Opinion
Civil Action No. 99-0670-P-L
September 11, 2000
REPORT AND RECOMMENDATION
Plaintiff brings this action under 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social Security denying her claim for a period of disability and disability insurance benefits.
This action was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). The undersigned has determined that oral argument is unnecessary to resolve this case. See Local Rule 7-3. Upon consideration of the administrative record and the memoranda of the parties, it is recommended that the decision of the Commissioner be affirmed.
I. Issues on Appeal
II. Background Facts and Procedural History
1. Whether the Administrative Law Judge erred in finding she has the residual functional capacity to perform light work.
2. Whether the Administrative Law Judge erred in failing to develop a full and fair administrative record.
3. Whether the case should be remanded for farther consideration or award of benefits based upon the deletion of Listing 9.09 Obesity and the explanation of the Social Security Administration's position in regard to obesity as set forth in Social Security Ruling 00-3p.
Plaintiff was born on October 20, 1949 (Tr. 31). At the time of the administrative hearing in October 1997, she was 48 years of age. She graduated from high school and attended a course at Indiana Business College (Tr. 75). She has past relevant work as a grocery clerk, human resource clerk, and executive secretary (Tr. 32-36, 75). Plaintiff filed her application for a period of disability and disability insurance benefits on March 22, 1996 (Tr. 67-70). She alleged an inability to work, due to severe chronic asthma, since February 19, 1996 (Tr. 71). Her application was denied initially (Tr. 44-48) and upon reconsideration (Tr. 51-54). She timely requested a hearing before an administrative law judge (ALJ) on October 24, 1996 (Tr. 55-57). A hearing was held before ALJ Janis Estrada in Bellaire, Texas on December 5, 1997 (Tr. 28-41). Plaintiff and her attorney were present (Tr. 30). The ALJ issued an unfavorable decision on March 6, 1998 (Tr. 13-22) wherein the ALJ found Plaintiff had "severe" impairments including obesity, asthma, hypertension, and non-insulin dependent diabetes mellitus (Tr. 21), but she retained the residual functional capacity to perform light work, including her past relevant work as a secretary (Tr. 22). The ALJ concluded Plaintiff was not disabled (Tr. 21-22). Plaintiff requested review of the ALJ's decision on April 23, 1998 (Tr. 8-9). The Appeals Council denied review on May 24, 1999 (Tr. 4-5), making the ALJ's decision the final decision of the Commissioner 20 C.F.R. § 404.981 (1999).
III. Plaintiff's Testimony
Plaintiff testified that she has past relevant work as a grocery clerk, human resource clerk, and executive secretary (Tr. 32-36, 75). She testified she is 5 feet, 5 1/2 inches tall, and she weighs from 270 to 272 pounds (Tr. 31-32). She alleged she became disabled on February 19, 1996, due to severe, chronic asthma. Plaintiff testified that she had a history of phlebitis which would cause her legs to hurt if she stood for a prolonged period. However, she stated that she had not had any trouble with her phlebitis in the last year and a half (Tr. 37). She stated that her knees and hips ache and her doctor had told her to take aspirin. (Tr. 37-38). She testified that at the time of the hearing on December 5, 1997, she had not been hospitalized due to asthma since her alleged date of onset of disability, February 19, 1996 (Tr. 36).
Plaintiff testified she worked approximately two days a week, at her discretion, for a friend in Opelika, Alabama (Tr. 33). She had worked there since moving to Fairhope, Alabama six months before the hearing (Tr. 32). Although she was not being paid for this work, she said she would like to receive pay (Tr. 33). She acknowledged she had not attempted to look for a paying job (Tr. 34). She testified that on the days she does not work, she gets up and works around her house all day and "mess[es] with [her] dog" (Tr. 38). She testified that she cooks, does laundry and other household chores, but wears a mask while dusting, mopping, and vacuuming (Tr. 38-39). She has been married 29 years and lives with her husband (Tr. 32, 39). She testified that she can lift her twenty-three pound dog and her ten pound purse without problem (Tr. 39). She testified that she can bend at the waist, but has difficulty twisting her neck (Tr. 40). She stated that she could not kneel or stoop, but she could bend (Tr. 40). She testified that she can stand a maximum of "a couple of hours" at a time while shopping (Tr. 40). Plaintiff testified that she and her husband flew to Texas (Tr. 41). She then obtained a rental car which she drove to the hearing (Tr. 41).
