Opinion
Civil Action No. 7:02-CV-0019-BH
July 1, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court are Brief for Plaintiff's, filed May 6, 2002, Defendant's Response to Plaintiff's Brief on Appeal, filed June 18, 2002, and Plaintiff's Response Brief on Appeal, filed July 31, 2002. Having reviewed the evidence of the parties in connection with the pleadings, the Court is of the opinion that he final decision of the Commissioner should be wholly AFFIRMED.
I.BACKGROUND A. Procedural History
The following background comes from the transcript of the administrative proceedings, which is designated as "Tr."
Norma Walck Howard ("Plaintiff") seeks judicial review of a final decision by the Commissioner of Social Security ("Commissioner"), denying her claim for disability benefits under Title XVI of the Social Security Act. On October 26, 1995, Plantiff filed an application for disability benefits under Title XVI of the Social Security Act. (Tr. at 74-76.) Plaintiff claimed she was disabled due to back problems and emphysema. (Tr. at 74.) Plaintiff's application was denied initially and upon reconsideration. (Tr. at 80-85, 89-91). Plaintiff timely requested a hearing before an Administrative Law Judge (hereinafter "ALJ"). (Tr. at 92.) A hearing, at which Plaintiff personally appeared and testified, was held on September 11, 1997. (Tr. at 25-59). On October 26, 1997, the ALJ issued his decision finding Plaintiff not disabled. (Tr. at 231-235.) Plaintiff appealed to the Appeals Counsel, which remanded the case to the ALJ on December 10, 1999, and ordered the ALJ to obtain additional evidence concerning Plaintiff's orthopedic impairment, evaluate her subjective complaints, reconsider her maximum residual functional capacity, and, if warranted, obtain evidence from a vocational expert. (Tr. at 243-244.) A second hearing was held on June 26, 2000. (Tr. at 60-73.) At that hearing, the ALJ heard testimony provided by Plaintiff and a vocational expert Id. Subsequent to the hearing, Plaintiff underwent a consultative examination. (Tr. at 267-269.) The ALJ concluded that Plaintiff was not disabled, as defined in the Social Security Act, because there were a significant number of jobs in the state and national economies that she could perform. (Tr. at 21.) The Appeals Council denied Plaintiff's request for review. (Tr. 5-6.) Plaintiff then brought this timely appeal to the United States District Court pursuant to 42 U.S.C. § 405(g).
B.Factual History
1. Age, Education, and Work Experience
Plaintiff was born on July 20, 1954. (Tr. at 28.) She completed seventh grade and has a general equivalence diploma. (Tr. at 28.) Her past relevant work experience includes employment as a bartender. (Tr. at 20.)
2. Medical Evidence
On March 23, 1995, Plaintiff was examined by David S. Huang, M.D. in the Wichita Falls Clinic Department of Orthopedics. (Tr. at 161-168.) She complained of back pain, hip pain, leg pain, and numbness in her hands and arms. Id. Plaintiff reported that she could do some housework, do some work, and participate in some sports. (Tr. at 163.) Her symptoms worsened with standing, bending, laying on her stomach, and squatting. (Tr. at 164.) She could sit for 45 minutes, walk for 30-45 minutes, and stand for 30-40 minutes. (Tr. at 163.) At the time, she was working as a bartender. (Tr. at 164.) X-rays of Plaintiffs cervical and lumbar spine showed degenerative changes. Id. Dr. Huang's impression was that Plaintiff suffered from degenerative disc disease and degenerative joint disease. (Tr. at 167.)
Plaintiff was examined by Jerome M. Adams, M.D., on January 26, 1998. (Tr. at 169-171.) She reported low back pain, which caused her to be able to sit still for only five to ten minutes and stand for twenty minutes and neck and left arm pain. (Tr at 169.) Plaintiff was able to rotate her neck about 60 degrees to the right and left. (Tr. at 170.) She had full range of motion at the shoulder and elbows but experienced some low back pain with forced extension on the left. Id. Plaintiff exhibited hypesthsia of the left hand. Id. Plaintiff was able to flex her back 45 degrees before being stopped by pain and she was able to flex laterally to the right and left about 15 degrees. Id. She had fairly marked subjective tenderness over the L-4 to -5 area in both L-S areas. Id. Dr. Adams observed that Plaintiff had difficulty in changing positions. Id. Dr. Adams stated it appeared that Plaintiffs ability to do sit, stand, walk, lift, carry, and handle objects would be severely limited by the need to frequently change positions and the back pain. Id. at 170-171.
