Opinion
1:05CV242.
August 27, 2008
MEMORANDUM OPINION
On October 5, 2005, Vanessa M. Qualls filed a complaint seeking review of the decision of the Commissioner of Social Security ("Commissioner") denying her application for Social Security Disability and Supplemental Security Income Disability benefits. This court has jurisdiction to hear that appeal under section 205(g) of the Social Security Act, 42 U.S.C. § 405.
Administrative History
On July 19, 2001, Qualls filed an application for disability benefits under Title II alleging a disability onset date of December 15, 2000. The application was denied inititally and on reconsideration. On August 28, 2003, the Administrative Law Judge ("ALJ") found Qualls was not disabled. On August 23, 2005, the ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Qualls' request for review. In bringing her claim before this court Qualls identified two issues for appeal: whether the ALJ (1) erred in failing to give proper weight to the opinion of Qualls' primary treating physician and the medical evidence as a whole; and, (2) failed to consider Qualls' Sjogren's Syndrome and annular tear at level L5-S1.
The case was referred to Magistrate Judge Bogen. On January 25, 2008, Judge Bogen issued a Report and Recommendation in this matter. On February 4, 2008, Qualls filed twelve objections to the Report and Recommendation. Those objections are: the Magistrate: (1) incorrectly ruled the findings of the ALJ were supported by substantial evidence; (2) incorrectly ruled and/or wholly failed to rule as to whether the ALJ correctly assessed and analyzed the medical opinion of the treating physician, Dr. Steuer, under 20 C.F.R. § 404.1527; (3) incorrectly determined the statements of the primary treating physician are inconsistent; (4) failed to discuss and analyze the fact the physician, Dr. James Gaylon, chosen by the Commissioner did not review or analyze the diagnostic evidence available; (5) failed to define any clinical or laboratory evidence to support the accepted finding of Dr. Gaylon; (6) failed to give Dr. Steuer's findings controlling weight despite his medical specialty in pain and the treatment of pain; (7) incorrectly rejected Dr. Steuer's opinion; (8) failed to give good reasons for the acceptance of Dr. Gaylon's opinion over the opinion of Dr. Steuer; (9) incorrectly ruled the ALJ finding a surgical procedure corrected Qualls' annular tear was harmless error; (10) incorrectly ruled the ALJ's error in interpreting the medical restrictions of Dr. Steuer was harmless; (11) incorrectly ruled the combination of the two errors of the ALJ were cumulatively harmless; and (12) incorrectly found Dr. Galyon's report was supported by laboratory findings.
Facts
Qualls was born March 6, 1966. She was 37 years of age at the time of the hearing decision on August 28, 2003. She earned a GED, after completing twelve years of education. Qualls previously worked as a forklift operator, meat packer, store manager, factory worker, and used car sales person. Qualls alleged she could no longer work due to Sjogren's syndrome, headaches, the placement of metal rods in her bilateral femur bones, arthritis, and pain in her neck and lower back. After a careful review and evaluation of the medical evidence of record, the subjective testimony at the hearing and the testimony of a vocational expert, the ALJ found Qualls not disabled. Contrary to Qualls' allegation of disability, the ALJ found she had the residual functional capacity to perform a range of sedentary work activity. The ALJ found Qualls could lift ten pounds occasionally and frequently, stand or walk for two hours in an eight-hour work day, sit without restriction and had limitations in pushing or pulling with her lower extremities. He also found Qualls could only occasionally climb, balance, stoop, crouch, kneel or crawl. The ALJ also found Qualls had transferable skills. Based upon this RFC and the testimony of a vocational expert, the ALJ found there existed work in the national economy that Qualls could perform.
Qualls' last date of Title II disability insurance coverage was December 31, 2003. For insured status under the Act, an individual is required to have twenty quarters of coverage in the forty quarter period ending with the first quarter of disability. This is the so called "earnings requirement." See 42 U.S.C. §§ 416(i)(3)(B) and 423(c)(1)(B). To be found disabled for Title II purposes, Qualls must prove disability prior to December 31, 2003. See 20 C.F.R. § 404.130.
In December 1994, Qualls had a lesion removed from her lip. Analysis of the tissue indicated findings consistent with "early and/or mild involvement with Sjogren's disease."
