Wilson v. Astrue
Filing
14
MEMORANDUM OPINION Affirming the final decision of the Commissioner and this matter is DISMISSED from the docket of this Court. Signed by Magistrate Judge Cheryl A. Eifert on 11/7/2011. (cc: attys) (mkw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
JAMES D. WILSON,
Plaintiff,
v.
Case No.: 3:10-cv-1317
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.
MEMORANDUM OPINION
This action seeks a review of the decision of the Commissioner of the Social
Security Administration (hereinafter “Commissioner”) denying Claimant’s applications
for a period of disability and disability insurance benefits (“DIB”) and supplemental
security income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§
401-433, 1381-1383f. This case is presently before the Court on the parties’ cross
motions for judgment on the pleadings as articulated in their briefs. (Docket Nos. 10 and
13). Both parties have consented in writing to a decision by the United States Magistrate
Judge. (Docket Nos. 11 and 12). The Court has fully considered the evidence and the
arguments of counsel. For the reasons set forth below, the Court finds that the decision
of the Commissioner is supported by substantial evidence and should be affirmed.
I.
Procedural History
Plaintiff, James D. Wilson (hereinafter “Claimant”), filed applications for SSI and
DIB on April 10, 2008, (Tr. at 119–24), alleging a disability onset date of March 21,
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2008 due to diabetes. (Tr. at 119, 123, 164). The Social Security Administration
(hereinafter “SSA”) denied Claimant’s applications initially and upon reconsideration.
(Tr. at 11). Claimant then filed a request for a hearing in front of an Administrative Law
Judge (hereinafter “ALJ”), which was conducted by the Honorable David B. Daugherty
on December 14, 2009. (Tr. at 23–34). By written decision dated January 10, 2010, the
ALJ found that Claimant was not disabled under the provisions of the Social Security
Act. (Tr. at 11–18). The ALJ’s decision became the final decision of the Commissioner on
September 18, 2010 when the Appeals Council denied Claimant’s request for review. (Tr.
at 1–3). Claimant timely filed the present civil action seeking judicial review of the
administrative decision pursuant to 42 U.S.C. §405(g). (Docket No. 2). The
Commissioner filed an Answer and a Transcript of the Administrative Proceedings, and
both parties filed memoranda in support of judgment on the pleadings. (Docket Nos. 7,
8, 10, 13). Consequently, the matter is ripe for resolution.
II.
Summary of ALJ’s Decision
Under 42 U.S.C. § 423(d)(5), a claimant seeking disability benefits has the
burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir.
1972). A disability is defined as the “inability to engage in any substantial gainful activity
by reason of any medically determinable 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).
The Social Security Regulations establish a five step sequential evaluation process
for the adjudication of disability claims. If an individual is found “not disabled” at any
step of the process, further inquiry is unnecessary and benefits are denied. 20 C.F.R. §§
404.1520, 416.920. The first step in the sequence is determining whether a claimant is
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currently engaged in substantial gainful employment. Id. §§ 404.1520(b), 416.920(b). If
the claimant is not, then the second step requires a determination of whether the
claimant suffers from a severe impairment. Id. §§ 404.1520(c), 416.920(c). If severe
impairment is present, the third inquiry is whether this impairment meets or equals any
of the impairments listed in Appendix 1 to Subpart P of the Administrative Regulations
No. 4 (the “Listing”). Id. §§ 404.1520(d), 416.920(d). If the impairment does, then the
claimant is found disabled and awarded benefits.
However, if the impairment does not, the adjudicator must determine the
claimant’s residual functional capacity (“RFC”), which is the measure of the claimant’s
ability to engage in substantial gainful activity despite the limitations of his or her
impairments. Id. §§ 404.1520(e), 416.920(e). After making this determination, the next
step is to ascertain whether the claimant’s impairments prevent the performance of past
relevant work. Id. §§ 404.1520(f), 416.920(f). If the impairments do prevent the
performance of past relevant work, then the claimant has established a prima facie case
of disability, and the burden shifts to the Commissioner to prove, as the final step in the
process, that the claimant is able to perform other forms of substantial gainful activity,
when considering the claimant’s remaining physical and mental capacities, age,
education, and prior work experiences. Id. §§ 404.1520(g), 416.920(g). See also McLain
v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983). The Commissioner must establish
two things: (1) that the claimant, considering his or her age, education, skills, work
experience, and physical shortcomings has the capacity to perform an alternative job,
and (2) that this specific job exists in significant numbers in the national economy.
