Jones v. Colvin
Filing
14
ORDER AND OPINION AFFIRMING the final decision of the Commissioner. Signed by Magistrate Judge Alan J. Baverman on 9/10/15. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WALTER JONES, JR.,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.
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CIVIL ACTION FILE NO.
1:14-cv-00849-AJB
O R D E R A N D O P I N I O N1
Plaintiff Walter Jones, Jr. (“Plaintiff”) brought this action pursuant to
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review
of the final decision of the Commissioner of the Social Security Administration (“the
Commissioner”) denying his application for Disability Insurance Benefits (“DIB”)
1
The parties have consented to the exercise of jurisdiction by the
undersigned pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil
Procedure. (See Dkt. Entries dated 5/7/2014 & 5/8/2014). Therefore, this Order
constitutes a final Order of the Court.
AO 72A
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under the Social Security Act.2 For the reasons below, the undersigned AFFIRMS the
final decision of the Commissioner.
I.
PROCEDURAL HISTORY
Plaintiff filed an application for a period of disability and DIB on
January 18, 2011,
alleging
disability
commencing
on
January
5,
2010.
[Record (hereinafter “R”) 158-59]. Plaintiff’s applications were denied initially and on
reconsideration. [See R100, 103-13]. Plaintiff then requested a hearing before an
Administrative Law Judge (“ALJ”). [R115-16]. An evidentiary hearing was held on
October 31, 2012. [R33-93]. The ALJ issued a decision on November 21, 2012,
2
Title II of the Social Security Act provides for federal DIB benefits.
42 U.S.C. § 401 et seq. Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq.,
provides for Supplemental Security Income Benefits for the disabled (“SSI”).
Title XVI claims, unlike Title II claims, are not tied to the attainment of a particular
period of insurance disability. Baxter v. Schweiker, 538 F. Supp. 343, 350
(N.D. Ga. 1982). Otherwise, the relevant law and regulations governing the
determination of disability under a claim for DIB are nearly identical to those
governing the determination under a claim for SSI.
Wind v. Barnhart,
th
133 Fed. Appx. 684, 690 n.4 (11 Cir. June 2, 2005) (citing McDaniel v. Bowen,
800 F.2d 1026, 1031 n.4 (11th Cir. 1986)). Thus, in general, the legal standards to be
applied are the same regardless of whether a claimant seeks DIB, to establish a “period
of disability,” or to recover SSI, although different statutes and regulations apply to
each type of claim. See 42 U.S.C. § 1383(c)(3) (establishing that the judicial provisions
of 42 U.S.C. § 405(g) are fully applicable to claims for SSI). Therefore, to the extent
that the Court cites to SSI cases, statutes, or regulations, they are equally applicable to
Plaintiff’s DIB claims.
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denying Plaintiff’s application on the ground that he had not been under a “disability”
at any time through the date of the decision. [R20]. Plaintiff sought review by the
Appeals Council, and the Appeals Council denied Plaintiff’s request for review on
February 19, 2014, making the ALJ’s decision the final decision of the Commissioner.
[R1-6].
Plaintiff then filed the present action in this Court on March 25, 2014, seeking
review of the Commissioner’s decision. [See Doc. 1]. The answer and transcript were
filed on August 20, 2014. [See Docs. 9, 10]. On September 19, 2014, Plaintiff filed a
brief in support of his petition for review of the Commissioner’s decision, [Doc. 12],
and on October 17, 2014, the Commissioner filed a response in support of the decision,
[Doc. 13].3 The matter is now before the Court upon the administrative record, the
parties’ pleadings, and the parties’ briefs, and it is accordingly ripe for review pursuant
to 42 U.S.C. § 405(g).
3
Plaintiff did not file a reply brief, and no request for oral argument was
filed. (See Dkt.).
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II.
STATEMENT OF FACTS4
A.
Background
Having a date of birth of October 5, 1953, Plaintiff was fifty-six years old on the
alleged onset date of January 5, 2010, and fifty-nine years old at the time of the ALJ’s
decision on November 21, 2012. [R28, 40, 158]. He completed high school, has some
college education, and previously worked as a firefighter and emergency medical
technician (“EMT”). [R43, 48, 58, 184]. Plaintiff alleges he has been unable to work
since January 5, 2010, because of headaches, high blood pressure, and hearing
problems in both ears. [R183; see also R190, 194-95, 210].
B.
Lay Testimony
At the administrative hearing, Plaintiff testified that he could not work because
of hearing loss. [R49-55]. Despite alleging an onset date of January 5, 2010, Plaintiff
testified that his last day of work was in December 2010, when he retired based on his
more than thirty years of service. [R44-45]. He also reported receiving a payout of
$12,000 in the first quarter of 2011 for his accrued vacation and sick time, [R44], and
4
In general, the records referenced in this section are limited to those
deemed by the parties to be relevant to this appeal. [See Docs. 12, 13].