IV. ALJ Findings
The ALJ made the following findings in regard to Plaintiff's claims (Tr. 22):
3. The claimant has the following severe medically determinable impairments: obesity, asthma, hypertension, and non-insulin dependent diabetes mellitus.
4. The claimant's impairments, singly or in combination, do not meet or equal in severity the medical criteria for any impairment described in the Listings.
5. The testimony concerning subjective symptoms and functional limitations is not wholly credible or supported by the evidence as a whole insofar as the claimant alleges an inability to perform all work activity including light work.
6. The claimant retains the residual functional capacity for light work.
7. The claimant can do her past relevant work as a secretary.
The ALJ found that even though Plaintiff was diagnosed as obese, she did not have one of the additional impairments required to meet or equal in severity the medical criteria of § 9.09 of the Listings (Tr. 17). 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ found that the Plaintiff's pulmonary function did not meet the Listing, that her hypertension and diabetes were controlled by medication, and that she did not have end organ damage from her hypertension or diabetes (Tr. 18-19, 20).
V. Discussion
A. Standard of Review .
In reviewing claims brought under the Act, this Court's role is a limited one. The Court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). The Commissioner's findings of fact must be affirmed if they are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991), citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is defined as "more than a scintilla but less than a preponderance," and consists of "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Bloodsworth, 703 F.2d at 1239. The Secretary's decision must be affirmed if it is supported by substantial evidence even when a court finds that the preponderance of the evidence is against the decision of the Secretary. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (1971); Bloodsworth, 703 F.2d at 1239. "In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Further, it has been held that the Commissioner's "failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal." Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). This Court's review of the Commissioner's application of legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
B. Statement of the Law
An individual who applies for Social Security disability benefits or supplemental security income must prove their disability. See 20 C.F.R. § 404.1512; 20 C.F.R. § 416.912. Disability is defined as the "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a) (1992); 20 C.F.R. § 416.905(a) (1991). The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven their disability. See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. At the first step, the claimant must prove that he or she has not engaged in substantial gainful activity. At the second step, the claimant must prove that he or she has a severe impairment or combination of impairments. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. If the claimant cannot prevail at the third step, he or she must proceed to the fourth step where the claimant must prove inability to perform their past relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986).
In evaluating whether the claimant has met this burden, the examiner must consider the following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; (4) the claimant's age, education and work history. Id., at 1005. Once a claimant meets this burden, it becomes the Commissioner's burden to prove at the fifth step that the claimant is capable of engaging in another kind of substantial gainful employment which exists in significant numbers in the national economy, given the claimant's residual functional capacity and age, education, and work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985). If the Commissioner can demonstrate that there are such jobs the claimant can perform, the claimant must prove inability to perform those jobs in order to be found disabled. Jones v. Apfel 190 F.3d 1224, 1228 (11th Cir. 1999); Powell o/b/o Powell v. Heckler, 773 F.2d 1572, 1575 (11th Cir. 1985); Ambers v. Heckler, 736 F.2d 1467, 1469 (11th Cir. 1984). See also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987), citing Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985).
C. Medical Evidence
On April 30, 1996, Plaintiff underwent a physical examination at the office of Thomas G. Anderson, Jr., M.D. (Tr. 154-156). Her chief complaint was of frequent asthma exacerbations. Plaintiff was diagnosed with asthma, hypertension, non-insulin dependent diabetes mellitus, and psoriasis. The report, signed by nurse practitioner, Lisa M. Weatherly, notes as follows:
The patient's ability to do work is dependent upon her asthma symptoms. At present she is able to walk only a short distance with significant dyspnea and even sitting at rest, the wheezes are audible. Her ability to lift, carry or handle objects less than 10 pounds would be difficult considering her compromised pulmonary function. Plaintiff is able to hear, speak, and travel with assistance.
* * *
Considering the patient's severe asthma and dyspnea at rest, occupational options are limited. We would recommend that the patient pursue employment at home or any job requiring minimal exertion and completely avoid exposure to pulmonary irritants.
