Summary
In Puckett v. Barnhart, 2003 WL 1831066, at *6 (E.D. Tex. 2003), the court noted the definition of fibromyalgia: Fibromyalgia is a complex rheumatic condition with no known cause or cure.
Summary of this case from Hardwick v. Comm'r of Soc. Sec.Opinion
NO. 1:01-CV-584
February 5, 2003
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case is referred to the undersigned United States Magistrate Judge for review, hearing if necessary, and submission of a report with recommended findings of fact and conclusions of law.
See 28 U.S.C. § 636(b)(1)(B) and Local Rules for the Assignment of Duties to United States Magistrate Judges.
I. Nature of the Case
This is an action wherein plaintiff seeks judicial review of the Commissioner of Social Security Administration's (SSA) decision denying plaintiff's application for Social Security benefits. The court has jurisdiction pursuant to 42 U.S.C. § 405(g) (1994).II. Proceedings
Plaintiff applied for Disability Insurance Benefits on February 9, 1998. Plaintiff claimed inability to work as of July 16, 1997, due to pain and symptoms associated with fibromyalgia, collagen disease, osteoporosis, back pain, and Tourette's syndrome.The Commissioner initially denied plaintiff's application for benefits, as well as her request for reconsideration. Plaintiff timely appealed and requested a hearing before an Administrative Law Judge (ALJ).
An evidentiary hearing was held on May 25, 1999, before ALJ Russell D. Pulver. At that hearing, plaintiff was represented by legal counsel, John D. Rutland, Esq. ALJ Pulver issued a written decision on July 22, 1999. He determined that plaintiff was not entitled to benefits because she is not considered "disabled" under the governing rules.
On August 5, 1999, the Appeals Council declined to review ALJ Pulver's decision. Thus, it became the Commissioner's final determination.
Plaintiff initiated this suit in federal district court on August 23, 2001. The action is timely because it was filed within the 60-day period established by statute for bringing actions for judicial review. 42 U.S.C. § 405(g).
III. Judicial Review
Judicial review is limited. The court's abbreviated role is to determine whether (a) the Commissioner applied proper legal standards and (b) the decision is supported by substantial evidence. See Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).
Substantial evidence is more than a scintilla, but less than a preponderance, Anthony v. Sullivan, 954 F.2d at 292; it requires evidence relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1427 (1971); Marcello v. Bowen, 803 F.2d 851, 853 (5th Cir. 1986) (citing Jones v. Heckler, 702 F.2d 616, 620 (5th Cir. 1983). The evidence must be "enough to justify, if the trial were submitted to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." National Labor Relations Bd. v. Columbian Enameling Stamping Co., 306 U.S. 262, 299-300, 59 S.Ct. 206, 217 (1939), cited in Harvey L. McCormick, Social Security Claims and Procedures § 672 (4th ed. 1991).
To determine whether substantial evidence exists to support the ALJ's findings, the entire record must be scrutinized carefully. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. denied 514 U.S. 1120, 115 S.Ct. 1984 (1995); Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983). The court in reviewing the record may not, however, reweigh the evidence or review the ALJ's decision de novo. Haywood v. Sullivan, 888 F.2d 1462, 1466 (5th Cir. 1989); Neal v. Brown, 829 F.2d 528, 530 (5th Cir. 1987). Rather, it is for the Commissioner to weigh evidence and resolve conflicts. See Anthony, 954 F.2d at 295; Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir 1990).
If proper principles of law were applied, and if the Commissioner's decision is supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co., 305 U.S. at 230, 59 S.Ct. at 217); see also, 42 U.S.C. § 405(g).
By local orders of the court, complaints seeking judicial review of administrative decisions denying applications for social security benefits are treated as appeals. The party seeking review is required to specify alleged points of error, and to submit a brief containing legal arguments directed to those points. The Commissioner is ordered to file a brief in response. The court limits the scope of its judicial review to the points argued in the briefs.
