Opinion
Civil Action 00-0580-AH-M
March, 19, 2001
REPORT AND RECOMMENDATION
In this action under 42 U.S.C. § 405 (g), Plaintiff seeks judicial review of an adverse social security ruling which denied a claim for disability insurance benefits. The action was referred for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B). Oral argument was heard on March 19, 2001. Upon consideration of the administrative record, the memoranda of the parties, and oral argument, it is recommended that the decision of the Commissioner be affirmed, that this action be dismissed, and that judgment be entered in favor of Defendant William A. Halter and against Plaintiff Grace M. Irby, on behalf of Samuel L. Irby, on all claims.
Plaintiff, Samuel L. Irby, is deceased for reasons unrelated to his impairments (see Tr. 15). Plaintiff's wife, Grace M. Irby, has been substituted for purposes of prosecuting this action. The Court will, however, refer to the Deceased as Plaintiff throughout this report and recommendation.
This Court is not free to reweigh the evidence or substitute its judgment for that of the Secretary of Health and Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983), which must be supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence test requires "that the decision under review be supported by evidence sufficient to justify a reasoning mind in accepting it; it is more than a scintilla, but less than a preponderance." Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting Jones v. Schweiker, 551 F. Supp. 205 (D. Md. 1982)
Plaintiff was born October 24, 1945. At the time of his death, Irby was fifty-two years old, had completed a high school education (see Tr. 17, ¶ 8), and had previous work experience as a shipper (see Tr. 16). In claiming benefits, Plaintiff alleges disability due to substance abuse, heart problems, hypertension, depression, and osteoarthritis of the right knee (Doc. 9, pp. 1-2).
The Plaintiff filed an application for disability insurance benefits on February 6, 1997 (Tr. 81-83). Benefits were denied by an Administrative Law Judge (ALJ) who determined that Irby met the requirements of Listing 12.09, Substance Addiction Disorders; the ALJ noted, though, that Plaintiff could not be awarded disability benefits based on that classification and further found that although he could not return to his past relevant work, Irby was capable of performing a full range of light work (Tr. 10-21). Plaintiff requested review of the hearing decision (Tr. 9) by the Appeals Council, but it was denied (Tr. 6-7)
Plaintiff claims that the opinion of the ALJ is not supported by substantial evidence. Specifically, Irby alleges that: (1) The ALJ committed error in failing to find that Plaintiff's arthritic right knee was a severe impairment; (2) the ALJ improperly determined that he was capable of performing light work; (3) he is disabled under Medical Vocational Guideline Rules 201.12 or 201.14 (Doc. 9)
Plaintiff first claims that the ALJ committed error in failing to find that his arthritic right knee was a severe impairment. In Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984), the Eleventh Circuit Court of Appeals held that "[a]m impairment can be considered as not severe only if it is a slight abnormality which has such a 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." Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984); Flynn v. Heckler, 768 F.2d 1273 (11th Cir. 1985); cf. 20 C.F.R. § 404.1521 (a) (2000). The eleventh circuit has gone on to say that "[t]he `severity' of a medically ascertained disability must be measured in terms of its effect upon ability to work, and not simply in terms of deviation from purely medical standards of bodily perfection or normality." McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).
"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."
The evidence demonstrates that Irby went to the Veterans Administration Medical Center as an outpatient on March 31, 1997 and told a physical therapist that he had had surgery on his right knee in the past, that the pain had increased, and that his mobility had decreased (Tr. 253). Plaintiff further stated that his knee gave away while walking and standing and that stepping off a curb, walking more than one hundred yards, or standing for more than five minutes aggravated the pain. Id. Performing no tests, the physical therapist noted that Irby experienced pain when squatting, toe walking, and climbing stairs; she noted swelling in the knee. Id. The therapist recommended that Plaintiff be taught to decrease the pain (Tr. 254). An x-ray taken eight days later revealed hypertrophic changes suggesting osteoarthritis (Tr. 320). Thirteen months later, Dr. Claude L. Brown, who was performing a consultative psychiatric examination, noted that Irby had "a very minimal limp on his left leg" before making the statement that he was "obviously incapable of anything other than mild physical activities" (Tr. 285-86).
The ALJ noted that Plaintiff was diagnosed to have osteoarthritis of the right knee; he did not specifically address the severity of the impairment (Tr. 15). The Court finds, nevertheless, that Irby has not demonstrated that his knee problem constituted a severe impairment. First, there is little evidence concerning his knee and most of what exists comes from Plaintiff himself — not from a physician. Though Plaintiff references an attending physician at the VA, the record demonstrates that Irby was seen by a physical therapist — not a doctor (see Tr. 253-54; cf. Doc. 9, p. 7). The record demonstrates neither a record of treatment for the knee nor that any restrictions have been placed on Irby because of the impairment. The only doctor's reference to Plaintiff's limitations comes from a consultative psychiatrist who was not examining his knee; Dr. Brown's statement that Irby was incapable of performing more than "mild physical activities" is unsupported by the objective medical evidence. The ALJ correctly states that "[n]o treating physician placed any restrictions on the claimant's physical activities" (Tr. 15). While Plaintiff has had occasions where his right knee was swollen and it caused him pain, he has not demonstrated a sustained impairment that would affect his ability to work. This claim is of no merit.
Plaintiff next claims that the ALJ improperly determined that he was capable of performing light work. Light work has been 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) (2000).
Plaintiff cites no objective medical evidence to support this claim. Irby candidly admits that the "only examining physician of record to offer an opinion regarding Mr. Irby's physical capabilities was Dr. Brown" (Doc. 9, p. 9). The Court notes that Brown's examination included no physical tests; it was a psychiatric examination (see Tr. 285-96). Plaintiff has failed to demonstrate that the ALJ's determination that he is capable of performing a full range of light work is error.
Plaintiff's attorney argued at the hearing that, because Irby was incapable of performing a full range of light work, the ALJ improperly relied on the grids and should have called a vocational expert ( VE) to testify. Because the Court finds no merit to Irby's claim that he cannot perform light work, the Court will not further discuss the need for a VE.
Irby's final claim is that he is disabled under Medical Vocational Guideline Rules 201.12 or 201.14. The Court notes that these Rules fall under the sedentary work classification. As the Court has already found that Plaintiff's claim that he cannot perform light work is without merit, there is no need to address this claim. It, too, lacks merit.
Plaintiff has raised three different claims in bringing this action. All are without merit. Upon consideration of the entire record, the Magistrate Judge finds such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Perales, 402 U.S. at 401. Therefore, it is recommended that the Secretary's decision be affirmed, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), that this action be dismissed, and that judgment be entered in favor of Defendant William A. Halter and against Plaintiff Grace M. Irby, on behalf of Samuel L. Irby, on all claims.