Opinion
Civil Action No: 1:99CV227-A
April 5, 2000
MEMORANDUM OPINION
This case involves an application pursuant to 42 U.S.C. § 405 (g) for judicial review of the decision of the Commissioner of Social Security denying the application of plaintiff David Harris for disability insurance benefits (DIB) under Title II. The district court's jurisdiction over plaintiff's claims rests upon 28 U.S.C. § 1331. In accordance with the provisions of 28 U.S.C. § 636(c), both parties consented to have a United States Magistrate Judge conduct all proceedings in this case, including an order for entry of a final judgment. Therefore, the undersigned has authority to issue this opinion and the accompanying final judgment.
The plaintiff was born on October 29, 1953, and has a high school education. Plaintiff's relevant employment experience was as a truck driver and material handler. The plaintiff filed his application for DIB on July 30, 1997, alleging a disability onset date of April 27, 1995. (R. at 73.) At other places in the record, plaintiff claims his disability began in August 1992. (R. at 39, 81, 117.) Plaintiff contends that he is disabled due to back and leg pain from an on-the-job injury, which required surgery. Plaintiff also complains of stomach problems, borderline intellectual functioning and depression. The request for benefits was denied at the initial and reconsideration stages, and plaintiff sought timely review from an administrative law judge (ALJ). In an opinion dated September 22, 1998, the ALJ found plaintiff's residual functional capacity allowed him to perform jobs which exist in significant numbers in the national economy, and he denied the request for benefits. Plaintiff sought unsuccessfully to have the Appeals Council review the ALJ's decision, and he timely filed suit in this court. The case is now ripe for review.
In determining disability, the Commissioner, through the ALJ, works through a five-step sequential evaluation process. The burden rests upon the plaintiff throughout the first four steps of this five-step process to prove disability, and if the plaintiff is successful in sustaining his burden at each of the first four levels then the burden shifts to the Commissioner at step five. First, plaintiff must prove he is not currently engaged in substantial gainful activity. Second, the plaintiff must prove his impairment is "severe" in that it "significantly limits his physical or mental ability to do basic work activities. . . ." At step three the ALJ must conclude the plaintiff is disabled if he proves that his impairments meet or are medically equivalent to one of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1, §§ 1.00-114.02 (1999). Fourth, the plaintiff bears the burden of proving he is incapable of meeting the physical and mental demands of his past relevant work. If the plaintiff is successful at all four of the preceding steps the burden shifts to the Commissioner to prove, considering plaintiff's residual functional capacity, age, education and past work experience, that he is capable of performing other work. If the Commissioner proves other work exists which the plaintiff can perform, the plaintiff is given the chance to prove that he cannot, in fact, perform that work.
See 20 C.F.R. § 404.1520 (1999).
Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991).
20 C.F.R. § 404.1520(b) (1999).
20 C.F.R. § 404.1520(b) (1999).
20 C.F.R. § 404.1520(d) (1999). If a claimant's impairment meets certain criteria, that claimant's impairments are "severe enough to prevent a person from doing any gainful activity." 20 C.F.R. § 404.1525, 416.925 (1999).
20 C.F.R. § 404.1520(e) (1999).
20 C.F.R. § 404.1520(f)(1) (1999).
Muse, 925 F.2d at 789.
Following plaintiff's hearing in this case, the Commissioner, acting through the ALJ, concluded that plaintiff was not disabled within the meaning of the Act. The ALJ did find that plaintiff's borderline intellectual functioning and back condition were severe, but he concluded the impairments were not the same as or equivalent to a listed impairment. (R. at 20.) The ALJ held that plaintiff was unable to return to his previous job and decided the case at step five, finding that plaintiff's condition would not preclude him from performing a significant number of other jobs. (R. at 21.) Because the ALJ found that plaintiff failed to carry his burden to prove he could not perform the jobs enumerated at the hearing, the ALJ denied benefits.
The court considers on appeal whether the Commissioner's final decision is supported by substantial evidence, and whether the Commissioner used the correct legal standard. Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999); Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991). "To be substantial, evidence must be relevant and sufficient for a reasonable mind to accept it as adequate to support a conclusion; it must be more than a scintilla but it need not be a preponderance. . . ." Anderson v. Sullivan, 887 F.2d 630, 633 (5th Cir. 1989) (citation omitted). See Brown, 192 F.3d at 496. "If supported by substantial evidence, the decision of the [Commissioner] is conclusive and must be affirmed." Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994) (citing Richardson v. Perales, 402 U.S. 389, 390, 28 L.Ed.2d 842 (1971)).
