Lavery v. Astrue
Filing
11
MEMORANDUM OPINION AND ORDER... Plaintiff's 10 Motion for Summary Judgment is DENIED... Commissioner's 8 Motion for Summary Judgment is GRANTED... The decision of the ALJ is AFFIRMED... (Signed by Judge John D. Rainey) Parties notified.(ltesch, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
STEVEN W. LAVERY,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner,
Social Security Administration,
Defendant.
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CIVIL ACTION NO. V-11-3
MEMORANDUM OPINION & ORDER
Pending before the Court are Plaintiff Steven W. Lavery’s (“Plaintiff”) and Defendant
Michael J. Astrue’s (the “Commissioner”) cross motions for summary judgment (Dkt. Nos. 8 &
10). Having considered the motions, the Commissioner’s brief (Dkt. No. 9), the record, and the
applicable law, the Court finds that Plaintiff’s motion should be DENIED, the Commissioner’s
motion should be (Dkt. No. 8) GRANTED, and the decision of the ALJ should be AFFIRMED.
I. Background
Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) to review the decision of the
Commissioner denying Plaintiff’s application for disability insurance benefits. (Pl. Compl., Dkt.
No. 1.)
Plaintiff filed his application for Title II disability insurance benefits on May 12, 2008,
alleging that he was disabled beginning March 4, 2008 due to heart problems, blood diseases,
liver problems, hypertension, vertigo, possible chronic obstructive pulmonary disease (COPD),
hemocromatosis, and high cholesterol. (Tr. 101–07.)1 His application was denied by the
Commissioner. (Tr. 44.) Plaintiff had a video conference before an Administrative Law Judge
1. Citations to “Tr.” refer to the administrative transcript (Dkt. No. 6).
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(ALJ) on May 3, 2010, at which a vocational expert (VE) testified. (Tr. 18, 33–9.) Plaintiff
appeared at the hearing with his attorney and also testified. (Tr. 18, 21–34, 37.) At the time of the
hearing, Plaintiff was 55 years old and not currently working. (Tr. 21–23.) Plaintiff had
completed the eleventh grade and received a General Equivalency Diploma. (Tr. 22.)
On July 30, 2010, the ALJ issued a decision finding that Plaintiff was not disabled under
§§ 216(i) and 223(d) of the Social Security Act. (Tr. 4–13.) The Decision Review Board selected
Plaintiff’s claim for review but did not complete the review during the time allowed. (Tr. 1, 4.)
At that time, the ALJ’s determination became the final decision of the Commissioner. Plaintiff
filed this action on January 21, 2011, seeking review of the Commissioner’s final decision. (Dkt.
No. 1.)
II. Legal Standard
The Court’s review of the Commissioner’s final decision to deny disability benefits is
limited to two issues: (1) whether substantial record evidence supports the decision, and (2)
whether proper legal standards were used to evaluate the evidence. See Waters v. Barnhart, 276
F.3d 716, 718 (5th Cir. 2002).
If the findings of fact contained in the Commissioner’s decision are supported by
substantial evidence, they are conclusive and this Court must affirm. The widely accepted
definition of “substantial evidence” is more than a mere scintilla, but less than a preponderance.
Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000). “It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). In
applying this standard, the Court is to review the entire record, but it may not reweigh the
evidence, decide the issues de novo, or substitute the Court’s judgment for the Commissioner’s.
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Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999). Only if no credible evidentiary choices of
medical findings exist to support the Commissioner’s decision should the Court overturn it.
Johnson v. Bowen, 864 F.2d 340, 343—44 (5th Cir. 1988). The Court reviews the legal standards
applied by the Commissioner de novo.
To claim entitlement to disability benefits, a claimant must show that he was disabled on
or before the last day of his insured status. Demandre v. Califano, 591 F.2d 1088 (5th Cir. 1979).
The legal standard for determining disability under the Act is whether the claimant is unable “to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment 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). To determine whether a claimant is capable of
performing any “substantial gainful activity,” the regulations provide that the Commissioner
should evaluate disability claims according to the following sequential five-step process:
(1) A claimant who is working, engaging in a substantial gainful activity, will not be
found to be disabled no matter what the medical findings are.