McLamore v. Weinberger, 538 F.2d. 572, 574 (4th Cir. 1976).
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Here, the ALJ determined as a preliminary matter that Claimant met the insured
status for disability insurance benefits through December 31, 2012. (Tr. at 13, Finding
No. 1). At the first step of the sequential evaluation, the ALJ confirmed that Claimant
had not engaged in substantial gainful activity since March 21, 2008, the date of the
alleged onset of disability. (Id., Finding No. 2). Turning to the second step of the
evaluation, the ALJ determined that Claimant had the following severe impairments:
insulin dependent diabetes mellitus (“IDDM”); chronic obstructive pulmonary disease
(“COPD”); and hypertension. (Tr. at 13–14, Finding No. 3). The ALJ further concluded
that Claimant’s alleged neuropathy of the feet and poor vision were not severe
impairments. (Tr. at 13). Under the third inquiry, the ALJ determined that Claimant did
not have an impairment or combination of impairments that met or medically equaled
any of the impairments detailed in the Listing. (Tr. at 14, Finding No. 4). Accordingly,
the ALJ assessed Claimant’s RFC, finding that Claimant had the residual functional
capacity to “perform light work as defined in 20 CFR 404.1567(c) and 416.967(c) except
occasionally climb ladders, ropes, and scaffolds and balance; and avoid concentrated
exposure to fumes and hazards such as moving machinery and hazards.” (Tr. at 14-16,
Finding No. 5).
In comparing Claimant’s RFC with the demands of his prior relevant employment
as an auto parts salesman and clerk, the ALJ concluded that Claimant was unable to
perform his previous work. (Tr. at 17–19, Finding No. 6). Accordingly, the ALJ
proceeded to analyze Claimant’s past work experience, age, education, and
transferability of job skills in combination with his RFC to determine his ability to
engage in other categories of substantial gainful activity. (Tr. at 17-18, Finding Nos. 610). The ALJ considered that (1) Claimant was born in 1956 and, at age 52, was defined
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as an individual approaching advanced age (20 C.F.R. §§ 404.1563, 416.963); (2) he had
a limited education and could communicate in English; and (3) transferability of job
skills was not an issue. Using the Medical-Vocational Guidelines, 20 C.F.R. Part 404,
Subpart P, Appendix 2, as a framework and considering the opinion of a vocational
expert, the ALJ found that Claimant could successfully adjust to other employment
positions at the level of light exertional work, which existed in significant numbers in
the national economy; such as, machine tender and product inspector. (Tr. at 17-18,
Finding No. 10). At the sedentary level, the ALJ found that Claimant could work as an
assembler and hand packer. (Id.) Thus, the ALJ concluded that Claimant was not
disabled as defined in the Social Security Act. (Tr. at 18, Finding No. 11).
III.
Scope of Review
The issue before the Court is whether the final decision of the Commissioner is
based upon an appropriate application of the law and is supported by substantial
evidence. In Blalock v. Richardson, the Fourth Circuit Court of Appeals defined
“substantial evidence” to be:
[E]vidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence
but may be somewhat less than a preponderance. If there is evidence to
justify a refusal to direct a verdict were the case before a jury, then there is
“substantial evidence.”
Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws v. Celebrezze,
368 F.2d 640, 642 (4th Cir. 1966)). This Court is not charged with conducting a de novo
review of the evidence. Instead, the Court’s function is to scrutinize the totality of the
record and determine whether substantial evidence exists to support the conclusion of
the Commissioner. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). The decision
for the Court to make is “not whether the claimant is disabled, but whether the ALJ’s
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finding of no disability is supported by substantial evidence.” Johnson v. Barnhart, 434
F. 3d 650, 653 (4th Cir. 2005) (citing Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 2001)).
If substantial evidence exists, then the Court must affirm the decision of the
Commissioner “even should the court disagree with such decision.” Blalock, 483 F.2d at
775. A careful review of the record reveals that the decision of the Commissioner is
based upon an accurate application of the law and is supported by substantial evidence.
IV.
Claimant’s Background
Claimant was 52 years old at the time of the alleged disability onset date and 53
years old at the time of his administrative hearing. (Tr. at 32). Claimant had previous
experience working as an auto parts salesman and clerk. (Tr. 25). Claimant had a high
school education and was proficient in English. (Tr. at 163).
V.
Relevant Evidence
The undersigned has reviewed the Transcript of Proceedings in its entirety,
including the medical records in evidence, and summarizes below Claimant’s medical
treatment and evaluations to the extent that they are relevant to the issues in dispute.
A.
Treatment Records
On June 13, 2006, Claimant presented to the office of Dr. Amy Albrecht of
University Family Medicine for follow-up of his diabetes.1 (Tr. at 304). Claimant
reported that he used Lantus2 every morning and had fasting blood sugars between 58
and 212. He admitted that he only experienced low blood sugars when he forgot to eat
an evening snack before going to bed. Claimant also confirmed his continued use of
This is the first office note contained in the record although the documentation reflects that Dr. Albrecht
had a prior ongoing treatment relationship with Claimant.
1
Lantus is a long-acting insulin product, which is administered by injection one time each day. See
www.lantus.com
2
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Lisinopril to control chronic hypertension. Dr. Albrecht discussed with Claimant the
signs of hypoglycemia and emphasized the importance of eating a high protein evening
snack. She advised Claimant to continue taking his regular medications, to add a daily
dose of aspirin, and to return in one month. (Id.)
On August 6, 2008, Claimant was examined by Dr. Samuel Stewart of University
Physicians & Surgeons. (Tr. at 302). Claimant had no acute medical problems, but
wished to establish primary care with Dr. Stewart. Claimant provided a medical history
of having IDDM since 1970 for which he took Lantus daily. He stated that he was
applying for disability benefits due to episodes of low blood sugar at work, but admitted
that he did not check his blood sugars regularly. He complained of having numbness in
his toes, which had been present for two months. When asked about other health
problems, Claimant denied headaches, fever, chills, blurry vision, hearing loss, fatigue,
shortness of breath, wheezing, gastrointestinal problems, bloody urine, muscle aches or
weakness, dizziness, psychological symptoms, or skin rashes. (Id.) His physical
examination was normal. Dr. Stewart diagnosed Claimant with Type 1 diabetes with
poor control and poor compliance due to financial reasons. (Tr. at 303). Dr. Stewart
documented his plan to contact social services to help Claimant obtain financial
assistance for chronic disease management. He instructed Claimant to continue using
Lantus and to return within one month. (Id.). On June 8, 2009, Dr. Stewart wrote a
letter to “whom it may concern,” stating, “Mr. Wilson is currently under my care for his
medical problems and is physically able to perform the duties needed to work as an auto
parts tech.” (Tr. at 301).
The final treatment record supplied by Claimant memorializes an office visit with
Dr. Stewart on September 30, 2009 for follow-up of chronic medical issues and for
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prescription refills. (Tr. at 299-300). Claimant reported that he had been checking his
blood sugars daily and they generally ranged between 100 and 150. His blood pressure
was elevated, but he denied having any related symptoms, such as headaches or blurry
vision. Dr. Stewart commented that Claimant had gone two years without an
appointment and was told that he would not be given any additional prescription refills
without an updated evaluation, which prompted his visit that day. Dr. Stewart noted
that Claimant’s physical examination was essentially normal except for a blood pressure
of 156/92.
(Id.).
