Opinion
Civil Action No. SA-04-CA-1132 FB (NN).
December 1, 2005.
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: Hon. Fred Biery United States District Judge
I. Introduction
Plaintiff Richard Bustos seeks review and reversal of the partial administrative denial of his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") by the Administrative Law Judge ("ALJ") on April 10, 2003. Plaintiff contends that ALJ Karen McCoy's conclusion that plaintiff was not under a disability until May 1, 2002, 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 his 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 13.
Docket Entry 16.
Docket Entry 19.
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 his administrative remedies prior to filing this action in federal court. Plaintiff protectively filed applications for DIB and SSI on May 5, 2000, alleging a disability beginning March 27, 2000. The SSA denied plaintiff's applications both initially, on July 3, 2000, and on reconsideration, October 2, 2000.
Transcript, at 17, 18, 215-225. The documents relative to plaintiff's application for SSI, including the application itself, are not included in the administrative transcript. Transcript, at 4.
Transcript, at 156-162.
Transcript, at 164-167.
After plaintiff requested a hearing before an ALJ, the first hearing in this matter was held on September 7, 2001. Plaintiff was represented by counsel at that hearing. ALJ McCoy heard testimony from plaintiff, medical expert Dr. James Wittmer and vocational expert Jesus Duarte at the September 2001 hearing.
Transcript, at 168.
Transcript, at 45-82.
Id.
After the first hearing, ALJ McCoy issued an unfavorable decision on December 20, 2001. Upon plaintiff's request for review of the December 2001 administrative decision, the Appeals Council remanded the action and ordered ALJ McCoy to assess new evidence presented in support of plaintiff's applications.
Transcript, at 148-155.
Transcript, at 187-189. The Appeals Council's remand order was issued on April 8, 2002. Id.
Thereafter, a second administrative hearing was held on October 16, 2002. Plaintiff was represented by counsel at the hearing. Plaintiff's counsel was able to examine plaintiff, medical expert Dr. Randall King, and vocational expert Judith Harper.
Transcript, at 83-142.
Id.
At the October 2002 hearing, plaintiff testified that he had an eighth grade education with most of his courses in special education. He stated that he was unable to read and write but could recognize familiar road signs. Plaintiff further told ALJ McCoy that he was married and had three children then-aged eleven, fourteen and twenty one. He testified that his two youngest children lived with him.
Transcript, at 91, 92.
Transcript, at 92-93.
Transcript, at 94.
Transcript, at 95.
Plaintiff told the ALJ that he drove both to pick his children up from school, as well as to and from his physician. He stated that he spent most of his time watching television. Plaintiff further testified that he attended Church approximately once a month. He also stated that he tried to walk up to a mile two times per week and did twenty to forty minutes worth of stretching exercises every day. However, plaintiff told ALJ McCoy that he did not help with household chores.
Transcript, at 95, 96.
Transcript, at 101.
Transcript, at 103.
Transcript, at 101-102.
Transcript, at 100-101.
When asked about his past work experience, plaintiff testified that he was last employed as a construction worker in 2000. Specifically, he explained that his work consisted of loading and unloading slabs which weighed fifty to sixty pounds. Plaintiff stated that he also had significant past work experience as an interior and exterior house painter.
Transcript, at 98.
Transcript, at 98, 99.
Transcript, at 100.
Plaintiff told the ALJ that he was unable to work because of the pain in his lower back and legs. He further testified that he suffered from pain in his testicle which also caused an upset stomach. Finally, plaintiff stated that, at the time of the hearing, he had a recent problem with severe constipation two to three times per week.
Id.
Transcript, at 110.
Transcript, at 108-109, 111.
ALJ McCoy also heard testimony from medical expert Dr. Randall King at the administrative hearing. In reviewing the medical evidence in the record, Dr. King noted that plaintiff had a history of chronic low back pain, chronic left quadrant pain, testicular pain and mild depressive disorder. During the days before the hearing, medical reports indicated that plaintiff's depression worsened and plaintiff began suffering from auditory and visual hallucinations. Dr. King opined that plaintiff's hallucinations were induced by his medication. Dr. King concluded that none of plaintiff's impairments met or medically equaled a Listing.
Transcript, at 112-133.
Transcript, at 113.
Transcript, at 113, 116-117, 119.
Transcript, at 114. The medical expert testified that plaintiff took the following medications: Seroquel, Elavil and Zoloft. Id.
Transcript, at 116.
