Opinion
Civil Action No. 98-1117-BH-L
September 6, 2000
REPORT AND RECOMMENDATION
The Plaintiff brings this action under 42. U.S.C. § 405(g) and § 1383(c)(3) seeking judicial review of a final decision of the Commissioner of Social Security denying her claim for supplemental security income, disability insurance benefits, and a period of disability.
This action was referred to the undersigned for report and recommendation pursuant to 29 U.S.C. § 636 (b)(1)(B). Upon consideration of matters presented at oral argument, the administrative record and the memoranda of the parties, it is recommended that the decision of the Commissioner be affirmed.
I. ISSUES ON APPEAL
The plaintiff presents three issues on appeal:
1. WHETHER PLAINTIFF ESTABLISHED A PRIMA FACIE SHOWING OF DISABILITY THROUGH THE TESTIMONY OF A PSYCHOLOGICAL EXPERT AND THE TESTIMONY OF THE VOCATIONAL EXPERT.
2. WHETHER THE ALJ ERRED IN DETERMINING THAT PLAINTIFF COULD PERFORM HIS PAST RELEVANT WORK.
3. WHETHER THE DECISION OF THE COMMISSIONER DENYING THE PLAINTIFF'S CLAIM OF DISABILITY UNDER THE SOCIAL SECURITY ACT IS SUPPORTED BY SUBSTANTIAL EVIDENCE AND IN ACCORDANCE WITH THE LAW.
II. BACKGROUND FACTS
The plaintiff was born on August 1, 1958 and was 39 at the time of the third ALJ decision. (Tr. 137.) Plaintiff filed an application for supplemental security income, a period of disability, and disability insurance benefits on April 10, 1992, alleging a disability onset date of August 21, 1991. (Tr. 25.) The first ALJ decision denying benefits, was issued July 29, 1993. (Tr. 13.) When that decision was appealed to the United States District Court, the Court remanded, concluding that the ALJ's decision was not supported by substantial evidence. (Tr. 226.) A second hearing was held on July 18, 1995, at which a vocational expert testified. (Tr. 175.) The ALJ had additional psychological and medical examinations performed before issuing a second decision denying benefits on December 12, 1995. (Tr. 266.) The Appeals Council reversed the second decision on March 22, 1997. A third hearing was held on September 2, 1997, at which another vocational expert testified. (Tr. 201, 210.) The ALJ issued a third unfavorable decision on March 19, 1998. (Tr. 137.) Plaintiffs counsel did not file timely exceptions to the ALJ's decision. (Tr. 133, 135, 136.) For this reason, the Appeals Council denied review on September 5, 1998, and this cause of action followed. (Tr. 133; Doc. 1.)
Johnson v. Shalala, Civil Action No. 94-0235-P-M.
The ALJ, on November 30, 1995, offered plaintiffs counsel 20 days to respond to the letter of vocational expert Donnie Carlisle. (Tr. 292.) However, the ALJ issued his decision on December 12, 1995, "without waiting the indicated time period or responding to the plaintiffs letter of December 8, 1995," which was received in the hearing office on December 11, 1995. Id. Furthermore, the ALJ had asked the VE a broadly worded question which the Appeals Council concluded was beyond the VE's expertise. Id.
III. HEARING TESTIMONY AND ALJ FINDINGS
At the third hearing, Plaintiff testified that he had a 12th grade education in special education classes, that he lived in a trailer with his wife, stepson and daughter, and that he relied on food stamps or financial assistance of family and friends to pay bills. (Tr. 202.) Although plaintiff complains of back and neck pain, he has not had back surgery. (Tr. 203, 204.) Plaintiff uses a device for back support and a TENS unit. (Tr. 204.) He testified to sharp pain of varying intensity in his lower back and left hip, numbness in his left leg, headaches and dizziness. (Tr. 205.) Plaintiff also testified that his right shoulder occasionally dislocates, and that he cannot reach over his head. (Tr. 206.) He stated that he cannot walk more than "a block," that he is unable to bend, and unable to sit more than 30 minutes. (Tr. 207, 208.) Plaintiff said his memory was "fine," but that dizziness and headaches make it difficult to concentrate. (Tr. 208.) He takes his medication regularly. (Tr. 209.) At home plaintiff watches television and cuts the yard "every now and then." Id
Barry Murphy, the vocational expert, reviewed the record and testified at the hearing. (Tr. 211.) Mr. Murphy classified plaintiffs past work as heavy and unskilled (construction worker), and medium unskilled (construction painter). (Tr. 211.) The ALJ posed a hypothetical of a functionally illiterate individual who suffered from pain that is not alleviated by any medication, and asked if that person would be able to perform work. (Tr. 212.) The VE opined that such an individual would not be able to work. (Tr. 212.) However, if the same individual's pain could be managed by medication that did not interfere with the individual's thought processes, the VE opined that such an individual could perform his past relevant work. When examined by plaintiffs attorney, the VE stated that an individual with the capability for light sedentary work who experienced intermittent, marked pain for one hour a day would generally be unemployable. (Tr. 214.) Based on a hypothetical offered by plaintiffs attorney, the VE testified that an individual with similar age, education and work experience as plaintiff, with limited ability to stand, walk, or sit, and with a need to lie down for extended periods of time during the day would be unemployable. (Tr. 216-217.)
