Opinion
Civil Action No. SA-05-CA-0010 XR (NN).
November 16, 2005.
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: Hon. Xavier Rodriguez United States District Judge
I. Introduction
Plaintiff Sharon Vereen seeks review and reversal of the administrative denial of her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") by the Administrative Law Judge ("ALJ") on May 18, 2004. Plaintiff contends that ALJ James Chapman's conclusion that plaintiff retained the residual functional capacity ("RFC") to perform work available in the local and national economies is not supported by the substantial evidence of the record. For this reason, plaintiff requests that the court reverse, remand and order the entry of a finding of disability, or, in the alternative, remand the case for proper development.After considering plaintiff's brief in support of her complaint, defendant's brief in support of the Commissioner's decision, plaintiff's reply brief, the transcript of the Social Security Administration (hereinafter "SSA") proceedings, the pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, and the entire record in this matter, it is my recommendation that plaintiff's request for relief be DENIED.
Docket Entry 12.
Docket Entry 13.
Docket Entry 16.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
II. Jurisdiction
The court has jurisdiction under 42 U.S.C. §§ 405(g), 1383.
III. Administrative Proceedings
According to the record in this case, plaintiff fully exhausted her administrative remedies prior to filing this action in federal court. Plaintiff protectively filed applications for DIB and SSI on August 21, 2001, alleging a disability beginning February 1, 1999. The SSA denied plaintiff's applications both initially, on February 6, 2002, and on reconsideration.
Transcript, at 47-51, 421-423, 442, 478.
Transcript, at 18-23, 425-431.
Transcript, at 27-30, 433-435.
On July 11, 2002, plaintiff requested a hearing before an ALJ. The first hearing was held on October 2, 2003. Plaintiff was represented by counsel at the hearing. Plaintiff's attorney was able to examine and question plaintiff during the hearing.
Transcript, at 31.
Transcript, at 438-465.
The plaintiff, who was forty (40) years old at the October 2003 hearing, testified that she was married and lived with the two youngest of her three children in a rented house. She further stated that the only household income apart from her husband's salary was child support from the father of her children.
Transcript, at 442.
Transcript, at 441, 443, 469.
Transcript, at 444, 469.
When asked about her educational and vocational experience, plaintiff told ALJ Chapman that she completed approximately one and a half years of college courses. She also testified that she had past work experience as an assembly line worker, a mail sorter and a city bus driver. Plaintiff stated that she held the bus driver position for the longest amount of time but eventually resigned due to sexual harassment.
Transcript, at 444, 470.
Transcript, at 444-45.
Transcript, at 445.
When asked about her ability to perform daily and routine activities, plaintiff testified that she was generally able to care for her own personal hygiene needs, perform house work, drive to the grocery store and shop there, go to movies, attend Church one or two times per month and walk for exercise. Plaintiff told ALJ Chapman that she drove herself to the administrative hearing and drove her car approximately three or four times per week. She also stated that she watched television and read, although she had occasional problems with her memory because of her medications.
Transcript, at 447, 449.
Transcript, at 447, 448. Notably, plaintiff also drove herself to the supplemental hearing on April 22, 2004. Transcript, at 473.
Transcript, at 449.
During the hearing, plaintiff discussed her alleged pain and limitations. For instance, she stated that she had pain in her lower back and left sided numbness. Plaintiff told the ALJ that her pain was both sharp and dull and traveled both down her leg and up to her neck. She testified that her medications eased the pain but that changes in the weather aggravated it.
Transcript, at 450, 451.
Id.
Transcript, at 451.
She further explained that she was able to sit for ten to fifteen minutes before needing to stand and that the reverse was also true. Plaintiff told the ALJ that she could climb stairs if absolutely necessary, but avoided stairs when possible. She testified that she was able to use both hands to button clothing, make a fist, feed herself, and turn the ignition in her car. Later in the hearing, however, plaintiff stated that she was only able to hold a glass of water for a matter of seconds before she would drop it. She further testified that she had pain in her hands as a result of her fibromyalgia.
Transcript, at 451.
Id.
Transcript, at 451, 452.
Transcript, at 462.
Transcript, at 461, 462.