(2) A claimant will not be found to be disabled unless he has a “severe impairment.”
(3) A claimant whose impairment meets or is equivalent to an impairment listed in an
Appendix to the regulation will be considered disabled without the need to consider vocational
factors.
(4) A claimant who is capable of performing work he has done in the past must be found
“not disabled.”
(5) If the claimant is unable to perform his previous work as a result of his impairment,
then factors such as age, education, past work experience, and residual functioning capacity must
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be considered to determine whether he can do other work. See 20 C.F.R. § 404.1520(b)–(f); see
also Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994).
To be entitled to benefits, a claimant bears the burden of proving that he is unable to
engage in substantial gainful activity within the meaning of the Social Security Act. See Wren v.
Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). The claimant must show that he suffers from a
mental or physical impairment that not only renders him unable to perform his previous work,
but, given his age, education, and work experience, prevents him from engaging in any other
kind of substantial gainful work that exists in the national economy, regardless of whether such
work exists in the immediate area in which he lives, whether a specific job vacancy exists for
him, or whether he would be hired if he applied for work. Johnson v. Harris, 612 F.2d 993, 997
(5th Cir. 1980). However, if the claimant can show that he can no longer perform his previous
job, the burden then shifts to the Commissioner to show that there exists some other form of
substantial gainful employment the claimant can perform. Fortenberry v. Harris, 612 F.2d 947,
950 (5th Cir. 1980). By judicial practice, this translates into the claimant bearing the burden of
proof on the first four of the above steps and the Commissioner bearing the burden on the fifth.
See Brown, 192 F.3d at 498; Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). The
analysis stops at any point in the five-step process upon a finding that the claimant is or is not
disabled. See Greenspan, 38 F.3d at 236.
III. Analysis
Following Plaintiff’s May 3, 2010 hearing, the ALJ evaluated Plaintiff’s disability claim
according to the aforementioned five-step process and issued the following Findings of Fact and
Conclusions on Law:
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(1) The claimant meets the insured status requirements of the Social Security Act
through December 31, 2012.
(2) The claimant has not engaged in substantial gainful activity since March 4,
2008, the alleged onset date (20 CFR § 404.1571 et seq.).
(3) The claimant has the severe impairments [sic] of mild coronary artery disease
status post stenting in 2006 (20 CFR § 404.1520(c)).
(4) The claimant does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR §§ 404.1520(d), 404.1525 and 404.1526.
(5) [T]he claimant has the residual functional capacity to perform the full range of
medium work as defined in 20 CFR § 404.1567(c).
(6) The claimant is capable of performing past relevant work in property
maintenance. This work does not require the performance of work-related
activities precluded by the claimant’s residual functional capacity (20 CFR §
404.1565).
(7) The claimant has not been under a disability, as defined in the Social Security
Act, from March 4, 2008, through the date of this decision (20 CFR §
404.1520(f)).
(Tr. 9–13.)
Plaintiff now presents three grounds for reversal:
(1) The ALJ erred in rejecting the opinions of Drs. Warman and Schneider in finding that
Plaintiff’s depression caused no functional limitations.
(2) The ALJ erred in concluding that Plaintiff’s COPD and vertigo were not severe.
(3) The Plaintiff should be found disabled under the Medical-Vocational Guidelines.
A. Whether the ALJ erred in rejecting the opinions of Drs. Warman and Schneider in
finding that the Plaintiff’s depression caused no functional limitations.
Plaintiff first argues that the ALJ erred by improperly rejecting the opinions of Drs.
Warman and Schneider in finding that Plaintiff’s depression caused no functional limitations.
According to Plaintiff, the ALJ “rejected the well-grounded opinions of two qualified physicians,
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relying only on his own lay-expertise in finding the Plaintiff’s depression so minimal as to be
non-severe.” (Dkt. No. 10 at 5.)
Consultative examiner Dr. Francis Warman Ph.D., performed a comprehensive
psychological profile of Plaintiff on October 27, 2008. (Tr. 200–03.) He concluded that Plaintiff
suffered from depression secondary to his heart attack and that Plaintiff’s depression would
make it difficult, but not impossible, for him to maintain attendance and follow schedules. (Tr.
