Opinion
Civil Action No. 00-0226.
September 25, 2000.
ORDER AND REASONS
Plaintiff Raymond J. Billiot seeks judicial review pursuant to Section 405(g) of the Social Security Act (the Act) of the final decision of the Commissioner of Social Security Administration (the SSA), which denied his claim for supplemental security income benefits (SSI) under Title XVI, §§ 1602 and 1614(a)(3)(A) of the Act, 42 U.S.C. § 1381(a). Plaintiff and defendant filed timely memoranda of facts and law. Record Doc. Nos. 6, 7.
1. PROCEDURAL HISTORY
Billiot applied for SSI on September 24, 1996, alleging disability since April 11, 1986, because of pain from having total hip replacement for the third time. (Tr. 68-71). The Commissioner denied his application initially and on reconsideration. (Tr. 52-55, 58-59). Plaintiff requested a hearing before an administrative law judge (ALJ), which was held on May 12, 1998. The ALJ denied Billiot's application on June 24, 1998. After the Appeals Council denied review on December 14, 1999 (Tr. 4-5), the ALJ's decision became the final decision of the Commissioner for purposes of this Court's review.
2. STATEMENT OF ISSUES ON APPEAL
The issue is defined by defendant as whether substantial evidence supports the Commissioner's decision and whether the decision that plaintiff is not disabled through June 24, 1998 comports with legal standards.
3. ALJ's FINDINGS RELEVANT TO ISSUES ON APPEAL
The Commissioner made the following findings relevant to the issues on appeal:
A. The medical [evidence] establishes that claimant has severe Grade I spondylolisthesis of the lumbar spine and has undergone three hip replacement surgeries. However, he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix A, Subpart P, Regulations No. 4.
B. The claimant's subjective complaints, including those of pain, and disabling functional limitations are found to be overstated and are credited only to the extent found herein.
C. The claimant has a residual functional capacity for the performance of light work which would not involve lifting any more than 20 pounds and which would allow alternating sitting and standing for one hour at a time and shifts of posture at will. Claimant is able on occasion to climb, crouch, crawl, kneel, bend, and stoop.
D. The claimant is unable to perform his past relevant work as a welder/fitter.
E. The claimant is 44 years old, which is defined as a younger individual.
F. The claimant has a 6th grade education.
G. Although the claimant's overall limitations do not allow him to perform the full range of light work, under the framework of the Medical-Vocational Guidelines of Appendix 2, Subpart P, of Regulations No. 4, the vocational expert credibly named the following jobs which exist in significant number in the national economy which the claimant could perform: cashier — 10,000 jobs, assembler — 2,000 jobs; food preparer — 1,000 jobs.
Actually, the vocational expert found that these numbers existed in the state economy. (Tr. 44).
4. ANALYSIS
A. Standards of Review
The function of this Court on judicial review is limited to determining whether there is substantial evidence in the record to support the final decision of the Commissioner as trier of fact and whether the Commissioner applied the appropriate legal standards in evaluating the evidence. Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence is more than a scintilla but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Spellman, 1 F.3d at 360. This Court may not reweigh the evidence, try the issues de novo or substitute its judgment for the Commissioner's Id.; Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
The Commissioner is entitled to make any finding that is supported by substantial evidence, regardless whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91 (1992). Despite this Court's limited function, it must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists to support it. Villa, 895 F.2d at 1022; Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). Any findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
To be considered disabled and eligible for DIB, plaintiff must show that he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has promulgated regulations that provide procedures for evaluating a claim and determining disability. 20 C.F.R. § 404.1501 to 404.1599 Appendices, §§ 416.901 to 416.998 (1995). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity. Id. §§ 404.1520, 416.920; Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); Moore v. Sullivan, 895 F.2d 1065, 1068 (5th Cir. 1990). The five-step inquiry terminates if the Commissioner finds at any step that the claimant is or is not disabled.Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The five-step analysis requires consideration of the following:
First, if the claimant is currently engaged in substantial gainful employment, he or she is found not disabled. 20 C.F.R. § 404.1520(b), 416.920(b).
Second, if it is determined that, although the claimant is not engaged in substantial employment, he or she has no severe mental or physical impairment which would limit the ability to perform basic work-related functions, the claimant is found not disabled. Id. §§ 404.1520(c), 416.920(c).
Third, if an individual's impairment has lasted or can be expected to last for a continuous period of twelve months and is either included in a list of serious impairments in the regulations or is medically equivalent to a listed impairment, he or she is considered disabled without consideration of vocational evidence. Id. §§ 404.1520(d), 416.920(d).