IV. Eligibility For Disability Benefits
Social security claimants bear a formidable burden of proof, "so stringent that it has been described as bordering on the unrealistic." Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981). Proof of the existence of a serious disease or impairment alone does not establish a disability within the meaning of the Social Security Act. Neither is a showing of general disability sufficient. Rather, in addition, a claimant must also prove inability to engage in any substantial gainful employment. See Herridge v. Richardson, 464 F.2d 198 (5th Cir. 1972); Ratliff v. Richardson, 445 F.2d 440 (5th Cir. 1971).
To qualify for disability insurance benefits, the plaintiff must meet the requirements set forth in the Social Security Act ("Act"). See 42 U.S.C. § 423(a). That is, the plaintiff must be under age 65, file an application for such benefits, and be under a disability as defined by the Act. See 42 U.S.C. § 416(I), 423(a). Those claiming disability insurance benefits under the Act have the burden of showing the existence of a disability. Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir. 1979), cert. denied, 444 U.S. 952, 100 S.Ct. 428 (1979); Rhynes v. Califano, 586 F.2d 388 (5th Cir. 1978); Kirkland v. Weinberger, 480 F.2d 46 (5th Cir.), cert. denied, 414 U.S. 913, 94 S.Ct. 255 (1973).
The Act defines a disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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). A physical or mental impairment is one which "results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). A claimant is disabled "only if his physical or 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." 42 U.S.C. § 423(d)(2)(A).
Establishment of a disability is thus a dual process. First, the claimant must prove that he suffers from a medically determinable impairment. 42 U.S.C. § 416(I)(1), 423(d)(1)(A). Second, the claimant must prove that his impairment or combination of impairments renders him unable to engage either in the work he previously performed or other substantial gainful employment that exists in the national economy. 42 U.S.C. § 416(I)(1), 423(d)(2).-(C).
V. Sequential Evaluation Process
The law requires, in every case, that the Commissioner determine whether the claimant has a disability. See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952 (1983). The Commissioner utilizes a five-step sequential evaluation analysis to aid in determining when claimants are disabled. If a claimant is found not to be disabled at any step, the remaining steps are not considered. 20 C.F.R. § 404.1520 (2002). This procedure has judicial approval as a fair and just way for determining disability applications in conformity with the Social Security Act. See Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297 (1987) (citing Heckler v. Campbell, 461 U.S. at 461, 103 S.Ct. at 1954) (The use of the sequential evaluation process "contribute[s] to the uniformity and efficiency of disability determinations").
The five steps — with explanatory parenthetical commentary — generally are as follows:
The Commissioner ascertains whether the applicant is currently engaging in substantial gainful activity. (If so, a finding of non-disability is entered and the inquiry ends.)
The Commissioner determines if the applicant's impairment or combination of impairments is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities. (If not, the inquiry ends and a finding of non-disability is entered.)
The Commissioner determines whether the severe impairment equals or exceeds those in the Listing of Impairments, 20 C.F.R. Subpt. P, Appendix 1 ("the Listings"). (If so, disability is presumed and benefits are awarded.)
The Commissioner determines whether the impairment prevents the individual from engaging in his regular previous employment. (If so, a prima facie case of disability is established and the burden of going forward (to the fifth step) shifts to the Commissioner. See Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987)).
The Commissioner determines whether other work exists in the national economy which the applicant can perform. (If the Commissioner establishes that an applicant can perform alternative employment, the burden shifts back to the applicant to show he cannot perform the alternative labor. See Id.; Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986); 20 C.F.R. § 404.1520(a)-(f) (2002)).
In conjunction with steps four and five determinations, the Commissioner utilizes a residual functional capacity ("RFC") assessment. That is, the Commissioner decides whether the applicant, notwithstanding severe impairment, has the physical and mental ability to perform the activities generally required by competitive, remunerative work. See 20 C.F.R. § 404.1545; Social Security Ruling 96-8p, 61 F.R. 34474 (July 2, 1996). The Commissioner assesses the applicant's physical, mental, and sensory abilities, evaluates how they apply to the applicant's work-related functioning, and finally considers whether the applicant can sustain work-related activities in a work setting on a regular and continuing basis. Id. Thereafter, at step four, the Commissioner determines if claimant has the physical and mental abilities to perform past relevant work. See Chaparro, 815 F.2d at 1010. If the applicant's RFC meets or exceeds the requirements of regular previous employment, the disability claim is denied. See 20 C.F.R. § 404.1561. If not, however, the inquiry must proceed to step 5 where the Commissioner has the burden to show that the applicant can do work as it is generally performed in the national economy. See Chaparro, 815 F.2d at 1010; 20 C.F.R. § 404.1566.