202.) State agency medical consultant, Dr. Michael Schneider Psy.D., did not examine Plaintiff
but instead reviewed Dr. Warman’s examination notes. Dr. Schneider concluded that Plaintiff
had a severe mental impairment that caused moderate functional limitations in all three areas of
the “B” criteria: (1) Restrictions of Activities of Daily Living, (2) Difficulties in Maintaining
Social Functioning, and (3) Difficulties in Maintaining Concentration, Persistence, or Pace. (Tr.
215.) The ALJ gave no weight to the opinions of Drs. Warman or Schneider. (Tr. 10.)
The record shows that the ALJ did not rely “only on his own lay-expertise” in finding
that Plaintiff’s alleged depression caused no functional limitations, but instead gave controlling
weight to Plaintiff’s treating physician, Dr. Joseph Pepe. (Tr. 10.) According to Dr. Pepe,
Plaintiff had “no significant psychological, psychiatric or behavioral problems that affect his
ability to function.” (Tr. 198 (emphasis by Dr. Pepe).) When determining disability, the opinion
of the treating physician who is familiar with the claimant’s impairments, treatments, and
responses is given great weight. Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000). A treating
physician’s opinion will be given controlling weight if it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with . . . other
substantial evidence.” Id.; Martinez v. Charter, 64 F.3d 172, 175–76 (5th Cir. 1995) (citing 20
C.F.R. § 404.1527(d)(2)).
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The ALJ further recognized that Plaintiff did not allege a mental health impairment when
he filed for disability benefits and had no record of mental health treatment. (Tr. 10.) Moreover,
the hearing transcript shows that although Plaintiff testified that he sometimes had problems with
his memory and focusing on the task at hand (Tr. 31), Plaintiff made no mention of being
depressed during the hearing and pointed to no evidence indicating that his depression affected
his ability to function.
Plaintiff now argues that “[r]ather than detracting from the evidence of severe depression,
the fact that the Plaintiff did not allege he suffered from disabling depression suggests that his
depressive symptoms were genuine, and not calculated to exaggerate his condition.” (Dkt. No.
10 at 5.) The Court is not persuaded by this argument. As the Fifth Circuit explained in Leggett
v. Chater, “The ALJs duty to investigate . . . does not extend to possible disabilities that are not
alleged by the claimant or to those disabilities that are not clearly indicated on the record.
Because [Plaintiff] never raised the issue of [depression] until this appeal, [Plaintiff] cannot say
that he put his mental impairments before the ALJ.” Leggett v. Chater, 67 F.3d 558, 566 (5th Cir.
1995); see also Domingue v. Barnhart, 388 F.3d 462, 463 (5th Cir. 2004) (affirming ALJ’s
conclusion that Plaintiff’s depression was “no impairment at all” where, “[a]t the administrative
level [Plaintiff] did not contend that depression was an impairment, and, in the courts, she
pointed to no evidence indicating that her alleged depression affected her ability to work”).
The Court finds that substantial evidence supports the ALJ’s decision that Plaintiff’s
depression caused no functional limitations, and this issue does not require remand.
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B. Whether the ALJ erred in concluding that Plaintiff’s COPD and vertigo were not
severe.
1. COPD
Plaintiff next claims that the ALJ erred by failing to apply the standard set forth in Stone
v. Heckler in evaluating whether his COPD was severe.
Under Stone, “‘An impairment can be considered as not severe only if it is a slight
abnormality having such minimal effect on the individual that it would not be expected to
interfere with the individual’s ability to work, irrespective of age, education[,] or work
experience.’” Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985) (quoting Estran v. Heckler,
745 F.2d 340, 341 (5th Cir. 1984)). The severity requirement standard must be set forth by
reference to Stone or “another of the same effect . . . .” Id. at 1106.