At the hearing, plaintiff proffered seemingly contradictory testimony regarding her ability to walk. For example, she told ALJ Chapman that she was able to walk for exercise and to walk without her cane in the early portion of the hearing. Toward the end of the hearing, plaintiff stated that her orthopedist prescribed the cane for use at all times. Plaintiff also testified that she was only able to walk half a block before resting.
Transcript, at 449.
Transcript, at 457.
Transcript, at 450.
When asked about her past and current medical treatment, plaintiff told ALJ Chapman that she had surgery for an umbilical hernia in 1996. She testified that she received injections in her back. Plaintiff further stated that she took Tramadol for her fibromyalgia but it made her drowsy. For that reason, plaintiff testified that she refrained from taking her medications when she drove her car.
Transcript, at 453.
Transcript, at 455, 471.
Transcript, at 458, 459.
Transcript, at 459.
When asked if she thought she would be able to perform assembly work, plaintiff opined that she would be unable to assemble small parts because she would drop the little objects. Plaintiff further stated that she would be unable to sit for long periods of time. She also testified that she believed a sit/stand option would not alleviate the exertional impediments to her ability to work.
Transcript, at 464.
Id.
Transcript, at 464.
After the initial hearing was held, plaintiff underwent a consultative neurological examination. Thereafter, ALJ Chapman held a supplemental hearing on April 22, 2004. At the second administrative hearing, plaintiff testified that her Prozac dosage had recently been increased and she was feeling better. Plaintiff stated, however, that she was neither seeing a psychologist nor a psychiatrist. She further told the ALJ that she had been using her cane "a lot" for assistance with walking and standing. When asked why she was unable to work, plaintiff testified that her pain prevented her from working and made daily chores difficult.
Transcript, at 468, 478.
Transcript, at 466-474.
Transcript, at 471.
Id.
Id.
Transcript, at 472.
On May 18, 2004, the ALJ issued his decision in which he concluded that plaintiff was not under a "disability," as defined by the Social Security Act ("the Act"), at any time through the date of the decision. Specifically, ALJ Chapman found that Medical Vocational Rules 201.27 and 201.28 directed a finding of not disabled.
Transcript, at 477-485.
Id.
After receiving the ALJ's unfavorable decision dated May 18, 2004, plaintiff requested review of the hearing and decision on June 16, 2004. On November 19, 2004, the Appeals Council concluded that there was no basis upon which it could grant plaintiff's request for review, thereby denying plaintiff's request. Plaintiff commenced the instant action in this court on January 5, 2005.
Transcript, at 13, 14.
Transcript, at 4-7.
Docket Entry 1.
IV. Issue Presented
Whether the ALJ's decision is supported by substantial evidence and comports with relevant legal standards?V. Analysis
A. Standard of Review
In reviewing the Commissioner's decision denying disability insurance benefits, I am limited to a determination of whether substantial evidence supports the decision and whether the Commissioner applied the proper legal standards in evaluating the evidence. "Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but `no substantial evidence' will be found only where there is a `conspicuous absence of credible choices' or `no contrary medical evidence.'"
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); 42 U.S.C. §§ 405(g), 1383(c)(3) (2002).
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (quoting Hames, 707 F.2d at 164).
If the Commissioner's findings are supported by substantial evidence, then they are conclusive and must be affirmed. In my review of the Commissioner's findings, I must carefully examine the entire record, but refrain from re-weighing the evidence or substituting my judgment for that of the Commissioner. Conflicts in the evidence and credibility assessments are for the Commissioner and not for the courts to resolve. Four elements of proof are weighed by the courts in determining if substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience.
Martinez, 64 F.3d at 173.
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Villa, 895 F.2d at 1021 ("The court is not to reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner.").
Martinez, 64 F.3d at 174.
Id.
1. Entitlement to Benefits
Every individual who is insured for disability insurance benefits, has not reached retirement age, has filed an application for benefits, and is under a disability is entitled to receive disability insurance benefits. The term "disabled" or "disability" means the inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." A claimant shall be determined to be disabled only if his physical or mental impairment or impairments are so severe that he is unable to not only do his previous work, but cannot, considering his age, education, and work experience, participate in any other kind of substantial gainful work which exists in significant numbers in the national economy, regardless of whether such work exists in the area in which he lives, whether a specific job vacancy exists, or whether he would be hired if he applied for work.