Vocational expert Judith Harper also testified at the administrative hearing. Ms. Harper classified plaintiff's past work experience in residential painting as medium, skilled, and that in construction as heavy, unskilled. Ms. Harper opined that a hypothetical individual of plaintiff's age, vocational experience, education and RFC could perform the following entry-level, light, unskilled jobs: garment bagger, linen supply load builder, sorter of nuts and fruits, and parking lot attendant cashier. Ms. Harper cautioned, however, that an individual with poor concentration or one who needed to lie down for one hour three times in a given work day would likely be unable to maintain competitive employment.
Transcript, at 134-141.
Transcript, at 136.
Transcript, at 137-138.
Transcript, at 141.
On March 28, 2003, the ALJ issued her partially favorable decision in which she concluded that plaintiff was under a "disability," as defined by the Social Security Act ("the Act"), after May 1, 2002. Because of a typographical error in the March 2003 decision, ALJ McCoy issued an amended, partially favorable decision correcting the error on April 10, 2003.
Transcript, at 29-44.
Transcript, at 12-28. In the March 2003 decision, ALJ McCoy mistakenly wrote that plaintiff was insured through September 30, 1995. Transcript, at 34. The ALJ corrected this error in her amended decision, properly noting that plaintiff was insured for benefits through September 30, 2005. Transcript, at 18.
After receiving the ALJ's final decision dated April 10, 2003, plaintiff requested review of the hearing and decision on May 13, 2003. On October 22, 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 December 13, 2004.
Transcript, at 10.
Transcript, at 6-9.
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 the partially unfavorable portion of her decision at step five of the evaluation process. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful employment since the date of his applications for DIB and SSI. ALJ McCoy then concluded at steps two and three that plaintiff had an impairment or combination of impairments (degenerative disc disease of the lumbar spine and major depressive disorder recurrent with psychosis) which were severe, but did not meet or medically equal a listed impairment as of the date the plaintiff was last insured. At steps four and five, the ALJ found that, although he was unable to return to his past relevant work, plaintiff retained the residual functional capacity to perform a significant range of light work, including work as a garment bagger, linen supply load builder, a sorter of nuts and fruits, a cashier in a parking lot, a polisher of eyeglass frames, a final assembler of eyeglasses and a lens inserter, until May 2002 when his mental impairments, in combination with his exertional impairments, prevented him from working. Based on the foregoing, ALJ McCoy concluded that plaintiff was not under a disability until May 1, 2002. B. Is the ALJ's April 10, 2003 Decision Supported by Substantial Evidence?
Transcript, at 19; ¶ 2, at 26.
Transcript, at 23-25; ¶¶ 9, 13, 14.
Transcript, at 21, 28; ¶ 16, at 27.
Plaintiff challenges the ALJ's partially favorable decision, asserting that the ALJ committed reversible error in concluding that plaintiff was disabled only after May 1, 2002. Specifically, plaintiff contends that the ALJ: (1) wrongly concluded that plaintiff's disability commenced after the date so alleged by plaintiff despite concurrently finding that plaintiff was generally credible; (2) erroneously failed to articulate her reasons for rejecting the opinions of plaintiff's treating physician; (3) improperly held that plaintiff's condition as status post four hernia repairs did not constitute a severe impairment; and (4) inappropriately failed to proffer a complete hypothetical to the vocational expert. Plaintiff contends that these mistakes warrant reversal of this action. In my opinion, plaintiff's grounds for reversal are not meritorious. Consequently, I recommend that plaintiff's request for relief be DENIED and the decision of the Commissioner AFFIRMED. 1. Did the ALJ commit reversible error by concluding both that plaintiff was generally credible and that his onset date of disability was later than he alleged?
In his first point of error, plaintiff asserts that the ALJ committed reversible error by concluding the plaintiff was generally credible while, at the same time, rejecting plaintiff's alleged onset date of disability. Plaintiff contends that the ALJ's failure to articulate the specific grounds upon which she rejected plaintiff's alleged onset date require this Court to accept the alleged onset date as true. Moreover, plaintiff argues that his alleged onset date of disability is supported by the testimony of the medical expert, who concluded that plaintiff was not malingering, and the vocational expert, who testified that plaintiff's alleged need to lie down during the day would prohibit his ability to obtain or maintain employment.
Docket Entry 13, at 12-14; Docket Entry 19, at 4-5.
Id
A plaintiff seeking to obtain DIB must establish that his disability began on or before the date he was last insured. In determining the onset date of disability, the adjudicator is bound to consider "the individual's declaration of the date of when the disability began, work history and available medical history." The plaintiff's
See Loza v. Apfel, 219 F.3d 378, 394 (5th Cir. 2000).
