Opinion
Civil Action No 99-0738-P-L.
August 2, 2000.
REPORT AND RECOMMENDATION
Plaintiff brings this action under 42 U.S.C. § 405 (g) and § 1383(c)(3) seeking judicial review of the final decision of the Commissioner of Social Security denying her claim for a period of disability and disability insurance benefits. This action was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B). Oral argument was held on July 12, 2000. Upon consideration of the administrative record, the memoranda of the parties, and oral argument, it is recommended that the decision of the Commissioner be affirmed.
I. Issues on Appeal .
(1) The ALJ failed to develop the record because he did not obtain a medical advisor's opinion in regard to the remote onset date of disability.
(2) The ALJ erred by not seeking vocational expert testimony since severe non-exertional impairments were alleged thus making it unclear whether the Plaintiff was capable of performing an unlimited range of light work.II. Background Facts .
Plaintiff was born December 13, 1939 (Tr. 38). At the time of her alleged onset date she was 46 years old, at the time of her date last insured she was 52 years old and at the time of the administrative hearing she was 58 years old. She completed the tenth grade (Tr. 38). She last worked from May 1975 to August 1986 at a dental equipment factory making and testing equipment for dental offices until she was laid off on August 29, 1986 (Tr. 39, 40, 111). Plaintiff testified her husband died in Vietnam and she received Veterans Administration compensation of $850.00 each month (Tr. 39). She testified that her ten and thirteen year old granddaughters live with her and help her shop, cook and clean (Tr. 38-39, 49, 52). Her older granddaughter who is in nursing school helps her also (Tr. 52). Her son does the outside work (Tr. 49, 52). She has a car and driver's license but seldom drives (Tr. 39). She is buying her home (Tr. 38).
Plaintiff testified she broke her right leg and injured her ankle in a head-on car accident in 1985. She stated that after her surgery she returned to light duty work but was laid off about two weeks after her return (Tr. 40-41). She testified that she has not worked anywhere other than the dental equipment factory in the last fifteen years (Tr. 43, 111). She stated that her job required her to lift 60 to 65 pound carts, stand a lot, and walk on concrete (Tr. 45). She stated that she did not believe she could lift 10 pounds at the present time and could only stand 15 minutes (Tr. 47-48).
Plaintiff stated that her last hospitalization was in December 1997 because she was dizzy and light headed (Tr. 41). She testified that she saw different doctors for arthritis at the military bases in Pensacola and Montgomery (Tr. 42). She testified that she first saw B. Jackson Green, M.D., in 1974 on her initial complaint that her legs were sore and tender (Tr. 42, 199-218). She stated that she had extensive swelling in both ankles when standing for a period of time and that her leg would tighten up in severe pain (Tr. 42). She testified that her blood pressure medicine made her dizzy and sometimes sleepy (Tr. 48). She testified that her pain starts in her leg joints, she has stiffness and swelling, pain in her right ankle from the accident, pain in her left leg and both ankles swell (Tr. 48, 50, 51). She stated that she took Ibuprofen and Motrin (Tr. 51). She stated that her pain caused her to cry and feel depressed, but she was not under treatment (Tr. 53).
III. Procedural History .
Plaintiff filed an application for a period of disability and disability insurance benefits on March 31, 1997 alleging an onset date of August 29, 1986, because of depression with fatigue, arthritis, glaucoma, hypertension with dizziness, and leg pain due to a fracture (Tr. 123). Her earnings record shows she was insured for disability benefits through December 31, 1991, but not thereafter (Tr. 75-79). Her application was denied initially (Tr. 60-64) and upon reconsideration (Tr. 67-69). A request for a hearing before an administrative law judge (ALJ) was timely filed on September 12, 1997 (Tr. 70-71). A hearing was held on January 5, 1998 (Tr. 35-55). Plaintiff appeared and testified, and was represented by counsel (Tr. 35, 37-55). The ALJ rendered an unfavorable decision on April 1, 1998 (Tr. 10-21). The Appeals Council denied review on July 2, 1999 (Tr. 4-5), making the ALJ's decision the final agency decision. See 20 C.F.R. § 404.981.
IV. ALJ Findings
The ALJ made the following findings in regard to Plaintiff's claims (Tr. 20):
1. The claimant met the disability insured status requirements of the Act on August 29, 1986, the date the claimant stated she became unable to work, and continued to meet them through December 31, 1991, but not thereafter.