Residual functional capacity is defined as "what you can still do despite your limitations." 20 C.F.R. § 404.1545(a). It has three components: physical abilities, mental abilities, and other abilities affected by impairments. See 20 C.F.R. § 404.1545(a).
VI. Medical Evidence
At the July 16, 1999, hearing ALJ Culver received and considered evidence regarding plaintiff's physical and mental impairments from several medical sources including plaintiff's treating physician, a consultative examining physician, several non-treating, non-examining consultative physicians, and numerous medical records from the Arthritis and Rheumatology Association, Beaumont Neurology Association, Infectious Diseases Associates, and Beaumont Regional Family Clinic.
The medical evidence having particularly relevance to this proceeding consists of records and reports from treating physician, Dr. Charles J. Caskey, M.D., consulting physician, Dr. Rama D. Veluswamy, M.D., and consulting neurologist, Dr. Todd A. Maraist, M.D.
A treating physician generally is a physician with whom the plaintiff has a long-standing or a continuing treatment relationship. A treating physician is often in the best position to provide a detailed, longitudinal picture of a plaintiff's medical impairments, and "may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." 20 C.F.R. § 404.1527(d)(2).
A consultative physician is a physician who performs a discrete individual examination of the plaintiff, and does not have the history or perspective attendant with treating an individual over a period of time. See 20 C.F.R. § 1527(d)(2).
Dr. Caskey first diagnosed plaintiff with symptoms of fibromyalgia accompanied by swelling and chest and joint pain in 1990. Tr. 229-30. Throughout their relationship, Dr. Caskey treated plaintiff's chronic fibromyalgia flare-ups, mouth infections and muscle swelling as well as the tremors and numerous tics associated with plaintiff's Tourette's syndrome. Tr. 138-41, 229-90. Dr. Caskey noted in his records that plaintiff never had "frank seizures," but that she did not respond to medication and was "constantly having erratic jerking movements of some part of the body." Tr. 212, 230. At a subsequent visit on December 11, 1997, Dr. Caskey recorded that plaintiff had been taking "[n]eurontin because of her tremors and her Tourette's syndrome, needs it refilled." Tr. 139.
On May 21, 1999, Dr. Caskey completed a Social Security Administration questionnaire regarding plaintiff's medications, pain levels, her ability to do work-related activities, and a summary of plaintiff's medical history. Dr. Caskey concluded that plaintiff's impairments did not inhibit her ability to lift or carry, walk, sit, hear, speak or see, but he opined that she could not crawl, kneel, crouch, stoop or climb. Ex. 11, Tr. 229.
Dr. Caskey's response regarding lifting and carrying is confusing. The Social Security Questionnaire reads, "Is Lifting/Carrying affected by the impairment(s)? Yes or No." Dr. Caskey answered "No." However, he added "Patient is virtually unable to walk without some assistance due to the amount of involvement in the hip."
On May 8, 1998, Dr. Velusamy examined the plaintiff. His medical diagnoses were: "dyspnea . . . history of fibromyalgia . . . muscle aches and pains, tingling and numbness, unknown etiology . . . oral infections." Dr. Velusamy further determined that plaintiff "has chronic . . . bronchitis, dyspnea, musculoskeletal pains with tingling and numbness and depression and chronic back pain." Dr. Velusamy stated that plaintiff could walk 40 minutes but very slowly; could sit for two hours, but had to reposition herself; stand for 2 hours; and lift 10 pounds. Ex. 5, Tr. 193.
On January 9, 1996, plaintiff saw Dr. Maraist. As a neurologist, Dr. Maraist evaluated plaintiff's Tourette's syndrome. Dr. Maraist noted that plaintiff had a history of Tourette's disease, but that she informed him that she "would rather live with the tics" because she did not care for the medications. Tr. 16.
