Holmes v. Colvin
Filing
11
ORDER and OPINION Affirming the decision of the Commissioner. The Clerk is DIRECTED to enter final judgment in Defendant's favor. Signed by Magistrate Judge Alan J. Baverman on 3/30/2016. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CLEVEN M. HOLMES,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Social Security
Commissioner,
Defendant.
:
:
:
:
:
:
:
:
:
:
:
CIVIL ACTION FILE NO.
1:14-CV-04109-AJB
O R D E R A N D O P I N I O N1
Plaintiff Cleven M. Holmes (“Plaintiff”) brought this action pursuant to
sections 205(g) and 1631(c) of the Social Security Act, 42 U.S.C. §§ 405(g) and
1383(c)(3), to obtain judicial review of the final decision of the Acting Commissioner
of the Social Security Administration (“the Commissioner”) denying his applications
for Disability Insurance Benefits (“DIB”) and Supplemental Security Income Benefits
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 1/8/2015 and 1/9/2015]. Therefore, this Order
constitutes a final Order of the Court.
AO 72A
(Rev.8/8
2)
(“SSI”) under the Social Security Act.2 For the reasons below, the undersigned
AFFIRMS the final decision of the Commissioner.
I.
PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI on August 10, 2011, alleging
disability commencing on March 1, 2010. [Record (hereinafter “R”) 13].3 Plaintiff’s
applications were denied initially and on reconsideration. [Id.]. Plaintiff then requested
a hearing before an Administrative Law Judge (“ALJ”), and an evidentiary hearing was
held on April 11, 2013. [R52-92]. The ALJ issued a decision on May 10, 2013,
2
Title II of the Social Security Act provides for federal Disability Insurance
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. Title XVI 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, 133 Fed. Appx. 684, 690 n.4 (11th Cir. June 2, 2005)
(citing McDaniel v. Bowen, 800 F.2d 1026, 1031 n.4 (11th Cir. 1986)). 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, and vice versa.
3
The parties do not object to the ALJ’s recitation of the procedural history.
[See Docs. 8, 9].
2
AO 72A
(Rev.8/8
2)
finding that Plaintiff was not disabled. [R13-20]. Plaintiff sought review by the
Appeals Council, and the Appeals Council denied Plaintiff’s request for review on
October 31, 2014, making the ALJ’s decision the final decision of the Commissioner.
[R1-6].
Plaintiff then filed an action in this Court on December 30, 2014, seeking review
of the Commissioner’s decision. [Doc.1]. The answer and transcript were filed on
April 17, 2015. [Docs. 4, 5]. On May 19, 2015, Plaintiff filed a brief in support of her
petition for review of the Commissioner’s decision, [Doc. 8], and on June 17, 2015, the
Commissioner filed a response in support of the decision, [Doc. 9]. Plaintiff filed a
reply brief on June 27, 2015. [Doc. 10]. Neither party requested oral argument.
(See Dkt.). The matter is now before the Court upon the administrative record and the
parties’ pleadings and briefs, and is accordingly ripe for review pursuant to
42 U.S.C. §§ 405(g) and 1383(c)(3).
II.
STATEMENT OF FACTS
A.
Background
Plaintiff was 51 years old on the alleged onset date of disability. [R19, 58].
Plaintiff has at least a high school education, [R19, 61], and past relevant work as a
3
AO 72A
(Rev.8/8
2)
painter and roll tender. [R19, 89-90]. Plaintiff alleges disability due to pulmonary
arterial disease, arthritis, and leg and back problems. [R160].
B.
Medical Records
In May 2010, Plaintiff had a myocardial infarction and underwent off-pump
coronary artery bypass times four at Emory Hospital. [R212-13]. At discharge,
Plaintiff was diagnosed with coronary artery disease. [R212]. Plaintiff had a follow-up
visit with his surgeon, Vinod H. Thourani, M.D., in June 2010.
[R738-39].
Dr. Thourani noted that Plaintiff was doing very well and walking one mile a day every
other day. [R738, 739]. Dr. Thourani opined that Plaintiff will make a full recovery.
[R739].
Plaintiff also saw Shazib Khawaja, M.D., at Tanner Heart & Vascular Specialists,
in June 2010 for a follow-up. [R787-88]. Plaintiff denied shortness of breath and chest
pain and had no complaints except for some numbness in his chest area and numbness
in the left leg. [R787]. Dr. Khawaja also noted that Plaintiff was doing well since the
bypass. [R788].