2. The claimant has not engaged in substantial gainful activity since her alleged onset date of disability.
3. The medical evidence establishes that the claimant has arthritis, hypertension, and glaucoma, but that she does not have an impairment or combination of impairments listed in or medically equal to one listed in Appendix 1, Subpart P. Regulations No. 4.
4. The claimants allegations of disabling impairments are not fully credible or supported by the medical evidence on or before the date she was last insured, December 31, 1991.
5. The claimant has retained the residual functional capacity to perform work related activities comparable to that of her dental factor [sic] work where she made and tested dental equipment, read blueprints, completed reports and supervised new workers.
6. The claimant's impairments, either singly or in combination, do not prevent the claimant from performing comparable work to her past relevant work.
7. The claimant was not under a disability as defined in the Social Security Act at any time through the date she was last insured on December 31, 1991.V. Discussion .
A. Standard of Review .
In reviewing claims brought under the Act, this Court's role is a limited one. The Court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). The Commissioner's findings of fact must be affirmed if they are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991), citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is defined as "more than a scintilla but less than a preponderance," and consists of "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Bloodsworth, 703 F.2d at 1239. The Secretary's decision must be affirmed if it is supported by substantial evidence even when a court finds that the preponderance of the evidence is against the decision of the Secretary. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (1971); Bloodsworth, 703 F.2d at 1239. "In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioners's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Further, it has been held that the Commissioner's "failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal." Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). This Court's review of the Commissioners's application of legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
B. Statement of the Law
An individual who applies for Social Security disability benefits or supplemental security income must prove their disability. See 20 C.F.R. § 404.1512; 20 C.F.R. § 416.912. The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven their disability. See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. At the first step, the claimant must prove that he or she has not engaged in substantial gainful activity. At the second step, the claimant must prove that he or she has a severe impairment or combination of impairments. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. If the claimant cannot prevail at the third step, he or she must proceed to the fourth step where the claimant must prove inability to perform their past relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether the claimant has met this burden, the examiner must consider the following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; (4) the claimant's age, education and work history. Id., at 1005. Once a claimant meets this burden, it becomes the Commissioner's burden to prove at the fifth step that the claimant is capable of engaging in another kind of substantial gainful employment which exists in significant numbers in the national economy, given the claimant's residual functional capacity and age, education, and work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985). If the Commissioner can demonstrate that there are such jobs the claimant can perform, the claimant must prove inability to perform those jobs in order to be found disabled. Jones v. Apfel 190 F.3d 1224, 1228 (11th Cir. 1999); Powell o/b/o Powell v. Heckler, 773 F.2d 1572, 1575 (11th Cir. 1985); Ambers v. Heckler, 736 F.2d 1467, 1469 (11th Cir. 1984). See also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987), citing Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985).
Additionally, to qualify for a period of disability, and disability insurance benefits, Plaintiff must prove she has a medically determinable impairment or impairments of sufficient severity to constitute a disability as contemplated by the Act and that the impairment became disabling while she was insured for disability purposes. The Act places the burden of establishing disability on the Plaintiff. Bloodsworth, 703 F.2d at 1240; see also 42 U.S.C. § S 423(c)(1); 20 C.F.R. § 404.1512 (a). In order to receive disability insurance benefits or a period of disability, Plaintiff must establish that her condition became disabling before the expiration of her insured status on December 31, 1991. Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir. 1981), cert. denied, 455 U.S. 912, 102 S.Ct. 1263, 71 L.Ed 2d 452 (1982). If a claimant becomes disabled after her insured status has expired, her claim must be denied despite her disability. See, e.g., Kirkland v. Weinberger, 480 F.2d 46 (5th Cir. 1973); Chance v. Califano, 574 F.2d 274 (5th Cir. 1978); ("If a claimant becomes disabled after he has lost insured status, his claim must be denied despite his disability." Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir. 1979), cert. denied, 444 U.S. 952, 100 S.Ct. 428, 62 L.Ed.2d 323)). Her earnings record shows she was insured through December 31, 1991, but not thereafter (Tr. 75-79). Plaintiff must establish that her condition reached a disabling level of severity between her alleged onset date of August 29, 1986 and her date last insured of December 31, 1991, for eligibility for Title II disability insurance benefits.