VII. Plaintiff's Testimony
Plaintiff testified that she suffered from fibromyalgia, degenerative disc disease, osteoporosis and Collagen's disease. Tr. 37-39. Plaintiff described her fibromyalgia as causing numbness and tingling in her hands, arms and legs. She described the symptoms of her condition as "electricity" shooting through her body, and stated that it impaired her ability to drive longer than 15-20 minutes, put on make-up, or even hold a pencil. Tr. 34, 43, 59. Plaintiff stated that her condition paralyzed her face and hands and that it generally kept her from doing anything. Tr. 35, 59. In addition to the tingling and numbness, plaintiff explained that she can feel lumps growing everywhere she has muscles, and that she first noticed this growth in her hands but it has since spread throughout her body.
Plaintiff described that she first began to experience the growth of lumps in the early 1990s. Tr. 10. She stated that although the lumps are not visible to the eye, she can feel them everywhere. Id. Plaintiff testified that she did not understand them, and that none of her doctors were able to provide an answer either. Id.
Although this testimony is relevant to plaintiff's subjective view of her condition, it is not essential to points of error argued and briefed in this proceeding. Consequently, it is not discussed in further detail.
Plaintiff acknowledged, however, that these impairments do not prevent her from cooking simple meals, grocery shopping and exercising in a pool three times a week. Nevertheless, plaintiff insisted that she can't lift anything heavier than her purse (approximately 6 pounds) and can sit in a chair for only half an hour.
VIII. ALJ's Decision
Following the sequential analysis framework discussed earlier, ALJ Pulver made the following determinations:
Step 1: Plaintiff has not engaged in substantial gainful activity since July 16, 1999. Adm. Law Judge's Decision, Tr. 14.
Step 2: One or a combination of the claimant's impairments constitute "severe" impairments as defined by the regulations.
Step 3: Plaintiff's impairments do not solely or in combination meet or equal criteria of any impairments described in Appendix 1 to Subpart P of Regulations No. 4 ("the Listings"). Id., Tr. 15.
Step 4: (A) Plaintiff has a residual functional capacity "of lifting no more than 10 pounds occasionally with occasionally lifting or carrying of objects such as docket files, ledger, and small tools. Furthermore, the claimant's residual functional capacity is limited to work where the claimant primarily sits, and occasionally walks and stands. This residual functional capacity is generally consistent with that of sedentary work." Id., Tr. 20
(B) Plaintiff can perform her past relevant work of insurance underwriter as that job is generally performed in the national economy. Id., Tr. 21 (emphasis added).
Consequently, ALJ Pulver determined that plaintiff is "not disabled" at the fourth step of the sequential evaluation process because she is able to engage in her past relevant work.
In reaching these conclusions, ALJ Pulver made two evidentiary assessments that are significant in this action for judicial review. First, at Step 2, ALJ Pulver specifically excluded plaintiff's fibromyalgia from impairments he determined to be severe. He stated:
In regard to the other impairments that the claimant alleges above, these are not severe when it no more than minimally impacts the claimant's ability to perform basic work activities.
Specifically, in regards to the claimant's assertion that she has fibromyalgia, the undersigned is cognizant of the lack of objective findings associated with fibromyalgia. . . . [F]ibromyalgia is a "common, but elusive and mysterious disease," and "no laboratory tests for the presence or severity of fibromyalgia" exist. While there may be no doubt that claimant has fibromyalgia, the mere diagnosis does not mean that the claimant is disabled per se.
Id., Tr. 15.
Second, ALJ Pulver qualified his residual functional capacity finding at Step 4. He acknowledged that plaintiff
"cannot perform past relevant work as she actually performed the job of insurance underwriter. In particular, . . . her past job required her to work many extra hours performing overtime. On the other hand, the undersigned finds that the claimant can perform her past relevant work, not as it was actually performed, but as that job is generally performed in the national economy.
Id., Tr. 21 (italics added).
