Thompson v. Commissioner of Social Security Administration

Filing 32

ORDER adopting Report and Recommendations re 23 and orders that the Commissioner's decision be AFFIRMED. Signed by Honorable Joseph F Anderson, Jr on 9/28/2010.(aste)

T h o m p s o n v. Commissioner of Social Security Administration

D o c . 32

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA A N D E R S O N /G R E E N W O O D DIVISION B etty B. Thompson, ) ) Plaintiff, ) ) v. ) ) Michael J. Astrue, Commissioner of ) S o c ia l Security, ) ) D e f e n d a n t. ) ______________________________________ ) C /A No. 8:09-1968-JFA-BHH

ORDER

T h e plaintiff, Betty B. Thompson, brings this action pursuant to 42 U.S.C. § 405(g) t o obtain judicial review of a final decision of the Commissioner of Social Security ( C o m m is s io n e r ) denying her claim for supplemental security income (SSI) and disability in s u ra n c e benefits (DIB) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 4 0 1 ­ 4 3 3 , 1381­1383c. The Magistrate Judge assigned to this action 1 has prepared a Report and R e c o m m e n d a tio n wherein she suggests that the Commissioner's decision to deny benefits is supported by substantial evidence. The Magistrate Judge opines that the Commissioner's d e c is io n should be affirmed. T h e parties were advised of their right to submit objections to the Report and

The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. The M a g i s tr a te Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the r e s p o n s ib ility to make a final determination remains with the court. Mathews v. W e b e r , 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made and t h e court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit th e matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

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Dockets.Justia.com

R e c o m m e n d a tio n which was filed on June 16, 2010. The plaintiff filed objections on July 2 0 , 2010. The defendant replied to the objections on August 3, 2010. It thus appears this m atte r is ripe for review. I. F a c tu a l and Procedural History T h e plaintiff applied for SSI and DIB on September 12, 2007 alleging disability as of D e c em b e r 15, 2006 due to back surgery, arthritis, high blood pressure, diabetes, high c h o le ste ro l, and a heart condition. The plaintiff was 59 years old at the time the

A d m in is tra tiv e Law Judge (ALJ) issued his decision. She has a high school education and p a s t work experience that includes work as a telemarketer. The plaintiff's applications were denied initially and on reconsideration. The ALJ held a hearing and later issued a decision on April 29, 2009, concluding that the claimant was not d is a b le d . Once approved by the Appeals Council, the ALJ's decision became the final d e c is io n of the Commissioner. Plaintiff thereafter filed this action pursuant to 42 U.S.C. § 4 0 5 (g ) seeking judicial review of the final decision of the Commissioner. II. S t a n d a r d of Review T h e role of the federal judiciary in the administrative scheme established by the Social S e c u rity Act is narrowly tailored "to determining whether the findings are supported by s u b s ta n tia l evidence and whether the correct law was applied." Walls v. Barnhart, 296 F.3d 2 8 7 , 290 (4th Cir. 2002). Section 205(g) of the Act provides, "[t]he findings of the C o m m iss io n e r of Social Security, as to any fact, if supported by substantial evidence, shall

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b e conclusive. . ." 42 U.S.C. § 405(g). The phrase "substantial evidence" is defined as: e v i d e n c e which a reasoning mind would accept as sufficient to support a p a rtic u la r conclusion. It consists of more than a mere scintilla of evidence but m a y be somewhat less than a preponderance. If there is evidence to justify a re f u sa l to direct a verdict were the case before a jury, then there is `substantial e v id e n c e .' S h iv e ly v. Heckler, 739 F.2d 987, 989 (4th Cir.1984) (quoting Laws v. Celebrezze, 368 F.2d 6 4 0 , 642 (4th Cir.1966)). In assessing whether there is substantial evidence, the reviewing c o u rt should not "undertake to re-weigh conflicting evidence, make credibility d e t e r m i n a t i o n s , or substitute [its] judgment for that of" the agency. Mastro v. Apfel, 270 F .3 d 171, 176 (4th Cir. 2001) (alteration in original). T h e Commissioner is charged with determining the existence of a disability. The S o c ia l Security Act, 42 U.S.C. §§ 301­1399, defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental im p a irm e n t 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) (2004). T h is determination of a claimant's disability status involves the following five-step inquiry: w h e th e r (1) the claimant is engaged in substantial activity; (2) the claimant has a medical im p a irm e n t (or combination of impairments) that are severe; (3) the claimant's medical im p a irm e n t meets or exceeds the severity of one of the impairments listed in Appendix I of 2 0 C.F.R. Part 404, subpart P; (4) the claimant can perform [his or] her past relevant work; a n d (5) the claimant can perform other specified types of work. Johnson v. Barnhart, 434