Id (internal citations omitted).
stated onset date of disability is to be used as the established date when it is consistent with available medical evidence and may be rejected only if reasons are articulated and the reasons given are supported by substantial evidence.
Id (internal citations omitted).
In the instant case, the majority of the ALJ's decision is concerned with establishing the onset date of plaintiff's disability. To determine the beginning of plaintiff's disability, the ALJ reviewed the medical evidence of record authored by plaintiff's treating and examining physicians, the objective medical evidence in the record, the testimony of the medical expert, the State Agency Medical Consultants reports, and plaintiff's own testimony regarding his daily and routine activities. Thus, the ALJ clearly articulated the reasons given for her rejection of plaintiff's alleged onset date of disability. Similarly, while the ALJ failed to hold expressly that she found plaintiff's asserted need to lie down three times a day unavailing, that finding may reasonably be inferred from the thorough examination of the other evidence of record. There is no indication that the ultimate decision would have been different had the ALJ included an additional sentence explicitly stating that she found that particular allegation lacking in credibility. Finally, the mere fact that the medical expert concluded that there was no evidence of malingering or that plaintiff's impairments could cause him pain is not a sufficient basis upon which to conclude that all of plaintiff's alleged impairments were as severe as alleged or that his pain was disabling. For all these reasons, it is my finding that plaintiff has failed to establish prejudicial, i.e. reversible, error with respect to his first point of error.
Transcript, at 17-28.
See Docket Entry 19, at 4-5.
2. Did the ALJ erroneously fail to articulate the grounds upon which she rejected the opinions of plaintiff's treating physician ?
In his second point of error, plaintiff asserts that ALJ McCoy failed to articulate the reasons for her rejection of treating physician Kuwamura's statements that plaintiff was limited in his ability to walk and unable to work. For this reason, plaintiff contends that it must be assumed that the ALJ failed to perform the requisite analysis for treating physician's opinions. Plaintiff urges that these mistakes constitute reversible error.
When the ALJ assesses the oral and written evidence provided by the various medical professionals, he must ordinarily give "substantial weight . . . to the opinion, diagnosis and medical evidence of the claimant's treating physician." When the treating source opinion is "well-supported and not inconsistent with the other substantial evidence in the case record, it must be given controlling weight; i.e., it must be adopted." However, the ALJ can "`reject the opinion of any physician if the evidence supports a contrary conclusion'" provided the ALJ has good cause for so doing.
[W]hen good cause is shown, less weight, little weight, or even no weight may be given to the physician's testimony. The good cause exceptions we have recognized include disregarding statements that are brief and conclusory, not supported by medically acceptable clinical laboratory diagnostic techniques, or otherwise unsupported by the evidence.
Dorsey v. Heckler, 702 F.2d 597, 603 (5th Cir. 1983).
Policy Interpretation Ruling Titles II and XVI: Giving Controlling Weight to Treating Source Medical Opinions, SSR 96-2p (July 2, 1996).
Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987), citing Oldham v. Schweiker, 660 F.2d 1078, 1084 (Former 5th Cir. Unit B 1981).
Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994).
Greenspan, 38 F.3d, at 237, citing Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985).
Despite the weight given to the treating source's opinion, the ALJ must evaluate every medical opinion received. When the ALJ does not give the treating source's opinion controlling weight, he must consider various factors in deciding the weight given to each opinion. Those factors are: (1) the examining relationship (the ALJ should generally give more weight to a source who examined the claimant); (2) the treatment relationship (the ALJ should generally give more weight to a source who treated claimant), including the length, nature and extent of the treatment relationship, as well as the frequency of the examination(s); (3) the supportability of the opinion (the ALJ should give greater weight to the source who provides more relevant evidence to support the opinion); (4) consistency (the ALJ should give greater weight to opinions which are consistent with the record as a whole); (5) specialization (the ALJ should generally give greater weight to the opinion of a specialist); and (6) any other factors which "tend to support or contradict the opinion." Importantly, however, plaintiff bears the ultimate burden of establishing that the error committed was prejudicial.
Id.
20 C.F.R. § 404.1527(d) (2(i)-(ii)).
20 C.F.R. § 404.1527(d)(5). See also Moore, 919 F.2d, at 905.
In the instant case, plaintiff contends that the ALJ committed prejudicial error in failing explicitly to address two reports authored by plaintiff's treating physician, Dr. Frank Kuwamura. The first report stated that plaintiff was unable to walk for any period of time and the second concluded that plaintiff was unable to work.
