
concludes that the decision of the Commissioner is due to be AFFIRMED.
I. Procedural History.
Plaintiff Willie Deloris Lanier filed an application for disability insurance
benefits on March 13, 2007, claiming an onset of disability as of December 1, 1999 (Tr.
94-97). Lanier alleged that her disability was due to degenerative osteoarthritis, heart
problems, hypertension, eye problems, and curvature of the spine. (Tr. 116, 146). Lanier
was sixty-two old at the time she filed her application (Tr. 94). The application was
denied on June 11, 2007 (Tr. 67-72) and Lanier requested a hearing (Tr. 73) before an
Administrative Law Judge (“ALJ”)1. The first of two administrative hearings was held
on April 23, 2009 (Tr. 53-61). This hearing was continued to permit Lanier to retain an
attorney. (Tr. 60). A second hearing was held on June 17, 2009, at which Lanier was
represented by counsel. (Tr. 43-52). Following this second hearing, the ALJ issued an
unfavorable decision on September 29, 2009 (Tr. 14-22). The ALJ found that Lanier was
not disabled because she did not have a “severe” impairment during the relevant period,
that is, between December 1, 1999, her alleged onset date, and December 31, 2003, the
date she was last insured for DIB (Tr. 14-22).2 Lanier requested a review by the Appeals
Council (Tr. 12) which was subsequently denied on May 9, 2009 (Tr. 1-6), thereby
making the ALJ’s decision the final decision of the Commissioner. See 20 C.F.R. §
Lanier’s applications were processed pursuant to 20 C.F.R. §§ 404.906(b)(4),
416.1406(b)(4), whereby after the initial determination, the reconsideration step in the
administrative review process was eliminated, and the claimant could immediately request an
administrative hearing. All references to the Code of Federal Regulations (C.F.R.) are to the
To be eligible for DIB, a claimant must be simultaneously disabled and “insured for
disability insurance benefits.” 42 U.S.C. § 423(a)(1)(A), (c)(1); see also 20 C.F.R. §§ 404.130,
404.981 (2009). Lanier has exhausted all her administrative remedies and now appeals
from that final decision.
II. Issues on Appeal.
1. Whether the ALJ erred by failing to find that Lanier had a medically
determinable severe impairment as of the date she was last insured for DIB
2. Whether the ALJ erred by failing to allow Lanier to give testimony at her
III. Standard of Review.
Scope of Judicial Review.
In reviewing claims brought under the Social Security Act, this Court's role is a
limited one. Specifically, the Court's review is limited to determining: 1) whether the
decision is supported by substantial evidence, and 2) whether the correct legal standards
were applied. See, 42 U.S.C. § 405(g); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). Thus, a court may not
decide the facts anew, reweigh the evidence, or substitute its judgment for that of the
Commissioner. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996); Sewell v. Bowen,
792 F.2d 1065, 1067 (11th Cir. 1986). Rather, the Commissioner's findings of fact must
be affirmed if they are based upon substantial evidence. Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997); Chater, 84 F.3d at 1400; Brown v. Sullivan, 921 F.2d 1233,
1235 (11th Cir. 1991).
See also, Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990)(“Even if the evidence preponderates against the Secretary's factual findings, we
must affirm if the decision reached is supported by substantial evidence.”); Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (finding that substantial evidence is
defined as “more than a scintilla but less than a preponderance,” and consists of “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion[ ]”). In determining whether substantial evidence exists, a court must view the
record as a whole, taking into account evidence favorable as well as unfavorable to the
Commissioner's decision. Lynch v. Astrue, 358 Fed.Appx. 83, 86 (11th Cir. 2009);
Martino v. Barnhart, 2002 WL 32881075, * 1 (11th Cir. 2002); Chester v. Bowen, 792
F.2d 129, 131 (11th Cir. 1986). Even where there is substantial evidence to the contrary
of the ALJ's findings, the ALJ decision will not be overturned where “there is
substantially supportive evidence” of the ALJ's decision. Barron v. Sullivan, 924 F.2d
227, 230 (11th Cir. 1991).
Statutory and Regulatory Framework.
