Opinion
CIVIL ACTION NO. SA-03-CA-0861 RF (NN)
May 17, 2004
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
I. Introduction
Plaintiff Maria Johnson seeks review and reversal of the administrative denial of her application for Supplemental Security Income ("SSI") by the Administrative Law Judge ("ALJ") on May 30, 2003. Plaintiff contends that ALJ Martin's conclusion that plaintiff's medically determinable impairments (diabetes and arthritis) were not severe is not supported by the substantial evidence of the record. For this reason, plaintiff requests that the court reverse, remand and order the entry of a finding of disability, or, in the alternative, remand the case for proper development.
See Docket Entries 1, 15, 17. See also Administrative Transcript (" Transcript"), at 13-19.
After considering plaintiff's brief, defendant's brief in support of the Commissioner's decision, plaintiff's reply brief, the transcript of the Social Security Administration (hereinafter "SSA") proceedings, the pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, and the entire record in this matter, it is my recommendation that plaintiffs request for relief be DENIED . The ALJ's decision is supported by the substantial evidence of the record and was made by application of the correct legal standards.
Docket Entry 15.
Docket Entry 16.
Docket Entry 17.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
II. Jurisdiction
The court has jurisdiction under 42 U.S.C. § 1383.
III. Administrative Proceedings
According to the record in this case, plaintiff fully exhausted her administrative remedies prior to filing this action in federal court, Plaintiff filed an application for SSI with a protective filing date of April 19, 2001. The SSA denied plaintiff's application both initially, on September 26, 2001, and on reconsideration, October 25, 2001.
Transcript, at 15, 56-58.
Transcript, at 38-42.
Transcript, at 45-46.
On November 8, 2001, plaintiff requested a hearing before an ALJ. The hearing was held on February 14, 2003. Plaintiff was represented by counsel at the hearing. Plaintiffs attorney was able to examine and question plaintiff fully during the hearing.
Transcript, at 48.
Transcript, at 22-35.
The plaintiff, who was sixty six (66) years old at the February 2003 hearing, testified that she had a twelfth grade education. Plaintiff told the ALJ that she had not worked since 1969, but that she had raised seven children. Plaintiff further testified that she lived in a home with her daughter, who was then forty five (45) years old. When asked about her ability to perform household chores and daily activities, plaintiff testified that she cleaned her own room and bathroom. Upon further questioning by her attorney, plaintiff stated that she was able to vacuum, dress herself, do her own laundry, cook her own meals, and do her own grocery shopping as long as she held onto the shopping cart. Plaintiff further testified that she was able to stand approximately forty five (45) minutes before she needed to sit down.
Transcript, at 25-26.
Transcript, at 26-27.
Transcript, at 26, 27.
Transcript, at 27.
Transcript, at 27.
Id.
Transcript, at 28.
Id.
Transcript, at 29. When asked about her need to hold onto the shopping cart, plaintiff testified:
Because, well, it's such a big store that, you know, it kind of tires me. I can't walk like too fast so I take my time and I really hold onto the cart and start getting whatever, you know, whatever groceries I need and I just take my time. Id.
Transcript, at 27.
When asked about her impairments and the required treatment for the same, plaintiff stated that she took prescription Ambien in order to help her sleep. Plaintiff further testified that she was hospitalized a short time before the administrative hearing because she "had a lot of cough and phlegm" which also made her feel nauseous. Plaintiff told the ALJ that she had diabetes but that her doctors had taken her off of her medication because she was "doing okay." Plaintiff testified to some discomfort from arthritis in her right shoulder and that the only medication her doctor advised her to take for the same was Ibuprofen. Plaintiff also told the ALJ that she had suffered from kidney and urinary problems in the past, but that she had not had any urinary problems in the one to two years preceding the hearing. Plaintiff further stated that she had been prescribed Zoloft for depression and Lorazepam for anxiety.
Transcript, at 30.
Transcript, at 31. Later in the hearing, plaintiff testified that she had intermittently recurring problems with nausea and that her doctors had not yet found the physiological cause of the nausea. Transcript, at 33.
Transcript, at 31.
Transcript, at 32.
Transcript, at 32.
Transcript, at 32-33.
On May 30, 2003, the ALJ issued his decision in which he concluded that plaintiff was not under a "disability," as defined by the Social Security Act ("the Act"), at any time through the date of the decision — that is, from the date plaintiff submitted her application through the date of the ALJ's decision. Specifically, ALJ Martin found that plaintiff's medically determinable impairments of diabetes mellitus and arthritis were not severe.
Transcript, at 13-19.
Id.
