Summary
noting that the claimant suffered from “left exophoria, a condition in which the left eye turns outward and does not focus in conjunction with the right eye”
Summary of this case from Mueller v. Hartford Life & Accident Ins. Co.Opinion
Civil No. 00-373-FR
October 24, 2000
Tim Wilborn, Portland, Oregon, Attorney for Plaintiff.
Kristine Olson, United States Attorney and William W. Youngman, Assistant United States Attorney, Portland, Oregon; Richard E. Buckley. Special Assistant United States Attorney, Seattle, Washington, Attorneys for Defendant.
JUDGMENT
Based on the record,
The decision of the Commissioner is hereby AFFIRMED.
OPINION
The plaintiff, George Davis, brings this action pursuant to section 205(g) of the Social Security Act (the Act), as amended, 42 U.S.C. § 405(g), to obtain judicial review of the decision of the Commissioner of Social Security (the Commissioner) denying his applications for Social Security disability insurance benefits under Title II and Supplemental Security Income disability benefits under Title XVI.
BACKGROUND
George Davis filed an application for a period of disability on February 3, 1997, alleging that the date of the onset of his disability was April 30, 1996. Davis remained insured for Social Security disability insurance benefits under Title II through December 31, 1996. Eligibility for Supplemental Security Income disability benefits under Title XVI is not dependent upon insured status. The applications were denied initially and upon reconsideration. After a timely request for a hearing, Davis appeared and testified before Administrative Law Judge Charles S. Evans (the ALJ), as did a vocational expert. Davis was informed by the ALJ of his right to representation, but elected to appear and provide testimony without the assistance of an attorney or other representative.
On July 13, 1998, the ALJ issued a decision finding that Davis was not disabled within the meaning of the Act. The ALJ found that Davis could not return to his former employment because, as a diabetic, he had to avoid very heavy exertion in order to maintain management of his glucose level. However, the ALJ concluded that Davis is able to make an adjustment to other work which exists in significant numbers in the national economy. TR 15.
The decision of the ALJ became the final decision of the Commissioner when the Appeals Council declined to review the decision of the ALJ.
FACTS
George Davis was born on April 17, 1940. At the time the ALJ issued his decision, Davis was 58 years old. Davis alleges disability based upon a combination of impairments, including a knee injury, an elbow injury, diabetes, fainting spells, and a lazy eye. Davis had past relevant work experience as a post office mailhandler and an auto wrecking yard parts puller.
On October 13, 1993, Dr. C. Kirby Griffin conducted a physical examination of Davis for the purpose of determining his fitness for employment. Dr. Griffin found that Davis was fit to work, but noted that Davis had diabetes and left exophoria, a condition in which the left eye turns outward and does not focus in conjunction with the right eye.
In November of 1993, Davis was noted to have diabetes mellitus, type II, of recent onset, which he was attempting to control with dietary measures. TR 132.
On November 20, 1995, Davis was admitted by Dr. Lee Gleason to Emanuel Hospital and Health Center with a diagnosis of syncopal episode. Davis had moved some furniture, sat down and his eyes rolled back into his head. Davis regained consciousness after one minute, but remained somewhat confused afterward. TR 136.
On September 27, 1996, Davis was examined by Dr. Joseph Eusterman, at the request of the Social Security Administration. Dr. Eusterman concluded that Davis was capable of at least light level work, with accommodation for a vision problem. TR 145.
On July 3, 1997, Davis was examined by Dr. Keith Cunningham. Dr. Cunningham found Davis "markedly disheveled, extremely dirty, odorous," but that his subjective complaints outweighed the objective findings. TR 147.
At the hearing before the ALJ, Davis testified that he has diabetes, which he partially controls with diet, and that he has a lazy eye and an injured knee. The ALJ posed a hypothetical to the vocational expert including Davis' limitations. The vocational expert opined that Davis could perform work as a kitchen helper or laundry worker. TR 46.
CONTENTIONS OF THE PARTIES
George Davis contends that the final decision of the Commissioner that he is not disabled is not supported by substantial evidence and is a result of the application of improper legal standards. Davis contends that the ALJ failed to properly address the erosion of his occupational base. In addition, Davis contends that the ALJ improperly rejected the testimony he gave relating to his visual deficits, his knee injury, and his elbow injury. Finally, Davis asserts that the ALJ failed to fully and fairly develop the record for him as an unrepresented claimant.
