Opinion
Civil Action No: 00-0744, Section: "R"
November 29, 2000
ORDER AND REASONS
Plaintiff Robert Chenier seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("the Commissioner") pursuant to Section 405(g) of the Social Security Act ("the Act"). For the reason stated below, the Court affirms the Administrative Law Judge's decision to deny plaintiff social security disability benefits.
I. Background
Plaintiff, Robert Chenier, applied for disability income benefits ("DIB") on February 8, 1995, alleging disability since October 17, 1994 due to a dislocated left shoulder. The Administrative Law Judge (ALJ) conducted a hearing on February 5, 1997, and on December 5, 1997, issued a decision finding plaintiff had right shoulder impingement syndrome with a rotator cuff tear, arthritis in the right shoulder, and status post rotator cuff repair in the left shoulder. ( See Tr. 14-29.) At the time of the hearing and the decision, plaintiff was 58 years old with a high school education. He had past work experience as a pipe fitter and welder. ( See Id. at 28, 60, 271.) The Appeals Council denied plaintiff's request for review on January 6, 2000, and, pursuant to the findings of the ALJ, the Commissioner denied plaintiff's claim for disability income benefits under Title II of the Act, 42 U.S.C. § 405(g), 416(I), 423. Plaintiff appealed the decision of the Commissioner pursuant to Section 405(g) of the Act.
II. Standard of Review
On review, the district court must determine whether the final decision of the Commissioner of Social Security is supported by substantial evidence. See 42 U.S.C. § 405(g); Milam v. Bower, 782 F.2d 1284, 1287 (5th Cir. 1986) Substantial evidence is more than a scintilla and less than a preponderance, such that a reasonable mind might accept the evidence as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389 (1971); Randall v. Sullivan, 956 F.2d 105, 109 (5th Cir. 1992). In determining whether substantial evidence exists, the district court may not reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Secretary's. See Deters v. Secretary of Health, Education and Welfare, 789 F.2d 1181 (5th Cir. 1986). However, the court must scrutinize the record in its entirety to determine if the evidence is present, and may not simply rubber-stamp the decision of the ALJ. See Millet v. Schweiker, 662 F.2d 1199 (5th Cir. 1981).
III. Applicable Law
The Social Security Act provides for the payment of insurance benefits to persons who have contributed to the program and who suffer from a physical or mental disability. See 42 U.S.C. § 423 (a)(1)(D) (1991). "Disability" is defined as the "inability 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 12 months. . . ." 42 U.S.C. § 423(d)(1)(A); Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2290 (1987); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992). The Act further provides that an individual is disabled "only if his physical and mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such, work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. § 423 (d)(2)(A).
The Fifth Circuit set forth a five-step procedure for making a disability determination under the Social Security Act in Crowley v. Apfel, 197 F.3d 194 (5th Cir. 1999). First, the claimant must not be presently working at any substantial gainful activity. Second, the claimant must have an impairment or combination of impairments that are severe. An impairment or combination of impairments is "severe" if it "significantly limits [a claimant's] physical or mental ability to do basic work activities." Id. at 197. Third, the claimant's impairment must meet or equal an impairment listed in the appendix to the regulations. Fourth, the impairment must prevent the claimant from returning to his past relevant work. Fifth, the impairment must prevent the claimant from doing any relevant work, considering the claimant's residual functional capacity, age, education, and past work experience. At steps one through four, the burden of proof rests upon the claimant to show he is disabled. If the claimant satisfies this responsibility, at step five the burden shifts to the Commissioner to show that there is other gainful employment the claimant is capable of performing in spite of his existing impairments. If the Commissioner meets this burden, the claimant must then prove he in fact cannot perform the alternate work. See Id. at 197-98; Carey v. Apfel, 2000 WL 1481162, *2 (5th Cir. Oct. 5, 2000).