The Social Security Act's general disability insurance benefits program (“DIB”)
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence. See 42 U.S.C. §
423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate
and distinct program. SSI is a general public assistance measure providing an additional
resource to the aged, blind, and disabled to assure that their income does not fall below
the poverty line. Eligibility for SSI is based upon proof of indigence and disability. See
42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). However, despite the fact they are separate
programs, the law and regulations governing a claim for DIB and a claim for SSI are
identical; therefore, claims for DIB and SSI are treated identically for the purpose of
determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.
1 (11th Cir. 1986). Applicants under DIB and SSI must provide “disability” within the
meaning of the Social Security Act which defines disability in virtually identical
language for both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20
C.F.R. §§ 404.1505(a), 416.905(a). A person is entitled to disability benefits when the
person is unable “to engage in any substantial gainful activity by reason of any medically
determinable 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 of not less than 12
months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental
impairment” is one that “results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits. See 20 C.F.R. §§
404.1520, 416.920 (2010). The Eleventh Circuit has described the evaluation to include
the following sequence of determinations:
(1) Is the person presently unemployed?
(2) Is the person's impairment(s) severe?
(3) Does the person's impairment(s) meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?3
This subpart is also referred to as “the Listing of Impairments” or “the Listings.”
(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?
An affirmative answer to any of the questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). See also Bell v. Astrue, 2012
WL 2031976, *2 (N.D. Ala. May 31, 2012); Huntley v. Astrue, 2012 WL 135591, *1
(M.D. Ala. Jan. 17, 2012).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237–39 (11th Cir. 2004). Claimants establish a prima facie case of
qualifying disability once they meet the burden of proof from Step 1 through Step 4. At
Step 5, the burden shifts to the Commissioner, who must then show there are a significant
number of 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 Functional Capacity (RFC). Id. at 1238–39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other
evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at
1242–43. At the fifth step, the ALJ considers the claimant's RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines, 20 C.F.R. pt. 404 subpt. P, app. 2 (“grids”),or hear testimony
from a vocational expert (VE). Id. at 1239–40.
IV. Findings of Fact and Conclusions of Law.
A. Statement of Facts.
1. Lanier’s Vocational Background.
Lanier acknowledges that she was 64 years old at the time of her administrative
hearing and was 58 years old at the time of she was last insured for DIB benefits. (Doc.9
at 3). Lanier has a college education and was an elementary school teacher from 19811994 and the school’s bookkeeper/secretary until she stopped working on May 30, 1998.
(Id.; Tr. 116, 131).
2. Medical Evidence Dated Before December 1, 1999, the Alleged Onset Date.
The medical evidence dated prior to Lanier’s alleged onset date showed a history
of treatment for vision problems (Tr. 252-54, 310-11), shortness of breath (Tr. 241), chest
pain (Tr. 334-36), hypertension (Tr. 181, 183), neck pain (Tr. 173), and degenerative
joint disease of the left knee (Tr. 182-83, 191, 355). In February 1994, Kenneth Francez,
M.D., diagnosed Lanier with atypical chest pain, dyspnea on exertion, hypertension,
normal resting electrocardiogram, a benign physical examination, and symptoms of
gastroesophageal reflux disease (GERD) versus esophageal spasm (Tr. 241). Lanier
underwent a chest x-ray in June 1995, which showed “borderline” cardiomegaly, aortic
ectasia and uncoiling, clear lungs, and degenerative changes of the thoracic spine (Tr.
173). In October 1996, she underwent a cervical spine x-ray that showed left sided
neural foramen narrowing at C3-4 (Tr. 172).
On January 17, 1997, Lanier was admitted to East Montgomery Medical Center
with “right upper quadrant pain, radiating to the right scapula” and a blood pressure of
176/106. (Tr. 330). Dr. Mark Anderson noted that she had “missed some days” prior to
admission of taking her prescribed medication; “her chemistries were normal and there
was no change in her EKG after eight hours [with] [r]hythm strips [being] all normal”;
and “patient’s blood pressure came under control with reinstitution of her medications.”