(C) Medical Evidence
On October 19, 1985, the Plaintiff was in an automobile accident during which she received a "[c]omminuted fracture of the distal third of the right tibia and fracture right fibula with involvement of the right medial malleolus" (Tr. 147). Surgery was performed at the West Florida Regional Medical Center in Pensacola, Florida by W. Richard Hooper, M.D. (Tr. 144-149). In Dr. Hooper's admission notes he stated as follows:
I have explained to her the risk and complications of surgery. She is aware that this is a difficult fracture, it is the highest of arthritis, highest to skin slough, high incidence of infection if the fracture takes a long time to heal. She is aware that it generally is considered that the best form of management is to do open reduction internal fixation. I have discussed with her the other complications including postoperative infection, pulmonary embolus and thrombophlebitis. She is aware of anesthetic risk. She is willing to proceed.
(Tr. 145). In her discharge summary, Dr. Hooper noted that her "postop course was uncomplicated," she was to begin physiotherapy, she was "ambulatory and non-weight bearing," and she was "encouraged in range of motion" (Tr. 144).
On October 30, 1985, she returned for removal of her staples and Dr. Hooper noted that her "wounds have healed very nicely" and that she did not have a "great deal of pain" on movement (Tr. 143). She continued to see Dr. Hooper for post-operative examinations. On May 6, 1986, she complained of pain when standing and told Dr. Hooper that she did not think she could return to her usual job which involved standing 7 1/2 hours per day. He noted that he did not "believe that she would be able to go back to her usual customary job standing" and that "[s]he could seek some sort of longterm disability" (Tr. 139).
However, on July 8, 1986, he released Plaintiff to return to her past work (Tr. 139). At that time he noted as follows:
No point tenderness, full range of motion. X-rays show excellent healing, good maintenance of joint space. No swelling today. . . . Did discuss with her job outline. I see no objection. I told her it would be all right for her to return to work. Recommended that we remove the plate in about a years time. Discussed with her the period of disability, etc. associated with the plate and screw. Follow up in approximately 6 months. No x-rays needed on return.
(Tr. 139).
From March 12 to 14, 1987, Plaintiff was hospitalized for removal of the plates and screws which were implanted in her right distal tibia and fibular. Her orthopedic examination showed well-heeled operative scars, no tenderness over the plate, and her x-rays showed excellent healing of the fracture (Tr. 131-137). In her discharge summary on March 14, 1987, Dr. Hooper noted as follows:
PERTINENT FINDINGS: Revealed the patient to have full range of motion except for slight loss of dorsiflexion, well-healed operative scars and x-rays show satisfactory healing of the fracture with no evidence of degenerative change good [sic] maintenance of the joint space of the ankle.
(Tr. 131). She was scheduled to return for suture removal in ten days (Tr. 131).
On May 8. 1987, upon return, Dr. Hooper noted that she was "doing well" and that her x-rays showed "good healing" though she still had some "incomplete bone density in the screwhole" (Tr. 131). He also noted that she complained of her toes hurting though he could find no tenderness directly over the toes. He noted that she might be "favoring" her leg and that she might need a special shoe. Her x-ray showed "complete interval healing," "nearly normal alignment and position" and "no evidence of osteomyelitis or complication" (Tr. 130). She was discharged with instructions to call if she had problems (Tr. 131).
On September 7, 1990, the Plaintiff was seen by E. Jackson Green who had not seen her since 1974 when she was treated for pain and weakness in the thighs of both of her legs which was thought to be myocitis and for a lipoma which was surgically removed from her neck (Tr. 205-208; 209-218). Though most of Dr. Green's notes are not legible, it appears that she complained of pain in her chest and burning when she ate or swallowed (Tr. 205). She was diagnosed with esophagitis and he prescribed Axid (Tr. 206). Her blood pressure was noted as 120/80 (Tr. 206).
In January 1993, the Plaintiff was twice treated at the Atmore Clinic. The examiner noted she complained that "for the past two months she has had disabling pain" in her right ankle. The examiner made several assessments in regard to the source of her pain and ordered additional tests. The examiner noted that she stands in "pronation valgus" and that she may need foot orthosis to control the pronation. The examiner noted that "the x-rays of the subtalar joint looked good" and the "x-rays of ankle joint looked bad, but she [was] mildly tender to deep palpation in the front of the ankle" (Tr. 233). At her second visit, she was referred to an orthosis for a UCBL foot orthosis to control her foot position. The examiner noted that she had a "hot" nuclear bone scan of her right ankle and that her ankle was tender. The examiner recommended x-rays of her feet and pressure prints to take to the orthotist along with the prior test results. The examiner noted that she should return after the orthotic evaluation and that she might need additional surgery on her ankle. The examiner prescribed Feldene (Tr. 233). There are no records of any orthotic treatment or return to the Atmore Clinic as directed.