Fourth, if a determination of disabled or not disabled cannot be made by these steps and the claimant has a severe impairment, the claimant's residual functional capacity and its effect on the claimant's past relevant work are evaluated. If the impairment does not prohibit the claimant from returning to his or her former employment, the claimant is not disabled. Id. §§ 404.1520(e), 416.920(e).
Fifth, if it is determined that the claimant cannot return to his or her former employment, then the claimant's age, education and work experience are considered to see whether he or she can meet the physical and mental demands of a significant number of jobs in the national economy. If the claimant cannot meet the demands, he or she will be found disabled. Id. §§ 404.1520(f)(1), 416.920(f)(1). To assist the Commissioner at this stage, the regulations provide certain tables that reflect major functional and vocational patterns. When the findings made with respect to claimant's vocational factors and residual functional capacity coincide, the rules direct a determination of disabled or not disabled. Id. § 404. Subpt. P, App. 2, §§ 200.00-204.00, 416.969 (1994) ("Medical-Vocational Guidelines").
The claimant has the burden of proof under the first four parts of the inquiry. Id. If he successfully carries this burden, the burden shifts to the Commissioner to show that other substantial gainful employment is available in the national economy, which the claimant is capable of performing. Greenspan, 38 F.3d at 236; Kraemer v. Sullivan, 885 F.2d 206, 208 (5th Cir. 1989). When the Commissioner shows that the claimant is capable of engaging in alternative employment, "the ultimate burden of persuasion shifts back to the claimant." Id.; accord Selders, 914 F.2d at 618.
The Court "weigh[s] four elements of proof when determining whether there is substantial evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) his age, education, and work history." Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). "The Commissioner, rather than the courts, must resolve conflicts in the evidence." Id.
B. Factual Background
Raymond J. Billiot testified that he was 44 years at the time of the hearing before the ALJ on May 12, 1998. He has a sixth grade education. His first total hip replacement was in 1987; the second was between 1992 and 1994, and the third was in August of 1996. He stated he was bedridden for the first two months after the last surgery. He then was on crutches for about four to six months, then used a cane, which he stated he should still be using but was not for some unspecified reason. He also testified that he fell about a month after the surgery while trying to get into the shower. He also fell into a bayou when decking gave way while he was still on crutches.
Plaintiff claims the last hip replacement was the worst one he has had, and that he has more pain because they broke his leg in two or three different locations while trying to pull out the rod that goes into the leg. He claims he gets sharp, shooting pains through it and sometimes it feels like it's "just dislocated." (Tr. 24-29). He also suffers from a cracked vertebrae," which is something that happened to him when he was younger and became aggravated because of the way he walked. (Tr. 33-34).
The vocational expert, Ms. Carla Saylor, was given the following hypothetical and asked whether such an individual would be able to perform any jobs existing in the economy: a 44 year old male with a sixth grade education, whose past work was in welding, who could lift a gallon of milk in each hand and up to 20 pounds on occasion, who would have to be able to sit and stand alternatively for no longer than an hour at a time, would be able to work an eight hour day, with no significant climbing, crouching, bending, kneeling, or those types of postural limitations. She replied that there would be light level positions available in the state that would meet the hypothetical; about 10,000 cashier positions, about 2,000 light assembler jobs, and about 2,000 light food preparation jobs, about 1,000 light machine operator positions, and about 1,000 light hand packager jobs. (Tr. 44).
C. Medical Evidence
This Court has reviewed the medical records in evidence and the ALJ's summary of the medical evidence (Tr. 19-21), and finds the ALJ's thorough summary of the evidence was substantially correct and incorporates it herein by reference.