After receiving the ALJ's unfavorable decision dated May 30, 2003, plaintiff requested review of the hearing and decision on June 18, 2003. On August 8, 2003, the Appeals Council concluded that there was no basis upon which it could grant plaintiff's request for review, thereby denying plaintiff's request. Plaintiff commenced the instant action in this court on September 3, 2003.
Transcript, at 11.
Transcript, at 6-9.
Docket Entry 1.
IV. Issue Presented
Whether the ALJ's decision is supported by substantial evidence and comports with relevant legal standards?V. Analysis
A. Standard of Review
In reviewing the Commissioner's decision denying disability insurance benefits, I am limited to a determination of whether substantial evidence supports the decision and whether the Commissioner applied the proper legal standards in evaluating the evidence. "Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but `no substantial evidence' will be found only where there is a `conspicuous absence of credible choices' or `no contrary medical evidence.'"
Martinez v. Chater , 64 F.3d 172, 173 (5th Cir. 1995); 42 U.S.C. § 405(g), 1383(c)(3) (2002).
Villa v. Sullivan , 895 F.2d 1019, 1021 (5th Cir. 1990) (quoting Hames v. Heckler , 707 F.2d 162, 164 (5th Cir. 1983)).
Abshire v. Bowen , 848 F.2d 638, 640 (5th Cir. 1988) (quoting Hames , 707 F.2d at 164).
If the Commissioner's findings are supported by substantial evidence, then they are conclusive and must be affirmed. In my review of the Commissioner's findings, I must carefully examine the entire record, but refrain from re-weighing the evidence or substituting my judgment for that of the Commissioner. Conflicts in the evidence and credibility assessments are for the Commissioner and not for the courts to resolve. Four elements of proof are weighed by the courts in determining if substantial evidence supports the Commissioner's determination: (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) the claimant's age, education and work experience.
Martinez , 64 F.3d at 173.
Ripley v. Chater , 67 F.3d 552, 555 (5th Cir. 1995);Villa, 895 F.2d at 1021 ("The court is not to reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner.").
Martinez , 64 F.3d at 174.
Id.
1. Entitlement to Benefits
Every individual who is insured for disability insurance benefits, has not reached retirement age, has filed an application for benefits, and is under a disability is entitled to receive disability insurance benefits. The term "disabled" or "disability" means 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 twelve months." A claimant shall be determined to be disabled only if his physical or mental impairment or impairments are so severe that he is unable to not only do his previous work, but cannot, considering his age, education, and work experience, participate in any other kind of substantial gainful work which exists in significant numbers in the national economy, regardless of whether such work exists in the area in which he lives, whether a specific job vacancy exists, or whether he would be hired if he applied for work.
Id . § 1382c(a)(3)(A).
Id. § 1382c(a)(3)(B).
2. Evaluation Process and Burden of Proof
Regulations set forth by the Commissioner prescribe that disability claims are to be evaluated according to a five-step process. A finding that a claimant is disabled or not disabled at any point in the process is conclusive and terminates the Commissioner's analysis.
20 C.F.R. § 404.1520 and 416.920 (2002).
Leggett v. Chater , 67 F.3d 558, 564 (5th Cir. 1995).
The first step involves determining whether the claimant is currently engaged in substantial gainful activity. If so, the claimant will be found not disabled regardless of his medical condition or his age, education, or work experience. The second step involves determining whether the claimant's impairment is severe. If it is not severe, the claimant is deemed not disabled. In the third step, the Commissioner compares the severe impairment with those on a list of specific impairments. If it meets or equals a listed impairment, the claimant is deemed disabled without considering his age, education, or work experience. If the impairment is not on the list, the Commissioner, in the fourth step, reviews the claimant's RFC and the demands of his past work. If he is still able to do his past work, he is not disabled. If he cannot perform his past work, the Commissioner moves to the fifth and final step of evaluating the claimant's ability, given his residual capacities, age, education, and work experience, to do other work. If he cannot do other work, he will be found disabled. The claimant bears the burden of proof at the first four steps of the sequential analysis. Once he has shown that he is unable to perform his previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that the claimant is not only physically able to perform, but also, taking into account his exertional and non-exertional limitations, able to maintain for a significant period of time. If the Commissioner adequately points to potential alternative employment, the burden shifts back to the claimant to prove that he is unable to perform the alternative work.
20 C.F.R. § 404.1520 and 416.920.
Id.
Id.
Id.
20 C.F.R. § 404.1520 and 416.920.
Id
Id.
Id.
Id
Leggett, 67 F.3d at 564.
Watson v. Barnhart , 288 F.3d 212, 217 (5th Cir. 2002).
Anderson v. Sullivan , 887 F.2d 630, 632-33 (5th Ck 1989).