IV. Discussion
In December of 1997, the ALJ determined that despite plaintiff's impairments, plaintiff retained a residual functional capacity to perform medium work that did not require him to use his left upper extremity above shoulder level, to climb ladders and scaffolds, or to crawl. The ALJ found that plaintiff had no limitations on sitting, standing, walking, or using his hands and legs for other repetitive movements. ( See Tr. 28, Finding No. 5.) The ALJ relied upon medical evidence, plaintiff's testimony, and the testimony of a vocational expert to find that, despite his impairments, plaintiff could perform a number of jobs in the national and Louisiana economy. Therefore, the ALJ found that plaintiff was not disabled within the meaning of the Social Security Act.
As stated above, the ALJ's determination must be affirmed by the Court unless that determination is either not supported by substantial evidence or involved an erroneous application of legal standards. See Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995). In this case, defendant does not dispute that plaintiff has satisfied his burden of proof in showing that he was not presently working at any substantial gainful activity; he had an impairment or combination of impairments that were severe; that the impairment met or equaled an impairment listed in the appendix to the regulations; and that the impairment prevented the claimant from returning to his past relevant work. However, the inquiry does not stop here. As explained above, once the plaintiff has satisfied his burden under the first four inquiries, the burden then shifts the Commissioner to show that there is other gainful employment the claimant is capable of performing in spite of his existing impairments. If the Commissioner meets this burden, the claimant must then prove he in fact cannot perform the alternate work. See Carey, 2000 WL 1481162, at *2.
In his appeal before the Court, plaintiff does not offer any evidence to rebut the finding that he can perform alternate work. Instead, plaintiff bases his appeal on his contention that the ALJ ignored several of his impairments in determining that plaintiff was able to work in other occupations. Specifically, plaintiff claims that the ALJ did not consider plaintiff's right shoulder problems and his neck pain. In making his determination, the ALJ considered medical evidence, plaintiff's own testimony, and the testimony of a vocational expert to conclude that plaintiff was not disabled within the meaning of the Social Security Act. The court will consider each in turn.
A. Medical Evidence
Written reports by physicians who have examined the claimant and that set forth medical data are admissible evidence in a disability hearing and may constitute evidence supportive of findings by hearing examiners. See Perales, 402 U.S. at 402, 91 S.Ct. at 1428. "Medically acceptable evidence includes observations made by a physician during physical examination and is not limited to the narrow strictures of laboratory findings or test results." Ivy v. Sullivan, 898 F.2d 1045, 1048-49 (5th Cir. 1990). Medical evidence must support a physician's diagnosis, but if it does "[t]he expert opinion of a treating physician as to the existence of a disability [is] binding on the fact-finder unless contradicted by substantial evidence to the contrary." Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978); see also 20 C.F.R. § 404.1527(d)(2).
In determining whether a claimant's physical or mental impairments are of a sufficient medical severity to be the basis of eligibility under the law, the ALJ is required to consider the combined effects of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. See 20 C.F.R. § 404.1523; Crowley, 197 F.3d at 197 (5th Cir. 1999). If the ALJ finds a medically severe combination of impairments, "the combined impact of the impairments will be considered throughout the disability determination process." 20 C.F.R. § 404.1523. Finally, it is clear that the ALJ must consider all the record evidence and cannot "pick and choose" only the evidence that supports his position. See Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir. 1984); Garfield v. Schweiker, 732 F.2d 605, 609 (7th Cir. 1984); Green v. Shalala, 852 F. Supp. 558, 568 (N.D. Tex. 1994); Armstrong v. Sullivan, 814 F. Supp. 1364, 1373 (W.D. Tex. 1993).
Substantial medical evidence supports the ALJ's decision that plaintiff can perform alternate work despite his impairments. Plaintiff testified that he hurt his left shoulder in October of 1994, and x-rays revealed that he had dislocated the left shoulder and had an irregular left clavicle. Plaintiff also suffered from a torn rotator cuff in his left shoulder. Several other examinations confirmed this injury. On January 23, 1995, plaintiff had an arthroscopy and a rotator cuff repair. In February of 1995, plaintiff no longer needed a sling for his left arm, but Dr. Neil Maki recommended that plaintiff not return to heavy work for at least six months. In September of 1995, Dr. Maki's progress note indicated that plaintiff was doing well with his range of motion and that plaintiff could work doing medium grade activities so long as he refrained from overhead work with his left upper extremity. Dr. Maki also recommended that plaintiff continue to do rehabilitation. In another visit on October 3, 1995, Dr. Maki found that plaintiff's condition had continued to improve.