In the “Applicable Law” section of his decision, the ALJ cited to Social Security Ruling
(SSR) 85-28, wherein the Commissioner adopted the severity standard set forth in Stone. (Tr. 8
(citing SSR 85-28, 1985 WL 56856, *2 (1985).) The ALJ also reiterated this standard when he
evaluated Plaintiff’s coronary artery disease, stating, “I find that [Plaintiff’s] impairment produce
[sic] more than minimal reduction in the ability to perform work related activities and, therefore,
constitutes as [sic] medically determinable severe impairment.” (Tr. 10.) The ALJ again used the
appropriate standard when he stated that Plaintiff’s “medically determinable impairments of
obesity, tobacco use, hypertension[,] and hemocromatosis do not cause more than minimal
limitation in [Plaintiff’s] ability to perform basic work and are therefore nonsevere.” (Id.)
However, the Court agrees with Plaintiff’s claim that the ALJ did not apply the Stone
standard with respect to Plaintiff’s COPD. In concluding that Plaintiff’s COPD was not severe,
the ALJ did not find that Plaintiff’s COPD had only a “minimal effect” on Plaintiff and “would
not be expected to interfere” with his ability to function. See Stone, 752 F.2d at 1101. Instead,
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the ALJ stated that Plaintiff’s “COPD does not severely impair his ability to function.” (Tr. 10.)
As the District Court for the Northern District of Texas recognized in Ruby v. Astrue, “In the
Fifth Circuit, the appropriate legal standard for determining whether a claimant’s impairment is
severe is de minimus. . . . Unlike the standard that the ALJ applied, Stone provides no allowance
for the minimal interference on a claimant’s ability to work.” Ruby v. Astrue, 2009 WL 4858060,
*8 (N.D. Tex. Dec. 14, 2009).
“Stone appears to require remand in any case in which the ALJ fails to properly reference
the Stone standard.” Bradshaw v. Astrue, 2008 WL 4387087, *5 (N.D. Tex. Sept. 26, 2008)
(Lane, Mag.). The Fifth Circuit’s subsequent rulings, however, “have clarified the holding to
require remand only when the ALJ failed to reference the Stone standard and the case was
adjudicated at step 2 of the sequential evaluation process.” Id. (citing Chaparro v. Bowen, 815
F.2d 1008, 1011 (5th Cir. 1987); Jones v. Bowen, 829 F.2d 524 (5th Cir. 1987); Lopez v. Bowen,
806 F.2d 632 (5th Cir. 1986)).
Because the ALJ did not summarily dispose of Plaintiff’s claims at Step Two, but instead
determined that Plaintiff had at least one severe impairment and proceeded to Step Four to
determine that Plaintiff was not disabled, the proper focus here is whether substantial evidence
supports the ALJ’s residual functional capacity (RFC)2 assessment and ultimate determination
that Plaintiff was not disabled. See Chaparro, 815 F.2d at 1011 (“[T]his case did not turn on
whether or not [Plaintiff’s] impairment was severe, but on whether [Plaintiff] could return to his
past relevant work—an inquiry unaffected by the test set forth in Stone.” ).
The Court will address the ALJ’s overall RFC analysis in Part III.C, infra, in analyzing
Plaintiff’s claim that an “RFC assessment at the medium level is untenable.” (Dkt. No. 10 at 13.)
2. “Residual functional capacity” (RFC) refers to the greatest capacity of an individual to do work despite
any limitations. 20 C.F.R. § 416.945(a)(1).
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With respect to Plaintiff’s COPD, however, the evidence in the record shows that the outcome
would remain the same if the Stone standard were applied.
First, the record shows that state agency medical consultant Dr. Burton Nault, MD,
completed a physical RFC for Plaintiff on December 5, 2008, and determined that Plaintiff had
no environmental limitations with respect to fumes, odors, dust, gases. (Tr. 227.) The ALJ
nonetheless considered Plaintiff’s COPD when he questioned the VE, specifically asking
whether there were jobs available in the national economy that Plaintiff could perform with a
medium RFC where he would not be exposed to environmental irritants such as fumes. (Tr. 39.)
The VE responded in the affirmative and identified the jobs of grocery store bagger or packer in
the manufacturing field. (Id.)
