Caylor v. Commissioner of Social Security Administration
Filing
26
OPINION AND ORDER affirming the decision of the Commissioner. The Clerk is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Magistrate Judge Douglas N. Frazier on 8/22/2014. (brh)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JULITA U. CAYLOR,
Plaintiff,
v.
Case No: 3:13-cv-251-J-DNF
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
This cause is before the Court on Plaintiff’s Complaint (Doc. 1) filed on March 7, 2013.
Plaintiff, Julita Caylor seeks judicial review of the final decision of the Commissioner of the Social
Security Administration (“SSA”) denying her claim for a period of disability and disability
insurance benefits.
The Commissioner filed the Transcript of the proceedings (hereinafter
referred to as “Tr.” followed by the appropriate page number), and the parties filed legal
memoranda in support of their positions. For the reasons set out herein, the decision of the
Commissioner is affirmed pursuant to §205(g) of the Social Security Act, 42 U.S.C. §405(g).
I. Social Security Act Eligibility, the ALJ Decision, and Standard of Review
A. Eligibility
The law defines disability as the inability to do 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 twelve
months. 42 U.S.C. §§416(i), 423(d)(1)(A), 1382(a)(3)(A); 20 C.F.R. §§404.1505, 416.905. The
impairment must be severe, making the claimant unable to do her previous work, or any other
substantial gainful activity which exists in the national economy.
42 U.S.C. §§423(d)(2),
1382(a)(3); 20 C.F.R. §§404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the burden of
persuasion through step four, while at step five the burden shifts to the Commissioner. Bowen v.
Yuckert, 482 U.S. 137, 146, n.5 (1987).
B. Procedural History
On January 14, 2005, Plaintiff filed an application for Disability Insurance Benefits
asserting a disability onset date of February 17, 2004. Plaintiff’s application was denied initially
on May 17, 2005, and upon reconsideration on August 22, 2005. A hearing was held before
Administrative Law Judge John D. Thompson, Jr. (“ALJ”) on June 13, 2007. The ALJ issued an
unfavorable decision on November 7, 2007. (Tr. p. 15-24). On July 27, 2009, the Appeals
Council denied Plaintiff’s request for review. (Tr. p. 4-9).
The Plaintiff filed a civil action in the
United States District Court, and the Honorable Thomas E. Morris, United States Magistrate
Judged entered an Opinion and Order on September 28, 2010 which reversed and remanded the
action to the Commissioner. (See, Case No. 3:09-cv-815-J-TEM, Doc. 24). Judge Morris remanded
the action to the Commissioner to hold necessary proceedings and re-evaluate the demands of
Plaintiff’s past relevant work, and if the Commissioner determined that Plaintiff was unable to
return to her past relevant work, then proceed to Step 5 and determine if Plaintiff is capable of
performing other work that exists in the regional and national economy. (See, Case No. 3:09-cv815-J-TEM, Doc. 24, p. 11).
Upon remand, on October 28, 2010, the Appeals Council vacated the final decision of the
Commissioner and remanded the case to an ALJ for further proceedings. (Tr. p. 515). A second
hearing was held before Administrative Law Judge John D. Thompson, Jr. (“ALJ”) on August 9,
2011. (Tr. p. 904-1000). Appearing at the hearing were Robert S. Karsh, a medical expert and
Paul R. Dolan, a vocational expert. (Tr. p. 497). The ALJ issued an unfavorable decision on
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November March 26, 2012. (Tr. p. 497-512). The Decision of the ALJ became final after the
Appeals Council denied a request for review. (Tr. p. 477-480). The Plaintiff filed a Complaint
(Doc. 1) in the United States District Court on March 7, 2013. (Doc. 1) This case is now ripe for
review.
The parties consented to proceed before a United States Magistrate Judge for all
proceedings. (Doc. 15).
In her Memorandum in Opposition (Doc. 24), Plaintiff stated the following: “For the sake
of brevity and economy, the statements of the testimony and of the documentary evidence as set
forth in the ALJ’s decision (T. 494-512) are accepted by the Plaintiff and incorporated, as if fully
presented herein, except as specifically alluded to, excepted, or expanded upon, below.” (Doc.