An x-ray performed on February 5, 1996, showed degenerative disc disease at L4-5, minimal scoliosis, and loss of lordotic curve. (Tr. at 172.) On July 17, 1996, a CT scan revealed mild central disc protrusion at L4-5 with associated degenerative changes. (Tr. at 190.) An MRI performed on May 23, 1996, showed anterior disc protrusion at C5-6 and C6-7, a left paracentral disc bulge or protrusion at C5-6, and bilateral foraminal stenosis at C6-7. (Tr. at 216.)
On October9, 1996, Cecil J. Hash, M.D. determined that Plaintiff's condition did not warrant surgery, and he recommended conservative treatment with medication, physical therapy, and massage therapy. (Tr. at 222.) He noted that Plaintiffs range of motion of the back was limited in forward flexion. (Tr. at 225.) Plaintiff was examined by T. Dabo, M.D., on October 6, 1999. (Tr. at 263-64.) Dr. Dabo observed pain and tenderness of the lower and upper back and some muscle spasm on the left shoulder. (Tr. at 263.) She was prescribed Indocin and advised to use ice packs. (Tr. at 264.) On October 18, 1999, Plaintiff was examined by A. Halappa, M.D. (Tr. at 262.) Dr. Halappa noted tenderness over the cervical, upper thoracic spine and lumbar spine and decreased strength in all four extremities. Id. Plaintiff was prescribed Relafen and advised to continue using ice packs. Id. An exam by Dr. Daboon October28, 1999, showed some pain and tendeness around the shoulder and neck, no limitation to range of motion in the lower extremities, and some muscle spasm on both sides of the lower back. (Tr. at 261.) Plaintiff was prescribed Neurontin. Id. On December 14, 1999, Plaintiff was treated by L. Chen, M.D. for headaches caused by cervical muscle spasm. (Tr. at 259.) Plaintiff was treated with Vioxx and advised to alternate ice and heat packs. Id. On December 29, 1999, Plaintiff again sought treatment for back pain, stating that the medications previously prescribed afforded her only temporary relief. (Tr. at 258.) Dr. Dabo noted muscle tenderness and spasm on the left side of Plaintiff's neck and shoulder and on her lower back. Id. Straight leg raises caused lower back pain. Id. Plaintiff was prescribed Flexeril and advised to use ice packs. Id.
A consultative examination was performed by Bernard Z. Albmna, M.D., on July 10, 2000. (Tr. at 265-269.) X-rays of the lumbar spine revealed degenerative disc disease at L4-5, minimal scoliosis, and loss of lordotic curve. (Tr. at 266.) Cervical x-rays showed anterior osteophytisis of C5, C6, and C6-7 and hypemrophic change involving the joints of Luschka. Id. Plaintiff had tenderness in her neck but could rotate it 75 degrees, extend 60 degrees, and flex 50 degrees. Id. Plaintiff's lumbar spine showed tenderness; forward flexion was 60 degrees; lateral bend was 25 degrees. (Tr. at 267.) Plaintiff's leg raising and ankle and knee jerks were normal. Id. Dr. Albina determined that Plaintiff's findings were comparible with chronic degenerative lumbar disc disease at L4-5 and probable osteoarthritis or degenerative disc disease in the cervical spine at C5-6. Id. He stated that he did not anticipate that Plaintiff would need surgery within the following 12 months. Id. Dr. Albina opined that Plaintiff was limited to lifting and/or carrying less than 10 pounds. (Tr. at 268.) Her ability to stand, walk, and sit were not affected by her impairments. Id. Dr. Albina stated that Plaintiff could occasionally climb, balance, stoop, crouch, kneel, and crawl. (Tr. at 269.) Plaintiff had no limitations in reaching, handling, fingering, or pushing/pulling. Id. Envionmental factors limited by Plaintiff's condition were heights, temperature extremes, and vibration. Id.
3. Hearing Testimony
(a) September 11, 1997
At the first hearing, held on September 11, 1997, the AU heard testimony from Plaintiff. (Tr. at 25-59.) Plaintiff was represented by counsel at the hearing. (Tr. at 27.)
At the time of the hearing, Plaintiff was 43 years old (Tr at 58.) Plaintiff testified that she had obtained her G.E.D. (Tr. at 28.) Her past work consisted of bartending, making deliveries, waiting tables, and assembling parts. (Tr. at 28,33,35.) Plaintiff stated that she injured her back in an automobile accident in 1988 and further injured it when she fell in 1996. (Tr. at 28-29.) She stated that her back caused her constant pain and that occasionally her legs hurt and her left arm felt numb. (Tr. at 29-30.) Plaintiff claimed she was uncomfortable sitting for even short periods and standing for more than 30 minutes. (Tr. at 30-31.) She had to lay down several times a day for 20 to 40 minutes at a time. (Tr. at 31.) Plaintiff was able to do some light cooking, and drive, but was unable to do any housework. (Tr. at 32.) Plaintiff stated that she was not claiming a non-exertional mental impairment as part of her disability claim. (Tr. at 56.)
