Latham v. Commissioner of Social Security Administration

Filing 19

Memorandum Opinion and Order: The hearing decision is affirmed in all respects (Ordered by Magistrate Judge Jeff Kaplan on 10/15/08) (dnc)

STATESDISTRICTCOURT IN THE LTNITED N O R T H E R NDISTRICTOF TEXAS W I C H I T A FALLS DIVISION J O H NH. LATHAM Plaintiff; VS. M I C H A E L J. ASTRUE, of C o m m i s s i o n e r SocialSecurity
Defendant.

$ $ $ $ $ $ $ $ $

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NO. 7-07-CV-086-BD

MEMORANDUM

OPINION AND ORDER

judicial review of a final decisionof the Commissionerof P l a i n t i f f John H. Latham seeks Social Security denying his applications for disability insuranceand supplementalsecurity income ( " S S I " ) benefitsunderTitles II and XVI of the SocialSecurity Act,42 U.S.C. $ 401, et seq. For the reasonsstatedherein, the hearing decision is affirmed. I. P l a i n t i f f alleges that he is disableddueto a varietyof ailments,includingneckandbackpain, arthritis in his knees, and carpal tunnel syndrome. After his applications for disability and SSI benefits were denied initially and on reconsideration, plaintiff requested a hearing before an administrative law judge. That hearing was held on August 8, 2006. At the time of the hearing, as and pastwork experience an industrial p l a i n t i f f was 47 yearsold. He hasa high schooleducation commercial grounds keeper,an industrial maintenancerepair worker, a steel erection worker, and gainful activity sinceJanuary1,2003. in a n insulationworker. Plaintiff hasnot engaged substantial The ALJ found that plaintiff was not disabledand therefore not entitled to disability or SSI benefits. Although the medical evidenceestablishedthat plaintiff suffered from degenerativedisc

the disease, judge concludedthat the severityof that impairmentdid not meet or equal any that regulations.The ALJ furtherdetermined plaintiff had impairmentlistedin the socialsecurity the residualfunctionalcapacityto perform his past relevantwork as an industrial commercial this worker. Plaintiff appealed decision worker,andan insulation a grounds keeper, steelerection district Council. The Councilaffirmed. Plaintiffthenfiled this actionin federal t o the Appeals court.

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of In a single ground for relief, plaintiff contendsthat the assessment his residual functional capacity is not supportedby substantialevidenceand results from reversible legal error. A. whetherthe Commissioner's is J u d i c i a lreview in socialsecuritycases limited to determining were usedto evidenceand whetherthe proper legal standards d e c i s i o nis supportedby substantial e. the e v a l u a t e evidenc See42 U.S.C.$ a05(g);Ripleyv. Chater,67F.3d 552,555(5th Cir. 1995). mind might acceptto S u b s t a n t i a levidenceis defined as "such relevantevidenceas a reasonable U.S. 389,401,91 S.Ct. 1420,1427,28L.8d.2d v. s u p p o r ta conclusion."Richardson Perales,402 8 4 2 ( 1 9 7 1 ) ; A u s t i n v . S h a l a l a , 9 9 4 F . 2 d l l 7 0 , l l 7 4 ( s t h C i 1.9 9 3 ) .I t i s m o r e t h a n a s c i n t i l l a b u t r l e s sthan a preponderance.Richardson,9l S.Ct. at 1427. The district court may not reweigh the evidence or substitute its judgment for that of the Commissioner, but must scrutinize the entire record to ascertainwhether substantialevidencesupportsthe hearingdecision. Hollis v. Bowen,837 F . 2 d 1378,1383(5th Cir. 1988). A disabledworker is entitledto monthly socialsecuritybenefitsif certainconditionsaremet. 4 2 U.S.C. g a23(a). The Act defines "disability" as the inability to engagein substantialgainful activity by reasonof any medically determinablephysical or mental impairment that canbe expected

to result in deathor last for a continuedperiod of l2 months. 1d $ 423(dxl)(A); Cookv. Heckler, 7 5 0 F.2d 391,393 (5th Cir. 1985). The Commissionerhas promulgateda five-step sequential e v a l u a t i o nprocessthat must be followed in making a disability determination: l. The hearing officer must first ascertainwhether the claimant is engagedin substantialgainful activity. A claimant who is of w o r k i n g is not disabledregardless the medical findings. The hearingofficer must then determinewhether the claimed i m p a i r m e n i is "severe." A "severe impairment" must significantly limit the claimant'sphysical or mental ability to do basic work activities. This determination must be made s o l e l y on the basisof the medical evidence. The hearing officer must then determine if the impairment m e e t s or equals in severity certain impairments described i n Appendix 1 of the regulations. This determination is m a d eusing only medical evidence. If the claimant has a "severe impairment" covered by the regulations, the hearing offrcer must determine whether the claimant can perform his past work despiteany limitations. If the claimant doesnot have the residual functional capacity to perform pastwork, the hearingofficer must decidewhether the claimant can perform any other gainful and substantial work in the economy. This determination is made on the and b a s i sof the claimant'sage,education,work experience, residual functional capacity.