24, p. 4). Therefore, the Court will also accept the testimony and medical evidence as set forth in
the ALJ’s Opinion unless specifically set forth otherwise.
C. Summary of the ALJ’s Decision
An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that he is disabled. Packer v. Commissioner of Social Security, 542 F. App’x 189 (11th
Cir. 2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). An ALJ must determine
whether the claimant (1) is performing substantial gainful activity; (2) has a severe impairment;
(3) has a severe impairment that meets or equals an impairment specifically listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1; (4) can perform his past relevant work; and (5) can perform other
work of the sort found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 1237-40 (11th
Cir. 2004). The claimant has the burden of proof through step four and then the burden shifts to
1 Unpublished opinions may be cited as persuasive on a particular point. The Court does
not rely on unpublished opinions as precedent. Citation to unpublished opinions on or after January
1, 2007 is expressly permitted under Rule 32.1, Fed. R. App. P. Unpublished opinions may be
cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.
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the Commissioner at step five. Hines-Sharp v. Commissioner of Soc. Sec., 511 F. App’x 913, 915
n.2 (11th Cir. 2013).
The ALJ determined that Plaintiff met the Social Security Act’s insured status
requirements through June 30, 2009. (Tr. p. 499). At step one of the sequential evaluation, the
ALJ found that Plaintiff had not engaged in substantial gainful activity since her onset date of
February 17, 2004 through her date last insured of June 30, 2009. (Tr. p. 499). At step two, the
ALJ found that the Plaintiff suffered from the following severe impairments: ischemic heart
disease, diabetes mellitus, renal insufficiency, pulmonary insufficiency, gout, peripheral
neuropathy, and obesity, citing 20 D.F.R. 404.1520(c). (Tr. p. 499). At step three, the ALJ
determined that Plaintiff did not have an impairment or combination of impairments that met or
medically equaled the severity of any of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, and 404.1526. (Tr. p. 501). At step 4, the ALJ
determined that through the date last insured, the Plaintiff has the residual functional capacity
(“RFC”) to perform a range of light work. (Tr. p. 501). The ALJ determined that Plaintiff could
sit for a total of 6 hours in an 8-hour work day, stand for a total of 6 hours and walk for a total of
4 hours in an 8-hour work day. (Tr. p. 501). The ALJ decided that Plaintiff was able to
lift/carry 20 pounds occasionally (up to 1/3 of the day) and 10 pounds or less more frequently.
(Tr. p. 501). The ALJ determined that Plaintiff could perform the following functions
frequently but not constantly or continuously: pushing/pulling of arm, hand or foot pedal
controls. (Tr. p. 501). The ALJ found Plaintiff could climb ramps or stairs occasionally, but was
precluded from climbing ladders, ropes or scaffolds. (Tr. p. 501-2). The ALJ determined that
Plaintiff could frequently balance, stoop, kneel, crouch or crawl and had no limitations in
reaching, handling, fingering, or feeling from either a fine or gross dexterous standpoint. (Tr. p.
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502). The ALJ found Plaintiff had no problems with hearing or vision, but should not work
around unprotected heights or concentrated amounts of atmospheric pollutants and gave some
credit to her pulmonary and respiratory difficulties including shortness of breath. (Tr. p. 502).
The ALJ determined that Plaintiff could return to her past relevant work as an electronic
assembler, DOT # 726.684-018, and cottage parent, DOT# 187.167-186, because these jobs did
not require the performance of work-related activities that were precluded by the claimant’s
residual functional capacity. (Tr. p. 511). The ALJ concluded that Plaintiff was not under a
disability as defined in the Social Security Act from her alleged onset date of February 17, 2004,
through her date last insured of June 30, 2009. (Doc. 512).
D. Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). The Commissioner’s findings of fact are conclusive if supported by substantial evidence.
42 U.S.C. §405(g). Substantial evidence is more than a scintilla; i.e., the evidence must do more
than merely create a suspicion of the existence of a fact, and must include such relevant evidence
as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67
F.3d 1553, 1560 (11th Cir. 1995), citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)
and Richardson, 402 U.S. at 401.
Where the Commissioner’s decision is supported by substantial evidence, the district court
will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if
the reviewer finds that the evidence preponderates against the Commissioner’s decision.
Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356,
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1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking into account
evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord, Lowery
v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire record to determine
reasonableness of factual findings).
II. Analysis
The Plaintiff raises two issues on appeal. As stated by Plaintiff they are:
1)
The Administrative Law Judge erred by failing to find that the Plaintiff had the severe
impairment of obstructive sleep apnea, at least for the period of time between her
alleged onset date of February 17, 2004, and when she began using a CPAP machine;
and
2) The Administrative Law Judge erred by failing to properly evaluate and discuss the
Plaintiff’s complaints of daytime somnolence due to sleep disturbance at night due to
the need to urinate.
A. Whether ALJ erred in Failing to Find Obstructive Sleep Apnea a Severe
Impairment
Plaintiff asserts that the ALJ erred in failing to find that Plaintiff had the severe impairment
of obstructive sleep apnea at step 2 of the sequential evaluation. Plaintiff argues that in November
2006, after a polysomnography, Plaintiff was diagnosed with obstructive sleep apnea. The first
Decision by the ALJ on November 7, 2007, included a finding that Plaintiff’s obstructive sleep
apnea was a severe impairment, however in the ALJ’s second Decision, he did not include
obstructive sleep apnea as a severe impairment. Plaintiff asserts that even though the ALJ found
Plaintiff’s obstructive sleep apnea condition palliated with the CPAP therapy, she still had that
condition from her onset date in February 2004 until obtaining the CPAP in November 2006, and
Plaintiff argues that the ALJ should have addressed whether Plaintiff’s complaints prior to
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November 2006 were credible. Plaintiff asserts that the CPAP machine was helpful but did not
eliminate Plaintiff’s somnolence because she had to urinate frequently during the night.
The Commissioner responds that even if the ALJ should have included obstructive sleep
apnea as a severe impairment at step 2, his error was harmless because the ALJ found other
impairments to be severe, and discussed Plaintiff’s obstructive sleep apnea in combination with all
of her conditions in the Decision. In the alternative, the Commissioner argues that Plaintiff’s
obstructive sleep apnea was not a severe impairment.
At step 2 of the ALJ’s disability determination, the determination of severity is analyzed.
At this step, “[a]n impairment is not severe only if the abnormality is so slight and its effect so
minimal that it would clearly not be expected to interfere with the individual's ability to work,
irrespective of age, education or work experience.” McDaniel v. Bowen, 800 F.2d 1026, 1031
(11th Cir. 1986). A severe impairment must bring about at least more than a minimal reduction
in a claimant’s ability to work, and must last continuously for at least twelve months. See 20
C.F.R. §§ 404.1505(a). This inquiry “acts as a filter” so that insubstantial impairments will not
be given much weight. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). While the standard
for severity is low, the severity of an impairment “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 1544, 1547 (11th Cir. 1986).
According to the Eleventh Circuit, “[n]othing requires that the ALJ must identify, at step
two, all of the impairments that should be considered severe,” but only that the ALJ considered
the claimant’s impairments in combination, whether severe or not. Heatly v. Comm’r of Soc. Sec.,
382 F. App’x 823, 825 (11th Cir. 2010). If any impairment or combination of impairments
qualifies as “severe,” step two is satisfied and the claim advances to step three. Gray v. Comm’r
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of Soc. Sec., 550 F. App’x 850, 2013 WL 6840288, at *1 (11th Cir. Dec. 30, 2013) (citing Jamison
v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987)).
In the instant case, the ALJ determined that Plaintiff had the following severe
impairments: ischemic heart disease, diabetes mellitus, renal insufficiency, pulmonary
insufficiency, gout, peripheral neuropathy and obesity. (Tr. p. 499). The ALJ noted that Plaintiff
uses a CPAP machine and had used the machine for 3 to 4 years. (Tr. p. 504). The ALJ noted
that Plaintiff underwent a sleep study on November 2, 2006, which revealed obstructive sleep
apnea, however the condition was palliated with CPAP therapy.
