Wright v. Social Security Administration

Filing 14

MEMORANDUM RULING affirming the Commissioner's decision to deny benefits. Signed by Magistrate Judge Mark L Hornsby on 2/4/2008. (crt,McDonnell, D)

Wright v. Social Security Administration

Doc. 14

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA S H R E V E P O R T DIVISION

J O S H U A LEE WRIGHT V ER SU S U .S . COMMISSIONER SOCIAL S E C U R IT Y

C IV IL ACTION NO. 06-1461 R E F E R R E D TO: M A G I S T R A T E JUDGE HORNSBY

M E M O R A N D U M RULING I n t r o d u c tio n J o s h u a Wright ("Plaintiff") filed an application for supplemental security income b a se d on limitations associated with cerebral palsy. Plaintiff was 19 years old at the time of h is hearing before ALJ W. Thomas Bundy. Plaintiff does not have any past work experience, b u t he does have a high school education and has begun attending community college. The A L J assessed the case under the five-step sequential analysis and determined at step five, b a se d on the testimony of a vocational expert ("VE"), that there are a significant number of jo b s available that Plaintiff could perform despite his limitations. T h e Appeals Council denied a request for review. Plaintiff filed this civil action s e e k in g judicial review pursuant to 42 U.S.C. § 405(g). Both parties filed written consent to have a magistrate judge decide the case and, pursuant to 28 U.S.C. § 636(c) and the s ta n d in g order of the district court governing social security cases, the action was referred to the undersigned for decision and entry of judgment. For the reasons that follow, the C o m m is s io n e r' s decision to deny benefits will be affirmed.

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S t a n d a r d of Review; Substantial Evidence T h is court's standard of review is (1) whether substantial evidence of record supports th e ALJ's determination, and (2) whether the decision comports with relevant legal sta n d a rd s. Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). "Substantial evidence is m o r e than a scintilla and less than a preponderance. It is such relevant evidence as a re a so n a b le mind might accept as adequate to support a conclusion." Muse v. Sullivan, 925 F .2 d 785, 789 (5th Cir. 1991). A finding of no substantial evidence is justified only if there are no credible evidentiary choices or medical findings which support the ALJ's d eterm inatio n . Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). L is tin g 11.07D P la in tif f argues that the ALJ erred when he did not find that Plaintiff should be d e e m e d disabled pursuant to Listing 11.07D. The listings found in the regulations describe le v e ls of impairment related to each of the major body systems. The Commissioner has set th e medical criteria defining the listed impairments at a higher level of severity than the s ta tu t o ry standard. The listings define impairments that would prevent an adult, regardless o f his age, education, or work experience, from performing any gainful activity, not just " s u b s ta n tial gainful activity." Sullivan v. Zebley, 110 S.Ct. 885, 891 (1990); 20 C.F.R. § 4 0 4 .1 5 2 5 and § 416.925. Listings criteria are "demanding and stringent." Falco v. Shalala, 27 F.3d 160, 162 (5 th Cir.1994). A mere diagnosis of a condition will not suffice. The claimant "must have

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a medically determinable impairment(s) that satisfies all of the criteria in the listing." § 4 0 4 .1 5 2 5 (d ); § 416.925(d). The burden of proof rests with a claimant to provide and identify m e d ic a l signs and laboratory findings that support all criteria for a Step 3 listing d e te rm in a tio n . Sullivan,110 S.Ct. at 891("For a claimant to show that his impairment m a tc h e s a listing, it must meet all of the specified medical criteria"). If an impairment does not meet a listing, it may also entitle the claimant to a finding th a t he is disabled if his impairment or combination of impairments is medically equivalent in severity to the listing. § 404.1526 and § 416.926. If the claimant argues for medical e q u iv a le n c y, the standard is similarly demanding. And the claimant may not establish listings le v e l severity through subjective testimony. Sullivan, 110 S.Ct. at 891-92. Rather, the c la im a n t must point to medical findings that support each of the criteria for the equivalent im p airm en t determination. Selders v. Sullivan, 914 F.2d 614, 619 (5th Cir.1990). L is tin g 11.07 provides for disability when the claimant has "Cerebral Palsy. With: . . . D. Disorganization of motor function as described in 11.04B." The referenced listing re a d s as follows: "Significant and persistent disorganization of motor function in two e x tre m itie s, resulting in sustained disturbance of gross and dexterous movements, or gait and s ta tio n (see 11.00C)." The referenced 11.00C provides: "Persistent disorganization of motor f u n c tio n in the form of paresis or paralysis, tremor or other involuntary movements, ataxia a n d sensory disturbances (any or all of which may be due to cerebral cerebellar, brain stem, s p in a l cord, or peripheral nerve dysfunction) which occur singly or in various combinations,