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S e egenerally,20 C.F.R. g 404.1520(b)-(f). The claimanthas the initial burden of establishinga U.S. 137,146n.5, 107 S.Ct. Bowenv. Yuckert,482 of d i s a b i l i t yin the first four steps this analysis. to 2 2 8 7 , 2 2 9 4n.5,96L.8d,2d I l9 (1987). The burdenthen shiftsto the Commissioner show that the claimant is capableof performing work in the national economy. Id. A finding that the claimant i s disabled or not disabledat any point in the five-step review is conclusiveand terminatesthe a n a l y s i s .Lovelacev. Bowen,8l3 F.2d 55, 58 (5th Cir. 1987).

In reviewing the propriety of a decision that aclaimant is not disabled,the court's function is to ascertain whether the record as a whole contains substantial evidence to support the Commissioner's final decision. The court weighs four elements to determine whether there is facts;(2)diagnosesandopinionsoftreating s u b s t a n t i a l e v i d e n c e o f d i s a b i l i t(1)objectivemedical y: age, (3) ofpain and disability; and (4) the claimant's a n d examiningphysicians; subjectiveevidence e d u c a t i o n ,and work history. Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995),citing Wrenv. S u l l i v a n , 9 2 5 F .2d 123 126(5th Cir. I 99 I ). The ALJ hasa duty to fully and fairly developthe facts , r e l a t i n g to a claim for disability benefrts. Ripley, 67 F.3d at 557. If the ALJ doesnot satisff this duty, the resulting decision is not substantiallyjustified. /d. However, proceduralperfection is not r e q u i r e d . The court will reversean administrativeruling only if the claimant shows that his rights were prejudiced. Smith v. Chater,962 F.Supp.980, 984 (t{.D. Tex. 1997). substantive B. Plaintiff contendsthat the ALJ ignored his manipulative limitations and failed to make a of " f u n c t i o n - b y - f u n c t i o n "assessment his residualfunctionalcapacity. At issueare notesmadeby which indicatethatplaintiff Center, at assistant CommunityHealthcare D o r i a n Shevitz,a physician's suffers from carpal tunnel syndrome,as evidencedby "slight ulnar deviation" and "proximal carpal i n t e r p h a l a n g e anodularity" in his handsand diminishedstrengthin his arms. (SeeTr. at 132-33, l pain in his right with plaintiffs subjectivecomplaintsof severe 1 3 7 ) . Thesefindings are consistent arm and both hands, which he allegespreventshim from gripping or picking up objects weighing m o r e than one or two pounds. (See id. at 85,98, 175). Had a "function-by-function"residual been performed, as required by the social security regulations, functional capacity assessment plaintiff believes the ALJ would have found that he could not perform his past relevant work.

medical source" The court initially observesthat a physician'sassistantis not an "acceptable Barnharf,161Fed.Appx.748, w h o s e o p i n i o n i s e n t i t l e d t o c o n t r o l l i n g w e i g hSee, Shubargov. t . e.g. 7 5 1 , 2 0 0 5 W L 3 3 8 8 6 1 5 a t * 3( l O t h C i r . D e c l.3 , 2 0 0 5 ) ; S m i t h v . S h a l a l a , 8 5 6 F . S u p p . l l 8 , l 2 2 ( E . D . N . Y . 1994). Cf. Porter v. Barnhart,z}} Fed.Appx. 317,319,2006WL2641666 at*2 (5th medicalsource"). Only licensedphysicians C i r . Sept. 14,2006)(chiropractoris not an "acceptable podiatrists, licensed optometrists, licensed or doctors,licensed certifiedpsychologists, o r osteopathic medical sources"who can pathologists considered are "acceptable a n d qualified speech-language impairment. See20 C.F.R. p r o v i d e evidence that a claimantsuffersfrom a medicallydeterminable medical no from an "acceptable The hearingrecordcontains evidence & $ $ 404.1513(a) 416.913(a). source" that plaintiff suffers from carpal tunnel syndrome, or any other medically determinable impairment, that limits his ability to use his hands. Nonetheless,Shevitz'sfindings may be used to show the severity of plaintiffs impairment a n d how it affects his ability to work. See id. at $$ 404.1513(d)& 416.913(d) (allowing

to evidenceand defining "other sources" includephysician's of c o n s i d e r a t i o n other medical-source of a s s i s t a n t s )Shubargo,2005 WL 3388615 at *3 (ALJ may considermedical observations ; p h y s i c i a n ' sassistantto assist in determining the severity of an impairment); Porter,2006 WL 2641666 at *2 (same as to chiropractor). Here, the ALJ referenced plaintiffs treatment at Communify HealthcareCenter and his subjectivecomplaints of pain in the hearing decision. (See to that from Shevitz,or any other medicalsource, suggest T r . at23). However,thereis no evidence plaintiff has any grip or manipulative limitations. To the contrary,Dr. Kaniz Fatema,a stateagency physician who examinedplaintiff, determinedthat plaintiff had no significant functional limitations in his arms and hands. (Seeid. at ll3-23). This evidence,togetherwith plaintiffs failure to point to any medical evidence of manipulative limitations, provides substantialevidenceto support the

