McGhee v. Astrue
Filing
24
MEMORANDUM OPINION - IT IS HEREBY ORDERED ADJUDGED AND DECREED that the decision of the Commissioner of Social Security is AFFIRMED. Signed by Magistrate Judge Shirley P. Mensah on 11/9/12. (LAH)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
RITA M. McGHEE,
)
)
Plaintiff,
)
)
v.
)
) Case No. 2:11CV00098SPM
)
)
MICHAEL J. ASTRUE,
)
Commissioner of Social Security,
)
)
Defendant.
)
MEMORANDUM OPINION
This is an action under 42 U.S.C. § 405(g) for judicial review of the final
decision of Defendant Michael J. Astrue, the Commissioner of Social Security,
denying the application of Plaintiff Rita M. McGhee for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and
for Supplemental Security Income (SSI) under Title XVI of the Social Security
Act, 42 U.S.C. §§ 1381, et seq. (the “Act”). For the reasons stated below, the
court affirms the Commissioner’s denial of Plaintiff’s application.
I.
PROCEDURAL HISTORY
Plaintiff filed her application for benefits under Titles II and XVI of the
Act on November 13, 2008, claiming disability because of problems with her
knees, back, neck, heart, and left foot; blurred vision; stigmatism; numbness
and tingling in her hands; no hearing in her left ear; and major acid reflux. (Tr.
135). Plaintiff’s applications were denied initially. (Tr. 53-60). A hearing was
1
held before the Honorable Lance K. Hiltbrand, an Administrative Law Judge
(“ALJ”) on May 5, 2012. (Tr. 20-52). Following the hearing, on June 21, 2010,
the ALJ found that Plaintiff was not under a “disability” as defined in the Act.
(Tr. 5-19). The ALJ “considered but assign[ed] little weight” to the opinion of
Dr. Fortunato, Plaintiff’s treating physician since May of 2009. The ALJ also
concluded that Plaintiff was capable of performing her past relevant work as a
sewing machine operator, inspector, cashier/checker and production
assembler. (Tr. 18). On November 18, 2011, the Appeals Council of the Social
Security Administration denied Plaintiff’s request for review. (Tr. 1-3). Thus,
the ALJ’s decision stands as the final decision of the Commissioner.
In appealing the Commissioner’s decision, Plaintiff argues that the ALJ
erred by affording little weight to the assessment of her treating physician, Dr.
Fortunato. See Pl.’s Br. at 14-17. Plaintiff also argues the ALJ committed
reversible error by failing to make explicit findings about the physical demands
of Plaintiff’s past relevant work and by failing to make a finding about Plaintiff’s
ability to use her hands and arms in determining Plaintiff’s residual functional
capacity. Pl.’s Br. at 18-20. Finally, Plaintiff argues that the case should be
remanded for clarification because although the ALJ’s written opinion about
Plaintiff’s residual functional capacity stated that Plaintiff had “a mild to
moderate to severe level of fatigue and discomfort,” at the hearing, the ALJ
failed to include the qualifier “severe” in his hypothetical to the vocational
expert. Reply Br. at 2 (emphasis added).
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II.
FACTUAL BACKGROUND
A. BACKGROUND
Plaintiff Rita M. McGhee was born May 21, 1960. (Tr. 26.) She is
divorced and, in the two years leading up to her May 5, 2010 hearing, she lived
with her boyfriend, Ricky Moore, a 57 year old disabled factory worker who lost
one of his hands in a factory accident. (Tr. 27-29). Plaintiff graduated from
High School in 1976 and has had no vocational training. (Tr. 26).
Plaintiff filed for benefits on November 13, 2008, citing problems with her
knees, back, neck, heart, and left foot; blurred vision; stigmatism; numbness
and tingling in her hands; no hearing in her left ear; and major acid reflux. (Tr.
135). Plaintiff claimed her conditions first interfered with her ability to work on
December 12, 2003, when she suffered an on-the-job injury. (Tr. 10, 135).
Plaintiff claimed she became unable to work on March 31, 2004. (Tr. 135).
Plaintiff testified that she fell at work and put a “big crease in [her] head.”
Plaintiff further testified:
I fell. I knocked a big dent in my head. You can see it. It’s
still there. I hit a real heavy-duty table. I fell on a, a pallet.
They had it, they had it rigged up kind of threw me off
balance, and I caught my toe in it, and I fell and it kind of
knocked me out for a few minutes. When I woke up, I went
up and told them what happened, and I had a big knot here.
(Tr. 31).
After the incident, Plaintiff went back to work at the plastics factory for
“maybe a week.” She repeatedly told her employer her condition was “getting
pretty bad, and [her] back hurts a lot.”
3
Although her employer sent her to
therapy, it did not really help her condition and she ultimately left the plastics
factory. (Tr. 33).
Plaintiff testified that since the incident in 2003, she has had trouble
standing and has not been able to stand for more than 20 minutes without
lower back pain and pain between her shoulders and arms. (Tr. 43). She will
sit in a recliner to try to relieve pressure but can only do so for about 30
minutes before her back starts hurting. (Tr. 43-44). Plaintiff has trouble
sleeping and only sleeps three to four hours a night. As a result, she is tired
and cranky the next day and she falls asleep during the day. (Tr. 44). Plaintiff
states that because she has to lie down or sit down seven times a day for thirty
minutes at a time, she would not be able to go back to doing any of the factory
work she did in the past. (Tr. 45).
Despite the foregoing limitations, Plaintiff testified that she is able to
dress herself and take care of her own personal hygiene. (Tr. 37). She is also
able to do the laundry, and house cleaning, dishes, with help from her disabled
boyfriend. (Tr. 37-39). Plaintiff doesn’t drive anymore out of fear that she will
fall asleep at the wheel. (Tr. 39). In forms she completed as part of the
disability application process, Plaintiff indicated that she cared for her pet bird
and tended to plants and flowers. (Tr. 18, 163).