Docket Entry 13, at 14, citing Transcript, at 479, 426. Notably, the citation to Transcript page 479 is an error. The correct citation is Transcript, at 469-470.
The first report at issue was authored on March 30, 2001. In that letter from Dr. Kuwamura to Dr. Rojas, Dr. Kuwamura noted plaintiff's report that his pain increased with walking. Dr. Kuwamura further documented plaintiff's statement that he was unable to work because of his hernia. Notably, the doctor concluded both that one of plaintiff's problems included the inability "to walk for any period of time" and that plaintiff had a normal gait. Although the ALJ neglected to mention Dr. Kuwamura's opinion that plaintiff was unable to walk for any period of time, she addressed the objective findings contained in the March 2001 report — including plaintiff's normal gait — in three separate portions of the decision. In holding that "the objective medical evidence is convincing that plaintiff does not have disabling symptoms, including pain, of such severity that he was precluded from all types of work activity prior to May 1, 2002," the ALJ reviewed several reports authored by Dr. Kuwamura, plaintiff's own account of his routine activities, the objective medical evidence of the record and the testimony of the medical expert. For these reasons, plaintiff has failed to meet his burden of proving that the outcome would have been different had the ALJ acknowledged Dr. Kuwamura's finding that plaintiff had difficulty walking.
Transcript, at 469-470.
Transcript, at 470.
Transcript, at 469, 470.
Transcript, at 19, 20, 22.
See Transcript, at 19-21. Notably, plaintiff testified that he walked up to a mile two times per week for exercise. Transcript, at 102.
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).'"
The second medical report at issue is actually a "To Whom It May Concern" letter authored by plaintiff's treating physician, Dr. Kuwamura, on June 11, 2001. The letter does not appear to be accompanied by any supporting medical documents and is entirely focused on plaintiff's financial situation. The document states that plaintiff lost his Medicaid insurance and was having difficulty meeting his monetary obligations. Although it also states that plaintiff "is unable to work," the concern of the letter is plaintiff's need to obtain financial assistance. Because the document was clearly written in order to assist plaintiff obtain some kind of benefits, plaintiff has not met his burden of establishing that the ALJ's decision might have been different had she explicitly addressed this letter. 3. Did ALJ McCoy err in concluding that plaintiff's condition as status post four hernia repairs did not constitute a severe impairment ?
Transcript, at 426.
Id.
See generally Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985), citing Whitney v. Schweiker, 695 F.2d 784, 789 (7th Cir. 1982). See also Carey, 230 F.3d, at 142.
Plaintiff argues in his third point of error that the ALJ committed reversible error in finding that plaintiff's status post four hernia repairs did not constitute a severe impairment. Plaintiff contends that the substantial evidence of the record supports the finding that plaintiff suffered from pain as a result of the four hernia surgeries. He further asserts that this error at Step Two of the sequential evaluation process requires reversal and/or remand of this action.
Docket Entry 13, at 16-20; Docket Entry 19, at 9-10.
The second step of the sequential evaluation process mandates that the claimant have a severe impairment. In particular, the regulation provides:
If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience. However, it is possible for you to have a period of disability for a time in the past even though you do not now have a severe impairment.
The severity regulation is "a screening device to eliminate claims which are totally groundless from a medical point of view." Although the regulation requires that a claimant's physical and/or mental abilities be significantly limited, "the history of the regulation indicates that the Secretary intended a broad reading of `significant.'" In other words,
1 BARBARA SAMUELS, SOCIAL SECURITY DISABILITY CLAIMS: PRACTICE AND PROCEDURE § 22:61 (1994). See also Bowen v. Yuckert, 482 U.S. 137, 153 (1987) ("The severity regulation increases the efficiency and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account.").
Moore v. Heckler, 575 F.Supp.180, 184 (D. Maine 1983).
`[A]n impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience.
Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985), quoting Estran v. Heckler, 745 F.2d 340, 341 (5th Cir. 1984). See also 20 C.F.R. § 404.1521(a) ("An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities."); Roberts v. Callahan, 971 F.Supp. 498, 500 (D. New Mexico 1997) ("An impairment is not severe if it is only a slight abnormality with a minimal effect on the ability to work.").
As with all alleged errors, however, the plaintiff bears the ultimate burden of establishing that the holding on disability would have been altered had the ALJ made a contrary conclusion on the finding in contention.