IX. Points of Error
Plaintiff's complaint raises seven points in the "statement of issues" section of her brief. They are reprinted verbatim in the note. Plaintiff cites no statute, regulation, or legal precedent, and advances no argument regarding four of these points. Consequently, plaintiff presents nothing meaningful to review as to them. However, plaintiff raises additional points in the body of her Complaint for Judicial Review and her Response to Defendant's Brief which the court notes. For analytical convenience, all points of error actually argued to some extent are rephrased and characterized as follows:
Plaintiff's Complaint for Judicial Review outlines the following issues:
"1. The Administrative Law Judge failed to consider all of Plaintiff's impairments in determining severity; and
2. The Administrative Law Judge failed to properly evaluate Plaintiff's impairments in considering whether they met or equaled a listing; and
3. The Administrative Law Judge erred in ignoring the findings of the Plaintiff's treating physician as to her function limitations; and
4. The Administrative Law Judge erred in determining the Plaintiff could return to her past relevant work; and
5. The Administrative Law Judge erred in discrediting the Plaintiff and other subjective complaints of pain; and
6. The Administrative Law Judge erred in evaluating Fibromyalgia; and
7. The Administrative Law Judge erred in finding her Tourrette's [sic] syndrome to be disabling."
Pl.'s Compl., p. 1-2.
1. The Commissioner failed to apply proper principles of law because:
ALJ Culver did not apply Social Security Ruling 99-2p when evaluating plaintiff's fibromyalgia; and
ALJ Culver did not evaluate plaintiff's Tourette's syndrome in accord with Medical-Vocational Guidelines §§ 200(e)(1), (e)(2).
The Commissioner's decision is not supported by substantial evidence because:
there is no testimony from a medical advisor and a vocational expert;
ALJ Culver did not set forth reasons for disregarding symptoms or effects associated with plaintiff's Tourette's syndrome; and
the ALJ improperly discredited plaintiff's testimony pertaining to her Tourette's syndrome based on an evaluation of her demeanor.
X. Analysis of Legal Error Points A. Failure to Consult SSR 99-2p When Evaluating Fibromyalgia 1. Competing Arguments
Plaintiff alleges the ALJ Culver determined that fibromyalgia was not a medically determinable impairment. Plaintiff argues this was error, for had ALJ Culver consulted SSR 99-2p he would have discovered that fibromyalgia is an impairment recognized by the Social Security Administration. See Pl. Compl. for Judicial Rev., p. 5.Commissioner Barnhart in response argues that the ALJ did recognize fibromyalgia as an impairment, but determined it was not disabling. See Def. Comm'n. Br., p. 4.
2. Discussion
Social Security Ruling 99-2p addresses Chronic Fatigue Syndrome (CFS) also known as Chronic Fatigue and Immune Dysfunction Syndrome. SSR 99-2p, 64 F.R. 23380 (April 30, 1999). It does not establish procedures for assessing fibromyalgia. Consequently, there was no legal error in not applying SSR 99-2p when evaluating plaintiff's fibromyalgia.
Chronic fatigue syndrome is defined as:
A persistent debilitating fatigue of recent onset, with reduction of physical activity to less than half of usual, accompanied by some combination of muscle weakness, sore throat, mild fever, tender lymph nodes, headaches, and depression, with the symptoms not attributable to any other source. A number of names have been used for this syndrome, including Iceland disease, benign myalgic, chronic Epstein-Barr virus infection, chronic mononucleosis, and epidemic neuromyasthenaia. Dorland's Illustrated Medical Dictionary, 29th ed.
Fibromyalgia is defined as:
Fibromyalgia is a complex rheumatic condition with no known cause or cure. The American College of Rheumatology "has established diagnostic criteria that include pain on both sides of the body, above and below the waist, as well as in an axial distribution (cervical, thoracic, or lumbar spine or anterior chest); additionally there must be point tenderness in at least 11 of 18 specified sites." Stedman's Medical Dictionary, 27th ed.