4
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at some point receiving a lump payment as a result of a lawsuit his union had filed over
the workers’ loss of hearing, [R47].
Plaintiff testified that his hearing “seem[ed] to be getting worse and worse” and
was affecting his ability to have normal face-to-face conversations, talk on the
telephone, watch television, listen during church services, or perceive noises around
him, such as nearby footsteps. [R49, 54, 65-66, 68-69]. He indicated that the left side
was “way worse” than the right side and that he had gotten into the habit of turning his
head to listen. [R62]. He also stated that background noise made the problem worse.
[R66]. Plaintiff said that he had tried off-the-shelf hearing aids and had tried hearing
aids at the Veteran’s Administration Hospital, but he found them cumbersome and said
that they were too loud and produced a lot of feedback. [R50-52].
Plaintiff did report, however, that the hearing loss did not restrict his driving or
make it necessary for him to use any special equipment in order to drive. [R42-43].
He was also able to do volunteer work with youth and spend time at the fire station.
[R57]. He stated that he has not looked for paid work since he retired. [R48].
Plaintiff reported that he also had hypertension that, when elevated, made him
dizzy, foggy, slurring, and slow, but that his blood pressure was under control with
weight loss, and it was only his hearing loss that prevented him from working.
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[R54-56]. He said that he had thought about trying to get a job as a dispatcher but he
was concerned that he would mis-hear critical information. [R64-65, 87-88]. Plaintiff
was despondent regarding the hearing loss and the end of his job, and he explained that
the hearing loss and his emotional response to the deaths of a couple of colleagues had
motivated him to retire and prevented him from reapplying to be a firefighter, but he
had not been referred for any treatment for emotional or mental difficulties.
[R69-72, 91-92].
C.
Medical Records
On February 18, 2009, Plaintiff presented to Kenneth L. Gayles, M.D., P.C., for
evaluation of hypertension. [R258]. It was noted that Plaintiff was not taking
medication, was inconsistently following his recommended diet, and was exercising
sporadically. [R258]. His weight was recorded as 302 pounds. [R258]. It was also
noted that Plaintiff denied anxiety, depression, memory loss, and sleep pattern
disturbance. [R258]. Dr. Gayles also noted that Plaintiff had a cooperative attitude,
normal affect, clear and fluent speech, and intact recent and remote memory. [R259].
An abdominal aorta ultrasound produced images within normal limits. [R263].
Findings from an echocardiogram were consistent with hypertensive heart disease.
[R265]. Plaintiff was assessed with hypertensive heart disease, unspecified, without
6
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heart failure; obesity, unspecified; and hypertension, unspecified. [R259]. He was
prescribed medication; directed to exercise and follow a diet restricting salt, calories,
and cholesterol; and avoid stress. [R259].
On August 3, 2009, Plaintiff returned to Dr. Gayles for evaluation of
hypertension. [R268]. Plaintiff reported that he was feeling worse compared to his last
visit, and it was noted that Plaintiff was not taking medication, was inconsistently
following his recommended diet, and was exercising sporadically. [R268]. His weight
was recorded as 299 pounds. [R268]. It was also noted that Plaintiff denied anxiety,
depression, memory loss, and sleep pattern disturbance. [R268]. Dr. Gayles also noted
that Plaintiff had a cooperative attitude, normal affect, clear and fluent speech, and
intact recent and remote memory. [R269]. Plaintiff was assessed with palpitations;
hypertensive heart disease, unspecified, without heart failure; shortness of breath;
obesity, unspecified; and hypertension, unspecified. [R269]. He was prescribed
medication; directed to exercise and follow a diet restricting salt, calories, and
cholesterol; and directed to avoid stress. [R269].
On August 4, 2009, Plaintiff underwent a treadmill-echo stress test. [R252]. The
results were within normal limits [R253].
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On April 8, 2010, Plaintiff returned to Dr. Gayles for evaluation of hypertension.
[R258]. It was noted that Plaintiff was not taking medication, was inconsistently
following his recommended diet, and was exercising sporadically. [R254]. His weight
was recorded as 299 pounds. [R254]. It was also noted that Plaintiff denied anxiety,
depression, memory loss, and sleep pattern disturbance. [R254]. Dr. Gayles also noted
that Plaintiff had a cooperative attitude, normal affect, clear and fluent speech, and
intact recent and remote memory. [R255]. An echocardiogram revealed moderate left
ventricular hypertrophy and mild left diastolic dysfunction. [R278]. Plaintiff was
assessed with shortness of breath; peripheral vascular disease, unspecified; obesity; and
hypertension, unspecified. [R255]. He was prescribed medication; directed to exercise
and follow a diet restricting salt, calories, and cholesterol; and directed to avoid stress.
