Conyer v. Social Security Administration

Filing 12

MEMORANDUM OPINION AND ORDER affirming the final decision of the Commissioner and dismissing Plaintiff's complaint with prejudice. Signed by Magistrate Judge Beth Deere on 8/17/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION K A T H Y CONYER v. M IC H A E L J. ASTRUE, C o m m is s io n e r , Social Security Administration M E M O R A N D U M OPINION AND ORDER P la in tiff, Kathy Conyer, has appealed the final decision of the Commissioner of the S o c ia l Security Administration to deny her claim for Disability Insurance benefits. Both p a rtie s have submitted appeal briefs and the case is ready for decision.1 T h e Court's function on review is to determine whether the Commissioner's decision is supported by substantial evidence on the record as a whole and free of legal error. Slusser v . Astrue, 557 F.3d 923, 925 (8th Cir. 2009); Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1 9 9 7 ); see also, 42 U.S.C. § 405(g). Substantial evidence is such relevant evidence as a re a s o n a b le mind might accept as adequate to support a conclusion. Richardson v. Perales, 4 0 2 U.S. 389, 401 (1971); Reutter ex rel. Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir. 2 0 0 4 )(" S u b s ta n tia l evidence is less than a preponderance but is enough that a reasonable m in d would find it adequate to support the decision"). In assessing the substantiality of the evidence, the Court must consider evidence that d e tra c ts from the Commissioner's decision as well as evidence that supports it; the Court m a y not, however, reverse the Commissioner's decision merely because substantial evidence w o u ld have supported an opposite decision. Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2 0 0 4 ); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
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P L A IN T IF F CASE NO. 5:07CV00158 BD

DEFENDANT

The parties have consented to the jurisdiction of the Magistrate Judge. (Docket entry #4)

"Disability" is the "inability to engage in any substantial gainful activity by reason of a n y 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 th a n 12 months." 42 U.S.C. § 423(d)(1)(A). A "physical or mental impairment" is "an im p a irm e n t that results from anatomical, physiological, or psychological abnormalities w h ic h are demonstrable by medically acceptable clinical and laboratory diagnostic te c h n iq u e s ." 42 U.S.C. § 423(d)(3). P la in tiff alleged that she was limited in her ability to work by knee pain. (Tr. 14) After conducting an administrative hearing at which Plaintiff and a vocational expert te s tifie d , the Administrative Law Judge2 ("ALJ") concluded that Plaintiff had not been under a disability within the meaning of the Social Security Act at any time through July 12, 2006, th e date of his decision. (Tr. 32) On April 23, 2007, the Appeals Council granted Plaintiff's re q u e s t for a review of the ALJ's decision and found she was disabled as of July 12, 2006, b u t not before.3 (Tr. 8-11) Plaintiff then filed her complaint initiating this appeal. (Docket # 2 ) After considering the record as a whole, the Court finds that the decision of the C o m m is sio n e r is supported by substantial evidence. P la in tiff was 49 years old at the time of the hearing. (Tr. 212) She is a high school g ra d u a te with two years of college. (Tr. 223) She has past relevant work as a correctional o ffic e r and factory sewer. (Tr. 31, 75) T h e ALJ considered Plaintiff's impairments by way of the required five-step se q u e n tia l evaluation process: (1) whether the claimant was engaged in substantial gainful a c tiv ity ; (2) if not, whether the claimant had a severe impairment; (3) if so, whether the

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The Honorable Donald R. Rebsamen. The different result was based on Plaintiff's age. (Tr. 10) 2

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impairment (or combination of impairments) met or equaled an impairment listed in the L istin g of Impairments in Appendix 1, Subpart P, 20 C.F.R. Part 404; (4) if not, whether the im p a irm e n t (or combination of impairments) prevented the claimant from doing past re le v a n t work. If the claimant has sufficient residual functional capacity to perform past re le v a n t work, the inquiry ends and benefits are denied. 20 C.F.R. §§ 404.1520(a)(4)(iv); 4 1 6 .9 2 0 (a )(4 )(iv ). If the claimant cannot perform past relevant work, the ALJ proceeds to S te p 5, which requires a determination of whether the claimant is able to make an a d ju s tm e n t to other work, given claimant's age, education and work experience. Id., § § 404.1520(a)(4)(v); 416.920(a)(4)(v) . If so, benefits are denied; if not, benefits are a w a rd e d . Id. T h e ALJ found that Plaintiff had not engaged in substantial gainful activity since her a lle g e d onset date. (Tr. 23) He found Plaintiff had a "severe" impairment, i.e., bilateral k n e e osteoarthritis with left knee total arthroplasty and major depression, single episode. Id. He found she did not have an impairment that met or equaled a Listing. (Tr. 25) He judged th a t Plaintiff's allegations regarding her limitations were not totally credible. (Tr. 27-30) T h e ALJ found that Plaintiff retained the residual functional capacity for a wide range o f sedentary work. (Tr. 31) He found she was unable to perform any of her past relevant w o rk . Id. Based on the testimony of a vocational expert witness in response to a h y p o th e tic a l question, the ALJ found that there were a significant number of jobs in the e c o n o m y which Plaintiff could perform, notwithstanding her limitations, for example, c h a rg e account clerk, telephone quotation clerk and order clerk. (Tr. 32) Thus, the ALJ c o n c lu d e d that Plaintiff was not disabled. Id. Plaintiff contends that the ALJ erred in not finding that she met Listing 1.03, which re a d s as follows:

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1.03 Reconstructive surgery or surgical arthrodesis of a major weightb e a r in g joint, with inability to ambulate effectively, as defined in 1.00B2b, a n d return to effective ambulation did not occur, or is not expected to occur, w ith in 12 months of onset. 2 0 C.F.R. Pt. 404, Subpt. P, App. 1 (2005). T h e referenced 1.00B2b reads as follows: b . What We Mean by Inability to Ambulate Effectively (1 ) Definition. Inability to ambulate effectively means an extreme lim ita tio n of the ability to walk; i.e., an impairment(s) that interferes very se rio u s ly with the individual's ability to independently initiate, sustain, or c o m p le te activities. Ineffective ambulation is defined generally as having in s u ffic ie n t lower extremity functioning (see 1.00J) to permit independent a m b u la tio n without the use of a hand-held assistive device(s) that limits the fu n c tio n in g of both upper extremities. (Listing 1.05C is an exception to this g e n e ra l definition because the individual has the use of only one upper e x tre m ity due to amputation of a hand.) (2 ) To ambulate effectively, individuals must be capable of sustaining a re a s o n a b le walking pace over a sufficient distance to be able to carry out a c tiv itie s of daily living. They must have the ability to travel without c o m p a n io n assistance to and from a place of employment or school. Therefore, e x a m p le s of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to w a lk a block at a reasonable pace on rough or uneven surfaces, the inability to u s e standard public transportation, the inability to carry out routine ambulatory a c tiv itie s , such as shopping and banking, and the inability to climb a few steps a t a reasonable pace with the use of a single hand rail. The ability to walk in d e p e n d e n tly about one's home without the use of assistive devices does not, in and of itself, constitute effective ambulation. 2 0 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00 (2005). T h e ALJ specifically considered Listing 1.03, but found that Plaintiff did not meet th a t Listing because she was effectively ambulating only weeks after major surgery, and th e re was no medical evidence of a prescribed assistive device and no medical record of o b s e rv e d inability to ambulate. (Tr. 25) Substantial evidence supports the ALJ's c o n c lu s io n . Plaintiff had left knee surgery January 9, 2004. (Tr. 145, 147) On June 1, 2004, her su rg e o n assigned a disability rating of 18% and released her to return to work at a modified

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job or to retrain for more sedentary work.4 (Tr. 138) She had a total knee arthroplasty Ja n u a ry 20, 2006. (Tr. 173-74) Six weeks later, her surgeon noted she had only slight pain a n d no pain when walking. (Tr. 176) The Court also observes that the duration requirement w a s not met. An impairment or combination of impairments may be found disabling under th e Listing of Impairments only if the twelve-month duration requirement is met. 20 C.F.R. § § 404.1520(d) (2005). P la in tiff also contends that she met Listing 1.03, which reads as follows: 1 .0 2 Major dysfunction of a joint(s) (due to any cause): Characterized b y gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous a n k y lo s is , instability) and chronic joint pain and stiffness with signs of lim ita tio n of motion or other abnormal motion of the affected joint(s), and fin d in g s on appropriate medically acceptable imaging of joint space n a rro w in g , bony destruction, or ankylosis of the affected joint(s). With: A . Involvement of one major peripheral weight-bearing joint (i.e., hip, k n e e , or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b; or B . Involvement of one major peripheral joint in each upper extremity (i.e ., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and g ro s s movements effectively, as defined in 1.00B2c. 2 0 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00 (2005). T h e ALJ specifically addressed that Listing. (Tr. 25) Again, Plaintiff's ability to a m b u la te effectively prevented her meeting Listing 1.02. For a claimant to show that her im p a irm e n t matches a Listing, it must meet all of the specified medical criteria; an im p a irm e n t that manifests only some of the criteria, no matter how severely, does not q u a lify . Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Plaintiff has the burden of showing th a t she met a Listing. Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006); Johnson v. B a r n h a r t, 390 F.3d 1067, 1070 (8th Cir. 2004); Pyland v. Apfel, 149 F.3d 873, 877 (8th Cir. 1 9 9 8 ). She failed to meet that burden.