(b) June 26, 2000
At the second hearing, held on June 26,2000, the ALJ heard testimony from Plaintiff and a vocational expert ("VE"). (Tr. at 60-73.) Plaintiff was represented by counsel at the hearing. (Tr. at 62.)
Plaintiff testified that she was 45 years old at the time of the hearing. (Tr. at 63.) She had not worked since applying for benefits in October, 1995. Id. Plaintiff had been scheduled for an orthopedic examination before the hearing, but due to the examining physician's illness, it was rescheduled for after the hearing date. (Tr. at 63-64.) Plaintiff stared that she suffered from constant back pain, made worse by prolonged sitting, laying, or standing. (Tr. at 66.) She could only sit or stand for 30 minutes at a time. Id. She testified that she was unable to lift 10 pounds. Id. She rarely drove. (Tr. at 68.) Plaintiff had problems sleeping due to pain. Id. She was only able To walk half a block, did not go grocery shopping, and did not cook. (Tr. at 69.)
The VE was asked to respond to two hypothetical questions. (Tr. at 71-72.) The first hypothetical questions assumed an individual of Plaintiff's age, education, and work experience, who was limited to a wide range of light work, with only occasional bending at the waist. (Tr. at 71.) The VE testified that such an individual would be able to perform Plaintiff's past work as a bartender. Id. The second hypothetical question assumed an individual of Plaintiff's age, education, and work experience, who, due to constant and severe pain in the lower back, was unable to be present at a work station for eight hours and would require a two to three hour rest period during the day. (Tr. at 71-72.) The VE stated that there would be no work available for such an individual. (Tr. at 72.)
C. ALJ's Findings
The ALJ issued his decision denying benefits on November 30, 2000. (Tr. at 15-22). In his findings, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of her symptoms. (Tr. at 16.) The ALJ found tat Plaintiff had degenerative disc disease of the lumbar spine and some degenerative changes in the cervical spine. Id. The ALJ also found that Plaintiff's physical impairments caused significant vocationally relevant limitations. Id. Although Plaintiff had alleged disability due to emphysema, the AL concluded that the medical records did not show that her pulmonary condition limited her ability to work. Id. Additionally, the AU noted hat the record did not reflect a severe mental impairment significantly limiting Plaintiff's ability to work. Id. Although Plaintiff's impairments were severe, the ALJ concluded that they did not meet or equal the criteria of any of the listed impairments. (Tr. at 18.) After reviewing the medical reports in the record, the ALJ concluded that they did not establish the existence of an impairment or combination of impairments that would preclude Plaintiff from performing substantial gainful activity. Id. The ALJ also considered Plaintiffs subjective complaints of pain and determined that her statements concerning the impact of her impairments on her ability to work were not sufficiently credible to support a finding of disability. (Tr. at 19.) The ALJ found that Plaintiff's ability to perform the full range of sedentary work was limited only by the need to avoid dangerous heights, temperature extremes, and significant vibration. (Tr. at 19-20.) Accordingly, the ALJ concluded that Plaintiff had the residual functional capacity to perform a very wide range of sedentary work and a limited range of light work." Id. Because Plaintiff was limited to lifting and carrying only ten pounds, the ALJ found that she could not perform her past relevant work as a bartender. (Tr. at 20.) Accordingly, the ALJ considered the Medical-Vocational Guidelines ("Grids"), 20 C.F.R. Part 404, Subpt. P, App. 2. (Tr. at 20.) The ALJ noted that Plaintiff was a "younger individual," had the equivalent of a high school education, a history of semi-skilled work, and the capacity of performing at least a very wide range of sedentary work. Id. Using Vocational Rules 201.21 and 201.22 as a framework, the ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act. Id. The ALJ did not consider the testimony of the VE in his decision.
II. ANALYSIS
A. Legal Standard
Judicial review of the Commissioner's denial of benefits is limited to whether the Commissioner's position is supported by substantial evidence and whether the Commissioner applied proper legal standards in evaluating the evidence. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); 42 U.S.C. § 405(g), 1383(C)(3). Substantial evidence is defined as more than a scintilla, less than a preponderance, and as being such relevant and sufficient evidence as a reasonable mind might accept as adequate to support a conclusion. Leggen v. Charer, 67 F.3d 558, 564 (5th Cir. 1995). In applying the substantial evidence standard, the reviewing court does not reweigh the evidence, retry the issues, or substitute its own judgment, but rather scrutinizes the record to determine whether substantial evidence is present. Greenspan, 38 F.3d at 236. A finding of no substantial evidence is appropriate only if there is a conspicuous absence of credible evidentiary choices or contrary medical findings to support the Commissioner's decision. Johnson v. Bowen, 864 F.2d 340, 343-344 (5th Cir. 1988).
