Opinion
No. 99-0940-BH-L
December 8, 2000
Byron A. Lassiter, Esq., Booker Lassiter, P.C., 2053 Dauphin Street, Mobile, AL 36606
Patricia Nicole Beyer, Esq., U.S. Attorney's Office, 63 S. Royal St., Rm. 600, Mobile, AL 36602
JUDGMENT
In accordance with the order entered on this date, it is hereby ORDERED, ADJUDGED, and DECREED that the decision of the Commissioner of Social Security denying claimant benefits be affirmed.
ORDER
After due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the recommendation to which objection is made, the recommendation of the Magistrate Judge made under 28 U.S.C. § 636 (b)(1)(B) and dated this the 11th day of November, 2000 is ADOPTED as the opinion of this Court.
REPORT AND RECOMMENDATION
Plaintiff brings this action under 42 U.S.C. § 405 (g) and § 1383(c)(3) seeking judicial review of a final decision of the Commissioner of Social Security denying her claim for Supplemental Security Income.
This action was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B). Oral argument was held on September 21, 2000. Upon consideration of the administrative record, the memoranda of the parties, including the supplemental memoranda, and oral argument, it is recommended that the decision of the Commissioner be affirmed.
I. Issues on Appeal .
1. Plaintiff argues that the ALJ erred in failing to find her presumptively disabled based on meeting the requirements at § 12.05C of the Listings of Impairments. 20 C.F.R. Pt 404, Subpt P. App. 1.
2. Plaintiff argues that the ALJ erred in rejecting the opinion of the examining psychologist.
II. Background Facts .
Plaintiff was born July 27, 1948 (Tr. 40). At the time of the second administrative hearing on July 30, 1997, she was 49 years old (Tr. 40). At the hearing Plaintiff testified as follows:
Plaintiff completed the eighth grade and can not read. She is married and has never worked outside of the home. She has never had a drivers license, never applied for a drivers license and does not drive. She has four adult children none of whom reside with her. (Tr. 40-42)
The ALJ accepted her testimony that she completed the eighth grade (Tr. 19). In her psychological assessment, the examiner noted that she completed the ninth grade (Tr. 235). In her Disability Report, Plaintiff stated that she completed the eleventh grade (Tr. 135). In the DDS examination, the doctor noted that she completed the ninth grade and can read and write (Tr. 241).
Plaintiff has pain in her chest, head, arms, hands and legs. She has difficulty sleeping because she must sit in the bed to catch her breath. She takes medication which makes her drowsy. She has to lie down "about all day long" and if she can not lie down, she must sit but she can not stand. (Tr. 42-43)
Plaintiff filed an application for Supplemental Security Income disability benefits on October 4, 1996, alleging onset of disability on September 15, 1995, due to high blood pressure, headaches, and heart pains (Tr. 117-129). The application was denied initially (Tr. 98) and upon reconsideration (Tr. 106). Plaintiff filed a request for a hearing before an administrative law judge (ALJ) on January 14, 1997 (Tr. 109). The first hearing took place before ALJ Glay E. Maggard on April 28, 1997 and a supplemental hearing was held on July 30, 1997 (Tr. 37-93). Plaintiff testified at the initial hearing (Tr. 70) and Plaintiff and vocational expert (VE) Barry Murphy testified at the supplemental hearing (Tr. 36). Plaintiff was represented by legal counsel at each hearing. On January 27, 1998, the ALJ issued a decision finding Plaintiff not disabled because she is capable of making adjustment to work which exists in significant numbers in the national economy (Tr. 17-27). The VE identified examples of jobs that Plaintiff can perform as housekeeper, fast food worker and bench assembly worker (Tr. 22, 61). Plaintiff filed a request for review on March 4, 1998 (Tr. 10). The Appeals Council denied the request on August 16, 1998 (Tr. 5). Therefore, the ALJ's decision became the final decision of the Commissioner of Social Security.
III. ALJ Findings
The ALJ made the following findings pertinent to Plaintiff's claim (Tr. 23-24).
2. The medical evidence establishes that the claimant has moderate mental retardation, an impairment which is severe but which does not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4.