(Id.). Lanier’s discharge diagnosis was “Hypertensive cardiovascular disease; right
upper quadrant pain, etiology undetermined.” (Id.). During this hospitalization, Lanier
was also seen by Dr. Phil Heidepriem who noted her “history of hypertension” and her
complaint of chest pain and prescribed medications (Tr. 334-36). Prior to her discharge,
Lanier had an upper GI series x-ray which revealed “[a] small sized sliding type hiatal
hernia [but] no spontaneous gastroesophageal reflex” and her “[s]tomach, duodenal bulb
and visualized portion of the small bowel were normal.” (Tr. 180). Lanier was
discharged on January 20, 1997. (Tr. 330).
Medical records of Lanier’s office visits to Adams Family Practice dated January
29, 1996 to May 27, 1998, (Tr. 181-193) were admitted into evidence. Lanier’s first
visit to Dr. Adams on January 29, 1996, was reported to be for a medical evaluation of
her high blood pressure and “stiffness” of her right hand and left side of her neck. (Tr.
181). Lanier’s next visit was not until January 21, 1997, for a follow-up from her
hospitalization reported above. (Tr. 182). On March 4 and 25, 1997, Lanier was seen by
Dr. Adams for abdominal, neck and knee pain. (Tr. 182)4. An abdominal CT scan done
On March 4, 1997, the office notes indicate a complaint of “dizziness” but with no
further discussion on that date, the follow-up visit on March 25, 1997. (Tr. 182).
on March 10, 1997 at Dr. Kynard L. Adams request showed that Lanier had splenic
granulomas and a three millimeter cyst in the posterior segment of the right lobe of the
liver. (Tr. 193). Lanier was next seen by Dr. Adama on August 26, 1997 for a follow-up
check of her blood pressure which was then recorded as 159/96 and a complaint of
headaches. (Tr. 183). Lanier’s next visit to Dr. Adams on October 14, 1997, resulted in
the notation of her blood pressure as 140/90 as well as complaints of “soreness back of
neck [and] knee painful.” (Tr. 183). Lanier’s next office visit was April 13, 1998, when
Dr. Adams noted a blood pressure of 150/90 and complaint of headches with dizziness,
shortness of breath , fatique and a painful left knee. (Tr. 184). An MRI was done of
Lanier’s left knee on May 21, 1998, which resulted in a diagnosis of “Small joint
effusion.” (Tr. 191). A note sent to Lanier by Dr. Adams’ Office reported the MRI
results as indicating “some arthritic changes with fluid” for which a prescription for
medication was given. (Tr. 355).
3. Medical Evidence Dated After December 1, 1999, the Alleged Onset Date, but
Before December 31, 2003, the Date Claimant Was Last Insured for DIB.
On January 27, 2000, Lanier underwent a cardiolite perfusion study which showed
anterior attenuation probably most consistent with soft tissue attenuation and no
consistent evidence to support significant ischemia or infarct at that time (Tr. 247). On
April 8, 2000, Plaintiff underwent an eye examination which showed she had 20/25
visual acuity bilaterally. Glasses were prescribed (Tr. 250, 308).
On May 10, 2001, Lanier underwent an echocardiogram study which showed she
had “normal” left ventricle size without hypertrophy and “grossly normal” systolic
function with an ejection fraction of 55 to 60 percent. It showed she had “normal” left
atrium and right heart chambers, no obvious pericardial effusion or mitral valve prolapse,
only “mild” fibrocalcific aortic valve disease, “mild-to-moderate” mitral regurgitation,
and “mild” tricuspid regurgitation (Tr. 246).5
On July 23, 2003, Lanier underwent a stress echocardiogram study which was
normal and showed no evidence of exercise induced wall motion abnormalities (Tr. 244).
Dr. Charles W. Parrott also concluded from this test that there was no “evidence of mitral
valve prolapsed on this study.” (Tr. 244). On the same day, Lanier also underwent a
treadmill exercise test which was declared by Dr. Parrott to result in a “[c]linically and
electrocardiographically negative stress test with a rare PVC [premature ventricular
contraction] noted in recovery.” (Tr. 245).6 A resting electrocardiogram study done in
conjunction with this stress test showed normal sinus rhythm rate of 80 with a nonspecific interventricular conduction delay. (Tr. 245). Dr. Parrott did comment that,
Lanier’s contends that office notes from Cardiology Associates indicate that from
January 1, 2001, she “has been diagnosed with hypertension, 55-60%, mitral valve prolapsed,
and high cholesterol.” (Doc. 9 at 4, citing Tr. 235. It is, however, unclear what this document
really represents. Although it bears a date of “01/01/01” at the top of the document, it bears a
date of “OCT 31 2006” at the end, following a signature designation of “8/23/06.” (Tr. 235). In
addition, in the body of the document, it states only “CARDIAC DX: HTN, EF 55-60%, MVP,
HIGH CHOLESTEROL” but later makes reference to “ECHO/VASCULAR STUDY: 12/98.