Dr. Stewart diagnosed Claimant with diabetes and uncontrolled
hypertension. He increased Claimant’s dose of Lisinopril and wrote a prescription for
Lantus. Dr. Stewart encouraged Claimant to take a daily aspirin and instructed him to
return in two to three months. (Id.).
B.
Disability Evaluations
On May 9, 2008, Dr. Drew Apgar examined Claimant at the request of the West
Virginia Disability Determination Section (“DDS”). (Tr. at 227-243). Claimant advised
Dr. Apgar that he was disabled due to diabetes. Dr. Apgar recorded that Claimant took
Lantus daily and used sliding scale insulin as needed to control periodic elevations of his
blood glucose. Claimant did not have other complications of diabetes, although he
complained of some vision loss, which had not yet been linked to his diabetes. Claimant
reported a past history of COPD and gastroesophageal reflux disease (“GERD”). (Tr. at
228-229). A ventilatory function report confirmed that Claimant had mild COPD and
moderate restrictive pulmonary disease. (Tr. at 256-259). On a review of systems,
Claimant admitted some generalized weakness and heartburn, but denied the following:
fatigue or other systemic symptoms; neurological symptoms; psychiatric symptoms;
shortness of breath; sleep apnea; urinary problems; musculoskeletal pain, weakness or
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spasms; or cardiac symptoms. After completing a thorough examination, Dr. Apgar
diagnosed Claimant with IDDM by history; mild COPD; GERD by history; and vision
loss by history. Dr. Apgar opined that based upon the objective findings, Claimant would
have no difficulty standing, walking, sitting, lifting, carrying, pushing, pulling, handling
objects, hearing, speaking, or traveling. He observed no exertional or non-exertional
limitations. (Tr. at 238).
On May 28, 2008, Dr. Porfirio Pascasio completed a Physical Residual
Functional Capacity Assessment of Claimant. (Tr. at 245-52). Dr. Pascasio found no
exertional, postural, manipulative, visual, communicative, or environmental limitations.
(Id.). He noted that Claimant was able to independently care for his personal needs,
prepare meals, clean house, drive, shop, and walk at least ½ mile without stopping. (Tr.
at 252).
A second Physical Residual Functional Capacity Evaluation was completed by Dr.
Rafael Gomez on August 25, 2008. (Tr. at 260-67). Dr. Gomez concluded that Claimant
could occasionally lift and carry 50 pounds; could frequently lift and carry 25 pounds;
could stand, sit and walk, each, six hours out of an eight hour work day; and had no
restrictions on his ability to push or pull. He opined that Claimant had some minor
postural limitations, primarily with balancing and stooping, but had no visual,
manipulative, or communicative limitations. (Id.). Dr. Gomez recommended that
Claimant avoid concentrated exposure to fumes, odors, dusts, gases, and poorly
ventilated areas and also avoid concentrated exposure to hazards like machinery and
heights. He found Claimant to be credible and felt that his daily activities were
consistent with a medium exertional level RFC. (Tr. at 265).
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Dr. Apgar performed an updated physical examination of Claimant on May 15,
2009 at the request of DDS. (Tr. at 272-87). On this occasion, Claimant complained
that hypertension and swelling of the feet, in addition to diabetes, prevented him from
working. He reported greater difficulty controlling his diabetes, indicating that despite
the daily use of Lantus and Humalog sliding scale insulin, his blood sugars ranged
between 250-400. Claimant further stated that his past medical history now included
joint pain and peripheral neuropathy related to diabetes. Other than some coarseness in
Claimant’s lungs, Dr. Apgar’s physical examination was essentially normal. He
reiterated that Claimant should have no difficulty standing, walking, sitting, lifting,
carrying, pushing, pulling, handling objects, hearing, speaking, and traveling did not
change. (Tr. at 283).
After finishing the physcial examination of Claimant, Dr. Apgar completed a
Medical Source Statement of Ability to do Work-Related Activities (Physical). (Tr. at
288-295).