3. The claimant's statements concerning her impairment and its impact on her ability to work are not entirely credible in light of the claimant's own description of her activities and life style, the degree of medical treatment required, the findings made on examination and the claimant's assertions concerning her ability to work.
4. The claimant retains the residual functional capacity to do only simple work.
5. The claimant has no history of past relevant work.
6. The claimant's non-exertional limitations significantly narrow the range of work she is now capable of performing.
7. The claimant is 49 years old, a `younger individual age 45-49.'
8. The claimant has a limited education and is illiterate in the English language.
9. Considering the claimant's age, education background, and residual functional capacity, she is able to make a successful vocational adjustment to work which exists in significant numbers in the national economy. Such work includes employment as a housekeeper and as a fast food worker and in bench assembly.
10. The claimant has not been under a disability, as defined in the Social Security Act, at any time through the date of this decision.
IV. Discussion A. Standard of Review .
In reviewing claims brought under the Act, this Court's role is a limited one. The Court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). The Commissioner's findings of fact must be affirmed if they are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991), citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is defined as "more than a scintilla but less than a preponderance," and consists of "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Bloodsworth, 703 F.2d at 1239. The Secretary's decision must be affirmed if it is supported by substantial evidence even when a court finds that the preponderance of the evidence is against the decision of the Secretary. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (1971); Bloodsworth, 703 F.2d at 1239. "In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Further, it has been held that the Commissioner's "failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal." Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). This Court's review of the Commissioner's application of legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
B. Statement of the Law
An individual who applies for Social Security disability benefits or supplemental security income must prove their disability. See 20 C.F.R. § 404.1512; 20 C.F.R. § 416.912. Disability is defined as the "inability to do 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); 20 C.F.R. § 404.1505 (a) (1992); 20 C.F.R. § 416.905 (a) (1991). The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven their disability. See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. At the first step, the claimant must prove that he or she has not engaged in substantial gainful activity. At the second step, the claimant must prove that he or she has a severe impairment or combination of impairments. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. If the claimant cannot prevail at the third step, he or she must proceed to the fourth step where the claimant must prove inability to perform their past relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether the claimant has met this burden, the examiner must consider the following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; (4) the claimant's age, education and work history. Id., at 1005. Once a claimant meets this burden, it becomes the Commissioner's burden to prove at the fifth step that the claimant is capable of engaging in another kind of substantial gainful employment which exists in significant numbers in the national economy, given the claimant's residual functional capacity and age, education, and work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985). If the Commissioner can demonstrate that there are such jobs the claimant can perform, the claimant must prove inability to perform those jobs in order to be found disabled. Jones v. Apfel 190 F.3d 1224, 1228 (11th Cir. 1999); Powell o/b/o Powell v. Heckler, 773 F.2d 1572, 1575 (11th Cir. 1985); Ambers v. Heckler, 736 F.2d 1467, 1469 (11th Cir. 1984). See also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987), citing Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985).
C. Medical Evidence
From September 13 through 15, 1996, Plaintiff was hospitalized at Vaughn-Thomasville Medical Center for chest pain. Her discharge summary stated as follows: "[M]yocardial infarction ruled out, chest pain probably musculoskeletal; accelerated hypertension in good control" (Tr. 175). Her height was noted at 5 feet and her weight 193 1/2 pounds (Tr. 176). Her cholesterol was hig, her potassium was slightly low and her cardiac enzymes were normal (Tr. 176). Her EKG was normal (Tr. 176). Her chest X-ray showed "no acute disease" (Tr. 178).
On September 26, 1996, Plaintiff was examined by Archie Davis, M.D. (Tr. 192-198) who performed an echocardiography exam and noted his diagnosis as hypertension. In his summary, he found "1. Normal left ventricular size and systolic function, 55% ejection fraction; 2. Trivial tricuspid regurgitation, 3. No pericardial effusion, 4. Fibrocalcific aortic sclerosis without stenosis." (Tr. 194).
Ejection fraction is defined as the "ratio of the volume of blood the heart empties during systole to the volume of blood in the heart at the end of diastole expressed as a percentage normally between 56 and 78." Merriam-Webster's Medical Desk Dictionary 231 (1996).