In the instant case, the ALJ reached his decision at step two of the evaluation process. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful employment since well before the date of her application for SSL ALJ Martin then concluded at step two that plaintiff's medically determinable impairments of diabetes mellitus and arthritis were not severe. Based on the foregoing, the ALJ concluded that plaintiff was not under a disability. B. Is the ALJ's May 30, 2003 Decision Supported by Substantial Evidence?
Transcript, at 17, 18.
Transcript, at 17, 18, and 19.
Transcript, at 16, 18, and 19.
Plaintiff challenges the ALJ's decision, asserting that the ALJ's conclusion that plaintiff's medically determinable impairments were not severe is not supported by the substantial evidence of the record. Plaintiff argues that these mistakes constitute reversible error and that substantial evidence does not support the ALJ's decision. In my opinion, plaintiff's grounds for reversal are not meritorious. For that reason, I recommend that plaintiff's request for relief be DENIED .
1. Does the substantial evidence of the record support the conclusion that plaintiff's medically determinable impairments were not severe?
Plaintiff brief asserts, in pertinent part,
The medical evidence shows that Ms. Johnson has a history of treatment due to diabetes, weakness and fatigue, nausea, anxiety and has a history of right Nephrectomy secondary to infection. She has had several visits to the emergency room with complaints of weakness and nausea. Tr. 149, 155, 159, 164, 182-184, 238. Ms. Johnson went to the hospital with complaints of frequent urination and the doctor's assessment was polyuria. The doctors stated that her diabetes was uncontrolled because of her polyuria. Tr. 147, 161, 194, 103, 217. . . . The claimant's combination of impairments is more than a minimal effect on the claimant's abilities to do basic work. Therefore, the ALJ erred in his finding of a non-severe impairment.
Docket Entry 15, at 5.
Plaintiffs brief further argues that, in adopting the State Agency Medical Consultants' conclusion that plaintiffs allegations of limitation were not entirely credible without further analysis in the decision, the ALJ neglected his duty to perform a full evaluation of plaintiff s credibility and state all his reasons for his findings regarding the same in the decision. Thus, the primary issue before the court is whether the ALJ properly determined that plaintiffs diabetes mellitus and arthritis were not severe impairments at step two of the sequential evaluation process.
Docket Entry 15, at 5-6.
The second step of the sequential evaluation process mandates that the claimant have a severe impairment. In particular, the regulation provides:
If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience. However, it is possible for you to have a period of disability for a time in the past even though you do not now have a severe impairment.
The severity regulation is "a screening device to eliminate claims which are totally groundless from a medical point of view." Although the regulation requires that a claimant's physical and/or mental abilities be significantly limited, "the history of the regulation indicates that the Secretary intended a broad reading of `significant.'" In other words,
1 BARBARA SAMUELS, SOCIAL SECURITY DISABILITY CLAIMS: PRACTICE AND PROCEDURE § 22:61 (1994). See also Bowen v. Yuckert , 482 U.S. 137, 153 (1987)("The severity regulation increases the efficiency and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account.").
Moore v. Heckler , 575 F. Supp. 180, 184 (D. Maine 1983).
`[A]n impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience.
Stone v. Heckler . 752 F.2d 1099. 1101 (5th Cir. 1985). quoting Estran v. Heckler , 745 F.2d 340, 341 (5th Cir. 1984). See also 20 C.F.R. § 404.1521(a)("An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities."); Roberts v. Callahan , 971 F. Supp. 498, 500 (D. New Mexico. 1997)("An impairment is not severe if it is only a slight abnormality with a minimal effect on the ability to work.").
While a finding that an impairment is not severe can be based on medical factors alone, the combined effect of all the impairments must be considered
Stone , 752 F.2d 1101, n. 4.
without regard to whether any such impairment, if considered separately, would be of such severity.
Bowen v. Yuckert , 482 U.S. 137, 150 (1987).
Importantly, the ALT can end his inquiry at step two "only in cases where there is `no more than a minimal effect on the claimant's ability to work.'" When the adjudicator determines that the symptoms cause a limitation or restriction with
Richmond v. Callahan . 998 F. Supp. 1007, 1011 (W.D. Arkansas 1997), quoting Hudson v. Bowen . 870 F.2d 1392, 1396 (8th Cir. 1989).
more than a minimal effect on an individual's ability to do basic work activities, the adjudicator must find that the impairment(s) is severe and proceed to the next step in the process even if the objective medical evidence would not in itself establish that the impairment(s) is severe.
Social Security Ruling 96-3p: Policy interpretation ruling Titles II and XVI: Considering allegations of pain and other symptoms in determining whether a medically determinable impairment is severe , SSR 96-3p, 1996 WL 374181 (My 2, 1996).
Similarly, if the effect of the impairment or impairments on the claimant's ability to perform basic work activities is unclear, "the adjudicator must continue to follow the sequential evaluation process."