B. MEDICAL TREATMENT
Plaintiff testified that following her on-the-job injury in 2003, she went to
the hospital but did not file a claim for worker’s compensation; (Tr. 31)
however, Pl indicated in her application for disability that she did file for
4
worker’s compensation. (Tr. 138) As noted above, her employer sent her to
therapy for about two months when she continued to complain about pain.
(Tr. 33). Although physical therapy records were requested, none were found
for Plaintiff. (Tr. 11, 190). Since her part-time work in 2006, Plaintiff has not
been hospitalized for any reason that she can recall. (Tr. 34).
A review of the record shows that, in addition to physical therapy,
Plaintiff sought treatment for her back with a Dr. Beverly Peters sometime in
2005 or 2006. Plaintiff had her eyes examined in 2008, and began treatment
with Dr. Vincent Fortunato for a variety of ailments in May of 2009. (Tr. 11,
34-35, 137-138, 189-228).
1. DR. PETERS
In her application materials Plaintiff indicated that she treated with a Dr.
Beverly Peters in Lutesville, Missouri, in 2005 or 2006 for her back. (Tr. 137).
She indicated that Dr. Peters “popped” her when she would go in and x-rayed
her finger. (Tr. 138). There is no evidence that the ALJ requested or received
records from Dr. Peters. Neither the Commissioner nor Plaintiff referenced Dr.
Peters in any of their submissions to the court.
2. 2007 EYE EXAM
Plaintiff’s earliest medical record is from a December 17, 2007, eye
exam at Walmart’s Vision Center. (Tr. 11, 189). When asked about her history
during the December 2007 eye exam, it was recorded that Plaintiff had “no
complaints.” Her unaided vision was 20/70 in both eyes. (Tr. 11, 189).
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3. DR. FORTUNATO
Plaintiff first visited Dr. Fortunato on May 4, 2009. At that visit, she
presented with complaints of “occasional and moderate heartburn” including
symptoms of nausea, reflux, regurgitation and sour fluid in mouth. (Tr. 200).
Plaintiff reported a history of nephrolithiasis1 and constant, chronic back pain
with symptoms including radiation of pain to the left thigh and numbness. (Tr.
200-201). Dr. Fortunato’s notes indicate that the back pain was caused by an
occupational injury and was aggravated by bending and worsened by lifting
and movement. (Tr. 200).
According to notes from his physical examination of Plaintiff, Dr.
Fortunato found Plaintiff in “no apparent distress, alert, oriented x3,
cooperative, normally developed, well nourished, well hydrated.” (Tr. 201). He
also found her to have diffuse 5/5 strength, normal light touch, normal pin
prick, and reflexes normal and symmetric. His assessment at the end of the
visit was that she had gastroesophageal reflux disease, elevated blood pressure
without diagnosis of hypertension and acute low back pain. (Tr. 202). He
ordered testing and scheduled a follow up visit in three months. (Tr. 202-203).
Plaintiff next visited Dr. Fortunato on August 6, 2009. At that visit she
presented with complaints of constant back pain with symptoms including
radiation of pain in the lumbar region over her spine. She described the pain
as a moderate ache aggravated by bending and worsened by lifting and
movement. Plaintiff also complained of intermittent neck pain in the
1
Commonly known as kidney stones or renal calculi. Johns Hopkins
Children’s Center, http://www.hopkinschildrens.org/nephrolithiasis.aspx.
6
occipitocervical area, midcervical area. Plaintiff also presented with
dysethesia2 on the left palmar hand along the entire left anterior forearm.
Duration of the dysethesia is “minutes” and it has no known cause but it
impairs activities of daily living. (Tr. 205). Dr. Fortunato’s findings upon
physical examination (if any) and assessment following that visit are not
included in the record. (Tr. 205-206).3
Plaintiff’s next visit with Dr. Fortunato was on December 3, 2009. At her
December visit, Plaintiff complained about intermittent weak grip in her right
and left hands. She also complained about intermittent neck pain which began
six weeks before the visit and low back stiffness which did not include
radiation of pain. (Tr. 210).
Upon examining Plaintiff, Dr. Fortunato found she had limited range of
motion in her back, left shoulder and right shoulder, and full range of motion
of her neck. Dr. Fortunato also found that in general Plaintiff was in “no
apparent distress, alert, oriented x3, cooperative, normally developed, well
nourished, well hydrated with no extremity edema.” With respect to her
neurological functioning Dr. Fortunato found that Plaintiff had diffuse 5/5
strength, normal light touch, normal pin prick, reflexes normal and symmetric,
coordination intact and gait steady. (Tr. 211). His assessment at the end of
2
Dysethesia is “impairment of sensation short of anesthesia. A condition in
which a disagreeable sensation is produced by ordinary stimuli; caused by
lesions of the sensory pathways, peripheral or central. Abnormal sensations
experienced in the absence of stimulation. STEDMAN’S MEDICAL DICTIONARY 596
(28th ed. 2006).
3
The first page of the 8/6/2009 progress notes indicate that there are four
pages of notes; however the record contains only page 1 and 4 of the progress
notes.
7
the visit was that she had a contusion of the neck and acute low back pain. He
prescribed Darvocet for pain. (Tr. 212-213).
At the hearing on May 5, 2010, Plaintiff testified that she had been
seeing Dr. Vincent Fortunato for a year. (Tr. 34-35). Dr. Fortunato told her
she had carpal tunnel syndrome and back pain, prescribed pain pill
prescriptions and indicated he wanted her to wear braces. However, he did not
perform any MRI or EEG studies. (Tr. 35-36). Following the hearing, on
June 30, 2011, Plaintiff’s attorney submitted additional medical progress
reports from Dr. Fortunato dated 3/18/2010, 7/2/2010, and 3/3/2011 to the
Appeals Council. (Tr. 214-228).
During the March 18, 2010 visit, Plaintiff complained about burning,
moderate and constant abdominal pain, intermittent edema on the right and
left ankle, and moderate intermittent neck pain. (Tr. 216). As in earlier visits,
Dr. Fortunato’s physical examination found Plaintiff in no apparent distress,
alert and oriented, normally developed, well nourished, well hydrated with no
extremity edema. He also found her to be alert and oriented, with diffuse 5/5
strength, normal light touch, normal pin prick and reflexes normal and
symmetric. Her coordination was intact and gait steady. His assessment was
that she had abdominal pain and, despite his physical findings, edema and a
muscle strain of her neck. (Tr. 218).