On October 10, 1996, Plaintiff was seen at Vaughn-Thomasville Medical Center for a stress test (Tr. 202-208). The test was started but discontinued after one minute thirty seconds because Plaintiff complained of fatigue, weakness in her legs, mild chest discomfort and shortness of breath. Her shortness of breath stopped with rest. Dr. Davis recommended Plaintiff obtain a heart catheterization and noted that there were no reliable results from this test (Tr. 203-204).
On October 15, 1996, on referral from Frank L. Dozier, M.D., George A. Eyrich, M.D. performed a cardiac catheterization which found "hypertensive left and right heart hemodynamics with elevated LVEDP; brisk left ventricular function with ejection fraction 0.70; no segmental wall abnormalities; [and] normal coronary angiography." He noted his suggestions of "medical antihypertensive therapy and reassurance regarding risk of heart attack. Diet and exercise program to decrease weight and improve stamina" (Tr. 215).
On May 5, 1997, Kenneth R. Schneider Ph.D. performed a psychological consultative examination. Based upon his exam and her self-report, he determined Plaintiff functioned in the mild to moderate mental retardation range. He administered the WAIS-R and Plaintiff obtained a verbal IQ score of 67, a performance IQ score of 66 and a full scale IQ score of 64 (Tr. 235-240).
In his mental residual functional capacity assessment under the section labeled Making Occupational Adjustments, Dr. Schneider found her moderately limited in her ability to follow work rules, relate to co-workers, deal with the public, use judgment in dealing with people, interact with supervisors, and deal with work stresses. He found her markedly limited in her ability to function independently and maintain attention and concentration (Tr. 239). In support thereof, he noted "mild to moderate mental retardation." (Tr. 239).
In his mental residual functional capacity assessment under the section labeled Making Performance Adjustments, Dr. Schneider found her markedly limited in her ability to understand, remember and carry out complex job instructions; detailed, but not complex instructions; and simple job instructions (Tr. 239). In support thereof, he noted "mild to moderate mental retardation, obesity, and disproportionate body features" (Tr. 239). In his mental residual functional capacity assessment under the section labeled Making Personal-Social Adjustments, he found her moderately limited in maintaining personal appearance, behaving in an emotionally stable manner, relating predictably in social situations, and demonstrating reliability (Tr. 240). In support, he noted "see previous statement" which refers to his prior statement of "mild to moderate mental retardation, obesity and disproportionate body features" (Tr. 239-240).
Dr. Schneider noted that her condition was likely to deteriorate if she was placed under stress, especially that of a job, and no further medical testing was necessary (Tr. 240). He found it would not be in her best interest to allow her to manage her own benefits (Tr. 240).
On June 9, 1997, Plaintiff was consultatively examined by Thomas H. Lane, M.D. He noted her history of hypertension and that her examination and testing for heart disease had been negative. He also noted that she completed the eighth grade and could read and write. (Tr. 241). On physical examination, he noted her obesity, but found she could bend her spine to within 18 inches of the floor and bend to either side to 15 degrees and hyper-extend to 15 degrees. Dr. Lane noted her weight as 200 pounds. In regard to her extremities, he found no "cyanosis, clubbing, or edema," "normal range of motion of all major joints," no "warmth, erythema or effusion of any joint," "strength 5/5 throughout," and normal tendon reflexes. Neurologically, he noted her cranial nerves were intact, she was "oriented times four" and had a "normal cerebellar examination." Dr. Lane noted that there was some evidence of end-organ damage on funduscopic examination (Tr. 242). However, there are no references to clinical or laboratory test results which support this finding.
The only notation in regard to a funduscopic exam is found in the history and physical from Vaughan-Thomasville Hospital wherein Dr. Dozier noted "funduscopic was normal" in reference to her eye. (Tr. 176).
In summary, he stated as follows:
I feel the patient should have no trouble managing her financial affairs. In addition, she should have no trouble with work related activities such as sitting, standing, walking, handling objects, hearing, speaking or traveling. Due to her obesity, she may have some trouble with lifting, carrying heavy objects.
(Tr. 242).