ECHO 5/10/01, 7/23/03” as well as “HOLTER/LOOP: HOLTER 7/3/03.” (Tr. 235). According
to Dr. M. Wail Hashimi’s examination on May 10, 2001, “EF 55-60%” refers to the “ejection
fraction” of the left ventricle. (Tr. 246). Dr. Hashimi also found on May 10, 2001 that the “Echo
criteria for mitral valve prolapsed was not seen.” (Tr. 246, emphasis added).
For this test, Lanier exercised for six minutes, 41 seconds on Bruce protocol achieving a
peak heart rate of 149, which was equal to roughly eight METs of workload and 90 percent of
age predicted maximums. (Tr. 245).
during exercise, there was a lot of artifact but that he did not “see any obvious arrhythmia
or ST segment changes.” (Tr. 245).
4. Medical Evidence Dated After December 31, 2003, the Date Claimant Was
Last Insured for DIB.
Medical evidence dated after Lanier’s date last insured was notable for treatment
of cardiovascular symptoms (Tr. 207, 236, 238, 242, 248, 295-96, 373-76, 426-27, 382,
425, 429-31, 432), hip and knee pain (Tr. 356-58), and vision problems (Tr. 249). On
August 27, 2005, Lanier was admitted to South Bay Medical Center and seen by Dr.
David Liao with complaints of confusion. (Tr. 197). Dr. Liao diagnosed “acute
emotional stress response leading to amnesia and confusion,” which he concluded was
“likely secondary to emotional response to brother’s death.” (Tr. 198). Dr. Liao also
noted that her blood pressure was 195/150. (Tr. 197). He recommended psychiatric care
and prescribed hydralazine and hydrochlorothiazide (anti-hypertensive medications).
(Tr. 198). That same day, Lanier underwent a carotid artery ultrasound, which was
normal (Tr. 198, 205); a chest x-ray that showed no acute cardiopulmonary process (Tr.
198, 207); and a brain CT scan that showed calcification of the pineal gland, choroid
plexus, and falx cerebri, but no mass lesion, abnormal increased or decreased density, or
infarct, and was therefore reported by Dr. Liao as “negative.” (Tr. 198, 208). Lanier
was discharged on August 28, 2005. (Tr. 200).
On July 28, 2006, Lanier underwent a treadmill cardiolite stress test that showed
good exercise tolerance, achieving 10 METs, “normal” ventricular systolic functioning,
anterior soft tissue attenuation artifact, and no ischemia (Tr. 242). On August 16, 2006,
Lanier underwent an eye examination and was diagnosed with nuclear sclerotic
cataracts, benign skin lesions on her eyelids, bilateral pingacula, and arcus of the corneas
(Tr. 249). The resulting plan involved new glasses and to re-evaluate the cataracts in
about 8 months. (Tr. 249).
On October 31, 2006, Lanier underwent an echocardiogram study that showed
“normal” left ventricular chamber dimensions, an ejection fraction of 60 percent,
“slightly” redundant mitral leaflet, no mitral valve prolapse, and “trivial” mitral
regurgitation. (Tr. 248). The test also revealed a “normal” aortic root size without
stenosis or regurgitation, a “normal” right atrium and ventricle, “minimal” tricuspid
regurgitation, no pulmonary hypertension, and “normal” right ventricular function and
pericardial space. (Tr. 248).
On April 26, 2007, a physician7 completed a “Medical Report” of visual
examination wherein he reported that Lanier had 20/20 visual acuity bilaterally with best
correction. He also reported that Lanier had “no significant pathology” of the eyes, a
“good” prognosis, “normal vision [with] glasses,” and “no visual disability” (Tr. 30506).