On July 2, 2010, Plaintiff was again seen by Dr. Fortunato. Her primary
complaint was moderate and constant neck pain. Plaintiff also complained of
anorexia and moderate and chronic constant depression. The progress notes
8
indicate Dr. Fortunato and Plaintiff discussed a contusion involving her right
arm, left arm and around her right eye, which had resolved by the time of the
July 2nd visit. The progress notes further indicate Plaintiff was beaten up by
her ex-husband’s girlfriend. (Tr. 220).
As in earlier visits, Dr. Fortunato’s physical examination found Plaintiff
in no apparent distress, alert and oriented, normally developed, well nourished,
well hydrated with no extremity edema. He also found her to be alert and
oriented, with diffuse 5/5 strength, normal light touch, normal pin prick and
reflexes normal and symmetric. Her coordination was intact and gait steady.
(Tr. 221). Dr. Fortunato also found Plaintiff’s affect was normal and found her
alert and oriented and her behavior normal. (Tr. 221-222). Dr. Fortunato’s
assessment was that Plaintiff had cervical osteoarthritis and, notwithstanding
his finding of normal behavior upon physical examination, recurrent major
depression. (Tr. 222).
At the March 3, 2011 visit, Plaintiff complained of constant back pain,
moderate and recurrent headache and moderate and chronic depression. (Tr.
224). Dr. Fortunato’s findings on physical examination of Plaintiff were
consistent with earlier visits. His assessment was that she had headaches,
chronic worsening back pain, recurrent major depression and abnormal weight
gain. (Tr. 226).
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C. OPINION EVIDENCE
1. DR. SPARKS’ CONSULTATIVE EXAMINATION – JANUARY 22, 2009
On January 22, 2009, Plaintiff was examined by consultative examiner
Dr. John Sparks, D.O. In his report, Dr. Sparks noted that Plaintiff presented
with the following complaints: (i) knee pain (with a pain level of 8 on a scale of
0-10 with 10 being emergency type pain); (ii) constant back and neck pain
(with a pain level of 8 on a scale of 0-10); (iii) blurred vision; (iv) hearing loss in
her right ear; (v) pain in her left foot from bunions (with a pain level of 6 on a
scale of 0-10); (vi) reflux esophagitis; and (vii) chest pain. (Tr. 189-197).
Following a physical examination, Dr. Sparks found that, among other
things, Plaintiff had a full range of motion of her shoulders, elbows, wrists,
knees, hips, ankles, and spine. Plaintiff had normal grip strength in both
hands. She was also able to fully extend her hands, make a fist, and oppose
her fingers. (Tr. 191-192). There was no need for an orthopedic device to
assist with ambulatory activity and Plaintiff was able to squat without
difficulty. Plaintiff was able to tandem walk and also walk on her heels and
toes. Plaintiff responded well to pressure stimulation, vibratory stimulation
and touch. Plaintiff did not complain of any pain to palpation of her entire
spinal area including the thoracic area that she complained of pain prior to the
examination. (Tr. 196). Spine, and straight leg raise testing was normal. (Tr.
192, 196).
Dr. Sparks’ impressions were that Plaintiff had (i) reflux esophagitis (acid
reflux), (ii) bunions on her left foot, (iii) astigmatism with resultant blurred
10
vision, (iv) early osteoarthritis, and (v) loss of air conduction to the right ear
with preservation of bone conduction. (Tr. 196). Dr. Sparks concluded: “With
this examination I find no evidence that would keep this person from
performing work related functions and seeking employment. (Tr. 197).
2. DR. FORTUNATO’S MSS CHECKLIST – DECEMBER 3, 2009
On December 3, 2009, Plaintiff’s treating doctor, Dr. Fortunato,
completed a fill-in-the-blank type Medical Source Statement - Physical, in
which he opined that Plaintiff could lift and carry five pounds frequently, stand
or walk continuously for less than twenty minutes, and sit continuously for one
hour. (Tr. 207). Dr. Fortunato also opined that Plaintiff was limited in her
ability to push and/or pull; and she could never climb, balance, stoop, kneel,
crouch, or bend. (Tr, 207-208). The doctor further found that Plaintiff was
limited in reaching, handling, and fingering, and she was able to do each of
these activities for two hours. (Tr. 208). He also concluded that assuming a
reclining position, assuming a supine position for up to 30 minutes 1-3 times a
day, and propping her legs up 1-3 times a day would be helpful to Plaintiff.
(Tr. 209). Dr. Fortunato indicated that his conclusions about Plaintiff’s
impairments and limitations were predicated principally on his examination of
Plaintiff and Plaintiff’s history. (Tr. 17, 209).
D. VOCATIONAL EVIDENCE
In her disability application materials, Plaintiff identified ten jobs she
held in the ten years before she became unable to work. Plaintiff provided
additional information about the physical demands of six of the ten jobs she
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listed. (Tr. 156-161). Of the six jobs detailed, four of them involved sewing and
or inspecting at a sewing factory. (Tr. 156-161).4 She also worked on the
assembly line at a company called Breaded Products Co. (Tr. 155, 158).
Finally, Plaintiff worked in retail at Walmart. (Tr. 155, 161).
She worked the longest at Columbia Sportswear, a sewing factory as an
inspector/sewer. (Tr. 47, 136, 155). In describing her sewing and inspecting
work, Plaintiff indicated that her duties included inspecting clothing for
defects. Her duties required her to lift and move a dozen coats maybe 5 feet.
She would also sit and stand for 8 hours, stoop for an hour, and handle, grab
or grasp big objects for 8 hours, and lift no more than 10 pounds. (Tr. 160).
However, Plaintiff indicated she did not lift more than 10 pounds at any of the
sewing factory jobs. (Tr. 156-160).