In September 2010, Plaintiff saw Cathy Harper-Hogan, M.D., for a consultative
examination. [R746-752]. Based on the exam, Dr. Harper-Hogan opined that Plaintiff
had no postural limitations with standing, stooping, crouching, sitting, walking, or
4
AO 72A
(Rev.8/8
2)
riding in a car. [R751]. She further opined that Plaintiff had no manipulative
limitations with lifting, reaching, grasping, fingering, pushing, pulling, carrying, or
holding items. [Id.]. Finally, Dr. Harper-Hogan opined that Plaintiff did not have any
relevant visual, communicative, or workplace environmental limitations. [Id.].
In a follow-up visit at Tanner in October 2010, Plaintiff denied palpitations and
exertional shortness of breath. [R776]. On examination, it was noted that Plaintiff had
trace lower extremity swelling which resolves with elevation. [R777]. He was
scheduled to return in two weeks for further evaluation of leg fatigue, burning in the
calves, numbness, and tingling in lower extremities when walking.
[Id.].
In December 2010, Plaintiff again complained of numbness, tingling, and discomfort
in his right leg. [R770]. A peripheral angiography was recommended. [R771, 772].
Plaintiff underwent angiography in January 2011 which revealed complete occlusion
of his right superficial femoral artery (“SFA”) which was successfully recanalized and
stented with excellent results. [R761]. The angiography further revealed left SFA
stenosis of possibly approximately 70% and left main renal artery had stenosis of 70%.
[Id.]. It was noted that Plaintiff had a previously normal angiography in May 2010.
[Id.]. Dr. Khawaja also noted that the burning sensation of Plaintiff’s right calf had
significantly improved and he is able to walk a quarter mile. [Id.].
5
AO 72A
(Rev.8/8
2)
In June 2011, Plaintiff was treated at Grace Medical Practice with complaints of
severe knee pain. [R791]. X-rays revealed suprapatellar bursal effusion. [R858].
Plaintiff was prescribed ibuprofen. [R791]. Plaintiff reported knee pain again in
July 2011 and was given a knee brace. [R789].
In September 2011, Jerry Thomas, M.D., of the Disability Determination
Services (“state agency”), reviewed Plaintiff’s record and completed a Physical
Residual Functional Capacity (“RFC”) Assessment form. [R804-11]. Dr. Thomas
opined that Plaintiff could lift and/or carry twenty pounds occasionally and ten pounds
frequently. [R805]. Dr. Thomas also opined that Plaintiff could stand and/or walk for
six hours in a work day and sit for six hours in a workday and had unlimited
pushing/pulling capabilities. [Id.]. Dr. Thomas found that Plaintiff had no other
limitations.
[R806-10].
Dr. Thomas cited to Dr. Harper-Hogan’s consultative
examination, the January 2011 angiography, and the June 2011 x-ray of Plaintiff’s
knee. [R811].
In November 2011, Plaintiff saw Alexander Doman, M.D., for evaluation of right
knee pain, mild left knee pain, and complaints of low back pain. [R816]. Dr. Doman
noted that the right knee showed tenderness over the medial joint line with positive
effusion. [Id.]. Plaintiff also exhibited pain with attempts to squat. [Id.]. Exam of the
6
AO 72A
(Rev.8/8
2)
left knee was normal. [Id.]. X-rays of the right knee revealed minimal osteoarthritis
in the medial compartment of the right knee. [Id.]. X-rays of the left knee and lumbar
spine were normal. [Id.]. Dr. Doman diagnosed Plaintiff with medial meniscus tear in
the right knee. [Id.]. He was prescribed Naproxen and told to return in four weeks.
[Id.].
Plaintiff returned to Dr. Doman in February 2012. At that time, Dr. Doman
reviewed the results of a MRI scan of the right knee which revealed degenerative
changes involving the medial compartment of the knee with probable tear of the
posterior horn of the medial meniscus. [R863]. Supartz injections for the knee were
recommended. [Id.]. Plaintiff also complained of left shoulder pain in which an x-ray
revealed that the left shoulder was normal, but there was positive impingement sign on
exam of the left shoulder. [Id.]. Dr. Doman diagnosed Plaintiff with impingement
syndrome left shoulder and a corticosteroid injection was given with excellent relief of
symptoms. [Id.]. Plaintiff was given four Supartz injections to the right knee from
March 22, 2012 through April 12, 2012. [R859-62]. On April 12, 2012, Dr. Doman
noted that exercises were shown to strengthen the right knee. [R859].