On October 12, 2007, Dr. Parrott wrote a letter in which he stated Lanier had
mitral valve regurgitation, hypertension, and palpitation, and was “severely incapacitated
Although the signature is illegible, it bears a legible designation of “MD” and is on a
document identified as a report from the records of Premier Medical Eye Group - West. (Tr.
306; Doc. 8-1 at 2)).
because of her cardiac arrhythmia.” He also said that, “because of her incapacity, she
ha[d] not been able to work since 1999” (Tr. 328).
On August 14, 2008, Lanier underwent an echocardiogram study that showed
“normal” left ventricular systolic function with an ejection fraction of 55 percent (Tr.
382). She also underwent a pharmacological stress test on August 14, 2008, the results of
which were indeterminate as to “maximal stress test.” (Tr. 431). Dr. Parrott noted that
Lanier was unable to exercise long enough to do a stress injection and that she had a right
bundle branch block at rest and during exercise, but no obvious ischemia and only
“occasional” PVCs. (Tr. 431). There were no ST segment changes noted and the
cardiolite perfusion imaging was negative with “normal” left ventricular size and
function and no evidence of any exercise induced ischemia (Tr. 431).
On January 27, 2009, Plaintiff complained to Dr. Sid Crosby, a physician at
Family Medical of Jackson, P.C., about pain in her hips and knees. (Tr. 356). According
to Dr. Crosby, this pain was reported by Lanier to be “moderate” in severity,
“intermittent” with “gradual onset” in timing, is “worse at night” and began “2 weeks”
prior to this office visit. (Tr. 356). Dr. Crosby found 3/5 hip and knee strength with all
movements. (Tr. 358). Dr. Crosby diagnosed osteoarthritis and prescribed Motrin (Tr.
Lanier contends that “[r]ecords from East Montgomery Medical Center dated October
3, 1996, show that [she] has left sided neural foramen narrowing at C3-4.” (Doc. 9 at 4, citing
Tr. 329-349). Lanier has incorrectly cited the record. Lanier did present to the emergency room
of East Montgomery Medical Center on October 3, 1996 complaining of “NECK PAIN X3 YRS
Administrative Hearing and Correspondence.
Lanier appeared at the first scheduled administrative hearing on April 23, 2009,
but was not represented by counsel. (Tr. 55). After the ALJ advised Lanier of her right
to representation, she requested a continuance so she could obtain an attorney (Tr. 53-61).
A supplemental hearing was held on June 17, 2009 (Tr. 43-52), at which time
Lanier appeared with counsel. Lanier’s attorney and the ALJ discussed whether the
medical evidence of record showed she had a disabling impairment on or before
December 31, 2003, the date she was last insured for DIB. The ALJ did not place
claimant under oath and solicited no testimony from her during the hearing. Lanier’s
attorney did not ask the ALJ to take Lanier’s testimony. The ALJ gave Lanier’s attorney
two weeks to submit a brief explaining how the evidence showed that Lanier was
disabled on or before her last insured date (Tr. 43-52).
WORSE THIS DATE.” (Tr. 168). The following results of the cervical spine series of x-rays
Multiple views show normal alignment of the vertebral bodies. No fracture or
subluxation is seen. There is some narrowing of the left neural foramen at C3-4 caused
by prominent bony osteophyte from the C-4 superior articular facet. No other neural
foraminal narrowing is seen. Disc spaces are well maintained.
(Tr. 172, emphasis added). The only treatment ordered as a result of this emergency room visit
was “Bedrest for 48 hours [and] Follow up with Dr. Adams.” (Tr. 171). Lanier then relies solely
on the report of a chest x-ray taken on June 29, 1995, which contains a statement that Lanier’s
“bones are demineralized and there are degenerative changes in the thoracic spine.” (Tr. 173).