Plaintiff described her production/assembly work at Breaded Products
Company as requiring her to separate food as it came down the belt. That job
required Plaintiff to stand for 8 hours, stoop for 8 hours, crouch for 6 hours,
type or handle small objects for 8 hours, and lift less than 10 pounds. (Tr. 155,
158). Finally, Plaintiff described her retail work at Walmart as requiring her to
keep clothes sorted, help customers find what they needed, and help put price
tags on clothes. Plaintiff indicated that her retail position at Walmart also
required her to walk and stand for 8 hours, stoop for an hour, kneel for an
Plaintiff indicated that she sewed and/or inspected for the following sewing
factories: JFC Manufacturing, Akbani Industries, Paramount Headwear, and
Columbia Sportswear. (Tr. 155, 161).
4
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hour, handle, grab or grasp big objects for an hour. Plaintiff indicated “We
didn’t have much in lifting to do.” (Tr. 155, 161).
Plaintiff last worked in the summer of 2006 as an inspector at a sewing
factory in Piedmont, Missouri. (Tr. 29). The position was a part-time or asneeded position and Plaintiff testified that she quit or was let go because
headaches and other difficulties prevented her from keeping up with the
demands of the job. (Tr. 29, 42).
At the hearing before the ALJ, vocational expert, John F. McAllen was
called to testify. After summarizing Plaintiff’s work history, Dr. McAllen
provided the following testimony in response to the ALJ:
Q: This hypothetical individual can occasionally lift and carry
objects no more than twenty pounds, frequently lift or carry
objects up to ten pounds; stand and/or walk with normal
breaks six hours in an eight-hour workday; and sit with
normal breaks a total of six hours in an eight-hour workday.
As the non-exertional limitations as for all postural
limitations, in climbing, balancing, kneeling, crouching,
crawling, and stooping, all of those are going to be occasional;
and experiences a mild to moderate level of fatigue and
discomfort, affecting her ability to work in a competitive
environment. Based on these exertional and non-exertional
limitations, can this hypothetical individual perform any of
her past relevant work as she previously performed it, or how
it’s generally performed in the regional and national economy,
please?
A: Your Honor, if those were the only limitations, my answer
is yes to sewing machine, to Wal-Mart, and to the plastic tool
and dye.
(Tr. 50-51).
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III.
DECISION OF THE ALJ
The ALJ, Lance K. Hiltbrand, found that Plaintiff met the insured status
requirements of the Social Security Act through December 31, 2009, and that
she had not engaged in substantial gainful activity after March 31, 2004, her
alleged onset date. (Tr. 10).
The ALJ further found that Plaintiff has the following severe
impairments: nephrolithiasis (from May of 2009), reflux esophagitis, bunions of
the left foot, astigmatism with resultant blurred vision corrected by glasses to
20/30, early osteoarthritis, elevated blood pressure, and loss of air conduction
to right ear with preservation of bone conduction. The ALJ went on to find that
Plaintiff did not have an impairment or combination of impairments that meets
or equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. 13).
The ALJ determined that Plaintiff had the residual functional capacity to
perform light work as defined in 20 CFR §§ 404.1567(b) and 416.967(b). He
further found that she has the ability to occasionally lift and/or carry 20
pounds and frequently lift and/or carry 10 pounds. He found that she has the
ability to walk and/or stand (with normal breaks) 6 hours of an 8-hour
workday and sit (with normal breaks) 6 hours of an 8-hour workday. He found
she has postural limitations of occasionally climbing, balancing, stooping,
kneeling, crouching, and crawling. Finally, he found that she has a mild to
moderate to severe level of fatigue and discomfort affecting her ability to work
in a competitive environment. (Tr. 14).
14
The ALJ relied on the consultative examination of Dr. Sparks, noting:
Dr. Sparks noted the claimant did not complain of any pain
to palpation of the entire spinal area, including the thoracic
area that she complained of pain prior to examination. His
impression was reflux esophagitis, bunions of the left foot,
astigmatism
with
resultant
blurred
vision,
early
osteoarthritis, and loss of air conduction to the right air (sic)
with preservation of bone conduction.
...
In sum, the above residual functional capacity assessment is
supported by the opinion of the consultant examiner Dr.
Sparks who opined that ‘With this examination I find no
evidence that would keep this person from performing
work related functions and seeking employment.’
(Tr. 16, 18) (internal citations omitted) (emphasis in original).
In reaching his decision, the ALJ “considered but assign[ed] little weight
to the opinion of Dr. Fortunato.” The ALJ discounted Dr. Fortunato’s opinion
because:
[t]he treating physician’s opinion is brief and conclusory and
unsupported by medically acceptable clinical laboratory
diagnostic techniques. Dr. Fortunato’s conclusions are
inconsistent with his progress notes and with the testimony
of the claimant at the hearing. Although dysesthesia and
weak grip were alleged, examination of the extremities
showed diffuse 5/5 strength, normal light touch, normal pin
prick, and normal reflexes (Exhibits 5F and 7F). Although Dr.
Fortunato indicated claimant’s weak grip impaired normal
activities of daily living, the claimant testified at the hearing
that she was able to attend to her personal hygiene, do
laundry, clean house, and do the dishes. In Adult Function
reports, the claimant stated that she fed her pet bird and
tends to her plants/flowers (Exhibit 5E). There was no
indication of a positive Tinel’s sign, no indication of any
imaging studies taken, and no recommendations for physical
therapy, epidural steroid injections, or other treatment.
Further, Dr. Fortunato’s assessment is inconsistent with
findings of the consultative examiner including normal range
15
of motion, normal grip strength, and normal strength in
upper and lower extremities.
(Tr. 18).
The ALJ next found, relying on the testimony of Vocational Expert John
McAllen, that Plaintiff was capable of performing her past relevant work as a
sewing machine operator and inspector; cashier/checker and production
assembly. (Tr. 18). The ALJ concluded that Plaintiff had not been under a
disability, as defined in the Social Security Act, from March 31, 2004, through
the date of his decision, and that she was not disabled under the Social
Security Act. (Tr. 19).
IV.