The record further shows that the ALJ considered Plaintiff’s allegation that “his medical
conditions cause difficulty with breathing” in his RFC assessment, but ultimately concluded that
Plaintiff’s “statements concerning the intensity, persistence, and limiting effects of these
symptoms were not entirely credible.” (Tr. 11.) The ALJ explained that he found Plaintiff’s
credibility to be lacking because Plaintiff’s claim that his condition totally restricts his
functioning was inconsistent with his reported activities of daily living, which included playing
with and caring for his grandchildren, light household chores, walking daily, watching television,
going to the store, and going out to eat. (Tr. 12.) The performance of daily activities such as
these is relevant when evaluating the credibility of a plaintiff’s disability claims. Reyes v.
Sullivan, 915 F.2d 151, 155 (5th Cir. 1990); see also Anthony v. Sullivan, 954 F.2d 289, 296 (5th
Cir. 1992) (noting that the claimant engaged in a variety of activities, including visiting family
and friends, attending church, dressing and bathing herself, preparing her own lunch, and driving
an automobile once or twice a week). An ALJ’s assessment of a claimant’s credibility is
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accorded great deference, and the ALJ need not give greater weight to a claimant’s subjective
complaints than contrary objective medical evidence. Newton v. Apfel, 209 F.3d 448, 459 (5th
Cir. 2000); Falco v. Shalala, 27 F.3d 160, 164 (5th Cir. 1994).
The ALJ also recognized that “while treating sources repeatedly advised [Plaintiff] that
smoking cessation is extremely important in terms of his COPD and hematologic situation
(Exhibit 12F), [Plaintiff] continues to smoke.” (Tr. 10.) Specifically, the ALJ noted that Plaintiff
reported smoking three packs a day in 2006 and was still smoking a pack a day in 2009. (Tr. 10.)
At the time of his hearing in 2010, Plaintiff was smoking two packs a day. (Tr. 37.)
Under the Regulations, a claimant must follow the treatment prescribed by his or her
physician if the treatment can restore the claimant’s ability to work. 20 C.F.R. § 404.1530. If a
claimant fails to follow prescribed treatment without good reason, the claimant will not be
entitled to disability. Id.; see also Johnson v. Sullivan, 894 F.2d 683, 685 n.4 (5th Cir. 1990)
(“Even if [Plaintiff] were found to be disabled . . . he would still not be entitled to recover
benefits inasmuch as he failed to follow the treatment regimen prescribed by his physicians.”). It
is also within the ALJ’s discretion to discount a claimant’s subjective complaints based on his
decision to not follow physicians’ recommendations. Griego v. Sullivan, 940 F.2d 942, 945 (5th
Cir. 1991). Thus, even if Plaintiff’s “disregard of medical advice may not meet all of the
requirements to warrant a finding of not disabled under 20 C.F.R. § 404.1530”—i.e., that
quitting smoking would have restored Plaintiff’s ability to work—“it may be an indication . . .
that . . . [Plaintiff’s] symptoms were not that severe because they did not cause him to cease
smoking.” Tolliver ex rel. Tolliver v. Astrue, 2012 WL 566906, *6 n.8 (W.D. La. Jan. 23, 2012)
(noting that the claimant “inexpicably continued to smoke one and one-half packs of cigarettes
per day, despite having been warned by his doctor to cease smoking some four years earlier”).
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Plaintiff cites the Northern District of Texas’ opinion in Bradshaw v. Astrue in support of
his claim that the ALJ erred in finding that Plaintiff’s COPD was non-severe due to Plaintiff’s
failure to quit smoking. Brawshaw, 2008 WL 4387087 at *5. In Bradshaw, the possible error at
issue was “a severity determination at step 2 premised upon the ALJ’s belief that the claimant
did not take steps to deal with his [COPD] by quitting smoking.” Id. The magistrate judge
recognized that “[c]learly, a claimant’s failure to follow prescribed treatment may be considered
in making a credibility determination,” but found that the record did “not contain evidence
suggesting that Plaintiff was instructed to stop smoking, that stopping smoking would reduce or
eliminate either his COPD or any limitations imposed by his COPD, or that Plaintiff ceased
smoking during the relevant time period.” Id. at *6–7. Here, unlike Brawshaw, the ALJ
recognized that Plaintiff’s treating physicians repeatedly stressed the importance of quitting
smoking “in terms of his COPD.” (Tr. 10.)