Dr. Apgar found that Claimant could lift and carry up to 50 pounds
continuously and 100 pounds frequently; he could sit four hours in an eight-hour work
day, up to two hours without interruption; he could stand and walk two hours, each, out
of an eight-hour work day, up to one hour without interruption; he could reach, handle,
finger, fell, push, pull, operate foot controls, climb stairs, ramps, ladders, and scaffolds
without limitation; he could frequently stoop, kneel, crouch, and crawl; but he should
avoid humidity and wetness, dust, odors, fumes, pulmonary irritants, and extreme heat
and should somewhat limit his exposure to vibrations, extreme cold and loud noises
such as heavy traffic. (Id.).
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VI.
Claimant’s Challenges to the Commissioner’s Decision
Claimant argues that the Commissioner’s decision is not supported by substantial
evidence because the ALJ (1) failed to expressly consider the medical source statement
prepared by Dr. Apgar after his second examination of Claimant; and (2) failed to fully
consider the effects of Claimant’s diabetes. (Docket No. 10 at 9-13). The Commissioner
responds by arguing that the RFC determination adopted by the ALJ was considerably
more limited than the medical source statement of Dr. Apgar; accordingly, remand for a
reconsideration of that statement would be futile.3 The Commissioner additionally
contends that the ALJ fully considered Claimant’s diabetes, as did all of the medical
experts, and the objective medical findings substantially support the Commissioner’s
determination that Claimant is not disabled. (Docket No. 13 at 7-13).
VII.
Analysis
The Court agrees with the Commissioner that remand for further consideration of
Dr. Apgar’s medical source statement would achieve nothing. When compared to the
opinions of the other experts, Dr. Apgar’s statement is, for the most part, consistent.
Both Dr. Apgar and Dr. Gomez found Claimant capable of performing medium level
exertional work, while Dr. Pascasio found no limitations in Claimant’s ability to lift,
carry, stand, sit, walk, push or pull. Dr. Stewart did not provide a detailed RFC
assessment, but indicated in a letter that Claimant was “physically able to perform the
duties needed to work as an auto parts tech.” (Tr. at 301). Dr. Gomez opined that
Claimant was slightly more restricted in balancing and climbing ladders, ropes and
scaffolds than did Dr. Pascasio and Dr. Apgar, but all three physicians agreed that
The Commissioner further observes that Claimant’s criticism is “perplexing.” The Court agrees. On the
one hand, Claimant complains that the ALJ did not expressly weigh Dr. Apgar’s medical source statement
while, on the other, he disagrees with the opinions Dr. Apgar expressed in that statement.
3
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Claimant had no manipulative, visual, or communicative limitations. The primary
difference of opinion in the three RFC assessments involved the nature and extent of
Claimant’s environmental limitations; however, this difference was not particularly
singificant. Dr. Apgar felt that Claimant should avoid humidity, wetness, dust, odors,
fumes and extreme heat; Dr. Gomez stated that Claimant should avoid concentrated
exposure to dust, odors, fumes and hazards like machinery and heights; and Dr.
Pascasio found no need for restrictions at all. In any event, the ALJ’s written decision
confirms that he took these opinions into account, specifically noting that Dr. Apgar had
twice assessed Claimant and found no major limitations. The ALJ also considered and,
to a certain extent, incorporated the testimony of Claimant into the RFC assessment.
The ALJ ultimately determined that the limitations identified by Dr. Gomez were
reasonable in light of the objective medical findings. Nevertheless, the ALJ explicitly
gave Claimant’s testimony “the benefit of the doubt” and further reduced Claimant’s
exertional level from medium to light work for purposes of analyzing jobs that could be
performed by Claimant. (Id.). The Court finds that the ALJ adequately considered the
medical opinions of record and crafted an RFC assessment that fairly reflected
Claimant’s ability to do work-related activities. To the extent that the ALJ failed to
discuss Dr. Apgar’s second examination and medical source statement in more detail,
the Court finds this error to be harmless. Dr. Apgar’s objective findings and medical
source statement do not significantly contradict the other opinions and are consistent
with the RFC assessment used by the ALJ.