(Tr. 155-156). Nurse Weatherly also noted that Plaintiff had gained thirty pounds in the past few years which exacerbated her asthma (Tr. 155). At the time of the examination on April 30, 1996, she weighed 298 pounds (Tr. 155) (At the hearing on December 5, 1997, Plaintiff testified that she weighed 270 to 272 pounds (Tr. 31-32)). Other treating notes from Dr. Anderson's office show Plaintiff was currently taking Micronase for her non-insulin dependent diabetes, and Azmacort, Atrovent, Theo-Dur, Proventil (bronchodilators) and Prednisone (steroid) for her asthma (Tr. 154). Her record indicated that she had taken some form of asthma medication, singly and in combination, over approximately thirteen years (Tr. 154). Plaintiff reported that her asthma symptoms had worsened during the past few months which led to difficulty breathing with minimal exertion (Tr. 154). The report noted that her hypertension and non-insulin dependent diabetes were controlled by medication and her blood sugar was within a good range despite the steroids (Tr. 154). The report noted her heart rhythm and rate as regular, her neurological exam showed her cranial nerves intact, "hand grasps were equal," toes were "down-going" and her "gait [was] steady" (Tr. 155). Plaintiff's extremities had no pedal edema, no cyanosis, and her peripheral pulses were palpable (Tr. 154-156).
On October 18, 1995, a pulmonary function study was performed at St. John Hospital. The study showed Plaintiff had a forced vital capacity (FVC) of 2.18 before administration of bronchodilators and 2.82 after (Tr. 181). Plaintiff had a one-second forced expiratory volume (FEV1) of 1.26 before administration of bronchodilators and 1.88 after (Tr. 181). The physician performing the test concluded Plaintiff had a mild restrictive lung defect with a good response to bronchodilators (Tr. 181).
From January 28, 1995 through February 4, 1995, Plaintiff was hospitalized with complaints of shortness of breath (Tr. 115, 110-118). Her discharge summary noted that upon admission her oxygen saturation level was 77% and she was in distress with marked wheezing (Tr. 110). She was discharged upon improvement, medication were prescribed and she was instructed to see her treating physician in ten days (Tr. 110). Her diagnosis on pulmonary consultation was status asthmaticus with respiratory failure, acute pharyngitis associated with early left lung pneumonitis, hypertension and hyperglycemia (Tr. 117).
From July 26, 1994 through August 1, 1994, Plaintiff was hospitalized for her asthma (Tr. 107-109). Her chief complaint was shortness of breath. She was discharged on improvement and medications were prescribed (Tr. 107). Her discharge summary noted a diagnosis of status asthmaticus, allergic rhinitis, hypertension and a history of phlebitis of both legs (Tr. 109).
From January 25 through 31, 1994, Plaintiff was hospitalized for her asthma (Tr. 97-106). Her discharge summary noted a diagnosis of status asthmaticus, hypertension, allergic rhinitis and obesity (Tr. 97). She was discharged upon improvement and medications were prescribed. She was instructed to return to her treating physician in two weeks (Tr. 98).
From 1986 until 1993, Plaintiff was treated for her asthma, allergies, sinus and chest congestion, edema, cellulitis and phlebitis by Pulmonary Associates of Mobile, P.A. The records indicates various treatments, adjustments to her medication, and testing for allergies. In June 1992, Plaintiff was hospitalized for treatment of her phlebitis (Tr. 218-284).
From 1986 until 1990, Plaintiff was treated at Dauphin West Eye, Ear, Nose, and Throat Specialists, P. A. for various complaints of allergic rhinitis, sinus and throat infections, three sinus surgeries, vision testing, cataract removal and laser surgeries to her eyes (Tr. 303-373)
Plaintiff's medical records show recurring diagnoses of obesity (Tr. 101, 116, 121, 127, 129, 131, 133, 135-137, 139). At the time of the hearing, Plaintiff testified that she was 5 feet, 5 1/2 inches tall, and weighed 270 to 272 pounds (Tr. 31-32).
D. Plaintiff's Argument
Plaintiff argues that the ALJ erred in finding she has the residual functional capacity to perform light work. Residual functional capacity must be established in order to determine whether she has the ability to perform her past relevant work or other work. The ALJ must consider the objective medical evidence and Plaintiff's subjective symptoms, including pain and functional limitations. Social Security Ruling 96-7p Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing The Credibility of an Individual's Statements; 20 C.F.R. § 404.1529 (1999).
The ALJ found that the objective medical findings did not support Plaintiff's alleged symptoms or functional limitations (Tr. 20). Specifically, the ALJ noted that she has no neurological deficits, no significant orthopaedic abnormalities, and no serious dysfunction of bodily organs caused by her alleged disabling conditions which would preclude light work (Tr. 18, 20). The ALJ found Plaintiff's testimony in regard to her medical status, daily activities and past relevant work to be credible but for her assessment that she is disabled (Tr. 19). Upon review of the testimony and the medical evidence, the undersigned finds that the ALJ properly determined that Plaintiff retains Plaintiff was hospitalized for treatment of her phlebitis (Tr. 218-284).