Fibromyalgia is mentioned once in SSR 99-2p. A terse footnote states:
"There is considerable overlap of symptoms between CFS and Fibromyalgia Syndrome (FMS), but individuals with CFS who have tender points have a medically determinable impairment. Individuals with impairments that fulfill the American College of Rheumatology criteria for FMS (which includes a minimum number of tender points) may also fulfill the criteria for CFS. However, individuals with CFS who do not have the specified number of tender points to establish FMS, will still be found to have a medically determinable impairment. "
SSR 99-2p, 64 F.R. 23380 n. 3 (April 30, 1999) (emphasis added). This footnote, however, simply elucidates the Commissioner's position that persons suffering from chronic fatigue syndrome can be found to have a medically determinable impairment even when their symptoms are insufficient to also reflect a medically determinable impairment due to fibromyalgia. The footnote does not purport to establish standards for determining when fibromyalgia itself constitutes a medically determinable impairment.
Apparently in support of her argument regarding the necessity of applying SSR 92-2p, plaintiff proffers an uncertified copy of a document purporting to be an internal memorandum from Deputy Commissioner for Disability and Income Security Programs, Susan Daniels, May 11, 1998. See Pl. Resp. to Def. Br., Ex. 1, Memorandum, p. 3-15. The memorandum states in pertinent part: "SSA has taken a definitive position that fibromyalgia and CFS can constitute medically determinable impairments within the meaning of the statute." Id., at 3-16.
Assuming that Deputy Commissioner Daniels's memorandum is authoritative, plaintiff fails to show error. Plaintiff's argument that fibromyalgia constitutes a medically determinable impairment is unnecessary and superfluous here because ALJ Culver recognized it as such. ALJ Culver's decision acknowledges that plaintiff suffers from an impairment of fibromyalgia. See Tr. 14-15. However, he concluded that it alone was not a "severe" impairment as defined by the regulations.
As earlier discussed, to be considered severe, an impairment must be of a magnitude sufficient to limit significantly a person's physical or mental ability to do basic work activities. Plaintiff's brief does not address or argue against ALJ Culver's finding of non-severity, and therefore, that point is not presented to the court.
B. Tourette's Syndrome (Legal and Substantial Evidence Points)
At the fourth step of the sequential analysis, the Commissioner determined plaintiff's residual functional capacity (RFC). When making this determination, regulations require adjudicators to consider limitations and restrictions imposed by all impairments and any related symptoms such as pain that may cause physical and mental limitations. 20 C.F.R. § 404.1545; SSR 96-8p, 61 F.R. 34474 (July 2, 1996).
1. Competing Arguments
Plaintiff contends that ALJ Culver erred in three ways when considering plaintiff's Tourette's syndrome. First, plaintiff complains that ALJ Culver erred by not applying Medical Vocational Guidelines §§ 200.00(e)(1), (e)(2). Second, plaintiff complains that ALJ Culver did not "clearly set forth his reasons for not considering effects of Tourette's syndrome." Finally plaintiff complains that ALJ Culver improperly relied on his personal evaluation of plaintiff's demeanor at the hearing in determining that plaintiff's tic and jerking movements only minimally impair her ability to work.
Tourette's syndrome, also known as Gilles de la Tourette's syndrome, is a "syndrome of facial or vocal tics with onset in childhood, progressing to generalized jerking movement in any part of the body." Dorland's Illustrated Medical Dictionary, 29th ed.
In response, Commissioner Barnhart argues that the ALJ properly assessed plaintiff's residual functional capacity because he "considered various factors including the physician opinions of record, Plaintiff's [sic] daily activities and the medical evidence" in making his determination. Moreover, Commissioner Barnhart argues that substantial evidence of the record supports his determination — adding that the plaintiff herself stated that she would rather live with the tics than take medication to control the condition.
2. Discussion
Plaintiff's first argument raises a point of legal error, whereas the latter two points attack the ALJ's decision as unsupported by substantial evidence. For the sake of keeping discussion of all arguments related to Tourette's syndrome together, these three alleged points of error are examined in this section.
a. Medical Vocational Guidelines
Although plaintiff invokes Medical Vocational Guidelines §§ 200.00(e)(1), (e)(2) in her brief, she never explains why the regulation applies in this case or how ALJ Culver erred. Without more, plaintiff has failed to make a showing of legal error.