[R255].
A letter dated April 20, 2010, indicates that Plaintiff attended a hearing-loss
screening at Local 282 and was found to have an occupationally induced hearing loss.
[R359].
On October 18, 2010, Plaintiff returned to Dr. Gayles for evaluation of
hypertension. [R279]. He stated that he felt better compared to his last visit but that
he had been ill for two weeks and was unable to work. [R279]. It was noted that
8
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Plaintiff was not taking medication, was inconsistently following his recommended
diet, and was exercising sporadically. [R279]. His weight was recorded as 297 pounds.
[R279]. It was also noted that Plaintiff denied anxiety, depression, memory loss, and
sleep pattern disturbance.
[R279].
Dr. Gayles also noted that Plaintiff had a
cooperative attitude, normal affect, clear and fluent speech, and intact recent and remote
memory. [R280]. Plaintiff was assessed with hypertension, unspecified; obesity,
unspecified; thyroid disorders, unspecified; and hypertensive heart disease, unspecified,
without heart failure. [R280]. He was prescribed medication; directed to exercise and
follow a diet restricting salt, calories, and cholesterol; and directed to avoid stress.
[R280].
Plaintiff returned to Dr. Gayles on October 21, 2010. [R282]. It was noted that
he had taken medication as ordered and that he denied chest discomfort, cough,
dizziness, edema, faintness, fatigue, leg swelling, orthopnea, palpitations, and shortness
of breath. [R282]. His weight was recorded as 295 pounds. [R282]. Plaintiff was
assessed with hypertension, unspecified. [R282]. He was prescribed medication;
directed to exercise and follow a diet restricting salt, calories, and cholesterol; and
directed to avoid stress. [R282].
9
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On November 24, 2010, Plaintiff returned to Dr. Gayles for evaluation of
hypertension. [R284]. He stated that he felt better compared to his last visit and was
taking medication as prescribed, but it was noted that he was inconsistently following
his recommended diet and was exercising sporadically. [R284]. It was also noted that
Plaintiff denied anxiety, depression, memory loss, and sleep pattern disturbance.
[R284]. Dr. Gayles also noted that Plaintiff had a cooperative attitude, normal affect,
clear and fluent speech, and intact recent and remote memory. [R285]. Results of
another treadmill-echo stress test were within normal limits [R270, 288]. Plaintiff was
assessed with shortness of breath; hypertension, unspecified; hypertensive heart
disease, unspecified, without heart failure; and obesity, unspecified. [R285]. He was
prescribed medication; directed to exercise and follow a diet restricting salt, calories,
and cholesterol; and directed to avoid stress. [R285]. It was noted that Plaintiff was
unable to return to work for two weeks. [R286].
On February 10, 2011, Plaintiff returned to Dr. Gayles for evaluation of
hypertension. [R273, 290, 313]. It was noted that Plaintiff was taking medication as
prescribed, but was inconsistently following his recommended diet and was exercising
sporadically. [R273, 290, 313]. It was also noted that Plaintiff denied anxiety,
depression, memory loss, and sleep pattern disturbance. [R273, 290, 313]. Dr. Gayles
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also noted that Plaintiff had a cooperative attitude, normal affect, clear and fluent
speech, and intact recent and remote memory. [R274, 291, 314]. He was assessed with
palpitations; shortness of breath; hypertensive heart disease, unspecified, without heart
failure; obesity; and dizziness and giddiness. [R274, 291, 314]. He was continued on
medication, and it was noted that Plaintiff was unable to return to work for two weeks.
[R274, 291, 314].
On February 11, 2011, Plaintiff underwent an extracranial vascular examination,
which was recommended because of his dizziness and hypertension. [R316]. Some
thickening was found. [R317].
Plaintiff underwent a consultative internal-medicine examination by Donna
Miller, D.O.,5 on April 14, 2011. [R297-300]. Plaintiff complained of a hearing
disorder in both ears due to chronic noise exposure in his thirty-year career as a
5
Plaintiff asserts that there is a printout in the record indicating that
Dr. Miller “does not meet the primary source equivalency requirement as set forth in
the credentialing standards of accreditation organizations.” [Doc. 12 at 2 n.2 [citing
R308]]. Because Plaintiff does not explain what the printout means, how it relates to
Plaintiff’s allegations of error, or why the Court should find the printout to be reliable,
the Court does not consider the printout in its analysis of the case. See Sanchez v.
Comm’r of Soc. Sec., 507 Fed. Appx. 855, 856 n.1 (11th Cir. Feb. 8, 2013) (per curiam)
(noting that claimant waived certain arguments by not expressly challenging the ALJ’s
findings); Outlaw v. Barnhart, 197 Fed. Appx. 825, 827 n.3 (11th Cir. Aug. 10, 2006)
(per curiam) (finding that the plaintiff waived an issue by failing to elaborate on his
argument or provide a citation to authority regarding the argument).