Id. § 1382c(a)(3)(A).
Id. § 1382c(a)(3)(B).
2. Evaluation Process and Burden of Proof
Regulations set forth by the Commissioner prescribe that disability claims are to be evaluated according to a five-step process. A finding that a claimant is disabled or not disabled at any point in the process is conclusive and terminates the Commissioner's analysis.
20 C.F.R. §§ 404.1520 and 416.920 (2002).
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The first step involves determining whether the claimant is currently engaged in substantial gainful activity. If so, the claimant will be found not disabled regardless of his medical condition or his age, education, or work experience. The second step involves determining whether the claimant's impairment is severe. If it is not severe, the claimant is deemed not disabled. In the third step, the Commissioner compares the severe impairment with those on a list of specific impairments. If it meets or equals a listed impairment, the claimant is deemed disabled without considering his age, education, or work experience. If the impairment is not on the list, the Commissioner, in the fourth step, reviews the claimant's RFC and the demands of his past work. If he is still able to do his past work, he is not disabled. If he cannot perform his past work, the Commissioner moves to the fifth and final step of evaluating the claimant's ability, given his residual capacities, age, education, and work experience, to do other work. If he cannot do other work, he will be found disabled. The claimant bears the burden of proof at the first four steps of the sequential analysis. Once he has shown that he is unable to perform his previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that the claimant is not only physically able to perform, but also, taking into account his exertional and non-exertional limitations, able to maintain for a significant period of time. If the Commissioner adequately points to potential alternative employment, the burden shifts back to the claimant to prove that he is unable to perform the alternative work.
20 C.F.R. §§ 404.1520 and 416.920.
Id.
Id.
Id.
20 C.F.R. §§ 404.1520 and 416.920.
Id.
Id.
Id.
Id.
Leggett, 67 F.3d at 564.
Watson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002).
Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989).
In the instant case, the ALJ reached his decision at step five of the evaluation process. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful employment since her alleged onset date of disability. ALJ Chapman then concluded at steps two and three that plaintiff had an impairment or combination of impairments (degenerative disc disease and hypothyroidism) which were severe, but did not meet or medically equal a listed impairment as of the date the plaintiff was last insured. At step four, the ALJ found that, although she was unable to return to her past relevant work, plaintiff retained the residual functional capacity to perform a full range of sedentary work.
Transcript, at 470; ¶ 2, at 484.
Transcript, at 480; ¶ 3, at 484.
Transcript, at 480; ¶ 4, at 484.
Transcript, at 480; ¶ 7, at 484.
Transcript, at 483; ¶ 6, at 484.
At step five, the ALJ held that given plaintiff's age (defined as a younger individual), education (a more than high school education), and vocational experience (no transferable skills from previous work), Medical Vocational Rules 201.27 and 201.28 directed a finding of not disabled. Based on the foregoing, ALJ Chapman concluded that plaintiff was not under a disability. B. Is the ALJ's May 18, 2004 Decision Supported by Substantial Evidence?
Transcript, at 483; ¶ 8, at 484.
Transcript, at 483; ¶ 9, at 484.
Transcript, at 483; ¶ 10, at 484.
Transcript, at 484; ¶ 11, at 485.
Transcript, at 478, 484; ¶ 12, at 485.
Plaintiff challenges the ALJ's decision, asserting that the ALJ's assessment of her residual functional capacity is not supported by the substantial evidence of the record. Plaintiff argues that this mistake constitutes reversible error. In my opinion, plaintiff's grounds for reversal are not meritorious. For that reason, I recommend that plaintiff's request for relief be DENIED. 1. Was the ALJ's assessment of plaintiff's RFC supported by the substantial evidence of the record?
In her first, and only, point of error, plaintiff asserts that the ALJ's assessment of her RFC is not supported by the substantial evidence of the record. Specifically, plaintiff contends that the ALJ failed to consider properly plaintiff's pain disorder and fibromyalgia and failed to accord appropriate weight to the opinions of plaintiff's treating physician. Finally, plaintiff argues that her exertional limitations are inconsistent with the conclusion that she retained the RFC to perform sedentary work. For these reasons, plaintiff urges that the ALJ's assessment of plaintiff's RFC was erroneous.
a. Did the ALJ fail to consider properly plaintiff's fibromyalgia?