From December 29, 1994 to May 15, 1996, records from the Naval Hospital, at Pensacola, Florida, revealed Plaintiff was treated for urinary tract infection, cough, bronchitis, shortness of breath, upper respiratory infection, epigastric discomfort, hypertension, and possible thyroid disease. She received repeated blood pressure checks, pap smear evaluation, mammogram and repeat mammogram. She was also reported to have a history of glaucoma (Tr. 150-171). In November 1996, she complained of shortness of breath since January 1996 and burning under her skin and shaking hands for the past two months. She stated she had run out of her blood pressure medicine six months ago. Her recorded blood pressure at the time was 175/92. The examiner noted that her lungs were clear, her shortness of breath had resolved and there was no peripheral edema. On discharge, medications were prescribed and she was instructed to reduce salt, exercise and return in six months or sooner if needed (Tr. 172-173).
On May 13, 1994, and again in February and April 1997, Plaintiff was treated at Maxwell AFB, Alabama, Medical Group Hospital. On May 13, 1994, she was evaluated for hypertension. The doctor noted that the patient was "in for first visit for [increased blood pressure] x 3-4 months. States has never been evaluated for [hypertension]" (Tr 192). Her blood pressure was 161/89 and 158/88. She was to return in two weeks for follow up. Her next reported visit was on February 7, 1997, when Gregory Stamnas, M.D., reported Plaintiff alleged pain in both legs and ankles, and stated she had injured her legs in a car accident in 1985. Dr. Stamnas diagnosed arthritis, mild peripheral edema, and mild hypertension (151/85). On April 2, 1997, Plaintiff was reportedly doing fine, and was not symptomatic (Tr. 194-196).
In April of 1996, Dr. Green examined the Plaintiff on complaints of "problems with breathing" (Tr. 204). Her blood pressure was 164/83 (Tr. 204). She was given a pulmonary function test which indicated mild restriction (Tr. 203) and her electrocardiogram was normal except for a minimally abnormal mitral inflow, which the diagnostician opined did not support significant diastolic dysfunction (Tr. 201).
On April 25, 1997, records from the Naval Hospital Center at Pensacola, Florida revealed Plaintiff ran out of her blood pressure medication the prior week. Her blood pressure was 159/87. She was diagnosed with hypertension, gastritis, and arthritis, and was advised to resume normal activities (Tr. 219-220).
On May 20, 1997, the Plaintiff was consultatively examined by Thomas H. Lane, M.D., He reported x-rays revealed right ankle/leg modeling of the bone and healing of previous fractures. He stated Plaintiff should have no trouble with job related activities such as sitting, speaking, traveling, hearing, or handling of objects, but would have trouble standing, walking, lifting, and carrying because of orthopedic deformity in the ankle and leg (Tr. 224-225).
On May 21, 1997, the Plaintiff was consultatively examined by B.C. Baranano, M.D., He reported Plaintiff's best-corrected vision was 20/20-1, bilaterally. Dr. Baranano diagnosed advanced optic disc cupping and glaucoma (Tr. 221-223).
On November 12, 1997, Elaine Gresk, O.D., reported that when Plaintiff was seen on October 6, 1997, she had stopped her glaucoma medication one year before because her prescription ran out. Her best-corrected right eye vision was 20/25; best-corrected left eye vision was 20/20. Dr. Gresk stated that she had been following Plaintiff for glaucoma since 1993, but Plaintiff was lost to follow-up from April of 1994, to October 6, 1997. Dr. Gresk reinstated her prescribed glaucoma medication and requested additional testing (Tr. 234-235).
(D). Plaintiff's Argument
Plaintiff argues that the ALJ failed to develop the record because he did not obtain a medical advisor's opinion in regard to the remote onset date of disability. Plaintiff supports her argument by stating that the ALJ did not follow the provisions of Social Security Ruling 83-20 Titles II and XVI: Onset of Disability wherein the ALJ is directed to use a medical advisor when a remote onset date must be inferred. Plaintiff also argues that since the ALJ did not accept the opinion of the treating physician that the Plaintiff was disabled in May 1986 (Tr. 139), he should have had a medical advisor's opinion to establish an onset date. Plaintiff references Dr. Hooper's notation on May 6, 1986 that she could not return to her job because of the standing requirement and that she should "seek some sort of long term disability" (Tr. 139).