11
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firefighter. [R297]. He indicated that he had trouble hearing, especially if there is
background noise around him, and that he has to ask questions repeatedly. [R297]. He
also stated that his doctor had placed him on medication for hypertension but that he
had not been very compliant. [R297].
Plaintiff reported that he cooks five times a week, cleans seven times a week,
does laundry three times a week, and shops once a week. [R297]. He also stated that
he showers and dresses daily and that he enjoys watching television, listening to the
radio, walking, and socializing with friends. [R297].
Dr. Miller observed that Plaintiff was 6’ 3-1/2” and weighed 295 pounds.
[R297]. She also observed that during the course of the examination, she had to repeat
one question, but that Plaintiff was otherwise able to hear normal conversation. [R297].
She diagnosed Plaintiff with a hearing disorder and found that he was obese, but she
noted no other problems. [R298-99]. She also recommended that Plaintiff avoid
exposure to loud noises. [R299].
On April 18, 2011, Plaintiff presented to John Stenievich, M.D., for an
audiologic evaluation. [R301-02]. Dr. Stenievich noted that Plaintiff had been exposed
to loud noises in the course of his work for many years and that Plaintiff complained
of difficulty hearing conversations and making out voices in crowds.
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[R301].
Dr. Stenievich found upon physical examination that Plaintiff was “somewhat hard of
hearing” but that his “[s]peech discrimination was judged to be excellent bilaterally.”
[R301]. He assessed severe bilateral noise-induced sensorineural hearing loss and
recommended that Plaintiff be fitted for hearing aids. [R301].
On May 4, 2011, Plaintiff returned to Dr. Gayles for evaluation of hypertension.
[R319]. He stated that he felt worse compared to his last visit although he was taking
medication as prescribed. [R319]. It was noted that he was inconsistently following
his recommended diet. [R319]. Although it was noted that Plaintiff denied anxiety,
depression, memory loss, and sleep pattern disturbance, it was also noted that Plaintiff
was exercising sporadically and reported associated anxiety, chest pain, dizziness,
palpitations, and shortness of breath. [R319]. Dr. Gayles also noted that Plaintiff had
a cooperative attitude, normal affect, clear and fluent speech, and intact recent and
remote memory. [R320]. His weight was recorded as 298 pounds. [R320]. Plaintiff
was assessed with chest pain, unspecified; abnormal electrocardiogram; hypertension,
unspecified; shortness of breath; and palpitations. [R321]. He was prescribed
medication; directed to exercise and follow a diet restricting salt, calories, and
cholesterol; and directed to avoid stress. [R320]. It was noted that Plaintiff was unable
to return to work for two weeks. [R321].
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On August 4 and 8, 2011, Plaintiff returned to Dr. Gayles for evaluation of
hypertension. [R340, 343]. He stated both times that he felt better compared to his last
visit although he was taking his prescribed medication inconsistently; inconsistently
following his recommended diet; and exercising sporadically. [R340, 343]. It was also
noted that Plaintiff denied anxiety, depression, memory loss, and sleep pattern
disturbance. [R340, 343]. Dr. Gayles also noted that Plaintiff had a cooperative
attitude, normal affect, clear and fluent speech, and intact recent and remote memory.
[R341, 344]. His weight was recorded as 302 pounds on August 4 and 306 pounds on
August 8. [R341, 344]. Plaintiff was assessed with hypertension, unspecified;
abnormal electrocardiogram; hypertensive heart disease, unspecified, without heart
failure; and thyroid disorders, unspecified. [R340-41, 344-45]. He was prescribed
medication; directed to exercise and follow a diet restricting salt, calories, and
cholesterol; and directed to avoid stress. [R340-41, 344-45]. While it was noted that
Plaintiff was retired, [R344], the notes also indicate that Plaintiff would be unable to
return to work for two weeks. [R342, 345].
On March 14, 2012, Plaintiff returned to Dr. Gayles for evaluation of
hypertension. [R346]. He stated that he felt about the same as he did at his last visit.
[R346]. It was also noted that Plaintiff was not taking any medication and was
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inconsistently following his recommended diet. [R346]. Although it was noted that
Plaintiff denied anxiety, depression, memory loss, and sleep pattern disturbance, it was
also noted that Plaintiff was exercising sporadically and reported associated dizziness,
paresthesia,6 and shortness of breath. [R346]. Dr. Gayles also noted that Plaintiff had
a cooperative attitude, normal affect, clear and fluent speech, and intact recent and
remote memory. [R347]. His weight was recorded as 288 pounds. [R347]. An
echocardiogram showed left ventricular diastolic dysfunction that could be associated
with his chest pain and shortness of breath. [R351]. Plaintiff was assessed with
shortness of breath; palpitations; dizziness and giddiness; hypertension, unspecified;
abnormal electrocardiogram; thyroid disorders, unspecified; impotence, organic origin;
and sleep disturbance, unspecified. [R347-48, 350-51]. He was prescribed medication;
directed to exercise and follow a diet restricting salt, calories, and cholesterol; and
directed to avoid stress. [R348]. Again, while it was noted that Plaintiff was retired,
[R347], the notes also indicate that Plaintiff would be unable to return to work for two
weeks, [R348].