Plaintiff contends that the ALJ committed reversible error in failing to consider plaintiff's fibromyalgia. In particular, plaintiff asserts that the ALJ erroneously accorded great weight to the findings of consultative examining physician Dr. Altman even though the examiner did not consider plaintiff's pain disorder and fibromyalgia in his evaluation.
Docket Entry 12, at 7. Notably, plaintiff attached a print out from an online source discussing fibromyalgia as Exhibit A to her brief. See Docket Entry 12, Exhibit A. The print out is not discussed or authenticated in any manner in plaintiff's brief. Presumably, the information was also not made available to the ALJ during the administrative process. For all these reasons, Exhibit A has not been considered.
While the ALJ is required to consider the effects of both severe and non-severe impairments in formulating a claimant-plaintiff's RFC, the plaintiff bears the ultimate burden of establishing that a specific diagnosed condition imposes actual exertional or non-exertional limitations. Stated another way, the diagnosis of an impairment alone is not sufficient to establish a severe impairment or a disability. Rather, a plaintiff bears the burden of proving that a diagnosed impairment has more than a minimal effect on his or her ability to engage in work activities. For the same reason, "[a] medical condition that can reasonably be remedied either by surgery, treatment, or medication is not disabling."
See Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983):
The mere presence of some impairment is not disabling per se. Plaintiff must show that she was so functionally impaired by her back trouble that she was precluded from engaging in any substantial gainful activity. Demandre v. Califano, 591 F.2d 1088 (5th Cir. 1979); Russell v. Secretary of Health, Education and Welfare, 402 F.Supp. 613 (E.D.Mo. 1975), aff'd 540 F.2d 353 (8th Cir. 1976); Manzanares v. Secretary of Health, Education and Welfare, [Jan. 1976 — Jan. 1977 Transfer Binder] Unempl.Ins.Rep. (CCH) ¶ 14,975 (D.N.M. 1976).
Id. See also Stone, 752 F.2d, at 1101; 20 C.F.R. § 404.1521(a).
Lovelace v. Bowen 813 F.2d 55, 59 (5th Cir. 1987) (internal citations omitted). See also 20 C.F.R. §§ 404.1530(a), (b) and 416.930(a), (b).
The ALJ acknowledged plaintiff's fibromyalgia in the decision noting a report, presumably authored by plaintiff's treating physician, that plaintiff's "fibromyalgia was stable." Although ALJ Chapman failed to state explicitly in the decision that he found plaintiff's fibromyalgia to be a non-severe impairment, this alone does not constitute prejudicial, i.e. reversible, error. Importantly, plaintiff has not submitted evidence that the fibromyalgia itself negatively impacted plaintiff's RFC. Rather, plaintiff attempts to tether minimal evidence of plaintiff's fibromyalgia to evidence of plaintiff's pain. However, the ALJ thoroughly assessed plaintiff's allegations of pain in the decision and concluded, based on the medical evidence of record and plaintiff's own testimony at the administrative hearing, that plaintiff's pain was not disabling:
Transcript, at 481.
See Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000), "This Court will not reverse the decision of an ALJ for failure to fully and fairly develop the record unless the claimant shows that he or she was prejudiced by the ALJ's failure . . . To establish prejudice, a claimant must demonstrate that he or she `could and would have adduced evidence that might have altered the result (internal citations omitted).'"
See Docket Entry 12; Docket Entry 16, at 2-3.
Docket Entry 16, at 3.
[S]he has a history of chronic low back pain and neck pain related to degenerative disc disease. She is treated on a conservative basis and has not required any ongoing or long-term physical therapy. She does not require any assistive devices and the recent consultative neurological evaluation revealed that although she has chronic back pain and neck pain she performs cooking, cleaning and shopping but very slowly. A sedentary or desk job was recommended.
Transcript, at 482.