"How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred." SSR 83-20 Titles II and XVI: Onset of Disability.
As discussed in the medical evidence summary, this same physician on July 8, 1986 stated that she could return to her work and should return for follow up in approximately six months (Tr. 139).
The onset date for disability is the date that the medical evidence shows, or reasonable medical inferences can be made, that the Plaintiff's disabling conditions met the statutory definition of disability for these conditions. SSR 83-20 states that "[i]n addition to determining that an individual is disabled, the decisionmaker must also establish the onset date of disability. In many claims, the onset date is critical; it may affect the period for which the individual can be paid and may even be determinative of whether the individual is entitled to or eligible for any benefits." The premise behind this ruling is that the ALJ has found the person disabled. Once disability is determined, the medical advisor is retained to determine when the condition became disabling for the purpose of awarding benefits. If the ALJ determines that a person was not disabled prior to the expiration of their insured status and that decision is supported by substantial evidence and proper application of the law, then there is no obligation to infer a remote onset date because benefits are not awarded. The undersigned finds that the decision of the ALJ that the Plaintiff was not disabled at any time prior to her date last insured is supported by substantial evidence. Since there was no finding of disability, there is no reason to obtain a medical advisor's opinion in regard to onset.
"With slowly progressive impairments, it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling. Determining the proper onset date is particularly difficult, when, for example, the alleged onset date and the date last worked are far in the past and adequate medical records are not available. In such cases, it will be necessary to infer the onset date from the medical and other evidence that describes the history and symptomatology of the disease process." SSR 83-20 Titles II and XVI: Onset of Disability.
The ALJ found the Plaintiff not disabled on or before December 31, 1991 (Tr. 17, 20-21) and substantial evidence in the record supports the decision. The ALJ noted that Dr. Hooper released the Plaintiff to return to her past relevant work without restriction in July 1986, approximately seven months after her leg was broken (Tr. 18). He also noted that she was first treated for glaucoma in 1993, first evaluated for hypertension in 1994, and her arthritis was first diagnosed in 1997 (Tr. 18). The ALJ stated as follows:
Her alleged complaints of totally disabling impairments of severe pain is [sic] because of arthritis, hypertension, and glaucoma, is not supported by the medical evidence, and certainly not before December 31, 1991, the date she last met the insured status for disability purposes. The first mention of arthritis was in February 1997, when Dr. Stamnas diagnosed arthritis and mild peripheral edema and mild hypertension. She was first evaluated for hypertension in May 1994, and Dr. Gresk stated she had treated the claimant since 1993 for glaucoma. The undersigned notes that all of her medication listed on her medication list were first prescribed in 1997. At the hearing, she testified that she took Ibuprofen and Motrin for her pain.
(Tr. 18-19).
The ALJ also stated that he considered her current medical evidence in relation to her date last insured and determined that her medical evidence did not establish that she was disabled at any time relevant to December 31, 1991 (Tr. 19). The ALJ concluded that based upon Plaintiff's subjective allegations, the objective medical evidence, relevant statutes and rulings, and Eleventh Circuit law, "a preponderance of the evidence as a whole" established that the Plaintiff had the functional capacity for light work on or before the date last insured (Tr. 19). Specifically, the ALJ found that she had the "residual functional capacity to perform the physical and mental requirements comparable to her past relevant work at any time through the date she was last insured on December 31, 1991" (Tr. 19).
SSR 83-20 also states as follows:
"Factors relevant to the determination of disability onset include the individual's allegations, the work history, and the medical evidence. These factors are often evaluated together to arrive at the onset date. However, the individual's allegation or the date of work stoppage is significant in determining onset only if it is consistent with the severity of the condition(s) shown by the medical evidence."
(Emphasis added)
The only medical records available between 1986 and 1991 are treatment notes from Dr. Green which indicate that the Plaintiff had esophagitis and was prescribed Axid (Tr. 206). As the ALJ pointed out, her other alleged disabling conditions were not diagnosed until after December 31, 1991. There are no medical records for the period from 1986 until 1991 which indicate arthritis, glaucoma, hypertension, or disabling leg pain. Also, the mere onset or diagnosis of a disease or an injury does not establish that it became disabling during the insured period. The onset of her glaucoma, hypertension, and arthritis occurred well after her insured status expired. Therefore, since no disabling condition was established at any time which could reasonably infer an onset of disability prior to December 31, 1991, the ALJ did not err in failing to obtain a medical expert opinion of remote onset date.