Plaintiff contends that the ALJ erred in concluding he can perform jobs which exist in the national economy and therefore is not disabled. Based upon the medical evidence, the ALJ concluded that plaintiff's residual functional capacity allowed him to perform the requirements of medium work, which the Social Security regulations state "involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." 20 C.F.R. § 404.1567(c) (1999). Specifically, the ALJ concluded plaintiff could lift and carry no more than 50 pounds, or 25 pounds on a regular basis, and his ability to perform medium work was diminished by non-exertional limitations, including limitation to simple and routine tasks, moderate limitation of his ability to socially function and inability to work extensively with the public. (R. at 20.) Because plaintiff's previous jobs had required him to lift up to 100 pounds, the ALJ found he could no longer perform those jobs and proceeded to step five of the sequential evaluation process. The ALJ then concluded, based upon vocational expert testimony, that plaintiff's age, education, work experience and residual functional capacity allowed him to work as a small parts assembler, housekeeper or sewing machine operator. (R. at 19.) When the burden shifted back to plaintiff to prove he could not perform the jobs, plaintiff failed to sustain that burden. Accordingly, the ALJ found plaintiff was not disabled.
The ALJ found plaintiff's insured status expired on December 31, 1997, so plaintiff had to prove that he was disabled on or before that date. Neither party disputes that plaintiff's insured status expired on that date.
On appeal to this court, plaintiff claims the ALJ applied incorrect legal standards and lacked substantial evidence to support his conclusions. Several of plaintiff's claims can be quickly dispensed with because they are completely without merit. In plaintiff's brief, he objects to the ALJ's ruling because "[n]o vocational expert testified and the wrong hypothetical questions were asked." This statement is patently incorrect. A vocational expert did indeed testify after having observed plaintiff at the hearing before the ALJ, as will be discussed later in this opinion. (R. at 51-52.) Plaintiff's allegation in his briefs that the ALJ "should have asked the Vocational Expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy" is also completely without merit because the expert did list specific jobs and the numbers in which they occur in the region and nationwide. (R. at 52-53.)
The ALJ listed the following jobs: Small products assembly (7,287 jobs in this region, 467,282 nationally); housekeeping (3,716 regionally, 377,072 nationally); and sewing machine operator (1,691 regionally, 44,117 nationally). (R. at 52-53.)
Plaintiff claims the ALJ also erred by relying solely on the grids, or guidelines, to make his ruling in this case, although the criteria in the grids did not coincide exactly with plaintiff's condition. Plaintiff's statement is an accurate recitation of the law. The grids govern only when all of the claimant's qualifications match those listed in the grids exactly. 20 C.F.R. Part 404, Subpart P, App. 2, § 200.00 (1996); Perez v. Schweiker, 653 F.2d 997 (5th Cir. 1981). "To establish that work exists for a claimant, the [Commissioner] may rely on the Grid, only if the guidelines' evidentiary underpinnings coincide exactly with the evidence of disability appearing in the record." Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994) (citing Scott v. Shalala, 30 F.3d 33, 34-35 (5th Cir. 1994) ("Where any one of the findings of fact does not coincide with the corresponding criterion of a rule [within the Grid], the rule does not apply in that particular case and, accordingly, does not direct a conclusion of disabled or not disabled.")). All of the "findings of fact necessary to application of the grid must be supported by substantial evidence before the disability determination based on the grid should be upheld by the appellate courts." Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). What is determinative in this case, however, is that the ALJ did not rely solely upon the grids in making his determination, as plaintiff alleges, but used them "as a framework for decisionmaking" along with the testimony of the vocational expert. (R. at 19, 21.) It is appropriate for the ALJ to use the grids as a "frame of reference" in making a decision, see Dickert v. Chater, NO. 1:94-CV-747, 1996 WL 354958, at *11 (E.D.Tex. June 19, 1996), and this argument of plaintiff's does not provide grounds for reversal.
These medical-vocational guidelines, see 20 C.F.R. Part 404, Subpart P, App. 2, §§ 200.00-204.00 (1996), commonly called the "grids" or "the guidelines," are "a shortcut that eliminates the need for calling in vocational experts." Trimiar v. Sullivan, 966 F.2d 1326, 1332 (10th Cir. 1992) (citation omitted). The grids are distilled from recurring patterns of limitations, both functional and vocational. 20 C.F.R. Part 404, Subpart P, App. 2, § 200.00 (1996). "The separate rules consider varying combinations of age ranges, educational levels attained, and job skills exemplified by previous employment, and direct, based on those four factors, a finding of disability or nondisability." Thomas v. Schweiker, 666 F.2d 999, 1003 (5th Cir. 1982).