(Tr. p. 506). The ALJ
considered Plaintiff’s testimony that she slept 4 hours per night, would go to the bathroom
frequently, and would nap during the day. (Tr. p. 505). The ALJ also stated that he considered
all the Plaintiff’s symptoms and the extent to which these symptoms could reasonably be
accepted as consistent with the objective medical evidence and other evidence of record. (Tr. p.
502).
Plaintiff asserts that the ALJ erred by not finding Plaintiff’s untreated obstructive sleep
apnea to be severe from her onset date of February 17, 2004 through the date she received CPAP
therapy in November 2006. Plaintiff does not assert that the obstructive sleep apnea was not
palliated by CPAP therapy. Even if the ALJ erred by not stating that Plaintiff’s obstructive sleep
apnea from her onset date to November 2006 was severe, the ALJ found other impairments to be
severe and considered the evidence surrounding Plaintiff’s obstructive sleep apnea later in his
Decision. The ALJ noted that Plaintiff underwent a sleep study in November 2, 2006 and the
CPAP therapy palliated her obstructive sleep apnea. He considered Plaintiff’s obstructive sleep
apnea in combination with her other impairments. Therefore, even if the ALJ may have erred in
not listing obstructive sleep apnea as a severe impairment at step 2 of the sequential evaluation,
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the error was harmless because he considered Plaintiff’s obstructive sleep apnea in combination
with Plaintiff’s other impairments.
In addition, Plaintiff failed to indicate how Plaintiff’s diagnosis of obstructive sleep apnea
in November 2006 would have limited Plaintiff’s physical or mental abilities to do basic work
activities from her onset date of February 17, 2004 through the date of her receiving CPAP
therapy in November 2006. See, Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984). A
diagnosis of a condition “is insufficient to establish that a condition cause[s] functional
limitations.” Wood v. Astrue, 2012 WL 834137, *5 (M.D. Fla. Feb. 14, 2012) (citing Moore v.
Barnhart, 405 F.3d 1207, 1213 n. 6 (11th Cir. 2005)). The Plaintiff failed to provide support in
the record that her condition during that limited time period resulted in work-related limitations.
In fact, Plaintiff states to Dr. Camacho that she had been experiencing nonrestorative sleep issues
for 3 to 5 years, which were occurring prior to her onset date of February 2004 while she was
still employed. (Tr. p. 323). Therefore, the Court determines that even if the ALJ did err in failing
to list Plaintiff’s obstructive sleep apnea as a severe impairment at step 2, the error was harmless
because the ALJ discussed Plaintiff’s obstructive sleep apnea in combination with Plaintiff’s
other limitations, and the record fails to show that her obstructive sleep apnea from her onset date
to November 2006 resulted in work-related limitations. Further, the Court does not find that the
ALJ erred in failing to include Plaintiff’s obstructive sleep apnea in a hypothetical question to
the vocational expert because Plaintiff failed to show any work-related limitations from this
diagnosis. The issues Plaintiff raised as to her daytime somnolence caused by frequent urination
at night, will be discussed in the next section.
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B. Whether ALJ Erred in Failing to Consider Complaints of Daytime Somnolence
due to Sleep Disturbance Caused by Nocturia
Plaintiff asserts that the ALJ erred by failing to properly evaluate Plaintiff’s complaints of
daytime somnolence and failed to properly evaluate Plaintiff’s nocturia, or frequent nighttime
urination. Plaintiff’s argues that the ALJ failed to provide adequate reasons for questioning
Plaintiff’s credibility. The Commissioner asserts that the ALJ properly considered Plaintiff’s
subjective complaints of daytime sleepiness and nocturia. The Commissioner argues that there is
minimal evidence to support these subjective complaints during the relevant time period prior to
her date last insured of June 30, 2009, and an ALJ is not required to discuss every piece of evidence
in the record or every subjective complaint.
Plaintiff testified at the hearing that she uses the bathroom approximately six times per
night to urinate. (Tr. p. 951). Plaintiff testified that she goes to sleep normally twice during the
day (Tr. p. 961-62). She testified she cannot sleep at night because she goes to the bathroom so
many times. (Tr. p. 961). The only mention of Plaintiff’s nocturia in the medical records was on
October 11, 2006, when Plaintiff related to Jorge R. Camacho, M.D. that she wakes up
approximately two to three times during the night to go to the bathroom, and feels tired during the
day. (Tr. p. 353). As a result of Plaintiff’s snoring and nonrestorative sleep, Dr. Camacho ordered
the polysomnography and CPAP titration. (Tr. p. 354). The records do not indicate that Plaintiff
was treated for nocturia or mentioned it to any of her other doctors.