In August 2012, Plaintiff was hospitalized at WellStar Douglas Hospital with
complaints of chest pain, hypertension and shortness of breath. [R872]. He underwent
7
AO 72A
(Rev.8/8
2)
a left heart catheterization. [Id.]. Plaintiff was found to have severe coronary artery
disease with occlusions of all three vein grafts. [R873]. His ejection fraction was 40%
by left ventriculogram but 50% by echocardiogram. [Id.]. Plaintiff’s bradycardia
resolved and Plaintiff was discharged in stable condition. [Id.].
On follow-up, Plaintiff met with Alfonso Rea, M.D., and admitted that he had
not been compliant with his medication prior to the hospitalization. [R916]. However,
Dr. Rea noted that Plaintiff has done well since discharge except for some fatigue and
mild exertional dyspnea.
[Id.].
Plaintiff denied chest pain, leg swelling, and
palpitations. [Id.]. Plaintiff returned to Dr. Rea in December 2012 for follow-up.
[R913]. Dr. Rea again noted that Plaintiff was doing well since the hospitalization
without any recurrence of chest pain, but he does have some exertional dyspnea. [Id.].
Plaintiff again denied leg swelling and palpitations. [Id.]. Dr. Rea suggested that
Plaintiff return in six months. [R915].
C.
Evidentiary Hearing Testimony
At the hearing, Plaintiff testified that he lives with his 17 year old son. [R60].
Plaintiff testified that he could perform his own personal hygiene such as shaving,
brushing his teeth, taking a shower, and putting on clothes. [R66]. He also cooks for
himself, does laundry, and vacuums, but his son does most of the cleaning. [Id.].
8
AO 72A
(Rev.8/8
2)
About a year after the surgery, Plaintiff was able to walk up to a mile and his daily
routine was to get up and go for a walk. [R67-68]. At that time, he could walk for
about an hour. [R69]. However, Plaintiff testified that he cannot do that now; he cut
back on walking about a year prior to the hearing and can only walk about 20-30
minutes now before needing to sit down. [R67-68, 69]. Plaintiff further testified that
he could lift and carry up to 20 pounds because he has a really bad back, but admits that
this is not in the record. [R70].
He testified that he drives almost daily. [Id.]. He likes to fish but has only been
fishing twice in the past three years. [R71]. Plaintiff has also been to Orlando three
times since his surgery: once he drove and on the other occasions he went by bus.
[R71-72]. Plaintiff estimates that it is a six hour drive. [R72]. He tries to do ten
minutes of exercises two to three times a week. [R73]. He does his own grocery
shopping and leaves the house to pay bills. [R75]. During the day, Plaintiff testified
that he is on the internet a lot. [R76].
Plaintiff testified that he had a heart catheterization the previous August. [R7778]. The ALJ recounted Dr. Rea’s notation that Plaintiff was doing well since then and
did not have any recurrence of chest pain; however, Plaintiff testified that he still had
chest pains. [R78]. Plaintiff testified that the note from Dr. Rea is wrong, but he
9
AO 72A
(Rev.8/8
2)
admits that he never told Dr. Rea the problems he faces. [See R79-80]. He used to take
nitroglycerine for his chest pain, but stopped taking it due to its effects. [R81].
Plaintiff testified that the more he walks, the tighter his chest pain gets; on average
Plaintiff rates his chest pain at a four. [R82]. Plaintiff testified that he is disabled due
to his shortness of breath that makes him gasp all day, dizziness, and low energy.
[R82-83].
Upon examination by his attorney, Plaintiff testified that his legs swell all the
time and he has to elevate them above his heart. [R84]. Plaintiff lays down four or five
hours during the workday. [R85]. He can sit for ten or twenty minutes before he gets
pain or numbness. [Id.]. He sleeps for only a couple of hours at night. [R86]. Plaintiff
stated that he has side effects from his medication including nauseousness and ulcers.
[R87]. No doctor have recommended any procedures for his knees. [R88-89]. He also
has trouble reaching forward due to pain in his left shoulder. [R89].
The vocational expert (“VE”) testified that Plaintiff’s work as a painter is
classified as medium exertion and skilled and work as a roll tender as very heavy work
and skilled. [R89-90].
The VE testified that a hypothetical person with Plaintiff’s age, education and
previous work experience, who could perform work at the light level, i.e. lift and carry
10
AO 72A
(Rev.8/8
2)
20 pounds occasionally, 10 pounds frequently, stand or walk six hours and sit six hours
in an eight-hour workday with unlimited push/pull capability within the 20/10 limits
could perform work as a mail sorter, cashier, and ticket seller.
[R90]. If the
hypothetical person would need to elevate his legs above chest level for half of the
workday, the VE testified that would preclude all work. [R91].
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 June 30, 2012.
2.
The claimant has not engaged in substantial gainful activity since
March 1, 2010, the alleged onset date (20 CFR 404.1571 et seq.,
and 416.971 et seq.).