"A title II worker cannot be found disabled under the Act unless insured status is also met at a time when the evidence establishes the presence of a disabling condition(s)" SSR 83-20 Titles II and XVI: Onset of Disability.
Treatment for glaucoma began in 1993. However, as late as 1997, Dr. Gresk reported that her vision was correctable to 20/25 in the right eye and 20/20 in the left eye (Tr. 234-235).
Plaintiff was evaluated for hypertension in 1994, three years after her date last insured. She has been intermittently treated for hypertension since that time (Tr. 192, 194-196).
Although arthritis is first mentioned in 1986 as a possible result of her operation, the record does not establish any symptoms of arthritis or complaints of pain until January 1993. At that time, the Plaintiff stated that the pain had been present for only the past two months (Tr. 233). The Plaintiff has argued that the pre-surgery consultation notes made in 1986 by Dr. Hooper wherein he stated "it is the highest of arthritis" (Tr. 145) establish that the Plaintiff had disabling arthritis prior to December 31, 1991. There is no merit to this argument. The statement was part of an explanation of the potential results of her injury and the possible surgical complications, and not a diagnosis.
The Plaintiff has argued that her treating physician found her disabled in May 1986 and that his opinion as to onset should control. However, in July 1986, after discussion of her job requirements, he found her fit to return to her past relevant work (Tr. 139). The Plaintiff testified that she returned to light duty and only to participate in the lay-off (Tr.4 1). However, there are no duty restrictions in her doctor's statement of her functional capacity (Tr. 139).
As stated herein; the Act places the burden of establishing disability on the Plaintiff and to receive disability insurance benefits or a period of disability she must establish that her condition became disabling before the expiration of her insured status on December 31, 1991. The undersigned finds that the ALJ's decision that the Plaintiff has not met her burden of proving that a disabling condition existed prior to December 31, 1991 is supported by substantial evidence and proper application of statutory, case law and rulings.
The Plaintiff also argues that the ALJ erred by not seeking vocational expert testimony since severe non-exertional impairments were alleged thus making it unclear whether the Plaintiff was capable of performing an unlimited range of light work. The Plaintiff argues that the ALJ erred in finding that the Plaintiff could return to her past relevant work during the relevant time period because the ALJ failed to meet the requirements of Social Security Ruling 82-62: Titles II and XVI: A Disability Claimant's Capacity to Do Past Relevant Work, In General and failed to determine "factual information about those work demands which have a bearing on the medically established limitations, [e.g.] strength, endurance, manipulative ability, mental demands and other job requirements" SSR 82-62. Plaintiff also argues that the ALJ failed to make a finding as to the mental and physical demands of her past relevant work.
The ALJ found that the Plaintiff retained the "residual functional capacity to perform the physical and mental requirements comparable to her past relevant work at any time through the date she was last insured on December 31, 1991" (Tr. 19). The ALJ characterized her past work as "light exertional work" (Tr. 19). The residual functional capacity is a measure of what a claimant can do despite limitations. 20 C.F.R. § 404.1545. It is the function of the ALJ to determine the Plaintiff's residual functional capacity through examination of the evidence and resolution of conflicts in the evidence. Wolfe v. Chater, 86 F.3d 1072, 1079 (11th Cir. 1996). The ALJ must base the assessment upon all of the relevant evidence of the Plaintiff's remaining ability to do work notwithstanding her impairments. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); 20 C.F.R. § 404.1546; 20 C.F.R. § 404.1527.
The ALJ expressly found Plaintiff's allegations of severe non-exertional impairments not credible and further found Plaintiff could perform an unlimited range of light work and that she could return to her past relevant work or work comparable to her past relevant work on or before December 31, 1991. The ALJ carefully considered Plaintiff's impairments, singly and in combination, and as they related back in time (Tr. 18-19). He noted the record revealed Plaintiff had work experience at a dental equipment factory making and testing dental equipment. The ALJ accepted the job description of this work as set forth by Plaintiff in her Work History Report, Exhibit 4E, and determined it fell into the category of light work (Tr. 19, 111-114).