Qualls was treated by Patrick E. Tucker, M.D., for various conditions between June 2000 and November 2001. In June 2000, Qualls reported falling down the stairs of her deck. Dr. Tucker noted some bruising of the back with mild spasms in the upper lumbar spine but with no significant tenderness. In the lower lumbar spine, however, Qualls was very tender around L-4 and lower over the sacrum on the left side. Dr. Tucker diagnosed Qualls with a contusion of the back and prescribed muscle relaxers and pain pills. However, as regards numerous later visits, Dr. Tucker noted Qualls was in "no acute distress" and had normal gait and station, normal strength in upper and lower extremities and no abnormal movements.
In June 2001, Qualls underwent an MRI of her lumbar spine, which showed mild focal central disc protrusion with mild relative stenosis at L5-S1. The remaining levels were within normal limits with no focal disc protrusion or significant stenosis, and the neural foramina were without significant encroachment at all levels bilaterally throughout the lumbar region.
When examined by Ken Staggs, M.D., in August 2001, it was noted Qualls was "very tan, alert, cooperative, pleasant, oriented . . . in no acute distress," and was without inappropriate pain behaviors. Dr. Staggs noted Qualls did not appear to have redness or swelling of the conjunctiva as expected in Sjogren's disease. Qualls was tender in the lower lumbosacral spine, but without spasm. Straight leg raises were negative. Grip strength was normal and shoulder shrug was intact.
In December 2001, Qualls returned to Dr. Staggs after three lumbar epidurals and one transforaminal. Dr. Staggs noted the procedures had only provided Qualls with temporary relief of her low back pain. Dr. Staggs indicated a discogram showed a definite posterior annular tear at L5-S1. He recommended a lumbar support orthotic and made arrangements for Intradiscal Electrothermal Annuloplasty ("IDET").
Carl C. Welch, M.S., examined Qualls on November 9, 2001 "relative to her attempt to obtain Social Security income." Qualls complained of neck pain, low back pain, bilateral hip pain and generalized arthritis. Qualls told Dr. Welch she could not sit longer than fifteen minutes before low back pain and lower extremity pain forced her to get up and move for relief and before her feet would go numb. Qualls also reported she could not stand more than fifteen minutes before low back pain, bilateral hip pain, and lower extremity pain forced her to rest. Qualls said she did not drive except when it was unavoidable; and she did not do any housework. Qualls also told Dr. Welch she could not crouch, crawl, or bend without severe pain.
Dr. Welch noted Dr. Staggs had performed several nerve blocks which provided no significant long term improvement. Upon examination, Dr. Welch noted mild to moderate spasm of the shoulder girdle muscle and significant spasm of the cervical paraspinous muscles. He also noted some tenderness of the sacroiliac joints bilaterally and tenderness at fifteen of the eighteen trigger points for fibromyalgia. Active range of motion testing revealed flexion of the dorsolumbar spine was limited to forty five degrees due to low back pain. Additionally, abduction, flexion, and internal rotation of the hips were slightly limited due to hip pain. Qualls could heel and toe walk with some difficulty but could not squat at all.
Dr. Welch completed a Medical Source Statement-Physical, on November 20, 2001. He indicated Qualls could only occasionally lift less than ten pounds and frequently lift less than ten pounds. He found Qualls could only stand for less than two hours per work day for brief periods and sit for less than fours hours in a work day for brief periods. He indicated Qualls had severe postural limitations, as well as manipulative and environmental restrictions.
Qualls underwent a comprehensive consultation performed by John Gray, M.D., an orthopedic specialist, on May 21, 2001. Dr. Gray noted Qualls' cervical spine was normal to inspection, with full range of motion, but some pain at the end ranges. Qualls' shoulders were normal with full ranges of motion. Her thoracic spine was normal with full range of motion. Examination of the lumbosacral spine revealed right hip pain and bilateral acroiliac joint tenderness to palpation and rotation, but range of motion was normal and full. Qualls had a slight limp, but toe and heel walking was within normal limits. She performed a full squat but rose with difficulty secondary to hip and knee pain. Qualls had normal sensation and strength in all extremities, with negative straight leg raises. Dr. Gray's diagnostic impression was lower extremity pain due to the insertion of metal rods, lumbosacral disc disease and cervical disc disease. He made recommendations including medication, physical therapy, exercise, and weight loss.
Qualls saw Dr. Gray again on November 14, 2001, after she fell down three steps onto her right knee. Qualls complained of low back pain and Dr. Gray noted a limp. Qualls was advised to continue her current medications. On November 28, 2001, Qualls still had low back pain and a limp, but Dr. Gray noted she was resting "fine" with medication. Qualls was advised to continue those medications.
