Opinion
No. 2:99CV208-EMB
May 26, 2000
OPINION
The parties in the above entitled action have consented to trial and entry of final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the Fifth Circuit. On May 24, 2000 oral argument was heard by the magistrate judge in the above entitled action at Greenville pursuant to 28 U.S.C. § 636(b)(4) and Local Rule M-5(c), at which plain-tiff and defendant Commissioner were represented by their respective counsel.
This matter is before the court on an application by the plaintiff, Georgia Lewis, seeking judicial review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security denying her claims for supplemental security income disability benefits under Title XVI.
The record shows that the plaintiff was born on October 24, 1951; that she has education through tenth grade with a GED; and that her work experience has been as an assembly line worker at a lunch box factory. The plaintiff last worked on June 2, 1989, her claimed onset date of disability as a result of diabetes, high blood pressure, heart condition, sinus condition, dizziness, pain and swelling, black outs, memory difficulty and blurred vision.
Applying the sequential evaluation process, 20 C.F.R. § 404. 1520 (1992), the Administrative Law Judge (ALJ) found that plaintiff has not engaged in substantial gainful activity since June 2, 1989, and that the medical evidence establishes that plaintiff has diabetes, hyperten sion, hyperlipidemia and blackouts, but that she does not have any impairment which more than minimally limits her ability to perform work-related activities. Thus, the ALJ concluded the sequential evaluation process at step two with a finding that plaintiff had no severe impairment and was therefore not disabled (Findings, TR 13).
Plaintiff claims as error by the ALJ that he failed to call a vocational expert to assess plaintiff's non-exertional impairment, specifically whether or not there were jobs in the national economy that would accommodate plaintiff's need to urinate several times an hour.
The Commissioner has responded that all of plaintiff's conditions are mild and easily controlled by medication with out secondary limitations. The Commissioner contends that the medical record of evidence supports a finding that none of plaintiff's conditions are severe, and particularly that her latest blood pressure levels were near normal, her diabetes was well controlled when she took her medication properly, and there was no record of treatment for dizziness (which may be the result of non-compliance) or black outs. The ALJ was not required to obtain a vocational expert or continue the step evaluation process once he determined that plaintiff did not have a severe impairment.
The scope of review in this case is narrow, and the court is limited to determining whether there is substantial evidence to support the findings and conclusions of the ALJ. Richardson v. Perales, 402 U.S. 389 (1971).
At the hearing before the ALJ, plaintiff testified that her problems began in 1989 after she had worked six weeks at the factory (TR 22). She began feeling sick, went to a "Dr. Tom," and he told her she could no longer work because she was losing weight quickly and her feet hurt (TR 23-24). She presently takes four insulin shots a day, since February 1997 (TR 25). She testified that the diabetes affects her by making her tired and dizzy (TR 25). She urinates 15 to 16 times a day and blacks out every four to five hours (TR 27). She testified that she would have to go to the bathroom 12 or 13 times in a 35 minute period, but when queried by her attorney she said it may be 5 times (TR 29). She said that she could sit for about 4 or 5 hours and could fulfill the requirements of a receptionist job without problems, except for urinating about 4 times an hour and the possibility of black outs (TR 33-34). When the ALJ inquired about plaintiff's daily activities, there was not much she did not do (TR 40-41).
She has apparently been treated for the last twenty years at UT Medical Group, Inc., in Memphis, Tennessee, and the medical records provided by that health provider span from October 31, 1981 to December 5, 1995 (TR 92-211).
This seems to be a classic case where the patient's lack of understanding of her disease or willingness to comply with a regimen designed to improve her life has resulted in the limitations she now complains of and wishes to be compensated for. Her records, both past and recent, are replete with evidence of non-compliance such as letting her medications run out for weeks at a time, taking her medication incorrectly such as decreasing it rather than increasing it, not testing her blood levels (TR 100, 106, 112, 119, 124, 136, 149, 151, 168, 185, 187, 204, 208). Despite her physician's suggestion several times that she attend classes to learn how to deal properly with diabetes she never went (TR 136, 149). Obviously she is non-compliant with her diet also since she mentions her cooking regimen usually consists of fried foods (TR 30).
As the Commissioner noted, conditions which can be controlled by medication are not disabling. Fraga v. Bowen, 810 F.2d 1296 (5th Cir. 1987). Obviously, compliance with her doctor's instructions would improve her health and quite possibly enable her to work again since at least two examinations, where it was noted that she was apparently taking her medication as prescribed, reported good results and that she was "feeling well." (TR 173, 191).
At oral argument before this court, counsel for the plaintiff argued strongly that the ALJ cannot properly ignore the non-exertional limitation testified to by the plaintiff and corroborated by her witnesses that she must urinate several times an hour. Counsel contends that the ALJ completely ignored this allegation in his decision when he should have called a vocational expert to testify. Counsel supposes that no jobs would be available to someone who must take such frequent bathroom breaks. Whatever the case, the ALJ was not required to make such an assessment because plaintiff failed to carry her burden of proving a severe impairment. The ALJ properly completed his evaluation process at Step 2, and the burden of persuasion never shifted to the Commissioner to prove that available jobs existed.
There is clearly substantial evidence to support the ALJ's finding that plaintiff's impairments are not severe, and having concluded his evaluation at Step Two, plaintiff's argument that a vocational expert should have testified is clearly without merit.
It is therefore the opinion of the court that that the final decision of the Commissioner in the above entitled action be affirmed.
A Final Judgment consistent with this opinion shall issue this same date.
FINAL JUDGMENT
In accordance with an Opinion entered this day, the parties in the above entitled action having consented to trial and entry of final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the Fifth Circuit, it is hereby ordered and adjudged:
That the final decision of the Commissioner in the above entitled action be, and is hereby, affirmed, and that the action be dismissed with prejudice.