Dr. Lane noted on the physical capacities evaluation that Plaintiff could sit for six hours, stand for four hours and walk for two hours at one time, and she could sit for eight hours, stand for six hours and walk for six hours in an eight hour day. He found she could continuously lift and carry up to ten pounds, frequently lift and carry up to twenty pounds, occasionally lift and carry up to twenty-five pounds, but not more. He found her unlimited in use of her hands for repetitive action such as simple grasping, pushing and pulling of arm controls and fine manipulation. He made no notation in regard to use of her legs and feet. He noted that she was able to bend, squat, crawl, climb and reach occasionally. He found her unrestricted in regard to work involving unprotected heights, moving machinery, exposure to marked changes in temperature and humidity, driving automotive equipment, and exposure to dust, fumes and gases. (Tr. 243).
D. Plaintiff's Argument .
Plaintiff argues that the ALJ erred in failing to find her presumptively disabled based on meeting the requirements at § 12.05 (C) of the Listings of Impairments. 20 C.F.R. Pt 404, Subpt P. App. I. Plaintiff asserts that her IQ test results obtained by Dr. Schneider, which the ALJ accepted as valid, and her chest pain and hypertension for which she has been hospitalized on at least two occasions, meet the first and second prong of the Listing. Plaintiff also asserts that the physical capacities evaluation by Dr. Lane indicates she is limited to a reduced range of light work and supports her argument that she has an additional and significant physical work related limitation of function. Plaintiff also asserts that her markedly limited ability to function independently; maintain attention and concentration; to understand, remember and carry out complex job instructions; detailed, but not complex instructions; and simple job instructions, create an additional and significant mental work related limitation of function.
To establish a disability under § 12.05(C), Plaintiff must establish "a valid verbal, performance, or full scale IQ score of 60 through 70 and a physical or other mental impairment imposing additional and significant work-related limitation of function." 20 C.F.R. Part 404, Subpt P. Appendix 1 § 12.05(C) (2000); see Edwards by Edwards v. Heckler, 755 F.2d 1513, 1517 (11th Cir. 1985) (acknowledging that "significant" under § 12.05(C) involves something more than slight or minimal, but less than "severe"). Additionally, § 12.05 states that mental retardation refers to a significantly subaverage general intellectual functioning with deficits in adaptive behavior initially manifested during the developmental period (before age 22). 20 C.F.R. Part 404, Subpt P, Appendix 1 § 12.05 (2000).
The ALJ found that Plaintiff has moderate mental retardation, an impairment which causes significant vocationally relevant limitations (Tr. 19). The ALJ also found that Plaintiff's impairments do not meet the criteria for Listing 12.00 Mental Disorders or Listing 4.00 Cardiovascular Disorders. (Tr. 19). The ALJ's decision indicates that he reviewed and evaluated her medical records. He found her "hypertension [was] under fair control with some evidence of end organ damage on funduscopic examination" (Tr. 20). He also noted her negative chest x-ray, normal EKG, normal echocardiogram, normal coronary angiography, and found her "cardiovascular condition does not significantly limit her ability to work" (Tr. 20). He also determined her headaches were treated with over the counter medication and the medical evidence did not show her headaches "significantly severe to interfere with her ability to work" (Tr. 20). The ALJ found that Plaintiff was overweight but stated that her weight was not so "excessive that it significantly limits her ability to perform work related functions" (Tr. 20). The ALJ then stated that "[b]ased upon the above, the undersigned recognizes that while the claimant's IQ ostensibly is within the range described by Listing 12.05 (C), she does not have a physical or other mental impairment which imposes additional and significant work-related limitation of function" and was not disabled (Tr. 20).
The ALJ also found that Plaintiff has an eighth grade education, which is defined as "limited" and that she is unable to read and can only write her name (Tr. 22). After presenting the VE with a hypothetical question in regard to a person of Plaintiff's age (forty-nine), with a limited education, borderline intellectual functioning, illiterate, and absence of work history, the VE testified that such person would be capable of making the vocational adjustment to work as a housekeeper, fast food worker and bench assembly (Tr. 59-61). The ALJ found Plaintiff had the residual functional capacity for simple work without exertional limitations (Tr. 24).