To establish disability based on testimony of pain and other symptoms, a plaintiff must
satisfy two prongs of the following three-part test: “(1) evidence of an underlying medical
condition; and (2) either (a) objective medical evidence confirming the severity of the alleged pain;
or (b) that the objectively determined medical condition can reasonably be expected to give rise to
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the claimed pain.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citing Holt v.
Sullivan, 921 F.3d 1221, 1223 (11th Cir. 1991)). After an ALJ has considered a plaintiff’s
complaints of pain, the ALJ may reject them as not credible, and that determination will be
reviewed to determine if it is based on substantial evidence. Moreno v. Astrue, 366 F. App’x 23,
28 (11th Cir. 2010) (citing Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). If an ALJ
discredits the subjective testimony of a plaintiff, then he must “articulate explicit and adequate
reasons for doing so. [citations omitted] Failure to articulate the reasons for discrediting subjective
testimony requires, as a matter of law, that the testimony be accepted as true.” Wilson v. Barnhart,
284 F.3d at 1225. “A clearly articulated credibility finding with substantial supporting evidence
in the record will not be disturbed by a reviewing court.” Foote v. Chater, 67 F.3d 1553, 1562
(11th Cir. 1995)).
The factors an ALJ must consider in evaluating a plaintiff’s subjective
symptoms are: “(1) the claimant's daily activities; (2) the nature and intensity of pain and other
symptoms; (3) precipitating and aggravating factors; (4) effects of medications; (5) treatment or
measures taken by the claimant for relief of symptoms; and other factors concerning functional
limitations.” Moreno v. Astrue, 366 F. App’x at 28 (citing 20 C.F.R. § 404.1529(c)(3)).
In the instant case, Plaintiff testified at the hearing as to her nocturia and daytime
somnolence. The only mention in the medical records was Plaintiff reporting to Dr. Camacho
that she used the bathroom two to three times per night and had some daytime somnolence. At
the time that Plaintiff reported these symptoms to Dr. Camacho, she had not been treated for her
obstructive sleep apnea, and was not using CPAP therapy. Additionally, Plaintiff only reported in
2006 that she used the bathroom two to three times per night whereas at the time of the hearing,
Plaintiff testified that she used the bathroom six times per night, however, the hearing was
conducted in 2011 after the date last insured.
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Plaintiff failed to provide any objective medical evidence confirming the severity of her
alleged nocturia and daytime somnolence during the relevant period prior to June 30, 2009. The
ALJ acknowledged Plaintiff’s testimony as to her nocturia and that she takes naps during the day.
(Tr. p. 505). The ALJ determined that Plaintiff’s medically determinable impairments “could
reasonably be expected to cause some of the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of these symptoms are not
credible to the extent that they are inconsistent with the above residual functional capacity
assessment.”
(Tr. p. 505). The Plaintiff failed to provide any objective medical evidence
confirming the severity of her nocturia or her daytime somnolence or that any of her conditions
can reasonably be expected to give rise to her claims. The ALJ went to great lengths in his second
Decision discussing in great detail all of Plaintiff’s impairments. Substantial evidence supports
the ALJ’s findings as to Plaintiff’s credibility concerning the intensity, persistence, and limiting
effects of her symptoms. Therefore, the ALJ did not err in his evaluation of Plaintiff’s complaints
of daytime somnolence due to nocturia.
III. Conclusion
Upon consideration of the submissions of the parties and the administrative record, the
Court finds that the decision of the Commissioner is supported by substantial evidence and decided
according to proper legal standards.
IT IS HEREBY ORDERED:
The decision of the Commissioner is AFFIRMED pursuant to sentence four of 42 U.S.C.
§405(g). The Clerk is directed to enter judgment accordingly, terminate any pending motions and
deadlines, and close the case.
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DONE and ORDERED in Fort Myers, Florida on August 22, 2014.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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