ALJ's conclusionthat plaintiff could perform mediumwork "with no otherlimitations." (Tr. at23). finding of no disability where evidencesupported S e ePorter,2006WL2641666 at*2 (substantial chiropractor and other doctors failed to recommendmanipulative limitations). Nor was the ALJ required to explicitly engage in a "function-by-function" analysis of plaintiffs residual functional capacity. Although the social security regulations require an a s s e s s m e nof work-relatedabilities on a "function-by-functionbasis,"see SSR 86-8p, 1996 WL t performedby 3 7 4 1 8 4at * I (SSA 1996),an ALJ may rely on a "function-by-function"assessment WL 3059955 *5 (5th at a stateexaminer.SeeBeckv. Barnhart,z}s Fed.Appx.207,213-14,2006 1,2,2004WL 1588294at*l (5thCir.Jul. Fed.Appx. Barnhart,T16 C i r . Oct.27,2006);Onisheav. 1 6 , 2 0 0 4 ) . Here, Dr. Fatemaperformed a "function-by-function"analysisof plaintiffs residual f u n c t i o n a l capacity,whereinhe found no evidenceof any manipulativelimitations. (Tr. I l9). The and A L J was entitled to rely on that assessment was not requiredto repeatthe exercise. Onishea, * at WL 588223 *9 (E.D. 2 0 0 4WL 1588294at l; seealsoZenov.Barnhart,No.l:03-CV-649,2005 T e x . Feb.4,2005). C. Plaintiff also arguesthat the ALJ failed to make specific findings regardingthe physical and mental demandsof his prior work. "When making a finding that an applicant can return to his prior work, the ALJ must directly compare the applicant's remaining functional capacities with the of p h y s i c a land mental demands his previouswork." Lathsm v. Shalala,36 F.3d 482,484 (5th Cir' of l g g 4 ) , citing 20 C.F.R. $ 404.1520(e).The ALJ may not rely on genericclassifications previous j o b s . Id., citing SSR 82-61 1982WL 31387 at *1 (SSA 1932). Instead,the ALJ must list the , the of s p e c i f i c physical and mental requirements the previousjob and assess claimant'sability to perform that job. Id.

The hearingdecisionin this casefalls shortofthat requirement.In describingplaintiffs past r e l e v a n twork, the ALJ merely listed eachjob with an SVP rating.' (SeeTr. at 24). Nowhere does plaintiffs ability of the t h ejudge discuss specificphysicaland mentalrequirements thejob or assess to perform the physical and mental demands of his prior work. Despite this procedural error, plaintiff has failed to demonstrateprejudice. The court has already determined that substantial e v i d e n c e exists to supportthe hearingdecision. There is no reasonto believe that the disability determinationwould have beendifferent had the ALJ madespecific findings regardingthe physical a n d m e n t a l d e m a n d s o f p t a i n t i f f s p r i o r w o r kSeeParkerv.Barnharf,431F.Supp.2d665,674(8.D. by T e x . 2006) (claimantwas not prejudiced ALJ's failureto makerequiredhndingsasto the physical and mental demandsof claimant's prior work where there was no reasonablepossibility that the would havebeendifferent);Medina v. Barnharf, No. SA-04-CAr e s u l t i n gdisability determination at 1 0 5 7 - F B N , 2 0 0 5WL 2708789 *9 (W.D. Tex. Oct. 19,2005)(same). CONCLUSION T h e hearingdecisionis affirmed in all respects. S O ORDERED. D A T E D : October15.2008.

S T A T E SMAGISTRATE JUDGE

I SVP, or specific vocational preparation time, is dehned as "the amount of lapsedtime required by a typical worker to learn the techniques,acquire the information, and develop the facility neededfor averageperformance in a Dikemanv. Halter,245F.3d 1182, l186n.2 (lOthCir.200l), quotingU.S.Dep'tof specificjob-workersituation." Titles, App' B, B-l Defined in the RevisedDictionary of Occupational of Characteristics Occupations L a b o r , Selected time that is required for the worker to learn the job. (1993). The higher the SVP rating, the more