Importantly, the ALJ's conclusions are supported by plaintiff's own testimony at the administrative hearing. For example, plaintiff told the ALJ that she was able to do household chores, care for herself, and go grocery shopping. In sum, plaintiff has failed to meet her burden of proving that her fibromyalgia imposes actual limitations on her ability to perform work activities. Consequently, plaintiff has similarly failed to establish that the ALJ's oversight in neglecting to list the fibromyalgia among plaintiff's non-severe impairments constitutes reversible error. b. Did the ALJ accord inadequate weight to the opinion of plaintiff's treating physician?
Transcript, at 447, 449.
As part of her argument that the ALJ erroneously failed to consider the fibromyalgia, plaintiff also asserts that the ALJ accorded greater weight to the opinion of examining neurologist Dr. Altman than to the opinion of plaintiff's treating physician Dr. Nazario. Plaintiff further argues:
Dr. Navario ( sic) not only considers the plaintiff's low back pain, but he also considers her fibromyalgia. He opines that the plaintiff is limited to less than a full 8 hour work day. Although this opinion statement is mentioned in the decision, there is no consideration at all regarding the proper weight it should be accorded. As the opinion statement is consistent with the plaintiff's treatment history, and not really inconsistent with the opinion from Dr. Altman, it should have been properly considered.
Docket Entry 12, at 8 (internal citation omitted). See also Transcript, at 330-333, 481-482.
As with the arguments surrounding the ALJ's assessment of plaintiff's fibromyalgia, this argument attacks more of the form than the substance of the ALJ's decision. Plaintiff is challenging the ALJ's failure to articulate the specific weight he accorded to Dr. Nazario's report. This alone does not constitute prejudicial error. Moreover, plaintiff has failed to establish that, given the totality of the evidence in the record, the ALJ's decision would have been different had he accorded greater weight to the opinions of Dr. Nazario. As previously discussed, plaintiff's own testimony at the administrative hearing indicated that she was not so limited as to be disabled in her ability to perform routine activities. The ALJ relied on all the medical and non-medical evidence of record, including the reports of plaintiff's treating and examining physicians, the State Agency Medical Consultants and the plaintiff's own testimony in formulating his assessment of plaintiff's RFC. Plaintiff has failed to establish that the conclusions would have been different had the ALJ written his decision differently. Consequently, plaintiff has not met her burden of establishing reversible error.
Transcript, at 478-485.
c. Are the plaintiff's exertional limitations inconsistent with the finding that plaintiff retained the RFC to perform sedentary work ?
Plaintiff has also asserted that her exertional limitations are inconsistent with the ALJ's finding that plaintiff retained the RFC to perform sedentary work. Plaintiff contends:
Notably, plaintiff's reply brief challenges the implication in defendant's brief that plaintiff's treatment records belie her allegations of disability. Docket Entry 16, at 3-4. Judicial review is concerned with the findings of the ALJ, not the arguments made by the Commissioner in support of the ALJ's decision. Consequently, plaintiff's attacks on defendant's brief are unavailing to the extent that they do not simultaneously challenge specific portions of the ALJ's decision.
Dr. Altman limits standing and walking to less than 10 minutes in a day . . . this is likely to be inconsistent with most sedentary occupations. . . . Moreover, when the plaintiff would walk or stand, she would need her cane, precluding her ability to carry objects in a work setting. It is likely that many sedentary jobs, if not all, would be precluded with these considerations. The ALJ should have used a Vocational Expert at the hearing to discern whether work still exists in significant numbers with these limitations.
Docket Entry 12, at 7.
Although an inability to walk more than ten minutes in a day might preclude some forms of sedentary employment, plaintiff has failed to establish that she cannot perform work as outlined in the Grid Rules identified in the ALJ's decision. More importantly, however, ALJ Chapman specifically found that plaintiff did not require the use of a cane. The totality of the evidence in the record — including plaintiff's own testimony at the administrative hearing that she often walked without her cane and walked for exercise — supports the ALJ's conclusions. Plaintiff has failed to establish that any limitations in her ability to ambulate are so great as to undermine the ALJ's finding that plaintiff could perform sedentary work. For these reasons, plaintiff has not shown prejudicial, i.e. reversible, error.
Transcript, at 482, "She does not require any assistive devices . . ."
Transcript, at 449.
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's request for relief be DENIED, her complaint (Docket Entry 1) DISMISSED, and the decision of the Commissioner AFFIRMED.