Qualls was examined by Michael E. Steuer, M.D., on April 9, 2002. Her chief complaints were low back pain radiating to the lower extremities bilaterally and posterior cervical pain. Dr. Steuer noted Qualls had undergone L5-S1 IDET annuloplasty in January 2002, but had "not really derived meaningful benefit" from the procedure. Examination showed normal heel and toe standing bilaterally but a profoundly antalgic gait. Qualls demonstrated some tenderness in areas of her back. Lower extremities had normal ranges of motion with normal strength. Straight leg raises were positive at forty five degrees.
Dr. Steuer examined Qualls on numerous occasions after his initial consultation. In July 2002, he noted Qualls had significant improvement in her pain symptoms from baseline. And, though she had an increase in back pain since her last visit, her medications were effective. Examination revealed positive lumbar paraspinous and positive straight leg raise testing. At that time, he listed her impairments as L5-S1 radiculitis, status post L5-S1 pain injections, mononeuritiis, L/R lower limb, myofascial syndrome, lower back pain, Sjogren's Syndrome, sleep disorder, NSAID intolerance and low risk for opiod abuse.
In October 2002, Dr. Steuer noted Qualls had significant improvement in her pain symptoms. He also noted Qualls had no sleep disturbance and had only moderate difficulty with activities of daily living. Qualls reported Oxycontin was "extremely effective" in treating her pain. On October 23, 2002, Qualls underwent a nerve root block. Dr. Steuer noted Qualls had returned with "excellent improvement in symptomatology since initially presenting . . . for treatment." Records of Qualls' November and December 2002 visits with Dr. Steuer are nearly identical to that of her October 2002 visit, with the exception of increased sleep disturbance. Each time, Qualls exhibited significant improvement in her pain symptoms and reported activities of daily living were only moderately difficult to perform.
On February 6, 2003, however, Dr. Steuer completed a Medical Source Statement in which he indicated Qualls was unable to perform even sedentary work. He indicated Qualls could only occasionally lift less than ten pounds and could not lift any weight frequently. He noted Qualls could stand for a total of one hour per workday and sit for a total of two hours per workday. He also noted Qualls could perform no postural activities. He indicated she had manipulative limitations involving her ability to reach, handle, feel, and push or pull. Lastly, he indicated her environmental restrictions, including heights, moving machinery, temperature extremes, and vibration.
After the administrative hearing, Dr. Steuer wrote a letter on September 13, 2004, indicating nerve blocks Qualls had previously undergone offered her temporary improvement but "no meaningful long-term benefit." He also indicated a percutaneous discectomy at L5-S1 performed in October 2003 "was associated with significant benefit" but only improved Qualls' pain from "moderately severe" to "moderate" in intensity. Ultimately, he opined Qualls suffered from "some component" of disc disease at L5-S1 and suffered from "some component of disability."
Qualls was consultatively examined by James T. Galyon, M.D., on April 28, 2003. She presented with a mild limp. Cervical spine examination was normal. Upper extremity testing showed full ranges of motion in both shoulders, elbows, hands, and wrists. Musculature was normal. Lumbar spine testing showed flexion to eighty degrees with complaints of mild pain. Lower extremities showed mild pain on acute flexion and mild pain on right internal rotation with normal range of motion. Significant pain was noted on internal rotation on the left. X-rays of the lumbar spine were normal, but showed an intermedullary nail on the left due to previous surgery. Dr. Galyon opined Qualls could stand and walk for four hours in an eight-hour work day. He also indicated Qualls could not repeatedly bend and stoop but could perform these actions occasionally. He found no limitations for sedentary work. There were no restrictions in the upper extremities. He found Qualls could lift up to fifteen pounds occasionally and up to ten pounds frequently.
Dr. Galyon completed a Medical Source Statement-Physical in which he indicated Qualls could occasionally and frequently lift up to ten pounds. He also found she could stand up to four hours in an eight hour work day and sit for unlimited periods. He indicated Qualls could occasionally kneel, balance, stoop, and crouch. Qualls had no manipulative or environmental limitations.
Standard of Review
The court's review of an ALJ's ruling is limited to determining (1) whether the ALJ's decision was supported by substantial evidence in the record; and, (2) whether the ALJ used proper legal standards to evaluate the evidence. Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999). Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotation marks omitted). The court may not "reweigh the evidence in the record, nor try the issues de novo, nor substitute [its] judgment for that of the [ALJ], even if the evidence preponderates against the [ALJ's] decision." Id. (internal quotation marks omitted).