Further, the court's independent review fails to indicate any applicability of the guidelines invoked by plaintiff for evaluating Tourette's syndrome. Indeed, Medical Vocational Guidelines §§ 200.00(e)(1), (e)(2), found in 20 C.F.R. Pt. 404, Subpt. P, App. 2, are part of regulations better known as the grids. However, the grids are only consulted at Step 5 in the sequential analysis. ALJ Culver never reached Step 5 because he determined at Step 4 that plaintiff can perform her past relevant work. Consequently, plaintiff's point of error lacks merit.
At Step 5 in the sequential analysis, the burden is on the Commissioner to determine that the applicant can perform available alternative employment. Utilizing the RFC determination, the Commissioner then consults the Medical Vocational Guidelines, commonly called "the grids." The grids consist of three tables (for sedentary, light, and medium work) which may be consulted following a determination of claimant's residual functional capacity. The tables direct conclusions of disability or non-disability based upon claimant's age, education, and previous work experience. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, §§ 201-03 (2000).
b. Failure to State Reasons
Pain, alone, constitutes a disabling condition when it is "constant, unremitting and wholly unresponsive to therapeutic treatment." Wren v. Sullivan, 925 F.2d 132, 138 (5th Cir. 1991). In order for an ALJ to evaluate the effect of pain in any given case, the claimant necessarily must testify subjectively regarding the nature of his or her pain. The ALJ must then make a credibility determination. While credibility is an issue for the ALJ and Commissioner to resolve, regulations and governing circuit law require that an ALJ articulate sound and plausible reasons when rejecting or discounting subjective complaints of pain. See SSR 96-7p, 61 F.R. 34483 (July 2, 1996); Abshire v. Bowen, 848 F.2d 638, 642 (5th Cir. 1988).
Plaintiff evidently attempts to extend this rule to assessments of Tourette's syndrome. Such argument, however, is misplaced. First, neither the Social Security Act, implementing regulations nor circuit precedent recognizes that Tourette's syndrome, alone, can be a disabling impairment. Second, Tourette's syndrome symptoms do not involve pain, but rather involuntary muscle tics or spasms. Third, the subject matter of this particular inquiry, i.e., effects of Tourette's syndrome, does not involve assessing plaintiff's subjective testimony, but rather the import of a physician's written report. Consequently, there is no logical reason to consider extending the rule of Abshire v. Bowen to administrative assessments of Tourette's syndrome.
Even if the rule were applicable, the result would not change here. Plaintiff does not argue, and the record does not suggest, that ALJ Culver rejected or substantially discounted any evidence regarding effects of Tourette's syndrome on plaintiff. Indeed, ALJ Culver recognized plaintiff's Tourette's syndrome and expressly adopted plaintiff's treating physician's diagnosis by stating:
"The claimant has been on medication for Turret's syndrome, but according to Dr. Coskey, [sic] she has never had any seizures."
Tr. 16. Consequently, even if the rule advocated by plaintiff were applied, the court would be compelled to conclude that since ALJ Culver accepted the treating physician's opinion, there was no occasion for him to further expand on his analysis.
c. Demeanor at Administrative Hearing
As noted in the preceding section, an ALJ must resolve conflicts in the evidence, and make credibility determinations. See Lovelace v. Bowen, 813 F.2d 55, 59-60 (5th Cir. 1987). However, an ALJ may not properly discredit a claimant's testimony simply because she does not appear to exhibit pain, symptoms or discomfort during an administrative hearing. Id.; see also Muncy v. Apfel, 247 F.3d 728 (8th Cir. 2001); Miller v. Sullivan, 916 F.2d 659 (11th Cir. 1990). This rule is sometimes referred to as the "sit and squirm doctrine." See Muncy, 247 F.3d at 736; Miller, 916 F.2d at 422.