The Commissioner contends that there is substantial evidence in the record to support the decision of the Commissioner; that the Commissioner applied the proper standards for the evaluation of evidence; and that the decision of the Commissioner should be affirmed.
STANDARD OF REVIEW
The burden of proof rests upon the claimant to establish entitlement to disability benefits. To meet this burden, the claimant must show that (a) the claimant suffers from a medically determinable physical or mental impairment that can be expected to last for a continuous period of not less than twelve months; and (b) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment in the national economy. 42 U.S.C. § 423(d)(2)(A).
The Commissioner has established a five-step sequential process for evaluating and determining whether a person is disabled under the Act. 20 C.F.R. § 404.1520. The burden of proof is on the claimant as to steps one to four. As to step five, the burden shifts to the Commissioner. If the claimant is found to be disabled or not disabled at any step in the sequence, there is no need to consider the subsequent steps. Id.
At the first step, the claimant must prove he has not engaged in substantial gainful activity after the alleged onset of disability. At the second step, the claimant must prove that he has a medically severe impairment or combination of impairments. 20 C.F.R. § 404.1520(c). If, at the third step, the claimant proves that his impairment or combination of impairments meets or equals a listed impairment, he is automatically found disabled regardless of age, education, or work experience. If the claimant cannot prevail at the third step, he must proceed to the fourth step, where he must prove that he is unable to perform his past relevant work. At the fifth step, the burden shifts to the Commissioner to establish that there is other work available in significant numbers in the national economy that the claimant can perform. If the Commissioner establishes that the claimant can perform other work, then he is found "not disabled" and is not entitled to disability benefits. Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
The findings of the Commissioner are conclusive [ 42 U.S.C. § 405 (g)], and the decision of the Commissioner to deny benefits will be overturned only if it is not supported by substantial evidence or it is based on legal error. _Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). Substantial evidence is "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but is "less than a preponderance,"Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997).
In evaluating the evidence, this court looks at the record as a whole, weighing both the evidence that supports and detracts from the Commissioner's conclusion. Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990). The trier of fact, and not the reviewing court, must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.Richardson, 402 U.S. at 400; Tackett, 180 F.3d at 1098.
ANALYSIS Erosion of the Plaintiff's Occupational Base
George Davis contends:
When the claimant's residual functional capacity falls somewhere between light and medium, the ALJ must address how severely eroded the occupational base is, and whether the remaining occupational base more closely approximates that of the light grid rule (thus directing a finding of disabled), or whether the remaining occupational base more closely approximates that of the medium grid rule (thus directing the conclusion that the claimant should be required to make an occupational adjustment, and should be considered not disabled).
Plaintiff's Opening Brief, p. 13 (emphasis in original). Davis contends that because the ALJ was able to identify only two occupations which purportedly are within his capacity at medium work, the ALJ should have concluded that his potential occupational base is so significantly eroded that the "remaining occupational base is `little more than,' the occupational base for individuals limited to light unskilled work. . . . If Plaintiff's remaining occupational base is thus limited, then pursuant to SSR 83-12, paragraph 2.b., the grid rule applicable to claimants with a light residual functional capacity (Rule 202.01) should be applied, and a finding of disabled is directed." Id. at 14-15 (emphasis in original).
The Commissioner contends that the ALJ properly determined that Davis could perform a limited range of medium work, diminished by significant non-exertional limitations, including his inability to perform jobs requiring good binocular vision and depth perception. The Commissioner contends that the ALJ then followed SR 83-12 by receiving testimony from a vocational expert to determine Davis' potential occupational base. The Commissioner contends that the decision of the ALJ should be affirmed because the ALJ relied upon the testimony of the vocational expert who specifically identified jobs categorized as medium work which Davis was capable of performing and existed in substantial numbers in the national economy.
SSR 83-12 provides, in part:
2. If the exertional level falls between two rules which direct opposite conclusions, i.e., "Not disabled" at the higher exertional level and "Disabled" at the lower exertional level, consider as follows:
a. An exertional capacity that is only slightly reduced in terms of the regulatory criteria could indicate a sufficient remaining occupational base to satisfy the minimal requirements for a finding of "Not disabled."
b. On the other hand, if the exertional capacity is significantly reduced in terms of the regulatory definition, it could indicate little more than the occupational base for the lower rule and could justify a finding of "Disabled."
c. In situations where the rules would direct different conclusions, and the individual's exertional limitations are somewhere "in the middle" in terms of the regulatory criteria for exertional ranges of work, more difficult judgments are involved as to the sufficiency of the remaining occupational base to support a conclusion as to disability. Accordingly, VS [vocational specialist] assistance is advisable for these types of cases.