Upon consideration, the undersigned finds that the ALJ did not err in determining Plaintiff did not meet Listing 12.05(C). The medical and other evidence supports the ALJ's decision that Plaintiff does not have an additional and significant physical work-related limitation of function. Specifically, the medical records indicate that Plaintiff's hypertension is controlled with medication and her cardiac testing indicated no abnormalities and diet and exercise were recommended to decrease weight and increase her stamina. Thus, the medical evidence presented by Plaintiff does not support a finding of an additional and significant impairment. Moreover, Dr. Lane's physical capacities evaluation and narrative examination report did not identify any significant exertional limitation and the physical capacities evaluation indicated Plaintiff could perform the full range of light work reduced only by her ability to lift and carry heavy objects. In the summary of his narrative opinion, he stated that "she should have no trouble with work related activities such as sitting, standing, walking, handling objects, hearing, speaking or traveling. Due to her obesity, she may (emphasis added) have some trouble with lifting, carrying heavy objects." However, the possibility that she may have difficulty lifting and carrying heavy objects due to obesity does not result in a more than slight or minimal physical work-related limitation of function. Edwards v. Heckler, 755 F.2d 1513, 1515 (11th Cir. 1985).
Further, as discussed in the next section, the undersigned finds that the ALJ properly determined Plaintiff did not have an additional and significant mental work-related limitation of function.
Plaintiff also argues that the ALJ erred in rejecting the opinion of the consultative psychologist, Dr. Schneider. Plaintiff asserts that the hypothetical question presented to the VE which contained all the moderate and marked mental limitations identified by Dr. Schneider produced a response that an individual so limited could not perform any work in the national economy (Tr. 63-64). Plaintiff asserts that since Dr. Schneider's opinion is uncontradicted, the ALJ should have given it controlling weight, and that the ALJ failed to make clear the weight accorded to Dr. Schneider's opinion and the reasons for discrediting his opinion. Plaintiff asserts that the ALJ has a duty to state the weight given and the reasons therefore, in order to enable a reviewing court to determine whether the ALJ's decision is based upon substantial evidence.
In regard to Dr. Schneider's finding the ALJ found as follows:
The undersigned finds that the claimant has significant non-exertional limitations which interfere with her ability to work. Having weighed Dr. Schneider's assessment that the claimant is markedly limited in her ability to do simple work, I find that the evidence supports a finding that she can nevertheless do some types of simple work.
(Tr. 22).
Upon consideration of the ALJ's decision and Dr. Schneider's medical opinion, the undersigned notes that in the sections of the mental residual functional capacity assessment form prepared by Dr. Schneider wherein he found moderate and marked mental limitations in several areas, he also wrote that his basis for such findings was the Plaintiff's mild to moderate mental retardation, her disproportionate body features and her obesity (Tr. 239-240). The undersigned cannot determine how Plaintiff's disproportionate body features or obesity would support a finding that she had mental limitations. However, the undersigned finds that, since the basis for her moderate and marked mental limitations was her mild to moderate mental retardation, these limitations are taken into account under the first prong of Listing 12.05C (IQ) and do not establish anadditional and significant work-related mental limitation of function as required by Listing 12.05C.
Moreover, at oral argument, Plaintiff conceded that she does not have an additional and significant work-related mental limitation of function beyond her mild to moderate mental retardation. Thus, the undersigned need not address whether the ALJ properly rejected the examining psychologist's opinion that Plaintiff was markedly impaired in her ability to perform simple work since this opinion was implicitly accepted by the ALJ in his determination that she met the first prong of Listing 12.05C.
V. Conclusion
From review of the record and the ALJ's decision, the undersigned finds that the ALJ's finding that the Plaintiff does not meet or equal Listing 12.05C is supported by proper application of law and is based upon "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401.
For the reasons set forth, and upon consideration of the administrative record, the hearing decision, oral argument, memoranda and supplemental memoranda of the parties, it is recommended that the decision of the Commissioner denying the Plaintiff's claim for Supplemental Security Income be affirmed.
The attached sheet contains important information regarding objections to this report and recommendation.