Plaintiff also complained of right shoulder, neck, and back pain in his request for a hearing by the ALJ. ( See Tr. at 46.) The medical evidence reveals that on March 18, 1986, plaintiff saw Dr. Richard Morvant. In his notes for this visit, Dr. Morvant noted that plaintiff complained of right shoulder difficulties and stated that he had been treating plaintiff since December of 1985 with anti-inflammatory medication and exercises. Dr. Morvant also noted that plaintiff's condition had improved since 1985, that plaintiff no longer took medication, and that plaintiff probably had mild tendinitis. ( See Tr. 20.) The medical evidence also reveals that on August 15, 1989, Dr. Dick Ory opined that plaintiff had hypertension and was being treated with medication. Dr. Ory stated that plaintiff should be able to work but should avoid work requiring climbing and dangerous equipment. ( See id.) Following his treatment for his left shoulder problems, plaintiff sought treatment for his right shoulder pain from Dr. Morvant again in February of 1997. Dr. Morvant reported to the Commission that he had not treated plaintiff since May of 1989. At the February 1997 visit, x-rays revealed that plaintiff's right shoulder had some joint arthritis with tendinitis and/or impingement. ( See id. at 231.) In April of 1997, plaintiff saw Dr. John Brooks for back pain. At this visit, x-rays of the cervical spine revealed satisfactory alignment without evidence of fracture or subluxation. Dr. Brooks found evidence of degenerative disc disease with moderate narrowing of the disc space and a slight limitation in motion. ( See id. at 250.) Plaintiff also underwent an MRI of the right shoulder, which showed a tear in the tendon and moderate degenerative change. ( See id. at 252.) Subsequently, plaintiff's physician, Dr. Kitzenger, recommended an open acromioplasty with rotator cuff repair for his right shoulder but also noted that plaintiff's left shoulder had healed well, and that he had active forward flexion to 170 degrees and good abduction strength in the left shoulder. ( See id. at 255.) However, there is no evidence in the record of any further treatment beyond May 12, 1997 for these conditions.
Because plaintiff did not submit other treatment records regarding his right shoulder, the ALJ found that plaintiff's right shoulder condition was not disabling. First, plaintiff's right shoulder problem had abated for years in the past and second, plaintiff could have undergone surgery for its repair. ( See Tr. 24.) The ALJ cites these reasons for not considering the right shoulder problem in his analysis of plaintiff's residual functional capacity. A medical condition that can be remedied by surgery or medication is not disabling. See 20 C.F.R. § 404.1530(b) and 416.930(a); Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986). The ALJ also found that plaintiff had provided no persuasive evidence that he had been refused medical treatment due to an inability to pay or that he sought alternative payment plans from any physician. ( See Tr. 24.) In addition, the ALJ found that there was no evidence plaintiff sought physical therapy or other conservative treatments for his right shoulder pain relief. The ALJ's conclusions regarding plaintiff's right shoulder condition was reasonable and supported. by substantial evidence.
Plaintiff also complained of back and neck pain. The ALJ must consider subjective evidence of pain. See Scharlow v. Schweiker, 655 F.2d 645, 648 (5th Cir. 1981). However, the ALJ also has discretion to determine the pain's disabling nature. See Jones v. Heckler, 702 F.2d 616, 621-22 (5th Cir. 1983). Disabling pain must be constant, unremitting, and wholly unresponsive to therapeutic treatment. See Haywood v. Sullivan, 888 F.2d 1463, 1470 (5th Cir. 1989). The Fifth Circuit requires that a claimant's subjective complaints must be corroborated, at least in part, by objective medical testimony. See Wren v. Sullivan, 925 F.2d 123, 129 (5th Cir. 1991); 20 C.F.R. § 416.928(a).