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F .3 d 650, 654 n.1 (4th Cir. 2005) (citing 20 C.F.R. § 404.1520(a)(4)(i)­(v) (2005)). I f the claimant fails to establish any of the first four steps, review does not proceed to the next step. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1993). The burden of p ro d u c tio n and proof remains with the claimant through the fourth step. However, if the c laim a n t successfully reaches Step Five, then the burden shifts to the Commissioner to p ro v id e evidence of a significant number of jobs in the national economy that a claimant c o u ld perform. See Walls, 296 F.3d at 290. This determination requires a consideration of " w h e th e r the claimant is able to perform other work considering both his remaining physical a n d mental capacities (defined as residual functional capacity) and his vocational capabilities (a g e , education, and past work experience) to adjust to a new job." Hall v. Harris, 658 F.2d 2 6 0 , 264-65 (4th Cir. 1981). If the claimant is found to have the ability to adjust to other w o rk, the Commissioner will not find him disabled. 20 C.F.R. § 404.1520(g)(2). III. D is c u s s io n In his decision of April 29, 2009, the ALJ went through the required inquiry. At Step 1 , the ALJ found that the plaintiff had not engaged in substantial gainful activity since her alleg ed onset date. At Step 2, the ALJ found that the plaintiff had the following severe im p a irm e n ts : status post decompressive lumbar laminectomy and discectomy, back pain, rig h t radicular leg pain, diabetes, depression, and anxiety. At Step 3, the ALJ found that p la in tif f did not have an impairment that met or equaled an impairment listed. At Step 4, the A L J found that plaintiff had the residual functional capacity (RFC) to perform her past

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re le v a n t work (PRW) as a telemarketer and that this work does not require performance of w o rk -re la te d activities precluded by her RFC. Therefore, the ALJ found that the plaintiff w a s not disabled, and he was not required to make a finding at Step Five. In her brief, the plaintiff contends that the ALJ erred in (1) several aspects of his a n a lys is at step four of the sequential evaluation; (2) failing to give controlling weight to the o p inion of one of her treating physicians; and (3) failing to properly analyze the plaintiff's c r e d i b i l i t y. T h e ALJ's decision became the final decision of the Commissioner, and the M a g is tra te Judge recommends that the Commissioner's decision be affirmed. The plaintiff h a s filed an objection memorandum to which the Commissioner has responded. Plaintiff o b je c ts to the Report, asserting that the ALJ and Magistrate Judge's decisions are not s u p p o rte d by substantial evidence. Plaintiff requests that the case be remanded to the ALJ f o r further evaluation. The Commissioner contends that the plaintiff merely reiterates the a rg u m e n ts she previously made that have been addressed in the briefs and the Report and R e c o m m e n d a ti o n . T h e Magistrate addressed each of the plaintiff's allegations of error by the ALJ. A. S te p Four Analysis

T h e Magistrate found that the ALJ properly completed the analysis at Step Four of the s e q u e n tia l evaluation. For each finding that the plaintiff claims the ALJ erred in making, the M a g istra te found substantial evidence to support it. The plaintiff claims in her brief and in