SSR 83-12.
The ALJ stated, in part:
Mr. Davis was born on April 17, 1940, and is now 58 years old. For the purpose of this decision, he is an individual of "advanced age" within the meaning of the Act and regulations. He has a tenth grade education, defined as "limited." According to testimony given by the vocational expert, the claimant has an unskilled work background. If Mr. Davis were capable of performing a full range of medium work, a finding of "not disabled" would be reached by application of Medical-Vocational Rule 203.11. Strict application of this rule is not possible, however, as Mr. Davis' visual limitation narrows the range of work he is capable of performing. Therefore, the Administrative Law Judge called upon the vocational expert to name jobs the claimant is able to perform given his particular residual functional capacity, age, educational background, and employment history. The vocational expert testified that assuming Mr. Davis's specific work restrictions, he is capable of making a vocational adjustment to millions of jobs including 4,500,000 kitchen helper jobs and 175,000 laundry worker jobs. A finding of "not disabled" may be reached within the framework of the above-mentioned rule.
TR 18-19.
The record in this case supports the conclusion of the ALJ that Davis is capable of the full range of medium work limited by his inability to perform jobs requiring good binocular vision and depth perception. The ALJ recognized that Davis' "exertional level falls between two rules which direct opposite conclusions, i.e., `Not disabled' at the higher exertional level [Rule 203.11] and `Disabled' at the lower exertional level [Rule 202.01]." SSR 83-12. Pursuant to SSR 83-12(2)(c), the ALJ consulted a vocational specialist in order to determine whether Davis was capable of making an adjustment to work which exists in significant numbers in the national economy. The ALJ used the Guidelines as a framework for decision-making and produced substantial evidence that jobs categorized as medium work were available to Davis given his specific work restrictions in significant numbers in the national economy.
The Plaintiff's Testimony
The ALJ concluded, in part, that "[t]he claimant's statements concerning his impairments and their impact on his ability to work have been found not entirely credible in light of his own description of his activities and life style, the lack of any documented medical treatment, and the reports of examining doctors which documented no cause for significant exertional limitations." TR 17. The record contains substantial evidence to support these conclusions. See, e.g., Plaintiff's Function Report, TR 95. Because the ALJ made specific findings to support his credibility determination, and these findings are supported by substantial evidence in the record, this court finds that the ALJ did not improperly reject the testimony of Davis concerning his impairments and their impact on his ability to work.
Development of the Record
Davis contends that the record in this case is replete with suggestions that his intellectual capacity may constitute an impairment significantly narrowing the range of work available to him. Davis contends that the ALJ was required to determine whether he was "mentally retarded." Plaintiff's Reply Brief, p. 9. The Commissioner contends that the ALJ carefully developed the record and was not required to initiate an investigation of Davis' IQ. The Commissioner contends that there is no evidence in this record to support a claim by Davis that he possesses a listing level IQ.
In Vidal v. Harris, 637 F.2d 710, 713 (9th Cir. 1981), the court explained:
[T]he absence of counsel alone is not sufficient ground for remand. In Cox, the Ninth Circuit stated that when plaintiff is not represented by counsel, the administrative law judge's duty is "to scrupulously and conscientiously probe into, inquire of, and explore for all relevant facts," and he must be "especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Lack of counsel does not affect the validity of the hearing and hence warrant remand, unless the claimant can demonstrate prejudice or unfairness in the administrative proceedings. (Citations omitted).
There is no evidence in this record to support Davis' claim that the ALJ had a duty to initiate an inquiry into his intellectual abilities. The court concludes that the ALJ in this case fulfilled his duty to fully and fairly develop the record.
CONCLUSION
The court finds that the decision of the Commissioner that Davis has not been under a disability as defined in the Act is supported by substantial evidence in the record and based upon the application of proper legal standards. The decision of the Commissioner is affirmed.
ORDER
IT IS HEREBY ORDERED that the decision of the Commissioner is supported by substantial evidence in the record and based upon the application of proper legal standards, and therefore the court affirms the decision of the Commissioner.