6
Paresthesia refers to a burning or prickling sensation that is usually felt in
the hands, arms, legs, or feet, but can also occur in other parts of the body. It is usually
painless and described as tingling or numbness, skin crawling, or itching. National
Institute of Neurological Disorders and Stroke, Paresthesia,
http://www.ninds.nih.gov/disorders/paresthesia/paresthesia.htm (last visited 8/20/15).
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On June 28, 2012, Plaintiff returned to Dr. Gayles for evaluation of hypertension.
[R355]. He stated that he felt worse than he did at his last visit. [R355]. It was also
noted that Plaintiff was not taking any medication and was inconsistently following his
recommended diet. [R355]. Although it was noted that Plaintiff denied anxiety,
depression, memory loss, and sleep pattern disturbance, it was also noted that Plaintiff
was exercising sporadically and reported anxiety associated with his blood pressure.
[R355]. Dr. Gayles also noted that Plaintiff had a cooperative attitude, normal affect,
clear and fluent speech, and intact recent and remote memory. [R356]. His weight was
recorded as 280 pounds.
[R356].
Plaintiff was assessed with hypertension,
unspecified; abnormal electrocardiogram; thyroid disorders, unspecified; sleep
disturbance, unspecified; and hypertensive heart disease, unspecified, without heart
failure. [R356-57]. He was prescribed medication; directed to exercise and follow a
diet restricting salt, calories, and cholesterol; and directed to avoid stress. [R356].
D.
Vocational-Expert Testimony
The vocational expert (“VE”) testified that a person of Plaintiff’s age and
educational background, with prior work experience as a firefighter and no exertional
limitations, but who is limited to jobs that do not require work at unprotected heights
or noisy work environments that do not allow for hearing-protection devices, could not
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work as a firefighter, but could work as a dispatcher, an EMT, a paramedic, a certified
nurse’s aide, or a personal-care aide. [R76-83].
III.
ALJ’S FINDINGS OF FACT
The ALJ made the following findings of fact and conclusions of law:
1.
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2015.
2.
The claimant has not engaged in substantial gainful activity since
January 1, 2011, the alleged onset date (20 CFR 404.1571 et seq.).
...
3.
The claimant has the following severe impairments: high frequency
noise induced hearing loss bilaterally[;] hypertension improved
with medical compliance; and obesity (6’5” tall and 279 pounds at
the hearing) (20 CFR 404.1520(c)).
...
4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525 and 404.1526).
...
5.
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity
[(“RFC”)] to sit for an eight-hour workday with only normal breaks
and meal periods; stand and/or walk for an eight-hour workday
with only normal breaks and meal periods; and lift and carry
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50 pounds occasionally and 25 pounds frequently. Due to noise
induced hearing loss, the claimant should not work in noisy work
environments, wherein his hearing cannot be protected by earplugs
or muff devices. He is also unable to work at unprotected heights
due to symptoms from hypertension.
...
6.
The claimant is unable to perform any past relevant work
(20 CFR 404.1565).
...
7.
The claimant was born on October 5, 1953 and was 57 years old,
which is defined as an individual of advanced age, on the alleged
disability onset date (20 CFR 404.1563).
8.
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).
9.
The claimant has acquired work skills from past relevant work
(20 CFR 404.1568).
...
10.
Considering the claimant’s age, education, work experience, and
residual functional capacity, the claimant has acquired work skills
from past relevant work that are transferable to other occupations
with jobs existing in significant numbers in the national economy
(20 CFR 404.1569, 404.1569(a) and 404.1568(d)).
...
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11.
The claimant has not been under a disability, as defined in the
Social Security Act, from January 1, 2011, through the date of this
decision (20 CFR 404.1520(g)).
[R22-28].
The ALJ explained that he had adjusted the alleged onset date because Plaintiff
had worked as a firefighter for almost a year after the onset date Plaintiff had originally
alleged. [R22]. The ALJ further explained that in evaluating Plaintiff’s disability
claim, he gave great weight to the opinions of the consultative examiners, as he found
the opinions consistent with their examinations, the objective evidence of record, and
Plaintiff’s reports of his activities of daily living. [R26]. He also explained that he
gave little weight to the opinion of Dr. Gayles because of: inconsistencies in the notes,
such as notes indicating that Plaintiff was restricted from work while also indicating
that Plaintiff was retired; failure to state any limitations that would have justified
restriction from work, had such a restriction been applicable; and significant gaps
between visits. [R26]. The ALJ also noted that Dr. Gayles’s notes appear to have
much of the same information carried over from visit to visit. [R25].