From 1986 until 1990, Plaintiff was treated at Dauphin West Eye, Ear, Nose, and Throat Specialists, P. A. for various complaints of allergic rhinitis, sinus and throat infections, three sinus surgeries, vision testing, cataract removal and laser surgeries to her eyes (Tr. 303-373)
Plaintiff's medical records show recurring diagnoses of obesity (Tr. 101, 116, 121, 127, 129, 131, 133, 135-137, 139). At the time of the hearing, Plaintiff testified that she was 5 feet, 5 1/2 inches tall, and weighed 270 to 272 pounds (Tr. 31-32).
D. Plaintiff's Argument
Plaintiff argues that the ALJ erred in finding she has the residual functional capacity to perform light work. Residual functional capacity must be established in order to determine whether she has the ability to perform her past relevant work or other work. The ALJ must consider the objective medical evidence and Plaintiff's subjective symptoms, including pain and functional limitations. Social Security Ruling 96-7p Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing The Credibility of an Individual's Statements; 20 C.F.R. § 404.1529 (1999).
The ALJ found that the objective medical findings did not support Plaintiff's alleged symptoms or functional limitations (Tr. 20). Specifically, the ALJ noted that she has no neurological deficits, no significant orthopaedic abnormalities, and no serious dysfunction of bodily organs caused by her alleged disabling conditions which would preclude light work (Tr. 18, 20). The ALJ found Plaintiff's testimony in regard to her medical status, daily activities and past relevant work to be credible but for her assessment that she is disabled (Tr. 19). Upon review of the testimony and the medical evidence, the undersigned finds that the ALJ properly determined that Plaintiff retains the residual functional capacity for sedentary work.
The ALJ found that the Plaintiff had the residual functional capacity for light work (Tr. 20). Light work is defined as follows:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.20 C.F.R. § 404.1567(b) (1998). As stated above, included in the definition of light work is the determination that if a person can perform light work, that person can also perform sedentary work if there are no additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. The undersigned has found no exertional or non-exertional limitations which would preclude Plaintiff from performing sedentary work, but for control of her exposure to pulmonary irritants.
Plaintiff asserted that the medical evidence and testimony do not support a determination that she could perform the walking or standing required of light work. The undersigned agrees with Plaintiff in that she cannot perform light work. However, the ALJ's determination that she can perform light work is harmless error since substantial evidence exists to support a determination that she can perform sedentary work. Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) ("The fact that the United States magistrate agreed with only one of three determinations by the administrative law judge and consequently had to use a different disability table did not affect Mays' substantial rights. The ALJ determined that Mays could perform medium, light, or sedentary work. The magistrate thereafter acted in Mays' favor to narrow the ALJ's findings by determining that substantial evidence only supported the conclusion that Mays could perform sedentary work. The table used by the magistrate was the table the ALJ would have been required to use under the magistrate's revised factual conclusions. The result continued to be that Mays was `not disabled,' and no substantial right of his was affected. The major policy underlying the harmless error rule is to preserve judgments and avoid waste of time. Gulf States Utilities Co. v. Ecodyne Corp., 635 F.2d 517, 520 (5th Cir. [Jan.] 1981)").
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) ( en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
The medical evidence regarding Plaintiff's residual functional capacity after the alleged onset date consists of an April 1996 examination report which recommended Plaintiff work at home or at a job requiring minimal exertion without pulmonary irritants. The report was dated April 30, 1996, approximately two months after Plaintiff's alleged onset date of February 19, 1996 when she left her job at K-Mart due to asthma. At the administrative hearing in December 1997, she testified that she had not been hospitalized for asthma since February 1995. (Tr. 20, 34, 36). A reasonable review of plaintiff's medical history shows that Plaintiff has intermittent periods of difficulty with her asthma but it has not been established that these periods last or are expected to last twelve months or more. In fact, there is no medical evidence or testimony to show that Plaintiff's April 1996 restriction to walking only a short distance continued for a period of twelve months or more. Her testimony indicates otherwise. At the time of the hearing, Plaintiff testified that she started working in May 1997, one or two days per week, at her discretion, as a secretary for a family friend in Opelika, Alabama. She testified that she worked at her own schedule and that she would like to be paid. She stated that she loaded information into the computer, set up files, filed and made bank deposits (Tr. 32-33). She stated that she could frequently lift and carry her ten pound purse and occasionally lift her twenty-three pound dog (Tr. 39). Her testimony indicated that her daily activities, including maintaining her home, were unrestricted but for wearing a dust mask and standing about two hours at a time while shopping (Tr. 38-40). She testified that she could not estimate how long she could stand if it was split out through the course of a day (Tr. 40). She also testified that she could bend at the waist, had difficulty twisting her neck and could not kneel or stoop (Tr. 40). Plaintiff has presented no medical evidence to show that she was limited in her ability to push or pull arm or leg controls, or had any restriction or limitation in her ability for fine or gross manipulation.