GENERAL LEGAL PRINCIPLES
The court’s role in reviewing the Commissioner's decision is to determine
whether the decision “‘complies with the relevant legal requirements and is
supported by substantial evidence in the record as a whole.’” Pate-Fires v.
Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting Ford v. Astrue, 518 F.3d
979, 981 (8th Cir. 2008)). “Substantial evidence is ‘less than a preponderance,
but enough that a reasonable mind might accept it as adequate to support a
conclusion.’” Renstrom v. Astrue, 680 F.3d 1057, 1063 (8th Cir. 2012)
(quoting Moore v. Astrue, 572 F.3d 520, 522 (8th Cir. 2009)). In determining
whether substantial evidence supports the Commissioner’s decision, the court
considers both evidence that supports that decision and evidence that detracts
from that decision. Id. However, the court “‘do[es] not reweigh the evidence
presented to the ALJ, and [it] defer[s] to the ALJ’s determinations regarding the
16
credibility of testimony, as long as those determinations are supported by good
reasons and substantial evidence.’” Id. (quoting Gonzales v. Barnhart, 465
F.3d 890, 894 (8th Cir. 2006)).
A court should disturb the ALJ’s decision only if it falls outside the
available “zone of choice” and a decision is not outside that zone of choice
simply because the court may have reached a different conclusion had the
court been the fact finder in the first instance. Buckner v. Astrue, 646 F.3d
549, 556 (8th Cir. 2011). “If, after reviewing the record, the court finds it is
possible to draw two inconsistent positions from the evidence and one of those
positions represents the ALJ’s findings, the court must affirm the ALJ’s
decision.’” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting Goff v.
Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)).
The Social Security Act defines as disabled a person who 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A); see also Hurd v.
Astrue, 621 F.3d 734, 738 (8th Cir. 2010). The impairment must be “of such
severity that [the claimant] is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy,
regardless of whether such work exists in the immediate area in which he lives,
17
or whether a specific job vacancy exists for him, or whether he would be hired
if he applied for work..” 42 U.S.C. § 1382c(a)(3)(B).
A five-step regulatory framework is used to determine whether an
individual claimant qualifies for disability benefits. 20 C.F.R. §§ 404.1520(a),
416.920(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011)
(discussing the five-step process). At Step One, the ALJ determines whether
the claimant is currently engaging in “substantial gainful activity”; if so, then
he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i); McCoy, 648
F.3d at 611. At Step Two, the ALJ determines whether the claimant has a
severe impairment, which is “any impairment or combination of impairments
which significantly limits [the claimant’s] physical or mental ability to do basic
work activities”; if the claimant does not have a severe impairment, he is not
disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c), 416.920(a)(4)(ii),
416.920(c); McCoy, 648 F.3d at 611. At Step Three, the ALJ evaluates whether
the claimant’s impairment meets or equals one of the impairments listed in 20
C.F.R. Part 404, Subpart P, Appendix 1 (the “listings”). 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant has such an impairment,
the Commissioner will find the claimant disabled; if not, the ALJ proceeds with
the five-step process. 20 C.F.R. §§ 404.1520(d), 416.920(d); McCoy, 648 F.3d
at 611.
Prior to Step Four, the ALJ must assess the claimant’s “residual
functional capacity” (“RFC”), which is “the most a claimant can do despite [his]
limitations.” Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.2009) (citing 20
18
C.F.R. § 404.1545(a)(1)); see also 20 C.F.R. §§ 404.1520(e), 416.920(e). At Step
Four, the ALJ determines whether the claimant can return to his past relevant
work, by comparing the claimant’s RFC assessment with the physical and
mental demands of the plaintiff’s past relevant work. 20 C.F.R. §§
404.1520(a)(4)(iv), 404.1520(f), 416.920(a)(4)(iv), 416.920(f); McCoy, 648 F.3d
at 611. If the claimant can perform his past relevant work, he is not disabled;
if the claimant cannot, the analysis proceeds to the next step. Id. At Step Five,
the ALJ considers the claimant’s RFC, age, education, and work experience to
determine whether the claimant can make an adjustment to other work in the
national economy; if the claimant cannot make an adjustment to other work,
the claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v),
404.1520(v); McCoy, 648 F.3d at 611.
Through Step Four, the burden remains with the claimant to prove that
he is disabled. Moore, 572 F.3d at 523. At Step Five, the burden shifts to the
Commissioner to establish that the claimant maintains the RFC to perform a
significant number of jobs within the national economy. Id.; Brock v. Astrue,
674 F.3d 1062, 1064 (8th Cir. 2012); see also 20 C.F.R. §§ 404.1520(a)(4)(v),
404.920(a)(4)(v). However, the claimant bears the burden of persuasion to
prove disability throughout the five-step process, even when the burden of
production shifts to the Commissioner at Step Five. Goff v. Barnhart, 421 F.3d
785, 790 (8th Cir. 2005).
19
V.
DISCUSSION
The primary issues to be resolved are (i) whether the ALJ’s decision is
supported by substantial evidence in light of the fact that the ALJ assigned
little weight to the opinion of Plaintiff’s treating physician; (ii) whether in
determining Plaintiff’s residual functional capacity the ALJ erroneously failed to
make explicit findings about the demands of Plaintiff’s past relevant work and
to make a finding about Plaintiff’s ability to use her hands and arms; and (iii)
whether the discrepancy between the ALJ’s written opinion of Plaintiff’s
residual functional capacity and the hypothetical posed to the vocational expert
warrants a reversal and remand for clarification of the ALJ’s true finding of
residual functional capacity.
A.
THE ALJ’S DECISION TO ASSIGN LITTLE WEIGHT TO THE OPINIONS OF
DR. FORTUNATO.
Plaintiff argues that the ALJ’s decision is not supported by substantial
evidence because it impermissibly discounted the opinions of her treating
physician, Dr. Fortunato. (Tr. 207-209). See Pl.’s Br. at 14-17. Although a
treating physician’s opinion is generally given controlling weight, it is not
inherently entitled to it. Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007);
Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006).