The ALJ found as follows:
1. The claimant met the disability insured status requirements of the Act on August 21, 1991, the date the claimant stated he became unable to work, and continued to meet them through December 31, 1996.
2. The claimant has not engaged in substantial gainful activity since his alleged onset of disability.
3. The medical evidence establishes that the claimant has severe musculoskeletal impairments as set out in this decision, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's allegations of totally disabling pain are not credible or supported by the objective medical record, including the required standard under 20 C.F.R. § 404.1529,416.929, Social Security Ruling 96-7p, and the prevailing Eleventh Circuit Judicial Standards, including no supportive disability opinion, no restrictions placed on his residual functional capacity other than by a consultative physician restricting him to medium work, and no indication that the claimant's pain is severe or even significant, or that his pain would markedly interfere with thought processes, as well as no regular medical attention.
5. The claimant has the residual functional capacity to perform the physical exertion requirements of work except for activities and exertion which exceed the medium range and the restriction of occasionally squatting and occasionally climbing.
6. The claimant is unable to perform his past relevant work.
7. The claimant is 33-39 years of age, which is defined as a younger individual.
8. The claimant has a high school education and is functionally illiterate.
9. Rule 203.25 directs a conclusion that considering the claimant's residual functional capacity, age, education and functionally illiterate, and work experience, he is not disabled. The medical record does not demonstrate the presence of additional physical impairments or limitations, including mental, that would compromise the claimant's ability to perform a full range of medium unskilled work activity as contemplated under the foregoing rule. The vocational expert testified there are still significant numbers of medium jobs available in the national economy with the claimant's restriction to occasional squatting and climbing.
10. The medical evidence does not establish a mental impairment pursuant to 20 C.F.R. § 404.1520a and 416.920a.
11. The claimant was not under a disability as defined in the Social Security Act at any time through the date of this decision ( 20 C.F.R. § 404.1520 (f) and 416.920(f)).
(Tr. 148-150.) The ALJ also included a Psychiatric Review Technique Form after the hearing decision. In the PRTF, the ALJ found that no Section 12.00 Mental Disorders were present. (Tr. 151.)
IV. 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). 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 files an application for Social Security disability benefits must prove that he is disabled. See 20 C.F.R. § 416.912 (1998). The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven that he is disabled. See 20 C.F.R. § 416.920. At the first step, the claimant must prove that he has not engaged in substantial gainful activity. At the second step, he must prove that he has a severe impairment or combination of impairments. If, at the third step, he 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 he 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. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether plaintiff 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 plaintiff meets this burden, it becomes the Commissioner's burden to prove at the fifth step that plaintiff is capable of engaging in another kind of substantial gainful employment which exists in the national economy, given age, education, and work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985). If the Commissioner can demonstrate that there are jobs the claimant can perform, the claimant must prove he is unable 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
The plaintiff, an industrial painter, suffered a fall at work on August 21, 1991. (Tr. 83.) Stephen Munderloh, M.D., a radiologist, diagnosed dislocation of the right shoulder, but saw no evidence of a fracture. (Tr. 85.) An x-ray of the cervical spine taken on the day of the accident found no abnormalities. (Tr. 84.) Also, an X-ray of the left shoulder showed evidence of a previously seen dislocation which had been reduced, with bones now in the anatomic position. (Tr. 86.) X-rays of the left femur were normal, as was an x-ray of the lumbar spine-pelvis, except for "partial sacralization" of the L5 vertebra. (Tr. 87-8.)