Plaintiff testified that her doctor recommended that she quit her human resources job at K-Mart because of exposure to pulmonary irritants. She testified that her job in human resources required, among other duties, that she walk out on the floor three times a day to interact with the employees in the various departments (Tr. 34-35). In the description of her job duties, she stated, among other requirements such as the use of office equipment, schedules, orientation, etc., that she helped bag purchases at peak hours, filled in for lay-a-way, and walked for two hours, stood for one hour and sat for five to six hours (Tr. 80).
In her Disability Report, the Plaintiff stated that she cooked, cleaned her house with care in regard to cleaners which could trigger an asthma attack, shopped, and sometimes used her treadmill for exercise. She stated that she bowled sometimes, but not often and that she attended a monthly sorority function, chatted with her neighbors and "drove most everywhere" (Tr. 74).
The ALJ noted that Plaintiff had not been hospitalized for phlebitis since 1992 (Tr. 18) and Plaintiff testified that she had not had trouble with her phlebitis during the one and one half years prior to the hearing (Tr. 37).
Therefore, since the Plaintiff retains the ability to do at least sedentary work, the ALJ properly found that Plaintiff could return to her past relevant work as an executive secretary. The ALJ classified this as light work, however, review of the record, shows that the work as described by Plaintiff was sedentary work. Sedentary work is defined as follows:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.20 C.F.R. § 404.1567(a) (1998). Sedentary work is discussed further in Social Security Ruling 83-10 Titles II and XVI: Determining Capability to do Other Work — The Medical-Vocational Rules of Appendix 2, which states as follows:
1. Sedentary work. The regulations define sedentary work as involving lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although sitting is involved, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. By its very nature, work performed primarily in a seated position entails no significant stooping. Most unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions.
"Occasionally" means occurring from very little up to one-third of the time. Since being on one's feet is required "occasionally" at the sedentary level of exertion, periods of standing or walking should generally total no more than about 2 hours of an 8 hour workday and sitting should generally total approximately 6 hours of an 8-hour workday. Work processes in specific jobs will dictate how often and how long a person will need to be on his or her feet to obtain or return small articles.
SSR 83-10. Plaintiff stated that at her job as an executive secretary she walked for one hour per day, stood for one hour per day and sat for six hours per day (Tr. 76). She stated that she occasionally had to bend and reach (Tr. 76). She did not list any weight requirements for lifting and carrying on her past job description.
Upon review of Plaintiff's description of her past work as an executive secretary, her credible testimony as to her daily activities and work, the medical evidence, and the exertional requirements of sedentary work as set forth in 20 C.F.R. § 404.1567(a), the undersigned finds that the ALJ's determination that Plaintiff could return to her past relevant work as an executive secretary is supported by substantial evidence and that the mis-classification of that job as light work was harmless error.
Moreover, at the fourth step of the sequential evaluation process, Plaintiff must prove she is unable to perform her past relevant work. Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991) (per curiam). Plaintiff did not meet this burden. As stated herein, her testimony, description of her daily activities and work, description of her past work, and medical evidence established that she was capable of returning to her past relevant work as she described her job (Tr. 76).
Plaintiff argues that the ALJ erred in failing to develop a full and fair administrative record, specifically that the ALJ erred by not ordering a consultative examination and that it is reversible error for an ALJ not to order a consultative examination when such an evaluation is necessary to make an informed decision. Reeves v. Heckler, 734 F.2d 519, 522 n. 1 (11th Cir. 1984). The ALJ has complete discretion over consultative testing and such tests are required only when necessary to make an informed decision about disability. 20 C.F.R. § 404.1519a(b) sets forth as follows:
A consultative examination may be purchased when the evidence as a whole, both medical and non-medical, is not sufficient to support a decision on your claim. Other situations, including but not limited to the situations listed below, will normally require a consultative examination: (1) The additional evidence needed is not contained in the records of your medical sources; (2) The evidence that may have been avail from your treating or other medical sources cannot be obtained for reasons beyond your control, such as death or noncooperation of a medical source; (3) Highly technical or specialized medical evidence that we need is not available from your treating or other medical sources; (4) A conflict, inconsistency, ambiguity or insufficiency in the evidence must be resolved, and we are unable to do so by recontacting your medical source; or (5) There is an indication of a change in your condition that is likely to affect your ability to work, but the current severity of your impairment is not established.