For a treating
physician’s opinion to have controlling weight, it must be supported by
medically acceptable laboratory and diagnostic techniques and it must not be
“inconsistent with the other substantial evidence in [the] case record.” Hacker,
459 F.3d at 937 (quoting 20 C.F.R. § 404.1527(d)(2)).
20
See also Wagner v.
Astrue, 499 F.3d 842, 848 (8th Cir. 2007).
It is the ALJ’s duty to resolve
conflicts in the evidence, and the ALJ’s finding in that regard should not be
disturbed so long as it falls within the “available zone of choice.” See Hacker,
459 F.3d at 937-938.
In deciding to assign “little weight” to Dr. Fortunato’s opinion, the ALJ
noted that Dr. Fortunato did not begin treating Plaintiff until May of 2009,
which is more than five years after her alleged disability onset date. (Tr. 11,
17, 18). In determining what weight to afford opinions of the treating doctor, it
is appropriate for the ALJ to consider the length of the doctor-patient
relationship. See Randolph v. Barnhart, 386 F.3d 835, 840 (8th Cir. 2004)
(holding that substantial evidence supported the ALJ’s decision to not give
controlling weight to a treating doctor’s opinion where, among other factors, the
treating doctor had only met with plaintiff on three prior occasions before filling
out the checklist and where the doctor’s treatment notes did not indicate the
doctor had sufficient knowledge upon which to formulate an opinion as to
plaintiff’s ability to function in a workplace). It is also appropriate for the ALJ
to consider the quantity and quality of objective medical information that
would have been available to the treating doctor at the time he or she rendered
his or her opinion in light of the length of the doctor-patient relationship. Id.
The ALJ also found that Dr. Fortunato’s opinion was not entitled to
controlling weight because it was “brief, conclusory and unsupported by
medically acceptable clinical diagnostic techniques.” (Tr. 18). Notwithstanding
this determination, when the ALJ’s decision is read in its entirety, it is clear
21
that the ALJ did not reject Dr. Fortunato’s findings in toto. For example, in
determining that Plaintiff had severe impairments, the ALJ accepted Dr.
Fortunato’s findings of nephrolithiasis and GERD in his May 2009. (Tr. 10-11,
200-204). The ALJ’s finding that Plaintiff has “postural limitations of
occasionally climbing, balancing, stooping, kneeling, crouching and crawling”
also appears to be, at least to some extent, predicated on limitations found by
Dr. Fortunato.5
The ALJ did, however, reject Dr. Fortunato’s opinions that Plaintiff had
limitations related to handling, reaching and fingering. In so doing, the ALJ
points out that, although Plaintiff complained of a weak grip, Dr. Fortunato’s
treatment notes contain no objective findings regarding reaching or handling
limitations. (Tr. 18, 200-206, 210-213). Plaintiff herself testified at the hearing
that Dr. Fortunato diagnosed her with carpal tunnel syndrome and wanted her
to wear a brace but did so without performing any diagnostic testing. (Tr. 3536). “A physician’s statement that is not supported by diagnoses based on
objective evidence will not support a finding of disability.” Travis, 477 F.3d at
1041. The ALJ in the instant case determined that Dr. Fortunato’s opinion
was not entitled to controlling weight in part because it was “brief, conclusory
and unsupported by medically acceptable clinical diagnostic techniques.”
Substantial evidence supports the ALJ’s finding that the objective medical
5
More specifically, in light of the fact that Consultative Examiner Sparks found
no limitations, it appears that the lifting and postural limitations as well as the
non-exertional limitations found by the ALJ are predicated on Dr. Fortunato’s
findings.
22
evidence of record did not support Dr. Fortunato’s conclusions that Plaintiff
had handling and fingering limitations.
Finally, the ALJ found that Dr. Fortunato’s opinion was not entitled to
controlling weight because it was inconsistent with his progress notes,
Plaintiff’s testimony, and the findings of the consultative examiner. (Tr. 18). It
is well-established that if the doctor’s opinion is inconsistent with or contrary
to the medical evidence as a whole, the ALJ can accord it less weight. Travis,
477 F.3d at 1041; Hacker, 459 F.3d at 937. Indeed, the Eighth Circuit has
held:
A treating physician’s own inconsistency may also
undermine his opinion and diminish or eliminate the weight
given his opinions. We have allowed an ALJ to substitute
the opinions of non-treating physicians in several instances,
including where a treating physician “renders inconsistent
opinions that undermine the credibility of such opinions.”
Hacker, 459 F.3d at 937 (quoting Prosch v. Apfel, 201 F.3d 1010, 1013 (8th
Cir. 2000)). See also Goetz v. Barnhart, No. 05-2267, 2006 WL 1512176, at *2
(8th Cir. June 2, 2006) (unpub. per curiam) (declining to give controlling weight
to the treating physician’s opinion because the treating physician’s notes were
inconsistent with her residual functional capacity assessment)).
Here, the ALJ found that Dr. Fortunato’s opinion in the MSS checklist
that Plaintiff had handling, fingering and reaching limitations was inconsistent
with his findings in his neurological examinations that Plaintiff had diffuse 5/5
strength, normal reflexes, and normal coordination. (Tr. 18, 202, 211).
Although Plaintiff’s chief complaint at the time of her December 2009 visit was
“weak grip,” Dr. Fortunato’s assessment following that visit made no reference
23
to problems with Plaintiff’s grip or her ability to use her hands and arms to
reach or handle items. Indeed, notwithstanding Plaintiff’s complaints of
dysethesia and “weak grip,” none of Dr. Fortunato’s treatment notes either
before or after the December 2009 visit reflect that he ever found reaching and
handling limitations.
The ALJ also found Dr. Fortunato’s opinion regarding Plaintiff’s
limitations was inconsistent with Plaintiff’s testimony that she was able to
attend to her personal hygiene, wash laundry, clean the house, and do the
dishes. (Tr. 18, 37-39). The ALJ similarly found Dr. Fortunato’s opinion
inconsistent with representations made by Plaintiff in forms she completed as
part of the disability application process in which Plaintiff indicated that she
cared for her pet bird and tended to plants and flowers. (Tr. 18, 163).