In the instant case, there are myriad reports in the record in which the treating or examining medical professional notes plaintiff's own account of pain. Medical expert Dr. Randall King testified at the last administrative hearing that plaintiff was limited by his pain. However, Dr. King also stated that none of plaintiff's exertional impairments met or medically equaled a Listing and that plaintiff was able to lift fifty pounds occasionally, twenty pounds frequently and could occasionally crawl, stoop or bend. The ALJ's decision states:
See Transcript, at 273, 285, 299, 301, 324, 326, 464, 465.
Transcript, at 128.
Transcript, at 115.
The claimant alleges an inability to do all work due to hernia pain, back pain and depression. While the claimant has medically determinable impairments that could reasonably be expected to cause the symptoms alleged, the undersigned finds that the objective medical evidence is convincing that the claimant does not have disabling symptoms, including pain, of such severity that he was precluded from all types of work activity prior to May 1, 2002.
Transcript, at 21.
Plaintiff must establish not only the existence of an impairment but also functional limitations flowing from said impairment. The presence or 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 his or her diagnosed impairment has more than a minimal effect on his or her ability to engage in work activities.
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).
Plaintiff has failed to prove that his pain resulted in functional limitations. While the evidence of record establishes that he has pain, that is insufficient to conclude that the ALJ committed reversible error in finding that plaintiff's condition as status post four hernia repairs was not a severe impairment. For these reasons, I find plaintiff's third point of error unavailing.
4. Did the ALJ fail to proffer a complete hypothetical to the vocational expert ?
In his fourth, and final, point of error, plaintiff argues that ALJ McCoy failed to proffer a complete hypothetical to the vocational expert and, therefore, failed to meet her burden of establishing that there was work available in the local and national economies that plaintiff was capable of performing. Plaintiff avers:
the ALJ's hypothetical question was not complete as it failed to consider Dr. Kuwamura's standing limitations, failed to consider Mr. Bustos' mental impairments and failed to include any functional limitations flowing from Mr. Bustos' hernia repair. When the VE considered the mental limitation of poor concentration, he would not be able to maintain any employment, and that, likewise, if he had to lie down for an hour, three times during a work day, he would be unable to be employed competitively (Tr. 141).
Docket Entry 13, at 21.
The Fifth Circuit has developed a clear test for determining when a defective hypothetical posed to a vocational expert creates reversible error:
Unless the hypothetical question posed to the vocational expert by the ALJ can be said to incorporate reasonably all disabilities of the claimant recognized by the ALJ, and the claimant or his representative is afforded the opportunity to correct deficiencies in the ALJ's question by mentioning or suggesting to the vocational expert any purported defects in the hypothetical questions (including additional disabilities not recognized by the ALJ's findings and disabilities recognized but omitted from the question), a determination of non-disability based on such a defective question cannot stand.
Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994), discussing Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988); Rodriguez v. Shalala, No. 93-8712 (5th Cir. Aug. 25, 1994) (unpublished).
Thus, the threshold inquiry in determining whether the hypothetical posed to the vocational expert gave rise to reversible error is whether it reasonably incorporated all the disabilities recognized by the ALJ.
In this case, the ALJ posed three hypotheticals to the vocational expert. None of the hypotheticals incorporated Dr. Kuwamura's standing limitations nor any alleged functional limitations imposed upon plaintiff as a result of the hernia repairs. However, the ALJ declined to recognize those limitations. For the reasons previously discussed, the ALJ's conclusions that the alleged standing restrictions and post hernia surgery impairments did not affect plaintiff's ability to work were supported by the substantial evidence of the record. Therefore, the ALJ reasonably incorporated all the recognized impairments in the hypotheticals proffered to the VE. Plaintiff has failed to establish reversible error regarding the same.
Transcript, at 136-140.
Notably, plaintiff's allegation that the ALJ ignored plaintiff's non-exertional impairments is unavailing as the ALJ based her decision that plaintiff was disabled beginning on May 1, 2002, on the severity of plaintiff's mental impairments.
Importantly, the Court is not entitled to re-weigh the evidence or assess the case de novo. "Even if the evidence preponderates against the Secretary's factual findings, we must affirm if the decision reached is supported by substantial evidence." In this case, the ALJ's decision was supported by substantial evidence and must, therefore, be affirmed.
Martin v. Sullivan, 894 F. 2d 1520, 1529 (11th Cir. 1990), citing Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986); MacGregor v. Bowen 786 F. 2d 1050, 1053 (11th Cir. 1986); Bloodworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's request for relief be DENIED, his complaint (docket entry 1) DISMISSED, and the decision of the Commissioner AFFIRMED.