The undersigned finds that the medical evidence in the record, in addition to Plaintiff's own credible testimony and statements, constitutes substantial evidence in support of the ALJ's decision and that her decision not to order a consultative examination was not in error. The medical records provided from Dr. Anderson address the time period both prior to and after Plaintiff's alleged onset of disability, February 19, 1996. The medical records from St. John Hospital in Nassau Bay, Texas, Dr. Somkiat Pong, Pulmonary Associates of Mobile, P.A. and Dauphin West Eye Ear Nose and Throat in Mobile, Alabama address the time period prior to her alleged onset date. The medical records constitute almost three hundred pages wherein there are numerous entries of treatment for her asthma, diabetes, hypertension and references to her obesity.
Additionally, Plaintiff argues that the ALJ should have obtained a physical capacities evaluation from an examining source and that the medical records are not complete because a physical capacities evaluation was not obtained from any physician or consultative examiner. The undersigned finds that the ALJ did not err in failing to obtain a physical capacities evaluation. The ALJ does have the obligation to determine Plaintiff's residual functional capacity in order to ascertain whether Plaintiff can return to past relevant work, as here, or is capable of performing other work. Social Security Ruling 86-8 Titles II and XVI: Sequential Evaluation Process, states as follows:
The [residual functional capacity] assessment is based primarily on the medical findings, i.e., the symptoms, signs, and laboratory results, which must be complete enough to permit and support the necessary judgments concerning the individual's physical, mental, and sensory capacities and any environmental restrictions. Descriptions and observations of the claimant's restrictions by medical and nonmedical sources in addition to those made during formal medical examinations must also be considered in the determination of [residual functional capacity].
Where no issue with respect to specific physical or mental capacities is raised by the allegations of the individual or the evidence obtained, the individual is considered to have no restrictions with respect to those capacities. The individual has the burden of proving that he or she is disabled and of raising any issue bearing on that determination or decision.
SSR 86-8. There is no requirement that the ALJ obtain a physical capacities evaluation form in order to determine Plaintiff's residual functional capacity. Therefore, there is no error committed in failing to obtain this form. The undersigned finds that there is sufficient evidence in the record to support the ALJ's decision that Plaintiff could return to her past relevant work. Plaintiff has provided medical records of her treatment which show intermittent periods of disability due to her asthma but the medical records do not establish a period of disability which continued for more than twelve consecutive months. Further, the burden of establishing the existence of a disabling condition is up on Plaintiff. ("In making a claim for Social Security disability benefits, a claimant bears the initial burden of establishing the existence of a disability." Lucas v. Sullivan, 918 F.2d 1567, 1571 (11th Cir. 1990) ( citing [Social Security Act § 1614(a)(3)]; 42 U.S.C. § 1382c(a)(3) (1982); 20 C.F.R. § 6.912 (1989); Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987))).
Plaintiff has also argued that the case should be remanded for further consideration or award of benefits based upon the deletion of the obesity Listing 9.09 and the explanation of the Social Security Administration's position as set forth in Social Security Ruling 00-3p Policy Interpretations Ruling Titles II and XVI: Evaluation of Obesity. In the present case, Listing 9.09 was deleted after the ALJ entered her decision and after the Appeals Council denied review but prior to the adjudication of this case through the appeals process.
The ALJ found Plaintiff had "severe" medically determinable impairments of obesity, asthma, hypertension, and non-insulin dependent diabetes mellitus (Tr. 21), and determined that none of Plaintiff's impairments, singly or in combination, met or equaled the criteria of any impairment set forth in the Listing of Impairments found in 20 C.F.R. Pt. 404, Subpt. P, App. I, especially considering §§ 3.02, 4.03, 9.08, and the now obsolete § 9.09 of the Listings (Tr. 17). 20 C.F.R. Pt. 404, Subpt P., App. 1. The ALJ found as follows:
The claimant has a diagnosis of obesity. She testified at the hearing that she is 5 feet, 5 inches tall, and she weighs from 270 to 272 pounds. The claimant, however, does not have one of the additional impairments required to meet or equal in severity the medical criteria under section 9.09 of the Listings.