Additionally, the ALJ found Dr. Fortunato’s assessment inconsistent with
the objective examination findings of consultative examiner John Sparks, D.O.
(Tr. 18, 191-197). As the ALJ noted, contrary to the limitations assessed by
Dr. Fortunato, Dr. Sparks found that Plaintiff had a full range of motion of her
shoulders, elbows, wrists, knees, hips, ankles, and spine. (Tr. 18, 191-192).
Plaintiff did not complain of any pain to palpation of her spine, and straight leg
raise testing was normal. (Tr. 18, 192, 196). Further, notwithstanding
Plaintiff’s complaints of numbness and tingling in her hands, Dr. Sparks found
that Plaintiff had normal grip strength in both hands. (Tr. 18, 191). She was
also able to fully extend her hands, make a fist, and oppose her fingers. (Tr.
191).
24
Having reviewed the record as a whole and the ALJ’s reasoning, the
undersigned cannot say that the ALJ was in error when he opined that Dr.
Fortunato’s assessment of Plaintiff’s limitations was inconsistent with Plaintiff’s
testimony and daily activities. Nor does the undersigned find that looking at
the record as a whole the ALJ erred by opining that Dr. Fortunato’s opinion is
inconsistent with his own progress notes and the findings by the consultative
examiner.
In sum, in compliance with the applicable regulations, the ALJ assessed
the record as a whole to determine whether the treating physician’s opinion
was inconsistent with other substantial evidence on the record. 20 C.F.R. §
404.1527(d)(2). Having determined that it was, the ALJ properly diminished
the weight given to the treating doctor’s opinion.
B.
THE ALJ’S DETERMINATION OF RESIDUAL FUNCTIONAL CAPACITY.
Plaintiff contends that the ALJ committed reversible error in determining
Plaintiff’s residual functional capacity because he did not discharge his duty to
make explicit findings about the demands of Plaintiff’s past relevant work and
erroneously failed to make a finding about Plaintiff’s ability to use her hands
and arms. Pl.’s Br. at 18-20.
1. DUTY TO FULLY INVESTIGATE PLAINTIFF’S PAST RELEVANT WORK.
As Plaintiff correctly notes in her brief, it is well established that the ALJ
has a duty to fully investigate and make explicit findings regarding the actual
physical and mental demands of the claimant’s past work. Pfitzner v. Apfel,
169 F.3d 566, 569 (8th. Cir. 1999); Sells v. Shalala, 48 F.3d 1044, 1046 (5th
25
Cir. 1995). However, the ALJ may discharge that duty by referring to specific
job descriptions in the Dictionary of Occupational Titles and by relying on
testimony of a vocational expert. Pfitzner, 169 F.3d at 569; see also Wagner v.
Astrue, 499 F.3d 842, 853-54 (8th Cir. 2007) (holding that the ALJ may rely on
the testimony of a vocational expert in determining past relevant work).
That is precisely what the ALJ did in the instant case. At the hearing,
the ALJ questioned the vocational expert about Plaintiff’s past relevant work:
Q
Okay, based on the vocational information in the case file and
today’s testimony, can you please describe the claimant’s past
relevant work for the last 15 years, please?
A
Yes, Your Honor, her longest job was there on that sewing factory.
I think it was Columbia Sportswear, wasn’t it?
CLMT:
Um-hum
A
. . . . [S]he was both a sewing machine operator, and inspector . . .
A
Your Honor, the sewing machine operator is a specific DOT
Number. Your Honor, the strength on that is light, and the SVP: 4
which is semi-skilled. Your Honor, she obviously was doing
inspecting work, I think during all the times she was there. There
is a slightly different DOT on that. Your Honor, the strength,
though remains basically light.
(Tr. 46-51).
While this testimony by the vocational expert is less than clear, it
nevertheless demonstrates that the vocational expert’s description of Plaintiff’s
past relevant work incorporated specific job descriptions used in the Dictionary
of Occupational Titles. The ALJ made reference to both the vocational expert
and the DOT when he explained the basis of his finding that Plaintiff is capable
26
of performing past relevant work as a sewing machine operator, inspector,
cashier/checker, and production assembly:
The vocational expert testified that the claimant has past
work as a sewing machine operator, described as light and
semi-skilled work (SVP 4); and inspector, described as light
and semi-skilled work (SVP 4); cashier/checker, described as
light and semi-skilled work (SVP 3); and production
assembly, described as light and unskilled work (2).
The vocational expert was asked if a hypothetical person of
the claimant’s age and education as the claimant, with the
residual functional capacity identified for the claimant could
perform the claimant’s past relevant work as identified by
the Administrative Law Judge. The vocational witness
testified that an individual with the vocational profile
identified for the claimant could perform the position of
sewing machine operator, inspector, cashier/checker, and
production assembly. The testimony of the vocational expert
is credible, persuasive, and consistent with the Dictionary of
Occupational Titles (Social Security Ruling 00-4p).
(Tr. 18).
Plaintiff cites Gump v. Barnhart, 334 F. Supp.2d 1155, 1163 (E.D. Mo.
2004) and Maine v. Astrue, No. 4:07CV1074 CDP, 2008 WL 2224792 (E.D. Mo.
May 27, 2008) to support the proposition that the ALJ here needed to do more.
However, Gump and Maine are inapposite.
The plaintiff in Gump held a variety of past jobs including work as a
kitchen helper, hand packager, and an assembly line worker at a Tracker Boats
factory. Gump 334 F. Supp.2d at 1156. The ALJ found that the plaintiff could
perform “past relevant work as a kitchen helper and hand packager, among
others.” Id. at 1161 (emphasis in original). Plaintiff had worked as a kitchen
helper and hand packager for very brief periods and for very low wages. Id. at
27
1162-1163. As such, the court held the evidence did not support a finding that
the plaintiff’s past jobs as a kitchen helper and hand packager constituted
substantial gainful activity. Id. at 1163.