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f re q u e n tly provides the sole or partial basis for decision in cases of neurological impairment. T h e assessment of impairment depends on the degree of interference with locomotion and/or in te rf e re n c e with the use of fingers, hand, and arms." P la in tif f does not contest the ALJ's assessment of the facts. The ALJ observed that P la in tif f , despite his health problems, was a full-time student attending his second semester o f college. He was majoring in data analysis and had a healthy grade point average. Plaintiff d ro v e to and from school and enjoyed going to the mall with friends and a good social life. P la in tif f said that he was not under any medical restrictions, but his mother contended that h e was under restrictions due to limitations in balancing, walking, and using his hands. P la in tif f reported no difficulty carrying his books, sitting in class or maintaining good a tte n d a n c e . The ALJ did not entirely discount Plaintiff's health problems. Rather, he found that th e y were so severe as to preclude all work except a limited range of sedentary work. The lim its imposed by the ALJ included the ability to stand/walk for up to two hours in an eighth o u r work day and "limited ability" to push/pull with his upper and lower extremities, or to r e a c h with his arms, or to perform handling (gross manipulation) activities. P lain tiff urges that if his impairments so limit his ability to stand/walk and to use his u p p e r extremities in such a fashion, then the ALJ's findings are equivalent to a finding that th e listing was satisfied. The ability to stand or walk for two hours per day, a limitation that is imposed on many applicants who do not have cerebral palsy, is not the automatic

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e q u iv a le n t of a sustained disturbance of gait and station. Similarly, limited abilities with the u p p e r extremities that impact the ability to perform a full range of sedentary work is not the n e c e ss a ry equal of persistent disorganization of motor function in a form such as paralysis o r involuntary movements that are required to trigger the listing. Plaintiff has not satisfied h is burden with respect to this step three issue. V o c a tio n a l Expert T h e ALJ asked a VE to assume a person with Plaintiff's RFC and other vocational f a cto rs . The ALJ then asked whether such a person would be capable of performing the d e m a n d s of jobs that exist in significant numbers. The VE testified that the person would b e able to perform the requirements of a telephone quotation clerk, a charge account clerk, a n d a surveillance system monitor. She added that several thousand such jobs are available in this state and region. The VE stated that the evidence provided did not conflict with the D icti o n a r y of Occupational Titles ("DOT"). Tr. 90. The VE's report was forwarded to c o u n se l for Plaintiff (not current counsel), and the opportunity was permitted for counsel to s u b m it written questions or request a supplemental hearing. There is no indication that c o u n se l objected to the VE's testimony or requested an opportunity for cross examination. T h e ALJ relied on the VE's testimony and included a finding that the testimony was c o n sis te n t with information in the DOT. Tr. 17. P lain tif f now argues on appeal that two of the three jobs identified by the VE are d e sc rib e d in the DOT as requiring the employee to be able to reach and handle on a frequent

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b a s is , an activity that is at odds with Plaintiff's inability to perform handling (gross m a n ip u la tio n ) activities. A similar conflict was raised in Carey v. Apfel, 230 F.3d 131, 146 (5 th Cir. 2000). The Court was not convinced there was a true conflict but, moreover, it n o te d that counsel for the claimant was given an opportunity to object or cross-examine the V E but did not do so. The Court held that, to the extent there was any implied or indirect c o n f lic t, the claimant would not be permitted to raise the issue in a judicial appeal when the c o n f lic t had not been deemed sufficient to merit adversarial development in the ad m inistrat iv e hearing. See also White v. Astrue, 240 Fed. Appx. 632 (5th Cir. 2007). Ju d icia l relief is not warranted in these circumstances. There is an arguable conflict, b u t it is one that could and should have been developed and resolved during the a d m in is tra tiv e proceedings. At this point, the potential conflict is not enough to deprive the A L J 's decision of substantial evidence in the form of the VE's testimony, especially when o n e of the jobs identified is not arguably in conflict with the DOT. A judgment will be e n te re d affirming the Commissioner's decision. THUS DONE AND SIGNED at Shreveport, Louisiana, this 4th day of February, 2008.

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