The ALJ also specified that although Plaintiff’s good work record raised a
favorable inference of an individual well motivated to work within his capabilities, the
inference was outweighed by the facts that: Plaintiff took regular retirement rather than
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applying for disability retirement; he has not been involved with vocational
rehabilitation or looked for any work since his retirement; a consultative examination
revealed that his hearing was normal at the conversational range and that he had
excellent speech discrimination; Plaintiff was cleared for a hearing aid but said that he
did not want it; he had a history of non-compliance with treatment for obesity and
hypertension and admits to controlled blood pressure with compliance; and his
activities of daily living are not limited. [R26].
The ALJ further explained that based on Plaintiff’s history of hypertension and
testimony regarding difficulty hearing over background noise, he had limited Plaintiff’s
exertional level to medium and excluded dispatch work from the list of jobs available
to Plaintiff, but that work as a certified nurses’ aide or personal-care aide was
appropriate. [R26, 28].
IV.
STANDARD FOR DETERMINING DISABILITY
An individual is considered disabled for purposes of disability benefits if he 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).
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The impairment or
impairments must result from anatomical, psychological, or physiological abnormalities
which are demonstrable by medically accepted clinical or laboratory diagnostic
techniques and must be of such severity that the claimant is not only unable to do
previous work but cannot, considering age, education, and work experience, engage in
any other kind of substantial gainful work that exists in the national economy.
42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D).
The burden of proof in a Social Security disability case is divided between the
claimant and the Commissioner. The claimant bears the primary burden of establishing
the existence of a “disability” and therefore entitlement to disability benefits.
See 20 C.F.R. §§ 404.1512(a), 416.912(a). The Commissioner uses a five-step
sequential process to determine whether the claimant has met the burden of proving
disability. See 20 C.F.R. §§ 404.1520(a), 416.920(a); Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
The claimant must prove at step one that he is not undertaking substantial gainful
activity. See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At step two, the
claimant must prove that he is suffering from a severe impairment or combination of
impairments that significantly limits his ability to perform basic work-related activities.
See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). At step three, if the impairment
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meets one of the listed impairments in Appendix 1 to Subpart P of Part 404 (Listing of
Impairments), the claimant will be considered disabled without consideration of age,
education, and work experience.
See 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). At step four, if the claimant is unable to prove the existence of a
listed impairment, he must prove that his impairment prevents performance of past
relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At step five,
the regulations direct the Commissioner to consider the claimant’s residual functional
capacity, age, education, and past work experience to determine whether the claimant
can perform other work besides past relevant work.
See 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). The Commissioner must produce evidence that
there is other work available in the national economy that the claimant has the capacity
to perform. Doughty, 245 F.3d at 1278 n.2. To be considered disabled, the claimant
must prove an inability to perform the jobs that the Commissioner lists. Id.
If at any step in the sequence a claimant can be found disabled or not disabled,
the
sequential
evaluation
ceases
and
further
inquiry
ends.
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Despite the shifting of burdens at step
five, the overall burden rests on the claimant to prove that he is unable to engage in any
substantial gainful activity that exists in the national economy.
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Doughty,
245 F.3d at 1278 n.2; Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir. 1983),
superceded by statute on other grounds by 42 U.S.C. § 423(d)(5), as recognized in
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1214 (11th Cir. 1991).
V.
SCOPE OF JUDICIAL REVIEW
A limited scope of judicial review applies to a denial of Social Security benefits
by the Commissioner. Judicial review of the administrative decision addresses three
questions: (1) whether the proper legal standards were applied; (2) whether there was
substantial evidence to support the findings of fact; and (3) whether the findings of fact
resolved the crucial issues. Washington v. Astrue, 558 F. Supp. 2d 1287, 1296
(N.D. Ga. 2008); Fields v. Harris, 498 F. Supp. 478, 488 (N.D. Ga. 1980). This Court
may not decide the facts anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). If
substantial evidence supports the Commissioner’s factual findings and the
Commissioner applies the proper legal standards, the Commissioner’s findings are
conclusive. Lewis v. Callahan, 125 F.3d1436, 1439-40 (11th Cir. 1997); Barnes v.
Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987) (per curiam);
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Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986) (per curiam); Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
“Substantial evidence” means “more than a scintilla, but less than a
preponderance.” Bloodsworth, 703 F.2d at 1239. It means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion, and it must be
enough to justify a refusal to direct a verdict were the case before a jury. Richardson
v. Perales, 402 U.S. 389, 401 (1971); Hillsman, 804 F.2d at 1180; Bloodsworth,
703 F.2d at 1239. “In determining whether substantial evidence exists, [the Court]
must view the record as a whole, taking into account evidence favorable as well as
unfavorable to the [Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986) (per curiam). 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). In contrast, review of the ALJ’s application of legal
principles is plenary. Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995); Walker,
826 F.2d at 999.
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VI.
CLAIMS OF ERROR
Plaintiff raises two allegations of error: (1) that the ALJ failed to acknowledge
evidence of a psychological disorder and develop the record accordingly, and (2) that
the hypothetical question posed to the VE did not include all of Plaintiff’s limitations
and therefore was insufficient to solicit testimony that may serve as substantial
evidence in support of the ALJ’s decision. [Doc. 12 at 3-9]. The Court addresses each
allegation of error in turn.
A.
Psychological Disorder
Plaintiff first argues that the ALJ erred by failing to include in the RFC a
limitation to “low stress” work. [Doc. 12 at 4]. He argues that the ALJ should have
acknowledged that there was evidence of a severe psychological disorder (anxiety) and
developed the record accordingly, but instead cut short Plaintiff’s testimony as to the
issue; did not acknowledge Dr. Gayle’s recommendation to avoid stress due to
Plaintiff’s hypertension/heart condition; and failed to develop the record as to any
psychological disorder. [Id. at 4-6].
The Court is not persuaded. It is true, as Plaintiff points out, that “where a
claimant has presented a colorable claim of mental impairment, the social security
regulations require the ALJ to complete a [Psychiatric Review Technique Form
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(“PRTF”)] and append it to the decision, or incorporate its mode of analysis into his
findings and conclusions.”7 Moore v. Barnhart, 405 F.3d 1208 1214 (11th Cir. 2005)
(per curiam) [cited in Doc. 12 at 5]. Moreover, it is reversible error for an ALJ to fail
to further develop the record with a consultative examination “when such an evaluation
is necessary for him to make an informed decision.”
Reeves v. Heckler,
734 F.2d 519, 522 n.1 (11th Cir. 1984) (per curiam).
Here, the ALJ determined that there was no colorable claim of mental
impairment, stating that if a mental impairment were medically determinable and
somebody had made reference to it, he might order a consultative examination because
of it, but finding that there were no grounds for ordering an examination because “there
isn’t any treatment, . . . there’s no referrals, . . . you don’t have the underlying medical
support,” and noting that in his review of the file, “it did not look like anybody was
making any references to special treatment . . . .” [R69-70]. The Court finds no basis
for a conclusion that the ALJ erred in reaching this determination.
7
When a mental-impairment evaluation is necessary, the ALJ must use a
“special technique” involving consideration of four areas of potential limitation:
activities of daily living; social functioning; concentration, persistence, or pace; and
episodes of decompensation. 20 C.F.R. §§ 404.1520a, 416.920a.
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Plaintiff did not list anxiety as a basis for disability in any of the documents he
supplied to the Commissioner. [See R183 (adult disability report alleging Plaintiff was
unable to work due to headaches, high blood pressure, and hearing problems); R210
(disability report appeal stating that Plaintiff’s hearing had become worse); R240
(representative brief alleging that Plaintiff was disabled due to bilateral hearing loss,
hypertension, and obesity, and claiming that his hearing loss created an emotional
impact on him by impairing his personal and professional relationships and his ability
to perform a career he loved)]. Likewise, at the hearing before the ALJ, Plaintiff stated
that the only impairment preventing him from working was his hearing loss.
[R49-55, 60-61, 64-66, 71]. Dr. Gayles’s notes did include recommendations to avoid
stress and twice made reference to Plaintiff’s reports of anxiety, but the notes indicated
that the anxiety and need to avoid stress were associated with Plaintiff’s hypertension,
[R319 (Plaintiff’s report of exercise-associated anxiety), R355 (Plaintiff’s report of
anxiety associated with his blood pressure); see also Doc. 12 at 4-5 (noting that
Dr. Gayle made his “recommendation to avoid stress due to his hypertension/heart
condition”)], which Plaintiff testified had resolved with weight loss, [R56]. And while
the ALJ did interrupt Plaintiff’s testimony about the emotional impact of his alleged
hearing loss, [R69], review of the transcript reveals that the ALJ then apologized and
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allowed Plaintiff to testify to anything additional he wanted the ALJ to know, and
Plaintiff responded by providing uninterrupted testimony that his decision to retire was
driven, in part, by “a couple of deaths on the fire department,” which led him to
conclude that he had “had enough.” [R69-72]. Additionally, while there was some
back-and-forth during Plaintiff’s attempt to clarify the intensity of the stress caused by
the deaths of fellow firefighters, the transcript reveals that Plaintiff fully communicated
that it was the “ultimate stress” for him because as a firefighter, he was responsible for
the lives of his colleagues and the public. [R91-92].