Basic work activities are defined as "the abilities and aptitudes necessary to do most jobs." 20C.F.R. § 404.1521(b).
Social Security Ruling 96-3p: Policy interpretation ruling Titles II and XVI: Considering allegations of pain and other symptoms in determining whether a medically determinable impairment is severe . SSR96-3p, 1996 WL 374181 (May 2, 1996); See also Roberts v. Callahan . 971 F. Supp. 498, 500 (D. New Mexico. 1997)("If the evidence is unclear as to whether the impairment is severe, the sequential evaluation process is nevertheless continued.").
In the instant case, ALJ Martin properly concluded that plaintiff's diabetes and arthritis did not constitute severe impairments. After citing and explaining the proper standard for assessing an impairment's severity — the standard enunciated in Stone v. Heckler — the ALJ stated, in pertinent part,
See Stone , 752 F.2d 1099.
At the hearing the claimant testified that she is able to perform most of the household chores required to keep the house going. She further stated that the doctor has stopped the diabetic prescribed medication as he felt that it was not necessary as her current condition did not require it. She is under medication for her arthritis and the medication keeps that situation under control. The overall medical documentation shows that on review the State agency medical physician stated that the claimant did not suffer from any end organ damage such as kidney damage. A current IM\CE shows that essentially all physical items are within normal limits. She has a normal gait, her lungs are normal, her vision with eyeglass correction is normal. Her right shoulder pain is considered mild. It was their determination that her alleged limitations were not fully credible. The State agency medical consultants consider her allegations of impairments as being non-severe. The undersigned concurs with the State agency medical consultants that the allegations made by the claimant that she has severe impairments which contribute to her alleged disability are not credible.
Transcript, at 17-18.
Thus, the ALJ cited plaintiffs own testimony as evidence that plaintiff's diabetes poses such limited, if any, interference in plaintiffs activities and health that plaintiff's treating physician took her off the requisite medications, and that plaintiffs only other medically determinable impairment — arthritis — was controlled with medication. For these reasons, it is my finding that the ALJ properly assessed the severity of plaintiff's impairments in accordance with the correct legal standards.
"A medical condition that can reasonably be remedied either by surgery, treatment, or medication is not disabling." Lovelace v. Bowen , 813 F.2d 55, 59 (5th Cir. 1987) (internal citations omitted).See also 20 C.F.R. § 404.1530(a),(b) and 416.930(a), (b).
Moreover, plaintiff has not proffered any evidence as to how her impairments of diabetes, weakness and fatigue, nausea, anxiety, history of right Nephrectomy secondary to infection, arthritis and polyuria affect her ability to perform basic work activities. Rather, her own testimony about her daily activities, discussed above, indicates that plaintiff is virtually unlimited in her abilities. For these reasons, it is my finding that the substantial evidence of the record supports the ALJ's conclusions regarding the severity of plaintiff's impairments.
Importantly, plaintiff bears the burden of proof at the second step of the sequential evaluation process. See Leggett , 67 F.3d at 564.
See Transcript, at 26-29. See also Leggett , 67 F.3d. at 565, n. 12:
It is appropriate for the Court to consider the claimant's daily activities when deciding the claimant's disability status. Reyes v. Sullivan , 915 F.2d 151, 155 (5th Cir. 1990) (per curiam).
Finally, plaintiff has failed to establish that the ALJ's brief assessment of plaintiff's credibility constitutes reversible error. The ALJ's adoption of the state agency medical consultants' conclusions regarding plaintiff's credibility was used as further evidence that plaintiff's impairments were not severe. Because plaintiff has not established that her impairments were severe, or that the ALJ neglected to obtain or assess evidence that might have established that the impairments were severe, plaintiff has similarly failed to establish that the ALJ's adoption of the consultants' conclusions without more constitutes prejudicial (i.e. reversible) error. For these reasons, I find plaintiff's arguments regarding the ALJ's assessment of her credibility unavailing.
See Carey v. Apfel , 230 F.3d 131, 142 (5th Cir. 2000), "This Court will not reverse the decision of an ALJ for failure to fully and fairly develop the record unless the claimant shows that he or she was prejudiced by the ALJ's failure . . . To establish prejudice, a claimant must demonstrate that he or she `could and would have adduced evidence that might have altered the result (internal citations omitted)."'
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's complaint be DENIED and the Commissioner's decision AFFIRMED . The ALJ's decision is supported by the substantial evidence of the record and made by application of the correct legal standards.
VII. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from ade novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn. 474 U.S. 140, 149-152 (1985).
Douglass v. United Servs. Auto. Ass'n , 79 F.3d 1415, 1428-29 (5th Cir. 1996).