3.
The claimant has the following severe impairments: coronary artery
disease (CAD), peripheral artery disease (PAD), peripheral vascular
disease (PVD), status post myocardial infarction with stent, and left
shoulder pain (20 CFR 404.1520(c) and 416.920(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, 404.1526, 416.920(d), 416.925
and 416.926).
...
11
AO 72A
(Rev.8/8
2)
5.
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform the full range of light work as defined in
20 CFR 404.1567(b) and 416.967(b).
...
6.
The claimant is unable to perform any past relevant work
(20 CFR 404.1565 and 416.965).
...
7.
The claimant was born on July 28, 1958 and was 51 years old,
which is defined as an individual closely approaching advanced
age, on the alleged disability onset date (20 CFR 404.1563 and
416.963).
8.
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
9.
Transferability of job skills is not material to the determination of
disability because applying the Medical-Vocational Rules directly
supports a finding of “not disabled,” whether or not the claimant
has transferable job skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).
10.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform
(20 CFR 404.1569 and 404.1569(a), 416.969, and 416.969(a)).
...
11.
The claimant has not been under a disability, as defined in the
Social Security Act, from March 1, 2010, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).
12
AO 72A
(Rev.8/8
2)
[R15-20].
In support of the decision, the ALJ stated that he reviewed Sections 4.00 and 1.00
of the Listings of Impairments and, although the ALJ found that Plaintiff has at times
presented some of the signs and symptoms associated with these sections, the ALJ
found that not all of the sections’ specific requirements were documented throughout
the relevant period in order to meet or equal the listings. [R16].
Regarding the RFC, the ALJ discussed Plaintiff’s medical records from Emory
Hospital between April 2010 and June 2010. [Id.]. The ALJ noted that Plaintiff’s
treating surgeon Dr. Thourani examined Plaintiff postoperatively and noted that
Plaintiff was doing well and was walking approximately one mile every other day.
[R17]. The ALJ noted that Dr. Thourani opined that Plaintiff was doing very well and
believed that Plaintiff would make a full recovery. [Id.].
The ALJ next discussed the September 2010 consultative examination with
Dr. Harper-Hogan in which Plaintiff reported that he had frequent chest pain almost
daily, decreased sleep due to pain with shortness of breath, daily fatigue, and
palpitations. [Id.]. The ALJ noted that Plaintiff had decreased range of motion in the
lumbar spine and normal range of motion in the upper and lower extremities. [Id.].
Plaintiff had no difficulties getting on and off the table and ambulated without an
13
AO 72A
(Rev.8/8
2)
assistive device. [Id]. The ALJ noted that Dr. Harper-Hogan opined that Plaintiff had
no limitations with sitting, standing, walking, stooping, or crouching; and had no
manipulative, visual, communicative, or workplace environmental limitations. [Id.].
The ALJ then discussed Plaintiff’s medical records from January 2011 through
December 2012. [R17-18]. The ALJ noted that treatment notes from January 2011
through June 2011 indicated that Plaintiff had significant lifestyle limiting claudication
of the right leg and that Plaintiff was able to walk a quarter of a mile before
experiencing pain. [R17]. The ALJ also noted that Plaintiff received treatment for
right knee pain from February 2011 through July 2011. [Id.]. Records through
January 2012 showed that Plaintiff was negative for chest pain and palpitations. [R1718]. Treatment notes in November 2011 showed that Plaintiff reported right knee pain
and lesser left knee pain. [R18]. The ALJ noted that examination of the left knee was
negative and the right knee showed minimal osteoarthritis in the medial compartment;
Plaintiff was diagnosed with medial meniscus tear of the right knee. [Id.]. The ALJ
also noted that x-rays of the spine were normal. [Id.]. The ALJ noted that in April
2012, Plaintiff received injections following a MRI which showed degenerative
changes in his right knee. [Id.]. The ALJ further noted that Plaintiff was diagnosed
with impingement syndrome of the left shoulder and that injections provided excellent
14
AO 72A
(Rev.8/8
2)
relief. [Id.]. The ALJ also discussed Plaintiff’s August 2012 hospitalization in which
Plaintiff was admitted to undergo left heart catheterization following complaints of
chest pain, hypertension, and shortness of breath with minimal exertion. [Id.]. In
December 2012, his treating physician Dr. Rea noted that Plaintiff continued to be
treated for CAD, his PAD was stable, hypertension was controlled, and Dr. Rea
indicated that Plaintiff did not need to return for six months. [Id.].