Thus, in sum, it appears that Plaintiff was given a full opportunity to testify as
to any mental impairments and that the references to anxiety in the record were not
associated with a separate mental impairment but instead were associated with
Plaintiff’s hypertension, which had resolved; Plaintiff’s work as a firefighter, which the
ALJ found that he was no longer capable of performing; and his alleged hearing loss.
Consequently, the undersigned finds no reversible error in the ALJ’s determination that
Plaintiff had not raised a colorable claim of mental impairment or the ALJ’s resulting
decision not to order a consultative examination or complete a PRTF in this case.
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B.
Sufficiency of Hypothetical Question
Plaintiff next argues that the VE’s testimony does not constitute substantial
evidence supporting the ALJ’s decision because the hypothetical question the ALJ
posed to the VE did not reflect a proper assessment of Plaintiff’s mental condition and
resulting limitations and the jobs identified do not accommodate Plaintiff’s hearing
limitations. [Doc. 12 at 8]. Again, the Court cannot agree.
Having determined that Plaintiff has failed to show that the ALJ committed
reversible error in his consideration of Plaintiff’s mental condition, the Court likewise
finds no basis for a determination that the hypothetical question was lacking in that
regard. It also bears noting that even if the Court were to presume that Plaintiff suffers
from some degree of anxiety, Plaintiff has not argued that the requirements of the jobs
the ALJ found him capable of performing—certified nurses’ aide or personal-care
aide—exceed his mental abilities. See Doughty, 245 F.3d at 1278 n.2 (noting that it is
the claimant’s burden to prove that she is unable to perform the jobs that the
Commissioner lists); Young v. Astrue, No. 8:09-cv-1056, 2010 WL 4340815, at *4
(M.D. Fla. Sept. 29, 2010) (noting that, in general, an error is harmless in a Social
Security case if it “do[es] not affect the ALJ’s determination that a claimant is not
entitled to benefits”).
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Plaintiff’s argument that the jobs the ALJ identified do not accommodate
Plaintiff’s hearing limitations is also unavailing. Plaintiff argues that he is incapable
of working as a certified nurses’ aide because he cannot hear well enough to meet the
requirements of answering bells, an intercom system, or the telephone, and he suggests
that he is incapable of working as a personal-care aid or home assistant because such
a job requires the ability to hear vulnerable individuals. [Doc. 8 at 11-12].
Plaintiff’s argument presupposes that the RFC limiting Plaintiff from working
in noisy environments where his hearing cannot be protected fails to fully accommodate
Plaintiff’s hearing limitations. [See id.]. The ALJ explained, however, the reasons he
did not find greater limitations in Plaintiff’s ability to hear: while the consultative
examination revealed a high-frequency loss of hearing, it also indicated that Plaintiff
retained excellent speech discrimination and ability to hear at normal conversational
range; Plaintiff’s activities of daily living did not appear to be significantly limited by
his hearing loss, as he reported driving without difficulty, doing volunteer work, and
spending free time at the fire station with old friends; Plaintiff had been cleared for a
hearing aid but refused it; and Plaintiff took regular retirement rather than applying for
disability retirement. [R26-27]. The ALJ also noted that Dr. Miller had observed
during her examination that despite Plaintiff’s complaints of hearing loss, he was able
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to hear normal conversation and asked her to repeat a question only once; that
Dr. Miller limited Plaintiff only to avoid exposure to loud noise; and that Plaintiff had
worked as a firefighter for approximately a year after his alleged onset date. [R22, 24].
The ALJ further explained that he credited Plaintiff’s testimony that he had difficulty
hearing when more than one person was talking and therefore eliminated dispatch work
from the vocations available to Plaintiff and instead relied on the VE’s testimony that
Plaintiff was capable of working as a certified nurses’ aide or personal-care aide,
vocations that do not present such issues. [R26].
Given the ALJ’s robust and detailed explanation for finding Plaintiff’s claims of
limitation less than fully credible, the undersigned finds that the RFC determination is
indeed supported by substantial evidence. In turn, the hypothetical question posed to
the VE included the auditory limitation included in the RFC. [Compare R23 with R7677]. Thus, the undersigned concludes that the ALJ properly relied on the VE’s
testimony to find that a significant number of jobs existed in the national economy that
Plaintiff could perform. [R27-28].
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VII. CONCLUSION
For the reasons above, the Court AFFIRMS the final decision of the
Commissioner.
The Clerk is DIRECTED to enter final judgment in the
Commissioner’s favor.
IT IS SO ORDERED and DIRECTED, this the 10th day of September, 2015.
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