Plaintiff further urges the Court to adopt the magistrate judge’s opinion in Butler v.
Astrue, whereby the ALJ cited the plaintiff’s continued smoking despite medical advice to quit
due to COPD. Butler v. Astrue, 2008 WL 2704642, *22 (S.D. Tex. Jul. 2, 2008) (Stacy, Mag.). In
reversing the ALJ’s decision, the magistrate found that although the plaintiff’s medical records
“contain[ed] recommendations from Butler’s physicians advising her to stop smoking[] and
documentation of whether or not Butler was still smoking at the time of her examinations,” there
was no “objective medical evidence in the form of either signs or laboratory findings that would
conclusively indicate how Butler’s smoking affected her COPD . . . .” Id.
According to the National Institutes of Health (NIH), “Smoking is the leading cause of
COPD. The more a person smokes, the more likely that person will develop COPD.”
http://www.nlm.nih.gov/medlineplus/ency/article/000091.htm (last visited Aug. 8, 2012). The
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NIH further warns that “[p]ersons with COPD MUST stop smoking. This is the best way to slow
down the lung damage.” Id. (emphasis in original). See also Archibald v. Astrue, 2008 WL
763089, *3 (N.D. Tex. March 21, 2008) (“The ALJ noted plaintiff had been diagnosed with
[COPD] and that plaintiff’s doctors had repeatedly advised him that his heavy smoking caused
the symptoms associated with his COPD, to wit: shortness of breath and decreased stamina, of
which he intermittently complained.”). Thus, the Court is not persuaded by the magistrate’s
opinion in Butler that the ALJ erred in finding a link between the plaintiff’s smoking and COPD
simply because her medical records did not contain “laboratory findings” establishing such a
connection.
Because Plaintiff did not follow the prescribed treatment for his COPD, the evidence
supports the ALJ’s conclusion that Plaintiff’s complaints were not credible and his COPD was
not a disabling impairment. See Kramer v. Astrue, 2009 WL 2488127, *6 (S.D. Tex. Aug. 6,
2009) (finding claimant was not disabled where claimant “was asked repeatedly to stop smoking,
drinking, and using marijuana” but “postponed or failed to follow these treatments”); see also
Vogt v. Astrue, 2011 WL 5245421, *13 (N.D. Tex. Nov. 2, 2011) (ALJ properly found that
claimant’s non-compliance with her doctor’s prescribed treatment to quit smoking decreased her
credibility); Clause v. Astrue, 2009 WL 1941276, *11–12 (E.D. La. Feb. 3, 2009) (same).
Accordingly, this issue does not require remand.
2. Vertigo
Plaintiff also complains that the ALJ failed to consider whether his vertigo is severe.
In his initial application for benefits, Plaintiff listed vertigo as one of the illnesses or
conditions that limits his ability to work. (Tr. 115.) At the hearing, Plaintiff complained that his
vertigo made him dizzy like a pendulum and was “with [him] 12/7.” (Tr. 28.) In this proceeding,
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Plaintiff cites a Medical Opinion Re: Ability to do Physical Activities by Gordon Barth stating
that Plaintiff had been diagnosed with vertigo (Tr. 339–41) and a report by Dr. Joseph Pepe
indicating that Plaintiff has a past medical history of benign positional vertigo (Tr. 389).
Although the ALJ did not specifically mention Plaintiff’s vertigo in his decision, his RFC
assessment recognized that Plaintiff reported no dizziness during two visits to his treating
physician, Dr. Pepe, in 2007. (Tr. 10.) The ALJ also stated that he “gave little weight to the
opinion of Gordon Barth, degree unknown,” finding that “[t]he records from the Yorktown
Clinic do not support [Plaintiff’s] functional limitations.” (Tr. 12.)3
The record shows that Plaintiff self-reported vertigo to the Yorktown Clinic on August
26, 2009, but vertigo is not listed under objective assessments or diagnoses. (Tr. 423–24.)