Lanier points to no other evidence in the medical records that relate to her cervical or thoracic
On June 30, 2009, Lanier’s attorney submitted a brief to the ALJ in which she
requested a fully favorable decision based on Dr. Parrott’s opinion9 and because the
“combination of [Plaintiff’s] impairments reduced her maximum residual functional
capacity to below the sedentary level.” (Tr, 165). Lanier’s attorney did not request that
the ALJ elicit any testimony from Lanier (Tr. 165-66), nor did she submit an affidavit
6. The ALJ’s Decision.
The ALJ followed the five-step sequential evaluation process for evaluating
disability claims. See 20 C.F.R. § 404.1520(a)(4). As an initial matter, the ALJ found
that Lanier last met the insured status requirements of the Social Security Act on
December 31, 2003. (Tr. 19). He found that, through Lanier’s date last insured, she had
the following medically determinable impairments:
• Mild cardiomegaly;
• Cervical arthritis; and
• Arthritic changes in the left knee
Lanier’s attorney relies (Tr. 165) upon a letter written by Dr. Parrott on October 12,
2007 (Tr. 328) in which he contends that Lanier “suffers from mitral valve regurgitation,
hypertension and palpitations, and  is severely incapacitated because of her cardiac
arrhythmias.” Dr. Parrott also opines that ,”[b]ecause of her incapacity, [lanier] has not been
able to work since 1999.” (Tr. 328).
(Tr. 19). The ALJ determined that, through the date Lanier’s was last insured for DIB
benefits, she did not have an impairment or combination of impairments that significantly
limited her ability to perform basic work-related activities for 12 consecutive months and,
therefore, did not have a “severe” impairment or combination of impairments. (Tr. 1921). As a result, the ALJ found that Lanier was not disabled at any time from December
1, 1999, her alleged onset date, through December 31, 2003, the date she was last insured
for DIB. (Tr. 21).
Conclusions of Law.
The ALJ Properly Evaluated the Severity of Lanier’s Impairments.
Lanier argues that the ALJ erred because he did not find that she had a “severe”
impairment on or before her date last insured, December 31, 2003. (Doc. 9 at 2-5). This
Social Security Ruling (SSR) 96-3p provides that, “[a]t step two of the sequential
evaluation process, an impairment or combination of impairments is considered ‘severe’
if it significantly limits an individual’s physical or mental abilities to do work activities.”
An impairment that is “‘not severe’ must be a slight abnormality (or combination of
slight abnormalities) that has no more than a minimal effect on the ability to do basic
work activities.” Social Security Ruling (SSR) 96-3p, 1996 WL 374181 (July 2, 1996).
A “severe” impairment must last or be expected to last for a continuous period of at least
12 months.” See 20 C.F.R. § 404.1520(a)(4)(ii), (c) (requiring presence of a severe
medically determinable impairment(s) that meets the duration requirement in 20 C.F.R. §
404.1509). It is the claimant’s burden to show she has a “severe” impairment or
combination of impairments. See Bowen v. Yuckert, in which the Supreme Court
The severity regulation does not change the settled allocation of burdens of proof
in disability proceedings. It is true, as Yuckert notes, that the Secretary bears the
burden of proof at step five, which determines whether the claimant is able to
perform work available in the national economy. But the Secretary is required to
bear this burden only if the sequential evaluation process proceeds to the fifth step.
The claimant first must bear the burden at step one of showing that he is not
working, at step two that he has a medically severe impairment or combination of
impairments, and at step four that the impairment prevents him from performing
his past work. If the process ends at step two, the burden of proof never shifts to
482 U.S. 137, 146 n.5 (1987).
The medical evidence does not reflect that Lanier had a “severe” impairment on or
prior to her date last insured. Prior to December 1, 1999, Lanier’s alleged onset date, a
chest x-ray in June 1995 showed she had only “borderline” cardiomegaly. (Tr. 173). In
January 1997, an abdominal CT scan showed that she had only “mild” cardiomegaly.
(Tr. 329-31, 340). In March 1997, Lanier was diagnosed with only “mild” degenerative
joint disease of the knees (Tr. 182). In May 1998, a left knee MRI study showed she had
only “some” arthritic changes with fluid (Tr. 191, 355). Notably, during this time frame,
Plaintiff continued to work full-time (Tr. 116). See, e.g., 20 C.F.R. § 404.1571 (“Even if
the work you have done [during a period of
claimed disability] was not substantial gainful activity, it may show that you are able to
do more work than you actually did.”); see Cauthen v. Finch, 426 F.2d 891, 892 (4th Cir.