R. Macbeth, M.D., treated plaintiff from the time of his fall. In his notes from plaintiffs first follow-up visit on August 29, 1991, Dr. Macbeth stated,
Patient . . . was reported to fall about 15 feet. According to him and some coworkers it was more around 50 feet. . . . [Plaintiffs shoulder is painful] when you try and take it through any kind of range of motion. He also has some pain in his lower lumbar spine and on the right side of his flank overlying his right iliac wing. . . . Patient also complains of neck pain and dizziness when he turns suddenly to the right and he gets a little bit of dizziness and pain to his neck. This is always transient and clears up. Otherwise, he is fairly healthy, denies any drug allergies. No chronic medical problems or previous surgery. Significant trauma in the past includes a right anterior shoulder dislocation back in 1981. He had absolutely no problems with it between now and then. (Tr. 71.)
Dr. Macbeth diagnosed right anterior shoulder dislocation, lumbar strain, and contusion iliac crest region on the right. Id. Plaintiff returned to Dr. Macbeth on September 19, 1991, complaining of headaches, blurred vision, and pain in his lower back. Dr. Macbeth found no neurologic deficits in his leg, an antalgic gait, and a well healed puncture wound to the thigh. Id. Dr. Macbeth noted "some" pain when bending forward to 90 degrees, but "normal tone, heel walking, maybe a 1+ versus a 2+ normal knee reflex on the left." Id. Lumbar spine x-rays were normal. Id
Plaintiff returned to Dr. Macbeth on October 11, 1991. Plaintiff had a good range of motion in his right shoulder, and Dr. Macbeth discontinued the use of the sling. (Tr. 69.) On this visit, plaintiff did not complain of any headaches. Id Dr. Macbeth noted that plaintiff was doing well with "hardly any pain" in his shoulder, although plaintiff complained of some pain in his left leg. Id. On October 31, 1991, Dr. Macbeth stated,
[Plaintiff] still has numbness and pain on his left leg. He has had an MRI, which showed a right para-central herniation, probably an inconsequential, and he has really had no pain in his right leg, although he does say that occasionally he has some right buttock pain now, nothing down to his foot. He really does not have any neurologic deficits in either leg, and he still has intact reflexes and muscle strength. His back hurts a little. (Tr. 69.)
Dr. Macbeth referred plaintiff to Robert White, M.D. for a physical exam on November 18, 1991. Dr. White described plaintiff as a "well developed and nourished athletic appearing young male in no acute or apparent distress . . . Cervical range of motion is mildly restricted on right lateral flexion and in Spurling's position which he reports is painful. Motor, sensory, reflex and cerebellar testing are normal except for reported hypalgesia in stocking fashion of the left lower extremity." (Tr. 104.) Dr. White formed the clinical impression of "Post concussive syndrome; rule out cervical disc herniation; lumbar sprain." (Tr. 105.)
On November 22, 1991 radiologist Larry Greer, M.D., performed a radiological consult. An x-ray of plaintiffs cervical spine was "normal", with no "abnormal movement with flexion and extension." (Tr. 74.) Dr. Greer also found plaintiffs MRI of the brain to be normal. (Tr. 75.) Three MRI scans of the cervical spine were also normal, with "no evidence of bulging or herniation." (Tr. 76.)
Thomas Boll, Ph.D., Professor of Psychology at the University of Alabama School of Medicine in Birmingham, conducted a neuropsychological examination of plaintiff on January 17. 1992. He described plaintiffs neurocognitive examination as "consistent with a lifelong pattern of functioning in the low average range with general fund of knowledge placing him at the 15th percentile." (Tr. 110.) Dr. Boll continued,
Sensory perceptual examination was abnormal in that he demonstrated bilateral astereognostic difficulties. Motor examination revealed marked bilateral weakness, slowness and bilateral but especially left upper extremity incoordination. While he complained of primarily right upper extremity difficulties, his examination was managed more poorly, consistently on the left. . . . Measures of higher cognitive process reveal a gentlemen who has a variety of difficulties in complex problem solving that are somewhat below expectation for a gentleman with his general intellectual processing. Memory, however, is managed exceptionally well and not suggestive of significant neurocognitive memory difficulties. Once again, general ability to demonstrate capacity to manage complex attention and to focus his attention over time was managed in a valid and consistent fashion. These findings suggest two things. First is that Mr. Johnson's difficulties in cognitive processing very probably relate to factors of lifelong limitation as well as some psychological stress. Secondly, his overall pattern is not consistent with that seen in individuals who have sustained significant neurological injury. (Tr. 111.)
Dr. Boll found personality difficulties consistent with individuals who have sustained a trauma. Id. He recommended immediate treatment to prevent worsening of plaintiffs condition. Id He concluded that Mr. Johnson "can be significantly helped and even more importantly can be kept from developing an increasing cycle of disability which is not uncommon when appropriate treatment is not immediately and aggressively available." (Tr. 112.)