As discussed herein, the Plaintiff's alleged disabling impairments of glaucoma, hypertension and arthritis were diagnosed after her date last insured. Additionally, the Plaintiff has not challenged the finding by the ALJ that her subjective allegations were not credible.
In the report, Plaintiff described her work day as follows: she walked for one hour, stood two hours, and sat for five hours, read blueprints, completed reports, and supervised new workers (Tr. 111-114). She stated she frequently lifted and carried up to 10 pounds, and the heaviest weight she lifted was 20 pounds (Tr. 19, 111-114).
The ALJ found Plaintiff retained the residual functional capacity necessary to perform the physical and mental requirements of work comparable to her past relevant work through her date last insured (Tr. 19). In order to be found disabled at step four of the sequential evaluation, the regulations require that a Plaintiff not be able to perform her past kind of work, such as "light" or "sedentary," not that she is only unable to perform a specific past job. Jackson v. Bowen, 801 F.2d 1291, 1293-1294 (11th Cir. 1986). The Commissioner is required to develop a detailed description of the duties and responsibilities of the claimant's past work. Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987).
The ALJ found as follows:
The undersigned notes that in Exhibit 4-E, the claimant stated while working she walked for one hour, stood two hours, and sat for five hours, read blueprints, completed reports, and supervised. She stated she frequently lifted and carried up to 10 pounds, and the heaviest weight she lifted was 20 pounds.
(Tr. 19).
The claimant has retained the residual functional capacity to perform work related activities comparable to that of her dental factor [sic] work where she made and tested dental equipment, read blueprints, completed reports and supervised new workers.
(Tr. 20).
The undersigned finds that the ALJ met these requirements in his discussion of her past work activities (Tr. 19) and properly determined that the Plaintiff has the residual functional capacity to return to her past relevant work at anytime prior to her date last insured. As discussed previously, there are no medical records to support inability to perform her past job between the time when Dr. Hooper released her to return to work and her date last insured. Further, the evidence in the record which describes her past job activities supports a determination that she performed work at the light exertional level.
At step four of the sequential evaluation process, the Commissioner must establish that the Plaintiff can return to past relevant work or work comparable to past relevant work. The burden then shifts to the Plaintiff to establish that she can not return to past relevant work based upon her residual functional capacity. If the Plaintiff meets this burden, then the Commissioner must establish that other work exists in significant numbers in the national economy which the Plaintiff can perform. The Commissioner may meet this burden by relying on the Medical-Vocational Guidelines. 20 C.F.R. Pt. 404, Subpt. P, App. 2. Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). However, when the Plaintiff cannot perform a full range of work at a given level of exertion or the Plaintiff has non-exertional impairments that significantly limit basic work skills, exclusive reliance on the guidelines is inappropriate. Id. In such cases, the testimony of a Vocational Expert (VE) is preferred. Id. When both exertional and non-exertional limitations affect a Plaintiffs ability to work, the ALJ should make a specific finding as to whether the non-exertional limitations are severe enough to preclude a wide range of employment at the given work capacity level indicated by the Plaintiff's exertional limitations. Foote, 67 F.3d at 1559.
The undersigned finds that the ALJ did not err in failing to obtain the testimony of a vocational expert at step four of the sequential evaluation. Since this case was decided at step four, the Plaintiff had the burden of proving she was unable to perform her past relevant work on or before her date last insured. Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991) (per curiam). The undersigned finds that the ALJ correctly determined that the Plaintiff failed to meet her burden of proving that she could not perform her past relevant work as of December 31, 1991.
The ALJ must obtain a VE's testimony only when the determination of disability is made at step five of the sequential evaluation process and substantial evidence establishes that the Plaintiff has significant non-exertional limitations, such that the Guidelines do not apply, or when substantial evidence establishes that the Plaintiff can not perform an unlimited range of work at a given exertional level. Based upon the foregoing, the undersigned finds no merit to the argument that the ALJ should have used VE testimony at step four of the sequential evaluation process.
V. Conclusion
After review of the record, the memoranda of the parties, the medical evidence as presented, the decision of the ALJ, and oral argument, the undersigned finds that there was substantial evidence in the record to support the ALJ's decision that the Plaintiff was not disabled at any time prior to her date last insured and that the ALJ properly applied the law in his determination of the disability claim of the Plaintiff. For the reasons set forth, it is recommended that the decision of the Commissioner denying the Plaintiff's claim for disability insurance benefits be affirmed.
The attached sheet contains important information regarding objections to this report and recommendation.