1970) (affirming denial of benefits where the claimant worked for years with
longstanding problems which affected her ability to the same extent and “quit work of her
own volition rather than upon the advice of doctors.”); Gorham-Coleman v. Astrue, 2010
WL 3724705 (D. S.C. July 16, 2010)(affirming denial of benefits because there was no
evidence that claimant’s polycythemia and hearing loss had worsened since 2003 and,
“[i]f a claimant works for years with her impairments, her impairments are not disabling
absent a worsening of her condition.”).
The medical evidence during the relevant period, beginning December 1, 1999,
Lanier’s alleged onset date, through December 31, 2003, the date her insured status
expired, likewise did not show that she had a “severe” impairment. Treatment records
during the relevant period are sparse, suggesting that Lanier did not have a severe
impairment on or prior to her date last insured. See, e.g., Watson v. Heckler, 738 F.2d
1169, 1173 (11th Cir. 1984) (in addition to objective medical evidence it is proper for ALJ
to consider use of pain-killers, failure to seek treatment, daily activities, conflicting
statements, and demeanor at the hearing). Of the medical evidence dated during the
relevant period, in January 2000, a cardiolite perfusion study showed no evidence of
significant ischemia or infarct (Tr. 247). Further, an echocardiogram study in May 2001
showed Lanier had “normal” left ventricular size without hypertrophy, “grossly normal”
systolic function with an ejection fraction of 55 to 60 percent, “normal” left atrium and
right heart chambers, no obvious pericardial effusion or mitral valve prolapse, only
“mild” fibrocalcific aortic valve disease, only “mild-to-moderate” mitral regurgitation,
and only “mild” tricuspid regurgitation (Tr. 246). In July 2003, Lanier underwent a stress
echocardiogram study, which showed no evidence of exercise induced wall motion
abnormalities (Tr. 244). She underwent an exercise treadmill test wherein she exercised
for six minutes 41 seconds on Bruce protocol achieving a peak heart rate of 149, which
was equal to roughly eight METs of workload and 90 percent of age predicted
maximums. Lanier also underwent a resting electrocardiogram which showed a normal
sinus rhythm rate of 80. Dr. Parrott said that, while he saw “at least one” PVC, he did not
see any obvious arrhythmia or ST segment changes. (Tr. 245).
In July 2006, a treadmill cardiolite test showed Lanier had good exercise
tolerance, achieving 10 METs, “normal” ventricular systolic functioning, and no
ischemia. (Tr. 242). The following October, an echocardiogram study showed Lanier had
“normal” left ventricular chamber dimensions, an ejection fraction of 60 percent, only
“slightly” redundant mitral leaflet, no mitral valve prolapse, and “trivial” mitral
regurgitation. It further showed she had “normal” right aortic root size without stenosis
or regurgitation, “normal” right atrium and ventricle, only “minimal” tricuspid
regurgitation, no pulmonary hypertension, and “normal” right ventricular function and
pericardial space. (Tr. 248). In August 2008, an echocardiogram study showed Lanier
had “normal” left ventricular systolic functioning with an ejection fraction of 55 percent
and cardiolite perfusion imaging was negative with “normal” left ventricular size and
function and no evidence of any exercise induced ischemia (Tr. 430-31).
Lanier argues that, in finding that she did not have a “severe” impairment on or
before December 31, 2003, the date she was last insured for DIB, the ALJ erroneously
rejected the opinion of Dr. Parrott (Pl.’s Br. at 2). The regulations provide that, if a
treating source opinion is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in the
claimant’s case record, the ALJ will give it controlling weight. It is also well established
in the Eleventh Circuit that the opinion of a treating physician must be given substantial
or considerable weight unless “good cause” is shown to the contrary. Phillips v. Barnhart,
357 F.3d 1232, 1240-41 (11th Cir. 2004),quoting Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997). “‘Good cause’ exists when the (1) treating physician’s opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating
physician’s opinion was conclusory or inconsistent with the doctor’s own medical
records.” Id. , citing Lewis, 125 F.3d at 1440. See also Duthie v. Astrue, 2012 WL
2505920 (S.D. Ala. June 28, 2012)(“The ALJ cited language from within the forms as
well as portions of the treatment records of Dr. Yoder; this evidence is facially sufficient
under binding precedent to justify giving those opinions less than controlling weight.”).