To be entitled to social security benefits, a claimant must prove that he or she is disabled for purposes of the Social Security Act. Leggett v. Chater, 67 F.3d 558, 563-64 (5th Cir.1995); Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988). The definition of disability under the Social Security Act is "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); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).
The Commissioner utilizes a sequential five-step inquiry to determine whether a claimant is disabled. Those steps are:
1. An individual who is working and engaging in substantial gainful activity will not be found disabled regardless of medical findings.
2. An individual who does not have a "severe impairment" will not be found to be disabled.
3. An individual who "meets or equals a listed impairment in Appendix 1" of the regulations will be considered disabled without consideration of vocational factors.
4. If an individual is capable of performing the work he has done in the past, a finding of "not disabled" must be made.
5. If an individual's impairment precludes him from performing his past work, other factors including age, education, past work experience, and residual functional capacity must be considered to determine if work can be performed.Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991) (summarizing 20 C.F.R. § 404.1520(b)-(f)). Under the first four steps of the inquiry, the burden lies with the claimant to prove disability. Leggett, 67 F.3d at 564. The inquiry terminates if the Commissioner determines at any point during the first four steps that the claimant is disabled or is not disabled Id. Once the claimant satisfies his or her burden under the first four steps, the burden shifts to the Commissioner at step five to show that there is other gainful employment available in the national economy that the claimant is capable of performing. (Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). This burden may be satisfied either by reference to the Medical-Vocational Guidelines of the regulations or by expert vocational testimony or other similar evidence. Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). A finding that a claimant is not disabled at any point in the five-step review is conclusive and terminates the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).
B. Issues for Review
Plaintiff alleges that substantial evidence does not support the Commissioner's finding that she was not disabled because:
(1) The ALJ relied on testimony by the VE in response to a defective hypothetical question; and
(2) The medical evidence does not support the ALJ's finding that Plaintiff has the residual functional capacity to perform the exertional requirements of a very wide range of sedentary work and a limited range of light work.C. Issue One: The Hypothetical Question
Plaintiff alleges that substantial evidence does not support the Commissioner's finding that she had the residual functional capacity to do a full range of sedentary work. (Pl. Br. at 1.) Specifically, Plaintiff argues that "[t]he ALJ relied on testimony elicited by a defective hypothetical question" and "did not carry his burden to show that despite the plaintiff's impairments, the plaintiff could perform a full range of light work." (P1. Br. at 4.) Plaintiff asserts that the hypothetical question posed to the VE did not incorporate the restrictions noted by Dr. Albina at an exam performed after the hearing, which indicated that Plaintiff was unable to perform a wide range of light work as set out in the hypothetical question. (P1. Br. at 3-4.) Those restrictions were recognized by the ALJ in his decision. (Tr. at 19-20.)
The ALJ has a duty to fully and fairly develop the facts relevant to a claim for benefits. Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000). Failure to develop an adequate record is notper se grounds for reversal. Kane v Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984). Plaintiff must show that Plaintiff "could and would have adduced evidence that might have altered the result." Id. To establish that work exists for a claimant, the ALJ relies on the Grids or the testimony of a VE in response to a hypothetical question. Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994). If a claimant's impairments are solely exertional or his nonexertional impairments do not sufficiently affect his residual functional capacity, the ALJ may rely on the Grids to determine whether there is other work in the economy that the claimant can perform. Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000) (citing Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). However, if the claimant has nonexertional impairments or a combination of exertional and nonexertional impairments, then the ALJ must rely on a vocational expert to show that such other work exists. Id.
The Fifth Circuit has held that the Commissioner may rely on the Grids to establish that work exists for a claimant only if the Grids' "evidentiary underpinnings" coincide exactly with the evidence in the record. Lawler v. Heckler, 761 F.2d 195, 197 (5th Cir. 1985), In Bolron v. Callahan, 984 F. Supp. 510, 514 (N.D Tex. 1997), the court stated that "if the Plaintiff suffers from non-exertional or a combination of exertional and non-exertional impairments the Commissioner may not utilize the Medical Vocational Guidelines for a decision," although the Grids may be used under limited circumstances as a framework for a decision. (emphasis added).