The only two arguments which plaintiff makes that have any bearing whatsoever on the case whatsoever are (1) that the ALJ erred in rejecting plaintiff's subjective allegations of disabling pain and (2) the ALJ failed to explain the weight given to the respective medical source opinions in the record. Plaintiff alleged at the hearing that he suffers from intense pain which makes it impossible for him to stand or walk for very long, lift and carry things or perform other physical acts. (R. at 43-48.) For instance, he claims the pain is too great for him to carry groceries, take out the garbage, squat, crouch, climb, bend, stoop, push a grocery cart or even push open a door or carry his own dinner plate to the table. Plaintiff walked with the assistance of a cane at the hearing, and he found it necessary to request that he be allowed to stand up at one point. (R. at 48-49.)
In plaintiff's brief in support of his entitlement to disability benefits, he also states "error exists in violating 20 C.F.R. § 96-22 and 96-52 giving the weight to each item of evidence." Part 404 of Title 20 of the Code of Federal Regulations does not contain sections with these citations, but it appears that plaintiff is again alleging the ALJ improperly disbelieved his testimony about his pain.
In spite of these allegations, the ALJ found plaintiff could perform work. In reaching this conclusion, the ALJ determined that the plaintiff's testimony about disabling pain was "not fully credible." (R. at 16.) In discussing plaintiff's lack of complete credibility, the ALJ cited the factors outlined in 20 C.F.R. § 404.1529 (1999):
Your daily activities;
The location, duration, frequency and intensity of your pain or other symptoms;
Precipitating and aggravating factors;
The type, dosage, effectiveness and side effects of any medication you take or have taken to alleviate your pain or other symptoms;
Treatment, other than medication, you receive or have received for relief of your pain or other symptoms;
Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
Other factors concerning your functional limitations and restrictions duye to pain or other symptoms.
The ALJ expressly stated plaintiff's "statements concerning his impairments and their impact on his ability to work are not entirely credible in light of the medical history and the degree of medical treatment required," (R. at 15), although he ultimately found that plaintiff's condition precluded him from lifting and carrying very heavy objects. (R. at 16.)
"To prove disability resulting from pain, an individual must establish a medically determinable impairment that is capable of producing disabling pain [and o]nce a medical impairment is established, the subjective complaints of pain must be considered along with the medical evidence in determining the individual's work capacity." Ripley v. Chater, 67 F.3d 552, 556 (5th Cir. 1995). "The ALJ is entitled to considerable deference in determining whether pain is disabling." Nickerson v. Secretary of Health Human Services, 894 F. Supp. 279, 283 (E.D.Tex. 1995) (citing Hollis v. Bowen, 837 F.2d 1378, 1384-85 (5th Cir. 1988)).
Here, the medical evidence failed to indicate plaintiff's condition was such that it would produce the degree of pain plaintiff alleged at the hearing. Records from August 1992 do state that a lumbar MRI suggested disc elevation of the nerve root, which caused irregular soft tissue density. (R. at 122.) Another lumbar MRI in June 1996 showed sclerotic degenerative changes, disc narrowing and scar formation, (R. at 120), but plaintiff's nerve root canals were clear. (R. at 121.) Dr. R. Hunt Bobo also noted narrowing disc space in August 1996, but he believed the 1996 MRI indicated good results from the 1992 surgery with no recurrent herniated disc. (R. at 123-27.) Dr. Bobo diagnosed plaintiff with mild chronic back and leg pain, but he reported "good anatomic result from diskectomy." (R. at 127.)
The court has also reviewed the records which pertain to plaintiff's gastrointestinal problems and concludes substantial evidence supports the ALJ's finding that the condition "was an isolated occurrence, did not last for a continuous period of time and is a non-severe impairment." (R. at 16.) Records show treatment for gastrointestinal bleeding secondary to duodenitis and an ulcer in 1997, but following treatment plaintiff was released in stable and improved condition and cleared to return to work as of July 7, 1997. (R. at 134-34.) There is no indication of further treatment for this condition, and the ALJ properly concluded it had no more than a minimal effect on plaintiff's ability to perform work.
Dr. Naeem Haider saw plaintiff in October 1997, and upon examination plaintiff exhibited normal range of motion, power and reflexes in his upper and lower extremities. (R. at 143.) Plaintiff was also able to walk and even hop "easily" without discomfort. An x-ray of plaintiff's back was normal, and Dr. Haider's final impression was "low back pain as per patient." (R. at 143.) Haider also recommended plaintiff be evaluated by a psychiatrist because of a history of depression. In response to this recommendation plaintiff was examined by psychiatrist Dr. James R. Lane in December 1997. Dr. Lane found plaintiff to be vague, evasive, exaggerated, uncooperative, overly dramatic and less than credible. (R. at 149-50.) He diagnosed a somatization disorder, dependent personality disorder, low back pain, stiffness and ulcers.