Regarding Plaintiff’s credibility, the ALJ found that Plaintiff’s allegation of
disability was not in keeping with his reported activities or the findings reported by his
treating and examining physicians. [Id.]. Specifically, the ALJ cited to Plaintiff’s
testimony in which Plaintiff testified that he does 10-minute cardio workouts two to
three times a week, does household chores, takes walks, went fishing, cares for his
teenage son, drove from Atlanta to Orlando, and he can lift and carry 20 pounds. [Id.].
The ALJ further noted that Plaintiff’s treating physicians followed and monitored his
progress since his heart attack and did not place any restrictions on Plaintiff, nor did
they offer an opinion as to Plaintiff’s functional limitations and continued to note he
was doing well. [Id.]. The ALJ also cited the opinion of Dr. Harper-Hogan who found
no significant deficits that would alter Plaintiff’s functional capacity. [Id.]. The ALJ
further noted that Plaintiff’s joint pain was addressed with excellent results. [Id.].
15
AO 72A
(Rev.8/8
2)
The ALJ accorded substantial weight to the medical assessments and opinion of
Dr. Harper-Hogan and significant weight to the progress notes from Emory and Tanner
Heart. [R19].
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).
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.
16
AO 72A
(Rev.8/8
2)
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
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.
17
AO 72A
(Rev.8/8
2)
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. 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
18
AO 72A
(Rev.8/8
2)
(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);
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
19
AO 72A
(Rev.8/8
2)
(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.
VI.
CLAIMS OF ERROR
Plaintiff raises two issues on appeal: 1) the ALJ’s determination that Plaintiff’s
ischemic heart disease did not meet or equal Listing 4.04 was error; and 2) the ALJ’s
RFC determination is not supported by substantial evidence. [Doc. 8 at 5].
A.
Step Three
1.
Arguments of the Parties
Plaintiff argues that his impairment meets Listing 4.04. [Doc. 8 at 5]. Plaintiff
notes that he experienced a myocardial infarction on May 3, 2010 and underwent
quadruple coronary artery bypass. [Id. at 7]. Plaintiff argues that after the September
2010 consultative examination with Dr. Harper-Hogan, in which Dr. Harper-Hogan did
not find any significant functional limitations, Plaintiff had complaints of pain in his
legs. [Id. (citing [R770, 777, 784, 785, 788])]. Plaintiff notes that Plaintiff had surgery
20
AO 72A
(Rev.8/8
2)
for his right leg, which was successful, but had symptoms in his left leg with 70%
blockage of the saphenous femoral artery for which surgery was also suggested.
[Id. at 7-8 (citing [R761])]. Plaintiff further notes that in August 2012, a cardiac
catheterization revealed “severe coronary artery disease with occlusion in all 3 vein
grafts and severe native triple vessel disease. [Id. at 8 (citing [R873])]. Plaintiff further
notes that the LAD was occluded in the midportion and the circumflex had a
99% stenosis, while the posterior descending artery had a 99% stenosis. [Id. (citing
[R877-78])]. Plaintiff thus argues that this blockage would meet the blockage
requirement of Listing 4.04C.1(e). Plaintiff further notes that the cardiologist opined
that the blockage was not amenable to surgery. [Id.].
The Commissioner argues in response that Plaintiff failed to prove his
impairments satisfied the requirements of the introductory paragraph of Listing 4.04,
namely, symptoms due to myocardial ischemia while on a regimen of prescribed
treatment for any consecutive twelve-month period. [Doc. 9 at 14]. The Commissioner
argues that Plaintiff failed to cite evidence that he consistently had any type of angina
or silent ischemia and the record does not appear to include such evidence. [Id.]. To
the contrary, the Commissioner argues, the record reflects that Plaintiff generally
denied or did not report chest pain or related symptoms after his bypass surgery in May
21
AO 72A
(Rev.8/8
2)
2010. [Id. (citing [R738-39, 761, 770, 776, 784, 787-88, 816, 820, 822-23, 831, 833,
841, 843, 863])]. The Commissioner argues that when Plaintiff complained of chest
pain in August 2012, it was noted that he had not been compliant with medication and
denied chest pain after discharge. [Id. at 14-15 (citing [R870, 872, 874, 913-14, 91618])].