Without explication, plaintiff argues that ALJ improperly utilized a "sit and squirm" standard. Again, the court has nothing meaningful to review. And again, if the court constructs the argument in plaintiff's behalf, it will be compelled to conclude that the argument is misplaced. Tourette's syndrome does not manifest itself through subjective complaints of pain. Consequently, there is no occasion to fashion a "sit and squirm" rule for Tourette's syndrome cases. More importantly, there is no indication from the transcript or ALJ Culver's written determination that he discredited plaintiff's testimony regarding Tourette's syndrome based on personal observations of plaintiff's demeanor at the administrative hearing.
XI. Analysis of Remaining Substantial Evidence Point
The only remaining point of error is plaintiff's two-pronged assertion that ALJ Culver erred in not having both a vocational expert and a medical advisor testify at the administrative hearing.
Once again, plaintiff fails to cite statutory, regulatory or judicial authority supporting these contentions. Once again, the failure to include such authorities or cogent explanatory text in the brief means that plaintiff has submitted nothing meaningful to review. And once again, if the court attempts to construct the arguments for plaintiff, the court ultimately must reject the hypothesized arguments.
Vocational experts testify only when an ALJ's residual functional capacity determination discloses that a claimant is unable to perform the claimant's past relevant work. Here, ALJ Culver determined that plaintiff can perform her past relevant work as an insurance underwriter as that job typically is performed in the national economy. Expert vocational testimony was, therefore, unnecessary.
A medical advisor is a neutral advisor who renders expert opinion based solely on medical records and evidence. See Richardson v. Perales, 402 U.S. at 408 (1971); 20 C.F.R. § 404.1512(b)(6), 404.1527(f). A medical advisor generally is a board-certified specialist that explains or clarifies information for an ALJ. See Richardson, 402 U.S. at 408. Under applicable regulations, an ALJ must utilize a medical advisor only in certain instances when it is unclear as to whether a claimant's impairments are equivalent in severity to impairments in the Listings, and when establishing the onset date of disability for slowly progressive impairments. Otherwise, the ALJ does not have a duty to seek the opinion of a medical advisor at any time during the five-step sequential analysis. See Richardson, 402 U.S. at 408 (recognizing that medical advisors could, but were not required to be used in explaining complex medical problems to the examiner) (emphasis added); Haywood v. Sullivan, 888 F.2d at 1467 ("An ALJ requests a MA [medical advisor] to testify when she or he feels it necessary.")
An ALJ must seek the opinion of a medical advisor when (1) The ALJ concludes that the claimant does not meet the specific criteria outlined in the Listings but reasonably believes claimant's impairments may be judged equivalent or; (2) If an ALJ receives additional medical evidence that (s)he believes may change the "State agency medical or psychological consultant's finding that the impairment(s) is not equivalent in severity to any impairments in the Listings. SSR 96-6p, 61 F.R. 34466, 34468 (July 2, 1996).
The opinion of a medical advisor is required in cases involving slowly progressive impairments in which the date the claimant became "disabled" is ambiguous. In such instances, the ALJ may infer the date of a claimant's disability, but only with the assistance of a medical advisor. Spellman v. Shalala, 1 F.3d 357, 363-363 (5th Cir. 1993); SSR 83-20, 1983 WL 31249 at 3 (1983).
Plaintiff here does not argue that a medical advisor was necessary to determine the onset date of disability. Plaintiff does not argue that either of the conditions requiring assistance of a medical advisor at Step 3 of the sequential evaluation process existed. Rather, to the extent plaintiff argues at all, it is that generally ALJ Culver should have relied on a medical advisor in making his residual functional capacity assessment. Whatever might be argued about the advisability of getting such assistance, one cannot successfully argue that failure to obtain medical advisor testimony constitutes error. Consequently, this point lacks merit.
VI. RECOMMENDATION
Because none of plaintiff's points of error should be sustained, the Commissioner's decision should be affirmed.
VII. OBJECTIONS
Objections must be: (1) specific, (2) in writing, and (3) served and filed within ten days after being served with a copy of this report. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 1(a), 6(b), and 72(b).
A party's failure to object bars that party from: (1) entitlement to de novo review by a district judge of proposed findings and recommendations, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual findings and legal conclusions accepted by the district court, Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).