Courts have applied a harmless error analysis in the context of Social Security
appeals. One illustrative case provides:
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Moreover, “[p]rocedural perfection in administrative proceedings is not
required. This court will not vacate a judgment unless the substantial
rights of a party have been affected.” Mays v. Bowen, 837 F.2d 1362, 1364
(5th Cir.1988). The procedural improprieties alleged by [claimant] will
therefore constitute a basis for remand only if such improprieties would
cast into doubt the existence of substantial evidence to support the ALJ's
decision.
Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988); See also Fisher v. Bowen, 869 F.2d
1055, 1057 (7th Cir. 1989) (“No principle of administrative law or common sense
requires us to remand a case in quest of a perfect opinion unless there is reason to
believe that the remand might lead to a different result”). The Fourth Circuit Court of
Appeals has taken the same approach, in a number of unpublished decisions. See, e.g.,
Bishop v. Barnhart, No. 03-1657, 2003 WL 22383983, at *1 (4th Cir. Oct 20, 2003);
Camp v. Massanari, No. 01-1924, 2001 WL 1658913, at *1 (4th Cir. Dec 27, 2001);
Spencer v. Chater, No. 95-2171, 1996 WL 36907, at *1 (4th Cir. Jan. 31, 1996). Because
the opinions of the medical sources were consistent, the ALJ was not required to engage
in a lengthy discussion of the weight given to each opinion. See 20 C.F.R. §§ 404.1527(c)
and 416.927(c). Accordingly, the Court finds that the ALJ gave sufficient consideration
to the opinions and his RFC assessment was supported by substantial evidence.
Claimant’s argument that the ALJ did not fully consider Claimant’s diabetes is
equally unpersuasive. The majority of the medical evidence supplied by Claimant
involved his IDDM. The ALJ considered Claimant’s IDDM at every step of the sequential
evaluation. The ALJ acknowledged this condition as a severe impairment, (Tr. at 13),
and then compared its attendant medical signs and symptoms to the severity criteria
contained in the Listing. (Tr. at 14). After confirming that Claimant did not meet or
medically equal the relevant listed impairment, the ALJ thoroughly discussed
Claimant’s testimony and the objective medical findings pertaining to diabetes. (Tr. at
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15-16). Contrary to Claimant’s assertion, the medical records produced by Claimant did
not suggest that he has “increased problems” that have “crept up on his [sic] gradually.”
(Docket No. 10 at 12). Instead, the medical records revealed that when Claimant ate
appropriately and took his medication religiously, he was able to control his blood
sugars. No physician diagnosed Claimant with diabetic neuropathy or retinopathy and
his physical examinations did not support such diagnoses. To the contrary, Claimant’s
physical examinations were invariably normal and his treatment was conservative. In
fact, the record of Claimant’s office visit with Dr. Stewart on September 30, 2009, which
occurred four months after Dr. Apgar’s second examination of Claimant and six weeks
before the administrative hearing, documented that Claimant felt his blood sugars “have
been doing well.” (Tr. at 299). Dr. Stewart did not note uncontrolled glucose readings or
signs and symptoms consistent with complications of diabetes. Claimant was able to
perform his personal grooming; clean the house; do the laundry; take care of pets;
socialize; attend his son’s athletic practices and events; cook meals; do the shopping;
drive a car; watch television; read the newspaper; and make physician appointments.
(Tr. at 201-208). To justify an award of disability benefits under the Social Security Act,
Claimant must show an inability to engage in substantial gainful activity due to a
medically determinable 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). Claimant simply
has not met that burden of proof.
VIII. Conclusion
After a careful consideration of the evidence of record, the Court finds that the
Commissioner’s decision IS supported by substantial evidence. Therefore, by Judgment
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Order entered this day, the final decision of the Commissioner is AFFIRMED and this
matter is DISMISSED from the docket of this Court.
The Clerk of this Court is directed to transmit copies of this Order to all counsel
of record.
ENTERED: November 7, 2011.
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