The Commissioner further argues that, even if Plaintiff could satisfy the
introductory paragraph, Plaintiff has failed to prove that his impairments satisfied the
requirements of subsection C. [Id. at 15]. First, the Commissioner argues that,
although Plaintiff was diagnosed with coronary artery disease, a diagnosis is
insufficient to satisfy a Listing. [Id.]. Second, Plaintiff failed to provide a timely
exercise tolerance test or a statement from a medical source stating an exercise test
would pose a significant risk to Plaintiff. [Id.]. Third, the Commissioner argues that
Plaintiff failed to show that he had the angiographic evidence required by
subsection C1. [Id.]. Finally, the Commissioner argues that Plaintiff has also failed to
show that his impairments resulted in very serious limitations in the ability to
independently initiate, sustain, or complete activities of daily living to satisfy
subsection C2 and the record reflects that Plaintiff did not have serious limitations on
his daily activities. [Id. at 15-16].
22
AO 72A
(Rev.8/8
2)
In reply, Plaintiff only responds to the Commissioner’s argument that Plaintiff
did not provide the angiographic evidence required to meet subsection C1. [Doc. 10
at 1-3]. Plaintiff again points to the August 2012 evidence of the severe blockage of
Plaintiff’s coronary arteries which was not in evidence before the state agency
physicians and shows a worsening of his condition. [Id. at 2].
2.
Discussion
The Court finds that Plaintiff has not produced enough evidence to show that his
impairment meets or equals Listing 4.04C. Listing 4.04 provides that a Plaintiff must
have:
Ischemic heart disease, with symptoms due to myocardial ischemia, as
described in 4.00E3-4.00E7, while on a regimen of prescribed treatment
(see 4.00B3 if there is no regimen of prescribed treatment), with one of
the following:
...
C. Coronary artery disease, demonstrated by angiography (obtained
independent of Social Security disability evaluation) or other appropriate
medically acceptable imaging, and in the absence of a timely exercise
tolerance test or a timely normal drug-induced stress test, an MC,
preferably one experienced in the care of patients with cardiovascular
disease, has concluded that performance of exercise tolerance testing
would present a significant risk to the individual, with both 1 and 2:
1. Angiographic evidence showing:
23
AO 72A
(Rev.8/8
2)
...
e. 70 percent or more narrowing of a bypass graft vessel; and
2. Resulting in very serious limitations in the ability to independently
initiate, sustain, or complete activities of daily living.
20 C.F.R. Pt. 404, subpt. P, App. 1 § 4.04 (emphasis added). Plaintiff argues that his
impairments meet Listing 4.04C because he has produced angiographic evidence
showing that he has blockage that meets the requirement of Listing 4.04C.1.e.
[Doc. 8 at 7-8]. However, this is just one requirement of the many that are listed for
this listing. Plaintiff failed to identify any symptoms due to myocardial ischemia as
described in 4.00E3-4.00E7 nor his regimen of prescribed treatment. Assuming that
Plaintiff’s complaints of shortness of breath meets the symptoms requirements and that
he was on a regimen of prescribed treatment, the Court finds that Plaintiff has failed to
meet the requirements of subsection C. Plaintiff has not cited to evidence that he has
coronary artery disease as demonstrated by angiography or other appropriate medically
acceptable imaging.
Nor has Plaintiff cited evidence of an exercise tolerance test or stress test or a
medical source statement that testing would present a significant risk. Although
Plaintiff points to angiographic evidence showing 70 percent or more narrowing of a
24
AO 72A
(Rev.8/8
2)
bypass graft vessel, perhaps demonstrating that he has met the requirements of
subsection C1, Plaintiff did not make an attempt to argue that his coronary artery
disease results in very serious limitations in the ability to independently initiate, sustain
or complete activities of daily living. Plaintiff does not dispute the ALJ’s findings
pertaining to his activities of daily living. [See Doc. 8 at 9-10].4 By Plaintiff’s own
testimony, Plaintiff testified that he could perform his own personal hygiene such as
shaving, brushing his teeth, taking a shower, and putting on clothes; cooking for
himself; and performing household chores such as laundry and vacuums. [R66]. He
tries to do ten minutes of exercises two to three times a week. [R73]. He also does his
own grocery shopping and leaves the house to pay bills. [R75]. Further, he lives with
and cares for his 17 year old son. [R60]. This evidence does not support a finding of
very serious limitations in activities of daily living.
Despite the Commissioner pointing out these deficiencies in her response brief,
Plaintiff failed to cite to specific evidence in his reply brief, other than evidence of
artery blockage, to support that his impairment meets or equals Listing 4.04C. As
Plaintiff has failed to point to sufficient evidence to the contrary, the Court concludes
4
Plaintiff only argues that his activities of daily living should not be used
as a basis to find him to be able to perform the RFC. [See Doc. 8 at 9-12].
25
AO 72A
(Rev.8/8
2)
that substantial evidence supports the ALJ’s determination at step three. Accordingly,
this argument does not merit remand.
B.
RFC
1.