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She had been working as a security officer. 5

Next, Plaintiff argues that the hypothetical question to the vocational expert was in c o m p le te because it did not include the fact that she was missing a finger on her dominant h a n d . (Br. 18-20) Plaintiff's attorney was present at the administrative hearing. (Tr. 2092 9 ) He cross-examined the vocational expert and could have added that limitation to the h y p o th e tic a l question, but did not do so. (Tr. 226-27) Such a failure to raise the argument at th e administrative level ordinarily prevents a party from raising it in judicial proceedings. Weikert v. Sullivan, 977 F.2d 1249, 1254 (8th Cir. 1992); accord, Riggins v. Apfel, 177 F.3d 6 8 9 , 693 (8th Cir. 1999). Furthermore, the ALJ noted Plaintiff's allegation of hand p ro b le m s , but properly noted that there was no medical evidence of treatment of same or any a c c e p ta b le medical diagnosis thereof.5 (Tr. 25) In addition, Charles Clark, M.D., her tre a tin g orthopedist, observed that she had no limitation in her ability to reach, handle, feel o r finger.6 (Tr. 134) The hypothetical question posed to the vocational expert was proper. S u b s ta n tia l evidence supported the inclusion of certain impairments and the exclusion of o th e rs . See Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993)(hypothetical may omit e v id e n c e not substantially supported by record as a whole); Rappoport v. Sullivan, 942 F.2d 1 3 2 0 , 1323 (8th Cir. 1991)(hypothetical question need only include impairments accepted b y ALJ as true). N e x t, Plaintiff contends that the vocational expert's testimony was inconsistent with th e Dictionary of Occupational Titles. (Br. 20-21) In support of that contention, Plaintiff q u o te s a portion of Social Security Ruling 83-12: H o w e v e r, most jobs have ongoing work processes which demand that a w o rk e r be in a certain place or posture for at least a certain length of time to
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Plaintiff did not allege that she was limited in her ability to work by hand problems. (Tr.

74) The ALJ's hypothetical question fully incorporated Dr. Clark's opinion of her functional a b ilitie s. (Compare 132-34 and 223-24) 6
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accomplish a certain task. Unskilled types of jobs are particularly structured so th a t a person cannot ordinarily sit or stand at will. (Br. 21) Plaintiff's argument is based on an incomplete reading of SSR 83-12, however. The sentence following the above quoted portion adds: "In cases of unusual limitation of a b ility to sit or stand, a VS[7 ] should be consulted to clarify the implications for the o c c u p a tio n a l base." SSR 83-12, at 4. That is precisely what the ALJ did. He called a v o c a tio n a l expert. See Carlson v. Chater, 74 F.3d 869, 871 (8th Cir. 1996)(ALJ properly c o n s u lte d vocational expert pursuant to SSR 83-12 when claimant was required to a lte rn a te ly sit and stand). Plaintiff's argument lacks merit. F in a lly , Plaintiff argues that the ALJ failed to apply Social Security Ruling 02-1p p ro p e rly in evaluating the severity of her obesity. (Br. 21-23) That ruling does not mandate a n y special procedure for evaluating obesity. The ALJ properly noted that Plaintiff had been o b e s e . (Tr. 25, 151) He also observed that by September 9, 2005, less than nine months a fte r her diagnosis of obesity, she had lost 40 pounds to the benefit of her knees and g a stro e s o p h a g e a l reflux disease. (Tr. 25, 178) Therefore, her obesity did not meet the d u ra tio n a l requirement. Plaintiff's argument lacks merit. It is not the task of this Court to review the evidence and make an independent d e c is io n . Neither is it to reverse the decision of the ALJ because there is evidence in the re c o rd which contradicts his findings. The test is whether there is substantial evidence on th e record as a whole which supports the ALJ's decision. E.g., Mapes v. Chater, 82 F.3d 2 5 9 , 262 (8th Cir. 1996); Pratt v. Sullivan, 956 F.2d 830, 833 (8th Cir. 1992). T h e Court has reviewed the entire record, including the briefs, the ALJ's decision, the tra n s c rip t of the hearing and the medical and other evidence. There is ample evidence on the A VS is a vocational specialist, a term which describes all vocational resource p e rs o n n e l, including vocational consultants, vocational evaluation workshops and vocational experts. SSR 83-12, at 2. 7
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record as a whole that a reasonable mind might accept as adequate to support the conclusion o f the ALJ in this case. Perales, 402 U.S. at 401; Reuttert, 372 F.3d at 950. The C o m m is sio n e r's decision is not based on legal error. T H E R E F O R E , the Court hereby affirms the final determination of the Commissioner a n d dismisses Plaintiff's complaint with prejudice. IT IS SO ORDERED this 17th day of August, 2009.

UNITED STATES MAGISTRATE JUDGE

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