On February 7, 1996, about seven months before plaintiff filed for SSI, he visited his doctor for persistent pain in his right hip. Dr. Robert Fleming, his treating physician, noted that he continued to have some "scalloping" (having the margin or surface cut into rounded scallops [red blood cells]. Merriam Webster Medical Dictionary). The Doctor further noted that "[It] [m]ay very well be loosening up. I recommend that he get on a disability program. I do not feel that he is capable of holding a job with his hip the way it is." (Tr. 108). Dr. Fleming saw plaintiff again on July 11, 1996 and noted he was having increased pain in his hip. He recommended he try Naprelan 375 2 daily and see him again in a month. He also refilled his other medication. (Tr. 108). Two weeks later the plaintiff returned to Dr. Fleming, with complaints of continuing pain in his hip as well as in the thigh. He recommended after reviewing a bone scan that plaintiff have revision surgery and see him again in six weeks. (Tr. 107). Plaintiff saw Dr. Fleming several times after that, and on February 27, 1997, he came in complaining of pain in his low back. The doctor noted he had muscle spasm without neurological deficits. He also noted plaintiff's x-rays revealed Grade I spondylolisthesis, and stated he believed plaintiffs problem was the Grade I spondylolisthesis. He recommended plaintiff utilize a lumbosacral support, and take Talwin and Xanax. He was also given 2 cc of Celestone to see if that would improve his situation as well. Plaintiff returned to Dr. Fleming on April 8, 1997, and reported his back was doing much better, that he was no longer symptomatic. (Tr. 104). The record reveals, however, that plaintiff received another injection of 1.50 cc of Celestone on May 7, 1997, and had three following office visits on June 17, 1997, July 29, 1997 and December 9, 1997, but there are no notes in the record from the doctor regarding those visits. (Tr. 101).
spondylolisthesis: forward displacement of a lumbar vertebra on the one below it and especially of the fifth lumbar vertebra on the sacrum producing pain by compression of nerve roots. Merriam Webster Medical Dictionary.
The ALJ found that the plaintiffs testimony of subjective complaints and functional limitations, including pain, were not supported by the evidence as a whole in the disabling degree alleged, and therefore lacked credibility. (Tr. 14). For the most part, the Court agrees with the ALJ's findings, and incorporates them herein by reference. The Court does note the ALJ found that there was no documentation of any treatment after May of 1997, which is not correct (see Tr. 101), but the documentation does not provide sufficient evidence to justify' overruling the decision or remanding the case to the ALJ for further evidence from his treating opinion. In other words, the court can not just assume that because plaintiff received a Celestone injection a month after his doctor found he was no longer symptomatic, and had three visits after May, 1997, that his condition had worsened to the point that he could no longer perform the light work with the restrictions noted in the ALJ's opinion. As noted above, at the fifth step of the sequential analysis, once the ALJ finds that plaintiff can still perform a significant number of jobs in the state and national economy, the burden of proof shifts back to the plaintiff to prove otherwise. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); Kraemer v. Sullivan, 885 F.2d 206, 208 (5th Cir. 1989); accord Selders, 914 F.2d at 618.
Whether pain is disabling is an issue for the ALJ, who has the primary responsibility for resolving conflicts in the evidence. Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir. 1991). It is within the ALJ's discretion to determine the disabling nature of a claimant's pain, and the ALJ's determination is entitled to considerable deference. Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir. 1991); James v. Bowen, 793 F.2d 702 (5th Cir. 1986). The determination whether an applicant is able to work despite some pain is within the province of the administrative agency and should be upheld if supported by substantial evidence. Jones v. Heckler, 702 F.2d 616 (5th Cir. 1983); Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980).
Subjective complaints must be corroborated by objective medical evidence. Houston v. Sullivan, 895 F.2d 1012, 1016 (5th Cir. 1989). When the medical signs or laboratory findings show that the claimant has medically determinable impairments that could reasonably be expected to produce the alleged symptoms, the Commissioner must evaluate the intensity and persistence of the symptoms, so that he can determine how the symptoms limit the claimant's capacity for work. 20 C.F.R. § 404.1529(c). In evaluating the intensity and persistence of symptoms, the following objective factors can corroborate the existence of disabling pain: limitations on range of motion, muscular atrophy, weight loss, impairment of general nutrition, x-ray evidence, neurological deficits and muscle spasms.Hollis, 837 F.2d at 1384. Whether or not other conclusions are also permissible, see Arkansas v. Oklahoma, supra, if the decision was reasonable and based on substantial evidence, the Court may not substitute its judgment for the Commissioner's. See Spellman, supra, 1 F.3d at 360; Selders, supra, at 914 F.2d 617.
Substantial evidence supports the ALJ's conclusion that Billiot's daily activities indicate he is able to perform light work with the noted restrictions. Under step four of the disability analysis, the Commissioner may consider evidence of participation in daily activities and household chores in conjunction with other evidence, Reyes v. Sullivan, 915 F.2d 151, 154-55 (5th Cir. 1990), which he did in this case. (Tr. 188).
CONCLUSION
Substantial evidence in the record supports the ALJ's decision that the limitations resulting from Billiot's impairments were not so severe as to be debilitating and that he has the residual functional capacity to perform light work activity available in the national economy with the restrictions noted in his opinion. Accordingly, IT IS ORDERED that plaintiffs complaint be and is hereby DISMISSED WITH PREJUDICE.