Arguments of the Parties
Plaintiff next argues that the RFC is not supported by substantial evidence.
[Doc. 8 at 8-12]. Plaintiff notes that the ALJ gave substantial weight to Dr. HarperHogan’s opinion, but argues that Dr. Harper-Hogan could not have evaluate the later
evidence submitted pertaining to his knee pain. [Doc. 8 at 4, 8 (citing [R816, 859-62,
863, 856])]. Plaintiff also cites to a pain questionnaire he completed in August 2011
in which he indicated that he suffers from unusual fatigue, his chest “sometimes” hurts,
his right knee hurts all the time and swells, his back hurts 90% of the time, and he naps
or rests twice or more per day for four hours. [Id. at 8-9 (citing [R176])]. Plaintiff also
cited to his hearing testimony in which he testified that he has chest pains, is dizzy three
to four times per week, gasps for air 20 times per day, elevates his legs due to swelling
and lays down four or five hours. [Id. at 9 (citing [R78, 80-85])]. Plaintiff argues that
none of the activities cited by the ALJ - that Plaintiff could do 10 minute cardio
workouts, household chores, walks, went fishing, cares for teenage son, and drove from
Atlanta to Orlando six hours each way - indicate that he could perform a combination
26
AO 72A
(Rev.8/8
2)
of these activities for a full eight hours or even five days in a row. [Id. at 9-10].
Plaintiff argues that the evidence proves the contrary, that he needed to nap for several
hours during the normal working hours of nine to five. [Id. at 10]. Plaintiff also
appears to argue that the ALJ gave substantial weight to the opinion of Dr. HarperHogan and significant weight to the records from Emory which could not contemplate
the development of significant blockage in Plaintiff’s bypassed arteries and do not
discuss Plaintiff’s severe knee condition. [Id. at 10-11].
Plaintiff also argues that the ALJ did not explain how he came to the
determination that Plaintiff was capable of light work. [Id. at 11]. Plaintiff argues that
the ALJ gave the most weight to Dr. Harper-Hogan’s opinion, but she did not find any
limitations at the time of her examination. [Id.]. Plaintiff argues that while the ALJ
appears to have relied upon the opinion of Dr. Thomas, this opinion does not provide
substantial evidence as Dr. Thomas did not review the later evidence demonstrating a
worsening of Plaintiff’s orthopedic and cardiovascular conditions. [Id. at 11-12].
Plaintiff also argues that Dr. Thomas’ evaluation of Plaintiff’s cardiac condition is
outside his area of expertise. [Id. at 12].
In response, the Commissioner argues that the ALJ’s RFC and credibility
determinations are supported by substantial evidence. [Doc. 9 at 17]. In support, the
27
AO 72A
(Rev.8/8
2)
Commissioner cites to Plaintiff’s medical records which indicated that Plaintiff quickly
recovered after his bypass surgery and his examinations were unremarkable. [Id. at 1819]. The Commissioner acknowledges that Plaintiff was hospitalized in August 2012,
but points out that he had been noncompliant with his medication. [Id. at 19]. The
Commissioner also cited to Dr. Rea’s notes since August 2012 in which Plaintiff had
few symptoms and no significant clinical findings once he was back on his medication
regimen. [Id. (citing [R874, 913-18])].
The Commissioner further argues that the objective findings regarding Plaintiff’s
knee, back and left shoulder do not indicate that Plaintiff was unable to perform light
work. [Id.]. The Commissioner argues that Plaintiff did not complain of knee pain
until more than a year after his alleged onset date and neither clinical examinations nor
diagnostic studies revealed significant abnormalities. [Id.]. The Commissioner also
argues that the objective clinical and diagnostic findings do not indicate that Plaintiff’s
left shoulder would have prevented him from performing light work. [Id. at 19-20].
Thus, the Commissioner argues that the medical records provide substantial evidence
to support the ALJ’s credibility and RFC determinations. [Id. at 20].
The Commissioner further argues that the opinions of Drs. Harper-Hogan and
Thomas support the ALJ’s determinations.
28
AO 72A
(Rev.8/8
2)
[Id. at 20 & n.3].
Moreover, the
Commissioner argues that no treating or examining doctor imposed restrictions on
Plaintiff’s ability to work. [Id. at 20]. Finally, the Commissioner argues that the ALJ
properly considered Plaintiff’s activities in assessing Plaintiff’s credibility. [Id. at 21].
The Commissioner further argues that Plaintiff’s activities are not indicative of
disabling limitations, and the ALJ did not rely solely on Plaintiff’s activities in
evaluating his credibility or determining that Plaintiff is not disabled. [Id. at 21-22].