In Swenson v. Sullivan, 876 F.2d 683 (9th Cir. 1989), the Ninth Circuit noted that no court had stated whether an ALJ was required to use the grids as a framework when a vocational expert did testify. Id. at 688. The Swenson court did not provide an answer to that question but merely held that an ALJ was required to reject vocational testimony that was inconsistent with the overall framework of the Grids Id. In that case, the VE testified that the jobs performable by the plaintiff were fewer than the jobs performable by a person deemed disabled under the Grids. Id. at 689.
If the ALJ relies on The testimony of a VE, the hypothetical question posed to the VE must reasonably incorporate all the claimamant's disabilities recognized by the ALJ and the claimant must be afforded a fair opportunity to correct any deficiencies in the hypothetical question. Bowling, 36 F.3d at 436. A claimant's failure to point out deficiencies in a hypothetical question does not "automatically salvage that hypothetical as a proper basis for a determination of non-disability." Boyd v. Apfel, 239 F.3d 698, 707 (5th Cir. 2001). If, in making a disability determination, the ALJ relied on testimony elicited by a defective hypothetical question, the ALJ did not carry his burden of proof to show that the claimant could perform available work despite his impairment. Id. at 708.
Contrary to Plaintiff's assertion, the ALJ did not rely on the testimony of the VE in reaching his decision in this case. In fact, the VE's testimony is not mentioned in the ALJ's decision. Instead, the ALJ relied on the Grids to establish that work existed for Plaintiff. (Tr. at 20) Because Plaintiff could not perform her past work, the burden shifted to the Commissioner to show that a significant number of other jobs were available to her. Due to the fact that Plaintiff stated that she was not claiming any non-exertional mental impairments as part of her disability claim, the ALJ was free to rely on the Medical-Vocational Guidelines at step five of the sequential analysis. Selders v. Sullivan, 914 F.2d 614, 618-19 (5th Cir. 1990). At the time of the decision, plaintiff was a "younger person" within the meaning of 20 C.F.R. § 404.1563(b) and 416.963(b), had the equivalent of a high school education, and had the residual functional capacity for sedentary work Rules 201.21 and 201.22, 20 C.F.R. Subpart P, App. 2, Table No. 2, direct a finding of "nor disabled" for such a person. The ALJ properly met his burden by relying on Rules 201.21 and 201.22 of the Grids, which indicate that a significant number of sedentary jobs are available to someone of Plaintiff's age, education, and vocational background. See Newton, 209 F.3d at 458. D. Issue Two: Residual Functional Capacity
Plaintiff admits that the medial evidence indicated she could perform sedentary work, but argues that the record does not support the finding that she had the residual functional capacity to perform the exertional requirements of a very wide range of sedentary work and a limited range of light work, as found by the ALJ. (P1. Br. at 3, 4; Reply at 2.)
20 C.F.R. § 416.967(a) defines sedentary work as work which "involves lifting no more than 10 pounds at a time" and in which walking and standing are required occasionally." Light work is defined by 20 C.F.R. § 416.967(b) as work which "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds" and which "requires a good deal of walking or standing, or . . . sitting most of the time with some pushing and pulling of arm or leg controls."
In his consultative exam report Dr. Albina found that Plaintiff could lift and/or carry 10 pounds occasionally and less than 10 pounds frequently. (Tr. at 268.) Her ability to stand, walk, and sit were not affected by her impairments. Id. Dr. Albina stated that Plaintiff could occasionally climb, balance, stoop, crouch, kneel, and crawl. (Tr. at 269.) Plaintiff had no limitations in reaching, handling, fingering, or pushing/pulling. Id. Environmental factors limited by Plaintiffs condition were heights, temperature extremes, and vibration. Id.
The assessment by Dr. Albina supports the ALJ's finding that Plaintiff retained the ability to perform a wide range of sedentary work as defined by 20 C.F.R. § 416.967(a). Dr. Albina's opinion does not support the ALJ's finding that Plaintiff would be able to perform light work, as defined by 20 C.F.R. § 416.967(b), and the ALJ did not indicate he was disregarding Dr. Albina's opinion for good cause. However, the ALJ applied the vocational rules for sedentary work, rather than those for light work, rules 201.21 and 201.22, in determining that Plaintiff was able to perform a significant number of jobs in the national economy. (Tr.ar 20.) Substantial evidence supports the ALJ's conclusion that Plaintiff was able to perform a wide range of sedentary work.
III. CONCLUSION
The ALJ properly relied on the Grids to establish that Plaintiff was not disabled because a significant number of sedentary jobs were still available to her, and substantial evidence supports the finding that Plantiff was able to perform a wide range of sedentary work. Accordingly, the final decision of the Commissioner is wholly AFFIRMED.
SO ORDERED