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h er objections that the ALJ erred in finding that she can perform her PRW as a telemarketer. H o w e v e r, the ALJ did a thorough analysis before concluding that the plaintiff's RFC would a llo w her to perform sedentary work, provided that she has a sit/stand option. Next, the plaintiff alleges that the ALJ erred in relying on the VE's testimony because h e did not ask the VE if there was a conflict between his testimony and the Dictionary of O c c u p atio n a l Titles (DOT). However, the Magistrate points out that there is no evidence of a conflict and notes that the plaintiff could have cross-examined the VE on this issue if she h a d desired. N e x t, the plaintiff claims that the ALJ erred by not being specific about her sitting and s ta n d in g abilities in his hypothetical. The Magistrate opines that the ruling the plaintiff relies o n , Ruling 96-9p, does not apply to the analysis at Step Four. Further, the Magistrate c o n c lu d e d that it was the ALJ's intent for the plaintiff to sit and stand "at will" as there is no e v id e n c e that she requires a sitting and standing schedule. Finally, the plaintiff's primary objection is to the Magistrate's interpretation of the A L J 's finding regarding mental restrictions. In the Report, the Magistrate concluded that the A L J did not find any mental restrictions. The plaintiff objects, pointing to the ALJ's d e te rm in a tio n that the plaintiff's depression and anxiety are "severe impairments" and that th e plaintiff has "moderate difficulties" regarding "concentration, persistence or pace." A d d itio n a lly, the plaintiff objects to the Magistrate's interpretation of the RFC assessment w h e re the ALJ found that the plaintiff's "depression and anxiety do not interfere with her

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a b ility to understand, carry out, and remember simple instructions." The plaintiff argues that th e logical conclusion of these findings is that the plaintiff is limited to unskilled work and ca n n o t work in her former position as a telemarketer, which is a semi-skilled job. However, th e ALJ found that the plaintiff could return to a job as a telemarketer. The plaintiff argues th a t the ALJ made this conclusion in error because he did not include any mental im p a irm e n ts in his hypothetical to the VE. The Magistrate found that the ALJ properly asked h yp o th e tic a l questions to the VE and properly performed a detailed RFC assessment, which s u p p o rte d a finding that the plaintiff did not meet a mental health listing. Further, the M a g istra te pointed out that the plaintiff's mental impairments do not meet the 12-month d u ra tio n a l requirement, and the plaintiff did not mention any mental health issues on her D is a b ility Reports. This Court agrees with the Magistrate that "the ALJ's analysis was p ro p e r and resulted in a finding that was supported by substantial evidence." B. M e d ic a l Source Opinions

T h e plaintiff alleges that the ALJ did not provide a "meaningful analysis" of the tre a tin g physician's opinion, and her objection restates this complaint. The Magistrate found th a t the ALJ analyzed all of the medical opinions and evidence appropriately. The ALJ noted t h a t the plaintiff failed to show sufficient evidence that she could not work and that the trea tin g physician made some findings that are reserved for the Commissioner. This Court a g re e s with the Magistrate that the ALJ properly weighed the medical opinions.

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C.

C r e d ib il i t y

The plaintiff alleges that the ALJ did not properly and thoroughly analyze her c re d ib ility. On this point, the Magistrate found that "[a]lthough the ALJ might have been m o re exhaustive in his analysis, he did not fail to provide any at all." In his credibility f in d in g , the ALJ addressed the plaintiff's pain complaints, her surgery, her medical records, a n d the doctor's opinion and suggestions. The Magistrate concluded that the ALJ's findings o f credibility were supported by substantial evidence, and this Court agrees. IV. C o n c lu s io n I t is the duty of the ALJ reviewing the case, and not the responsibility of the courts, to make findings of fact and resolve conflicts in the evidence. This Court's scope of review is limited to the determination of whether the findings of the Commissioner are supported b y substantial evidence taking the record as a whole, Craig v. Chater, 76 F.3d 585, 589 (4th C ir. 1996), and whether the correct law was applied," Walls v. Barnhart, 296 F.3d 287, 290 (4 th Cir. 2002). After a careful review of the record, including the findings of the ALJ, the briefs from th e plaintiff and the Commissioner, the Magistrate Judge's Report, the plaintiff's objections thereto , and the Commissioner's reply, this Court finds that the ALJ's decision was supported b y substantial evidence and that the ALJ did not incorrectly apply the law in his decision. T h e Magistrate Judge's thorough Report and Recommendation is incorporated herein by re f e re n c e .

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A c c o rd in g ly, the Commissioner's decision is hereby affirmed. IT IS SO ORDERED.

S ep tem b er 28, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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