To be entitled to Social Security benefits, a claimant must show they are disabled within the meaning of the Act. Villa v. Strickland, 895 F.2d 1019, 1022 (5th Cir. 1990). Disability is defined 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 twelve months." 42 U.S.C. § 423(d)(1)(A). The Commissioner has promulgated regulations providing procedures for evaluating a claim and determining disability. 20 C.F.R. §§ 404.1501-404.1599 Appendices, 416.901-416.998. The ALJ must conduct a five-step process when examining a claim of disability:
(1) a claimant who is working, engaging in a substantial gainful activity, will not be found to be disabled no matter what the medical findings are: (2) a claimant will not be found to be disabled unless he has a "severe impairment;" (3) a claimant whose impairment meets or is equivalent to an impairment listed in Appendix 1 of the regulations will be considered disabled without the need to consider vocational factors: (4) a claimant who is capable of performing work that he has done in the past must be found "not disabled;" and (5) if the claimant is unable to perform his previous work as a result of his impairment, then factors such as his age, education, past work experience, and residual functional capacity must be considered to determine whether he can do other work.Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20 C.F.R. § 404.1520(a)-(e) (describing the five steps). "A finding that a claimant is disabled or not disabled at any point in the five-step process is conclusive and terminates the . . . analysis." Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988).
The claimant has the burden of proof under the first four parts of the inquiry. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). If the claimant successfully carries this burden, the burden shifts to the Commissioner to show other substantial gainful employment of which the claimant is capable of performing is available in the national economy. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); Kraemer v. Sullivan, 885 F.2d 206, 208 (5th Cir. 1989). If the Commissioner shows the claimant is capable of engaging in alternative employment, "the ultimate burden of persuasion shifts back to the claimant." Id.
The court "weigh[s] four elements of proof when determining whether there is substantial evidence of disability: (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 history." Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). "The Commissioner, rather than the courts, must resolve conflicts in the evidence." Id.
Analysis
The crux of this case is a determination of the extent of Qualls' limitations. The ALJ found at least some of Qualls' infirmities met her burden of proof, requiring the Commissioner show jobs existed in the national economy appropriate for Qualls. A finding that Qualls can occasionally lift less than ten pounds, that she can stand and walk for only one hour and can sit for only two hours in a workday, that she can never climb, balance, stoop, crouch, kneel or crawl, and that she is restricted in reaching, handling, feeling, pushing and pulling, in working at heights, with moving machinery, at temperature extremes, and in an atmosphere with vibration would result in her being eligible for benefits. A finding that she can occasionally and frequently lift ten pounds, she can stand and walk for two hours and sit for unlimited periods in an eight hour workday, that she experiences restrictions in pushing and pulling, and that she can occasionally engage in climbing, balancing, kneeling, crouching, crawling, or stoop means she is not eligible for benefits. Qualls contends the report of Dr. Steuer supports the first scenario. The ALJ found Dr. Galyon's report and the preponderance of the evidence supported the second proposition.Working under the standard of review set forth above this court will address all twelve of Qualls' objections. Those objections must be addressed in light of the two issues raised upon appeal.
Many of those objections are simply restatements of each other. Where appropriate the court will conflate the analysis of like objections.
Qualls first claims the Magistrate Judge incorrectly ruled the findings of the ALJ were supported by substantial evidence. The first issue before the Magistrate Judge was whether the ALJ erred in failing to give proper weight to the opinion of Qualls' primary treating physician and the medical evidence as a whole.
A treating physician's opinion regarding the nature and severity of a patient's condition is given controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence. Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000). However, these opinions are not conclusive and may "be assigned little or no weight "when good cause is shown." Id. Ultimately, "the ALJ has the sole responsibility for determining a claimant's disability status." Id.
In this case, the ALJ found the opinion of the primary treating physician, Dr. Steuer, was inconsistent with other substantial evidence. The ALJ showed good cause for his decision.
In determining if this finding is supported by substantial evidence the court disposes of objections: that the Magistrate (2) incorrectly ruled and/or wholly failed to rule as to whether the ALJ correctly assessed and analyzed the medical opinion of the treating physician, Dr. Steuer, under 20 C.F.R. § 404.1527; (3) incorrectly determined the statements of the primary treating physician are inconsistent; (6) failed to give Dr. Steuer's findings controlling weight despite his medical specialty in pain and the treatment of pain; and (7) incorrectly rejected Dr. Steuer's opinion.