Likewise, a report generated by Dr. Pepe following a December 12, 2007 physical examination
lists benign positional vertigo under the “Subjective” section; however, Dr. Pepe noted that
Plaintiff reported no dizziness and did not include a diagnosis of vertigo in his “Assessment”
section. (Tr. 171–73.) Based on this record, it is unclear whether Plaintiff was ever diagnosed
with vertigo, or whether he merely told physicians that he was. See Pruitt v. Astrue, 2008 WL
2704978, *7 (W.D. La. Jun. 23, 2008) (noting that “there is no medical evidence or diagnosis of
congestive heart failure in the record before this court; there is only [Plaintiff’s] statement to
various doctors that she has had congestive heart failure in the past”).
Assuming that Plaintiff was diagnosed with vertigo, a diagnosis alone is not enough to
establish a disability. See Hames v. Heckler, 707 F.2d 162, 165 (5th Cir.1983). Plaintiff must
show that he was “so functionally impaired by [his vertigo] that [he] was precluded from
engaging in any substantial gainful activity.” See Id. With the exception of Gordon Barth’s“
3. Perhaps one reason the ALJ gave little weight to Barth’s opinion was the fact that, contrary to every
other physician who has examined Plaintiff since at least 2004, Barth’s report explicitly states that Plaintiff need not
avoid exposure to cigarette smoke. (Tr. 341.)
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Medical Opinion Re: Ability to do Physical Activities”—to which the ALJ stated he gave little
weight—the medical records referencing Plaintiff’s vertigo offer nothing in regard to resulting
limitations during the relevant period. Dr. Nault’s physical RFC assessment also includes no
postural or manipulative limitations based on Plaintiff’s vertigo. (Tr. 225–226, 230.)
The Court finds that substantial evidence supports a conclusion that Plaintiff’s alleged
vertigo was not a disabling impairment. Accordingly, this issue does not require remand.
C. Whether Plaintiff should be found disabled under the Medical-Vocational
Guidelines.
Finally, Plaintiff argues that in light of his “severe impairments of COPD, vertigo,
depression, and obesity . . . an RFC assessment at the medium level is untenable.” (Dkt. No. 10
at 13.) Instead, Plaintiff argues that he should be limited to light-level work, and because he is a
person of advanced age under the Medical-Vocational Guidelines, the “Grids” require that he
must be found disabled under Rule 202.06.
Although Plaintiff’s application for benefits alleged that Plaintiff was unable to do any
type of work because of a number of maladies, including heart problems, blood diseases, liver
problems,
hypertension,
vertigo,
possible
chronic
obstructive
pulmonary
disease,
hemocromatosis, and high cholesterol, the ALJ only found one impairment was severe, i.e.,
Plaintiff’s “mild coronary artery disease status post stenting.” (Tr. 10.) The ALJ did, however,
find that even considering all of Plaintiff’s impairments in combination, including those that
were non-severe, Plaintiff was able to perform the full range of medium work. (Tr. 11.) The ALJ
specifically acknowledged that Plaintiff alleged his medical conditions caused difficulty with
breathing, fatigue, stamina, and memory and found that Plaintiff’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms. (Id.) However, as
discussed at length in Part III.B.1, supra, the ALJ concluded that Plaintiff’s statements
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concerning the intensity, persistence, and limiting effects of these symptoms were not entirely
credible. (Id.)
Having reviewed the record in its entirety, which includes the state agency medical
consultant’s physical RFC assessment finding that Plaintiff could perform medium work (Tr.
224), the Court finds that substantial evidence supports the ALJ’s conclusion that Plaintiff had
the RFC to perform medium work through the date last insured. Accordingly, this issue does not
require remand.
IV. Conclusion
For the reasons set forth above, Plaintiff’s Motion for Summary Judgment (Dkt. No. 10)
is DENIED, the Commissioner’s Motion for Summary Judgment (Dkt. No. 8) is GRANTED,
and the decision of the ALJ is AFFIRMED.
It is so ORDERED.
SIGNED this 8th day of August, 2012.
____________________________________
JOHN D. RAINEY
SENIOR U.S. DISTRICT JUDGE
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