* * *
[T]he Administrative Law Judge notes that the objective clinical findings do not support the claimant's alleged symptoms or functional limitations. Significantly, the claimant has no neurological deficits, no significant orthopedic abnormalities, and no serious dysfunctioning of the bodily organs that would preclude light work. The claimant's asthma has remained under control with medication, and she has not required hospitalization since her alleged onset date. Despite her obesity, the claimant admitted that she could lift up to [twenty three] pounds and stand for "a couple of hours" at a time. The claimant's hypertension and diabetes mellitus have not caused any end organ damage. The claimant stated that her blood pressure is generally at 138/90, which is near-normal. Although the claimant stated that she has aches in her knees and hips, she only takes aspiring for these conditions. In fact, no physician has indicated that the claimant is unable to work.
(Tr. 17, 20).
Listing § 9.09 sets forth as follows:
Listing 9.09. Obesity. Weight equal to or greater than the values specified in Table I for males. Table II for females (100 percent above desired level), and one of the following:
A. History of pain and limitation of motion in any weight bearing joint or the lumbosacral spine (on physical examination) associated with findings on medically acceptable imaging techniques of arthritis in the affected joint or lumbosacral spine; or
B. Hypertension with diastolic blood pressure persistently in excess of 100 mm. Hg measured with appropriate size cuff or
C. History of congestive heart failure manifested by past evidence of vascular congestion, such as hepatomegaly, peripheral or pulmonary edema; or
D. Chronic venous insufficiency with superficial varicosities in a lower extremity with pain on weight bearing and persistent edema; or
E. Respiratory distress with forced vital capacity equal to or less than 2.0 L. or a level of hypoxemia at rest equal to or less than the value specified in Table III-A or III-B or III-C. . . .
20 C.F.R. Pt 404, Subpt. P, App. 1, § 9.09.
The undersigned finds that substantial evidence supports the ALJ's decision that Plaintiff did not meet the requirements for Listing 9.09 and that the ALJ properly analyzed Plaintiff's alleged impairments. The undersigned acknowledges that Plaintiff's weight and height met the Table II requirements. However, the ALJ noted Plaintiff has asthma, but found no evidence of a total FVC equal to or less than 2.OL or any of the remaining criteria specified in § 9.09E of the Listings (Tr. 18). A pulmonary function study performed in January 1994 showed Plaintiff had a forced vital capacity (FVC) of 2.37 (Tr. 97). A study performed on October 18, 1995, showed Plaintiff had an FVC of 2.82 (Tr. 182). The medical evidence showed she had a thirteen year history of asthma which is controlled with medication (Tr. 101, 154-156). She had not required hospitalization for asthma since her alleged onset date (Tr. 36).
In regard to her hypertension, Plaintiff testified that her blood pressure is generally at 138/90 and exceeded 100 on the diastolic only a couple of times (Tr. 37). The medical record supports the ALJ's decision that Plaintiff's hypertension is controlled with medication. The treatment records of Dr. Anderson indicate that for approximately-one year prior to her onset date of February 16, 1996. and for the time period thereafter for which records are available, her blood pressure exceeded 100 on the diastolic reading only five visits out of approximately twenty five visits (Tr. Tr. 143-217).
Furthermore, the medical records support the ALJ's decision that Plaintiff's non-insulin dependent diabetes is controlled with oral medication (Tr. 20, 154). Her medical records indicate that based on her report of home testing, her glucose levels have been maintained from 120 to 170 (Tr. 154). The ALJ noted that the record contains no indication the hypertension and/or diabetes have caused any end organ damage (Tr. 20). The record does not indicate that she has been hopitalized for treatment of her hypertension or diabetes. There is no evidence in the record to indicate that Plaintiff has peripheral neuropathy, retinopathy or other condition secondary to her diabetes.
Effective October 25, 1999, Listing 9.09 was deleted. In the final rule deleting Listing 9.09, the Social Security Administration found that the criteria in the Listing were not appropriate indicators of listing-level severity and did not represent the degree of functional limitation sufficient to keep an individual from performing substantial gainful activity. Revised Medical Criteria for Determination of Disability, Endocrine System and Related Criteria. 64 Fed. Reg. 46122-46129 (1999). The revisions stated, in part, as follows:
In these final rules, we are removing listing 9.09 because our experience adjudicating cases under this listing indicates that the criteria in the listing were not appropriate indicators of listing-level severity. In our experience, the criteria in listing 9.09 did not represent a degree of functional limitation that would prevent an individual from engaging in any gainful activity. However, even though we have deleted listing 9.09, we are making some changes to the listings in response to public comments to ensure that obesity is still addressed in our listings.