The ALJ noted Dr. Steuer's opinion was in direct conflict with the opinion of the Commissioner's designated physician, Dr. Galyon. Dr. Galyon only examined Qualls once. His opinion was however supported by Dr. Steuer's clinic notes. These notes were consistent with Dr. Galyon's findings and only partially supported the much broader opinion of Dr. Steuer. Dr. Steuer's notes reveal Qualls "showed significant improvement" in her pain symptomatology on every visit and that "oxycontin was "extremely effective" for her. Dr. Steuer reported Qualls could only sit, stand, or walk for three hours of an eight hour workday. This is not supported by his notations that Qualls was consistently improving in condition, had normal heel and toe standing bilaterally, only demonstrated some tenderness in areas of her back, her lower extremities had normal ranges of motion with normal strength, and her straight leg raises were positive at forty five degrees. Dr. Steuer's diagnosis was also inconsistent with the more limited diagnoses of Qualls previous treating physicians, Dr. Tucker and Dr. Staggs. Finally, Dr. Steuer's report was inconsistent with record evidence tending to show Qualls continued to lead an active life following the stated date of her onset of alleged disability.
The ALJ's decision to find Dr. Steuer's opinion inconsistent with the substantial evidence and to subsequently give little controlling weight to his opinion was supported by substantial evidence in the record.
The second issue before the Magistrate was whether the ALJ failed to consider Qualls' Sjogren's Syndrome and annular tear at level L5-S1.
There is little evidence in the record which relates to disability caused by Qualls' Sjogren's Syndrome. In December 1994, Qualls had a lesion removed from her lip an analysis of which indicated it was consistent with "early and/or mild involvement with Sjogren's disease." Several of Qualls physicians noted she had Sjogren's Syndrome. The record, however, does not indicate Qualls received treatment for any limitations caused by Sjogren's Syndrome. Dr. Welch, who saw Qualls once on the referral of her attorney in this matter, does indicate the Syndrome contributes to her general disability. He diagnoses her with Sjogren's Syndrome with generalized arthritis and arthralgia. He fails to further elaborate on how the syndrome affects her disability.
The ALJ questioned Qualls about her own perceptions of how her infirmities affected her ability to function. Qualls mentioned she had Sjogren's Syndrome which caused her to have uncontrolled movements of her extremities. She testified she was wearing a splint on her arm because of the Syndrome. However, she also stated she had been wearing it for less than a week. Additionally, she stated Dr. Tucker had given her the splint. She admitted Dr. Tucker was not treating her for Sjogren's Syndrome. She also admitted she had only worn the splint two times before for approximately seven to ten days each time. Following this testimony, the ALJ specifically asked Qualls why she was wearing the splint on her arm. She responded that the movements caused by the Sjogren's Syndrome caused her pain similar to tendinitis. Her attorney also took the opportunity to question Qualls. He raised issues such as Qualls' headaches which were not explored by the ALJ. He never mentioned Sjogren's Syndrome. In fact near the end of the hearing Qualls counsel states "[y]our Honor, I think you've done a great job in asking her and getting to the problems that she's experienced, and I really can not add anything to what you've asked." Qualls was offered ample opportunity to offer evidence about the effects of the Syndrome on her alleged disability. She did not take that opportunity. Based on the information before the ALJ, he decided the claimant did not have any impairment which met or equaled any of the impairments listed in Appendix 1 of the regulations. In coming to this finding, the ALJ did not specifically discuss Sjogren's disease. It is clear though that the ALJ was aware of the diagnosis of Sjogren's Syndrome. The ALJ inquired at the hearing about the Sjogren's Syndrome and subsequently found it did not rise to the level of satisfying part three of the five part test used in determining eligibility for benefits.
This decision was supported by substantial evidence. Qualls did not describe how the Syndrome prevented her from working. Her attorney found the ALJ's questioning on the subject to be sufficient. Further, the evidence showed she was not being treated for the Syndrome. It is better practice to specifically address each impairment or infirmity a party might claim contributes to or causes their disability. However, the record is clear that the ALJ considered the Syndrome and rejected it.
The ALJ's decision is supported by substantial evidence.
Qualls next raises a number of objections to the Magistrate's upholding of the ALJ's decision to rely on the Dr. Galyon's report instead of the report of Dr. Steuer.