The ALJ recognized plaintiff's pain and determined the degree of functional limitations caused by the pain in light of plaintiff's ability to engage in daily activities, his medication program, and successful medical treatment. ( See Tr. 24-28.) The ALJ found that absence of treatment for such pain was inconsistent with the type of intolerable pain alleged by plaintiff. ( See Tr. 25.) In addition, the ALJ found no evidence of recent physical therapy and/or treatment for pain. ( See Tr. 24.) Lastly, the ALJ considered that plaintiff did not take prescription pain medication, but instead took over-the-counter Ibuprofen for his pain. ( See id.) The ALJ found this fact to indicate that the pain was not as intolerable as plaintiff testified. Therefore, the ALJ's determination that plaintiff's pain was not disabling was reasonable and supported by substantial evidence.
Although the evidence indicates that plaintiff had some problems with his shoulders, neck, and back, there is no evidence in the record before the ALJ and the Court that a treating or examining physician stated or even recommended that plaintiff could not work in any capacity. Therefore the Court finds that the medical evidence supports the ALJ's finding that plaintiff was not disabled. This conclusion is buttressed by the fact that plaintiff admitted at his administrative hearing that he could perform some work activity. ( See id. at 281, 292.)
B. Plaintiff's Testimony at the ALJ Hearing
Plaintiff's own testimony also supports the ALJ's decision. In his administrative hearing, plaintiff admitted that his doctors told him he could perform light work. ( See id. at 281.) He also explained that he was able to raise and feed horses, exercise his shoulders, drive, attend church, and visit with his grandchildren. ( See id. at 285-88.) In addition, plaintiff also testified that he can care for himself and lift a gallon of milk and a case of soda to waist level. ( See id. at 289.) The Court finds that this testimony also supports the ALJ's finding that plaintiff is not disabled within the meaning of the Social Security Act.
C. Vocational Expert Testimony
The ALJ also properly relied upon the testimony of a vocational expert in concluding that plaintiff could perform other work in the national economy despite the fact that the vocational expert found that plaintiff could not return to his past job. In this case, the Commissioner asked a vocational expert a series of hypothetical questions to determine if someone in plaintiff's position could perform any jobs in the national and Louisiana economies. In response, the vocational rehabilitation expert reported that plaintiff could perform the jobs of specified mechanics and repairers, nonspecified mechanics and repairers, dispatcher, order clerk, messenger, traffic, shipping, and receiving clerk, and security guard. ( See Tr. 272.)
The Fifth Circuit has held that when the ALJ's hypothetical questions to the vocational expert include all the limitations supported by the record, the testimony of a vocational expert constitutes substantial evidence of a significant number of jobs the claimant can perform. See Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988). In addition, the Fifth Circuit has held that here is no reversible error when the hypothetical question reasonably incorporates all of the "disabilities" found by the ALJ, and the representative of the claimant had an opportunity to "correct any defect" about additional limitations. See Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994).
In the present case, the ALJ asked the vocational expert to determine whether a claimant could be gainfully employed as a 58 year-old with a high school education who, due to a left shoulder rotator cuff tear, cannot use his left arm for working above shoulder level, can lift 50 pounds up to chest level occasionally and 25 pounds frequently, can use his right arm above shoulder level, cannot climb ladders and scaffolds, and cannot crawl. The ALJ properly excluded any right shoulder impairment because he had properly concluded that it was not disabling under the law. The vocational expert identified several occupations that plaintiff could perform. At the ALJ hearing, plaintiff had an opportunity to question the vocational expert's responses to interrogatories and to present evidence that contradicted the expert's conclusion. Plaintiff failed to provide any evidence rebutting the vocational expert's conclusion that plaintiff could perform these jobs; therefore, plaintiff has not met his burden under the law.
V. Conclusion
After considering the medical evidence, plaintiff's testimony, and the vocational expert's testimony, the Court finds that there is substantial evidence to support the ALJ's finding that plaintiff was able to perform medium work during the period in question and therefore he was not disabled.