The court went on to hold that it could not speculate that, when the ALJ
used the words “among others,” he intended to include plaintiff’s work at
Tracker Boats. Id. The court further held that the ALJ failed to “satisfy the
“duty to ‘fully investigate and make explicit findings as to the physical and
mental demands” of Plaintiff’s work at Tracker. Id. (quoting Sells v. Shalala, 48
F.3d 1044, 1046 (8th Cir.1995)). Noting that reliance on the DOT can satisfy
an ALJ’s duty to make explicit findings about the demands of past relevant
work, the court held that the ALJ’s reference to the DOT did not discharge the
ALJ’s duty because the DOT reference in that instance pertained only to the
jobs of kitchen helper and hand packer – jobs the court had already decided
did not qualify as past relevant work. Id.
The ALJ in Maine v. Astrue rested his determination of the claimant’s
residual functional capacity exclusively on information provided by the
claimant on a Social Security Administration work history form (SSA-3369-BK).
2008 WL 2224792, at *7. Noting that there were potential contradictions
among the claimant’s answers on the form, the court held the ALJ needed to do
more investigating in light of the inconsistencies. Id.
Here, unlike Maine, the ALJ did not rest his RFC finding exclusively on
work history forms filled out by Plaintiff. Instead, he relied on testimony from a
vocational expert who reviewed Plaintiff’s work history information, listened to
28
Plaintiff’s testimony at the hearing, asked questions of Plaintiff at the hearing,
and referenced DOT job descriptions before describing Plaintiff’s past relevant
work.
This case is also readily distinguished from Gump. Unlike Gump, there
is no confusion in the record about which of Plaintiff’s past work constitutes
“substantial gainful activity.” Nor is there anything in the record to suggest
that the ALJ and vocational expert were talking about anything other than
Plaintiff’s past work as a sewing machine operator, inspector, cashier/checker
and production assembly when they made reference to specific DOT
descriptions.
In sum, having reviewed the record, before determining Plaintiff’s
residual functional capacity, the ALJ relied on testimony from a vocational
expert who, in turn, relied on information in the record about Plaintiff’s work
history, Plaintiff’s testimony at the hearing, and specific DOT job descriptions.
Plaintiff’s arguments notwithstanding, this satisfies the requirement for explicit
findings about the detailed demands of Plaintiff’s past relevant work. See
Pfitzner, 169 F.3d at 569.
2. THE ALJ’S FAILURE TO INCLUDE REACHING AND HANDLING
LIMITATIONS IN THE HYPOTHETICAL QUESTION POSED TO THE
VOCATIONAL EXPERT.
Plaintiff’s argument that the ALJ should have included reaching and
handling limitations in the hypothetical question posed to the vocational expert
is without merit. It is well settled that a vocational expert need only consider
impairments supported by substantial evidence in the record and accepted by
29
the ALJ as true. See Guilliams v. Barnhart, 393 F.3d 798, 804 (8th Cir. 2005)
(quoting Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001)). Where all of the
functions that the ALJ specifically addresses in an RFC are those in which he
found a limitation, the court can reasonably believe that the omitted functions
were those that were not limited. See Depover v. Barnhart, 349 F.3d 563, 567
(8th Cir. 2003).
Here, in formulating Plaintiff’s RFC, the ALJ thoroughly considered all of
the evidence of record regarding the effects of Plaintiff’s impairments on her
ability to perform work-related activities, including Dr. Fortunato’s opinion
regarding reaching and handling limitations. (Tr. 11-18). After thoroughly
considering Dr. Fortunato’s findings regarding reaching and handling
limitations, the ALJ determined that the assessed limitations were
unsupported by the evidence of record. (Tr. 18). Having determined the
assessed limitations were not supported by the record, the ALJ was not
required to include any reaching and handling limitations in the hypothetical
question to the vocational expert.
C.
THE ALJ’S FAILURE TO HYPOTHESIZE TO THE VOCATIONAL EXPERT
THAT PLAINTIFF HAD “MILD TO MODERATE TO SEVERE LEVEL OF
FATIGUE AND DISCOMFORT.”
Plaintiff argued for the first time in her Reply Brief that the record is
unclear as to the ALJ’s finding of residual functional capacity and should be
reversed. More specifically, Plaintiff notes that the ALJ’s finding of residual
functional capacity as written in his decision — namely, that Plaintiff had a
“mild to moderate to severe level of fatigue and discomfort” is different from
30
what was hypothesized to the vocational expert at the hearing. At the hearing,
the ALJ omitted the word “severe” and hypothesized only “mild to moderate
fatigue and discomfort.” Reply Br., at p. 2.
Although the ALJ’s opinion includes the qualifier “severe” in defining the
level of fatigue and discomfort affecting Plaintiff’s ability to work in a
competitive environment, the ALJ’s discussion in support of his RFC finding
makes clear that, consistent with the hypothetical posed to the vocational
expert, the ALJ did not find Plaintiff to have a severe level of fatigue and
discomfort:
While the claimant complains of severe pain and fatigue, it
does not seem reasonable to conclude from the minimal
findings in evidence that such could be the basis for the
degree of pain alleged.
She does not appear to be
experiencing progressive physical deterioration which might
be expected when there is intense and continuous pain.
Likewise, the claimant’s routine does not appear restricted
by her disability, but rather by choice.
(Tr. 16).
The fact that Plaintiff made no mention of this supposed ambiguity until
her Reply brief is telling. A review of the record makes clear that the
hypothetical posed to the vocational expert is supported by substantial
evidence and the inclusion of the word “severe” in the ALJ’s description of
Plaintiff’s RFC was an error. An arguable deficiency in opinion-writing
technique is not a sufficient reason for setting aside an administrative finding
where, as here, the deficiency probably had no practical effect on the outcome
of the case.” McGinnis v. Chater, 74 F.3d 873, 875 (8th Cir. 1996).
31
VI.
CONCLUSION
For all of the foregoing reasons, the Court finds the ALJ’s decision is
supported by substantial evidence. Accordingly,
IT IS HEREBY ORDERED ADJUDGED AND DECREED that the decision
of the Commissioner of Social Security is AFFIRMED.
/s/Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 9th day of November, 2012.
32
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