However, we concluded that, because of the widely varying effects obesity and related impairments may have on an individual's functioning, the only way we could be confident that individuals would be disabled under the listings would be to require the other impairments to meet or equal the severity of their respective listings.
64 Fed. Reg. 46122.
Our purpose in making these changes is to ensure that adjudicators understand that we consider obesity to be a medically determinable impairment that can be the basis for a finding of disability and that obesity in combination with other impairments must be considered when evaluating disability at the listings step and other steps of the sequential evaluation process. We are making this change to clarify our intent.64 Fed. Reg. 46123. The revisions further state as follows:
We are adding new pargraphs 1.00F., 3.00I., and 4.00F. to the prefaces to the listings for the [musculoskeletal, respiratory and cardiovascular] body systems named above. The paragraphs state clearly that we consider obesity to be a medically determinable impairment and remind adjudicators to consider its effects when evaluating disability. The provisions also remind adjudicators that the combined effects of obesity with other impairments can be greater than the effects of each of the impairments considered separately. They also instruct adjudicators to consider the effects of obesity not only under the listings but also when assessing a claim at other steps of the sequential evaluation process, including when assessing an individual's residual functional capacity.64 Fed. Reg. 46124
Obesity is now considered in terms of its effect in causing or contributing to impairments of the musculoskeletal, respiratory and cardiovascular systems and the effect upon an individual caused by obesity in combination with a listed impairment or impairments. The adjudicator is instructed to consider the effect of obesity when applying the sequential evaluation process and when assessing an individual's residual functional capacity. Social Security Ruling 00-3p. The Ruling also states that since there is no listing for obesity, an obese claimant must meet the requirements of another listing. However, obesity can be considered in determining whether a claimant's impairment or impairments, in combination with obesity, equal a listing. Further, the ruling states that equivalence to a listing will be found if the claimant has multiple impairments, no one of which would meet a listing, but the combination of which is equal in severity to a listed impairment. SSR 00-3p.
Plaintiff contends that the deletion of this Listing and the subsequent issuance of Social Security Ruling 00-3p makes it necessary to reverse and award benefits or remand for consideration of her obesity in accordance with same. However, the Listings now give "more restrictive guidance" for determining disability as set forth hereinabove. See Nash v. Apfel, 2000 WL 710491 (10th Cir. 2000); Wooten v. Apfel, ___ F. Supp.2d ___, 1999 WL 33100503 (E.D.Tenn., Jun 04, 1999); 64 Fed.Reg. 46122, 46123 (1999). The new regulations require Plaintiff to demonstrate that her obesity singly or in combination with her other impairments, meet or equal a musculoskeletal, respiratory, or cardiovascular listing. The Ruling also states that equivalence to a listing will be found "if an individual had multiple impairments, including obesity, no one of which meets or equals the requirements of a listing, but the combination of impairments is equivalent in severity to a listed impairment." SSR 00-3p. The undersigned finds that upon review of the decision of the ALJ and the administrative record, reversal or remand pursuant to SSR 00-3p is not appropriate. The record indicates that the ALJ properly found the Plaintiff not disabled under the pre-existing standard and thus, there is no merit to the argument that the case should be reversed for an award of benefits or remanded for further consideration under a standard which is even more difficult to meet.
Additionally, the undersigned finds that the decision of the ALJ indicates that she considered the effect of the Plaintiff's impairments, including her obesity, singly and in combination, and correctly found that the Plaintiff was not disabled (Tr. 17, 20-21). Her consideration of the impairments in combination, arguably met the requirement under SSR 00-3p, wherein it directs the ALU to consider whether equivalence to a listing would be found if the Plaintiff had multiple impairments, no one of which would meet a listing, but the combination of which, including obesity, is equal in severity to a listed impairment. The undersigned finds that the Plaintiff's testimony and medical evidence constitute substantial evidence to support the decision of the ALJ and that the ALJ correctly applied the law in reaching her decision that the Plaintiff is not disabled.
V. Conclusion
For the reasons set forth, and upon consideration of the administrative record and memoranda of the parties, it is recommended that the decision of the Commissioner denying the Plaintiff's claim for a period of disability and disability insurance benefits be affirmed. The attached sheet contains important information regarding objections to this report and recommendation.