These claims encompass objections: that the Magistrate (4) failed to discuss and analyze the fact that the physician, Dr. James Gaylon, chosen by the Commissioner did not review or analyze the diagnostic evidence available; (5) failed to define any clinical or laboratory evidence to support the accepted finding of Dr. Gaylon; (8) failed to give good reasons for the acceptance of Dr. Gaylon's opinion over the opinion of Dr. Steuer; and (12) incorrectly found Dr. Galyon's report was supported by laboratory findings.
The reasons for giving little controlling weight to Dr. Steuer's report are laid out above. However, the rejection of Dr. Steuer's report did not automatically give controlling weight to Dr. Galyon's report. Instead substantial evidence had to support Dr. Galyon's findings. Dr. Steuer's own clinical notes are more consistent with Dr. Galyon's analysis than the opinion of Dr. Steuer. Dr. Steuer's notes show a patient constantly improving and concentrate on the pain in her low back, hips and legs. Dr. Galyon finds leg pain that is a remnant of Qualls' 1988 wreck. He also notes a back injury and based on his review of X-rays states this injury is due in large part to mild scoliosis. A lumbar MRI showed a mild central disc protrusion, with mild stenosis. An EMG/nerve conduction study of both legs had normal findings. Qualls' discogram revealed an annular tear. This testing indicates Qualls suffers pain. However, the tests support Dr. Galyon's more moderate findings as opposed to the opinion of Dr. Steuer. Finally, Dr. Galyon's findings are supported by the fact Qualls remained "fairly active despite her alleged disability." This is substantial evidence to support the acceptance of Dr. Galyon's findings.
The ALJ found a January 2002 IDET procedure corrected Qualls' annular tear. This finding is incorrect. Qualls objects to the Magistrate finding this is harmless error.
"[P]rocedural perfection in administrative hearings is not required." Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988) (citing Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988). Courts must not vacate administrative judgments "unless the substantial rights of a party have been affected." Id. A party's substantial rights have been violated only when an error calls into question that substantial evidence supports the ALJ's decision. Id.
Although, the ALJ found Qualls' annular tear had been repaired, he still found Qualls had a severe impairment due to back pain. The question of this case is not whether Qualls suffered, but to what extent that suffering limited her ability to work. In this instance the ALJ was mistaken about a technical aspect of Qualls' infirmity. He was, however, aware a that severe impairment existed. Looking to that impairment, the ALJ used the medical evidence offered him to determine the limitations of Qualls. His technical mistake does not affect that analysis. It therefore does not rise to the level of calling into question whether substantial evidence supports the ALJ's determination. This mistake is harmless error.
Qualls next objects to the Magistrate finding the ALJ's interpretation of Dr. Steuer's restriction that Qualls sit for only two hours a day and stand for one hour a day related to a twenty-four hour day instead of an eight hour workday was harmless error. While the ALJ's opinion states this mistaken proposition, the transcript of the administrative hearing shows the ALJ considered the restriction based on an eight hour work day. When questioning the vocational expert, Lamar Crocker, the ALJ asks two hypothetical questions regarding restrictions. The first of those hypotheticals uses the restrictions outlined by Dr. Steuer. It places those limitations within the bounds of an eight hour work day. This is evidence the ALJ considered them in that context. Additionally, the ALJ rejected the limitations put forth by Dr. Steuer. Thus no matter what those limitations were, they were not pertinent to determining if jobs in the national economy existed for which Qualls qualified. Instead the limitations accepted by the ALJ were those of Dr. Galyon. Thus only Dr. Galyon's finding were required for a decision. As such this error in interpretation of unused limitations is harmless.
Finally, Qualls argues the two errors discussed above were not harmless when considered cumulatively. This argument is without merit. Neither of the errors called into question the fact the ALJ's decision was supported by substantial evidence. The two errors are not interrelated in a way that their cumulative effect would provide greater prejudice than their individual consideration. The annular tear issue relates only to the finding of a severe impairment, which the ALJ found even in light of his error. The restriction interpretation is irrelevant as the ALJ rejected the restrictions laid out by Dr. Steuer. Therefore, the combined effects of these errors is harmless.
Conclusion
The objections of Qualls are not well taken. Magistrate Judge Bogen's findings are well supported and correctly address the issues raised on appeal. Upon consideration of the file and records in this action, the court finds that the Report and Recommendation of the United States Magistrate Judge dated January 25, 2008, should be approved and adopted. Therefore, it is
ORDERED:
1) The Report and Recommendation [12] of the United States Magistrate Judge dated January 25, 2008, is hereby approved and adopted.