Dr. Parrott’s opinion that Lanier was “incapacitated” and “not able to work” were
not medical opinions, but, rather, administrative findings on issues reserved to the
Commissioner, particularly as Dr. Parrott had never imposed any limitations or
restrictions upon Lanier during the course of his treatment. See 20 C.F.R. §
404.1527(e)(1)-(3) (treating source opinions on issues that are reserved to the
Commissioner are never entitled to special significance); Caulder v. Bowen, 791 F.2d
872, 878 (11th Cir. 1986) (physician’s statement that a claimant is disabled is not
dispositive on the issue of disability and must be considered in the Commissioner’s
examination of the totality of the evidence). Dr. Parrott’s opinion was also dated October
12, 2007 (Tr. 328), almost four years after Plaintiff’s insured status expired. SSR 83-10,
1983 WL 31251, at *8 (“Under Title II, a period of disability cannot begin after a
worker’s disability insured status has expired.”).
In the final analysis, Dr. Parrott’s opinion is inconsistent with the other medical
evidence of record dated during the relevant period, specifically from December 1, 1999
through December 31, 2003. (Tr. 21). As discussed above, the evidence from this period
was not only sparse but did not show that Lanier had a “severe,” or much less a disabling
impairment or combination of impairments. In January 2000, a cardiolite perfusion study
showed Lanier had no significant ischemia or infarct. (Tr. 247). In May 2001, an
echocardiogram study showed Lanier had “normal” left ventricular size without
hypertrophy and “grossly normal” systolic function with an ejection fraction of 55 to 60
percent. It showed she had a “normal” left atrium and right heart chambers, no obvious
pericardial effusion or mitral valve prolapse, only “mild” fibrocalcific aortic valve
disease, only “mild-to-moderate” mitral regurgitation, and only “mild” tricuspid
regurgitation. (Tr. 246). In July 2003, Lanier underwent a stress echocardiogram study
which was normal and showed no evidence of exercise induced wall motion
abnormalities. (Tr. 244). She also underwent a treadmill test where she achieved a peak
heart rate of 149, roughly equal to eight METs of workload and 90 percent of age
predicted maximums. A resting electrocardiogram study showed normal sinus rhythm
rate of 80 with non-specific interventricular conduction delay and Dr. Parrott himself did
not see any obvious arrhythmia or ST segment changes. (Tr. 245). See Phillips, 357
F.3d at 1241 (Good cause exists to discount a treating physician’s opinion when it is not
bolstered by the evidence, evidence supported a contrary finding, or treating physician’s
opinion was conclusory or inconsistent with the doctor’s own medical records).
The ALJ Did Not Err by Failing To Take Testimony From Lanier.
Lanier argues that the ALJ erred by not allowing her to give testimony at her
administrative hearing on June 17, 2009 (Doc. 9 at 2, 5-6). A review of the relevant
transcript establishes that neither Lanier nor her attorney ever asked the ALJ to take
Lanier’s testimony or to assert that such testimony was necessary. (Tr. 43-52). The ALJ
also gave Lanier another opportunity to explain how the evidence supported her claim of
disability prior to December 31, 2003, by permitting Lanier to submit a brief and further
evidence. (Tr. 51-52). Lanier did submit a brief and further evidence but did not therein,
or in conjunction therewith, request that the ALJ let her testify, nor did claimant submit
an affidavit. (Tr. 165-66). See Campbell v. Astrue, 2012 WL 2848898, *7 (N.D. Fla.
June 11, 2012)(ALJ’s actions not construed as “failing to permit plaintiff to testify,
because “Plaintiff was represented by counsel, his counsel did not indicate to the ALJ
that Plaintiff wished to testify, and the ALJ advised counsel she could submit materials to
him following the limited hearing [and] there is no reason why Plaintiff could not have
submitted an affidavit or similar statement after the hearing.”). It was Lanier’s burden to
prove that she was disabled, and, as the ALJ properly concluded, she has failed to do so.
See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (The claimant has the
burden of proving he is disabled and is therefore responsible for producing evidence in
support of his claim).
For the reasons stated above, it is hereby RECOMMENDED that the decision of
the Commissioner of Social Security denying plaintiff’s benefits be AFFIRMED.
Done this 7th day of August, 2012.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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