On the basis of the objective medical evidence, the ALJ was warranted in concluding that plaintiff's claims of pain were exaggerated. Although plaintiff produced objective medical evidence of a condition which is capable of producing pain, Harper v. Sullivan, 887 F.2d 92, 96 (5th Cir. 1989), it is not the function of the court to second-guess credibility determinations. Jones v. Apfel, NO. CIV.A. 3:96-CV-1253G, 1998 WL 47600, at *2 (N.D.Tex. Jan. 28, 1998). Given the ALJ's consideration of factors contained in 20 C.F.R. § 404.1529, and the state of the evidence, which indicated plaintiff's condition in 1997 allowed him full range of motion and freedom of movement without discomfort, the court concludes that substantial evidence existed for his decision that plaintiff's testimony was not credible to the extent that he alleged pain that was disabling.
Finally, plaintiff complains that the ALJ failed to explain his evaluation of "examining" and "non-examining" sources in accordance with Social Security Ruling 96-2p (1996). The Ruling provides, in part,
Plaintiff also cites Ruling 96-5p (1996), which deals with medical source opinions on issues reserved to the Commissioner, and Ruling 96-6p (1996), which deals with consideration of administrative findings of fact regarding medical equivalence by state agency medical and psychological consultants and other program physicians and psychologists at the administrative law judge and appeals council levels of administrative review. The court fails to see how these two Rulings are material to the case at hand, and it appears that plaintiff's counsel included them in his brief as mere boilerplate material. They provide absolutely no basis for reversal.
Paragraph (d)(2) of 20 C.F.R. § 404.1527 and 416.927 requires that the adjudicator will always give good reasons in the notice of the determination or decision for the weight given to a treating source's medical opinion(s), i.e., an opinion(s) on the nature and severity of an individual's impairment(s). Therefore:
When the determination or decision:
• is not fully favorable, e.g., is a denial; or
• is fully favorable based in part on a treating source's medical opinion, e.g., when the adjudicator adopts a treating source's opinion about the individual's remaining ability to function;
the notice of the determination or decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.
Social Security Ruling 96-2p, 1996 WL 374188, at *5 (July 2, 1996 (S.S.A.)). While the ALJ did not clearly state how much weight he afforded the different medical sources, it is clear to the court that none of the sources expressly limited plaintiff to exertion levels below medium work or otherwise opined that plaintiff's condition precluded him from performing work. As stated earlier, substantial evidence is "relevant and sufficient for a reasonable mind to accept it as adequate to support a conclusion; it must be more than a scintilla but it need not be a preponderance. . . ."
Anderson, 887 F.2d at 633. In this case, the ALJ's decision was fully supported by substantial evidence, and he applied the correct legal standards.
Included in the record are reports from Drs. Philip Drumheller and Linda Baker regarding plaintiff's psychological state. Dr. Drumheller stated that testing revealed plaintiff was functioning within the upper end of the mild range of mental retardation, and he suggested further testing to rule out adjustment disorder with depressive mood versus mild major depressive disorder. (R. at 145-47.) Dr. Baker's findings are not included in the record, but she did complete a psychiatric review technique form wherein she repeatedly stated she had insufficient evidence to accurately assess plaintiff's mental state. (R. at 153-62.) Plaintiff's counsel simply addresses this issue in his brief by including the conclusory remark that "the ALJ . . . found plaintiff had borderline intellectual functioning as well as severe impairments." Indeed, the ALJ specifically concluded that plaintiff's borderline intellect was severe within the meaning of the act. Nevertheless, plaintiff's counsel's brief cannot be read to challenge the ALJ's conclusion that plaintiff's intellect rendered him disabled, and the court does not reach this issue.
Plaintiff has failed to convince the court that the ALJ committed reversible error in this case. The court agrees with the ALJ that plaintiff's testimony was not fully credible because it was inconsistent with the medical evidence. Absent error by the ALJ, the court must conclude the decision of the Commissioner that plaintiff can perform work was correct. A separate final judgment in accordance with these findings shall issue this day.
FINAL JUDGMENT
In accordance with the memorandum opinion issued this day,It is, hereby,
ORDERED:
That the decision of the Commissioner is AFFIRMED.