Plaintiff did not address the Commissioner’s arguments in his reply brief.
[See Doc. 10, passim].
2.
Discussion
Plaintiff’s arguments regarding the RFC rest on the evidence submitted after the
consultative examination with Dr. Harper-Hogan; particularly, Plaintiff appears to
argue that the RFC does not account for Plaintiff’s worsening heart condition or his
knee impairment. [See Doc. 8 at 8-12]. Plaintiff also argues that the ALJ improperly
considered his activities of daily living by finding that such activities do not equate to
being able to perform light work for eight hours per day, five days per week.
[See Doc. 8 at 9-10].
Finally, Plaintiff appears to argue that the ALJ’s RFC
determination is unsupported because the ALJ did not explain how he arrived at the
29
AO 72A
(Rev.8/8
2)
RFC and appears to argue that the ALJ must specifically rely on a doctor’s opinion of
the RFC. [See id. at 11-12].
The Court finds that substantial evidence supports the RFC determination.
Plaintiff does not demonstrate that any worsening of his symptoms impacted the RFC.
Plaintiff does not argue that the ALJ failed to consider the worsening of his heart
condition or his knee impairments. To the contrary, the decision reflects that the ALJ
considered evidence since the September 2010 consultative examination with
Dr. Harper-Hogan including the angiography which revealed 70% blockage in the left
saphenous femoral artery and the August 2012 hospitalization in which Plaintiff
underwent a cardiac catheterization for chest pain and shortness of breath. [R17, 18].
The ALJ also discussed Plaintiff’s allegations and the medical records associated with
his knee pain. [R18]. While Plaintiff appears to argue that this evidence does not
support a finding that Plaintiff can perform light work, it is not this Court’s job to
reweigh the evidence. Dyer, 395 F.3d at 1210. Rather, this Court’s job is to determine
if the ALJ considered all the evidence of record and if so, whether substantial evidence
supports the conclusion made by the ALJ. Moreover, the Court must affirm “[i]f the
Commissioner’s decision is supported by substantial evidence, . . . even if the proof
30
AO 72A
(Rev.8/8
2)
preponderates against it.” Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782
(11th Cir. 2014) (quoting Dyer, 395 F.3d at 1210).
Moreover, Plaintiff’s own admissions support the RFC. Plaintiff testified that
he could lift and carry up to 20 pounds. [R70]; see also 20 C.F.R. § 404.1567(b).
Plaintiff also testified that he drives from Atlanta to Orlando six hours each way.
[R72]; see also 20 C.F.R. § 404.1567(b). Although the ALJ acknowledged Plaintiff’s
medical records of his right knee impairment, the ALJ did not find this to be a severe
impairment, [see R15], and Plaintiff has not presented any medical source opinion
demonstrating any functional limitations from this impairment. Moreover, Plaintiff
testified that no procedures were recommended for his knee impairment and he was
being treated with injections. [R88-89; 859-62]. Nonetheless, Plaintiff testified that
he does 10 minute cardio exercises that are “almost like skating” and he walks up and
down stairs multiple times a day. [R70, 73]. Further, the records reflect that his knee
was strengthened from exercises. [R859].
Moreover, while Plaintiff argues that he has suffered a worsening of his
condition based on his August 2012 hospitalization, the evidence indicates that this is
a one-time setback due to noncompliance with medication and later treatment notes
stated that Plaintiff was doing well since the setback without chest pain, palpitations,
31
AO 72A
(Rev.8/8
2)
or leg swelling. [R913-17]. Although Plaintiff testified that he experiences chest pain,
gasps for air 20 times and his legs swell daily, as noted by the ALJ at the hearing, this
was not reported to Dr. Rea and Plaintiff in fact denied these occurrences. [R79, 91316].
Plaintiff does not challenge the ALJ’s credibility finding except to argue that his
daily activities do not prove he could do them for eight hours per day, five days per
week. However, the ALJ did not only rely on Plaintiff’s activities of daily living in
determining the RFC and, for the reasons explained above, the Court finds that his daily
activities support the RFC determination. Moreover, unlike the claimant in Plaintiff’s
cited case of Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997), there are no
opinions in the record that offers limitations greater than those set forth by the ALJ.
Accordingly, the Court finds that substantial evidence supports the RFC.
VII. CONCLUSION
For the reasons above, the Court AFFIRMS the final decision of the
Commissioner. The Clerk is DIRECTED to enter final judgment in Defendant’s favor.
IT IS SO ORDERED and DIRECTED, this the 30th day of March, 2016.
AO 72A
(Rev.8/8
2)
32
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?