On January 21, 1992, plaintiff underwent a bone scan performed by George E. Pittinos, M.D., a radiologist. Dr. Pittinos found no abnormal activity in the spine or lower left extremity (Tr. 98). Dr. Pittinos noted "activity in the right foot in the dorsal aspect" with no other abnormalities noted. Id. Also on that date, Robert Manolakas, M.D., a board-certified specialist in physical medicine and rehabilitation, completed a physical examination of the plaintiff. Dr. Manolakas wrote,
The patient claims he fell 55 feet but was unsure. He was vague as to the specifics of his injury including whether he lost consciousness or not. When asked his primary problem and why he is unable to return to work at this time he was not quite sure. Basically, it seems his right shoulder was the main problem. . . . The patient walks favoring his right lower extremity with a flexed left knee and flexed left hip so it is difficulty to assess the antigravity strength in his left foot or calf However, it must be noted that favoring of his right lower extremity was inconsistent and not noticed when he was walking in the parking lot and in the lobby. . . . I believe this patient shows multiple exaggerations and inconsistencies and there is no demonstrable evidence of either neurological injury or musculoskeletal injury. At most, there may be some soft tissue dysfunction in the area of the lumbosacral spine which may be due to chronic biomechanical abnormality and soft tissue shortening. I believe a short period of intensive rehabilitation. ., will help his function and return him to at least some type of gainful work in short order. If I continue to treat this patient, I will place him at maximum medical improvement very shortly and again return him to some kind of useful employment with or without vocational rehabilitation if he is at all motivated. (Tr. 100-101.)
Dr. Manolakas completed a general medical report for the Division of Disability Determination on May 8, 1992, noting that he had treated patient from January 21, 1992 to February 25, 1992 for lumbalgia. He marked that plaintiff would be capable of handling his own affairs. The record also contains a letter from Dr. Manolakas to Ms. Theresa Hamby, a senior rehabilitation coordinator with "CRR". In the letter, Dr. Manolakas stated,
Today I saw Michael Johnson in my office. I believe his clinical presentation is still marked by exaggeration and inconsistency. Nevertheless, he seems to claim some improvement in his cervicalgia and he has better range of motion and less tenderness. At this time, I will place him at maximum medical improvement. He has no permanent impairment. He will return to work without restriction. (Tr. 93.)
Charles H. Crump, M.D. completed a disability determination dated June 24, 1992, based on the medical records of Dr. Macbeth, Dr. Manolakas, and records from Springhill Memorial Hospital. (Tr. 30) Dr. Crump concluded that plaintiffs condition was not severe enough to be disabling. Id. Dr. Crump noted that there was no history of treatment, no history of significant head injury, and a brain scan was within normal limits. Id. Furthermore, there was no evidence in the record of significant loss of function due to nerve damage or muscle weakness. Id William H. Tucker, M.D., reached the same conclusion in an August 4, 1992, disability determination. (Tr. 36.) Dr. Tucker noted, "the evidence shows no severe inability to move about, nor serious muscles weakness, nor severe nerve damage which would keep you from performing your ordinary daily activities." Id.
At the request of the ALJ, Ken Lambert, Psy.D., completed a psychological consult on August 24, 1995. Dr. Lambert summarized,
This is a 37-year-old Black male who reports that he fell in 1991 and since then has had headaches and pain in his back, legs and shoulders. He also reports that he has dizzy spells and arthritis. Psychologically, there is no reason to believe that he has any significant disorder. His estimated level of intellectual functioning is at least in the average range and this is consistent with his educational level. Today he presents in no acute distress and with no difficulty noted in speech, hearing, vision or motor functioning. He would not need assistance if benefits were awarded. (Tr. 253.)
Dr. Lambert formed the diagnostic impression, "Mr. Johnson does not appear to meet the criteria for any psychological diagnosis at this time." Id. On the supplemental questionnaire as to residual functional capacity, Dr. Lambert found only slight restriction of activities of daily living, slight difficulty in maintaining social functioning, seldom deficiencies of concentration, persistence or pace, and slight episodes of deterioration or decompensation in work or work-like setting. (Tr. 254.) Dr. Lambert also found no limitations in plaintiffs ability to understand, carry out, and remember instructions in a work setting; no limitation in ability to respond appropriately to supervision in a work setting or to coworkers; no limitation in ability to perform simple tasks or repetitive tasks in a work setting. (Tr. 255.) Accordingly, Dr. Lambert found that there was no limitation expected to last 12 months or longer. Id.
At the ALJ's request for further medical evidence, Charles D. Terry, M.D., performed a physical exam on plaintiff on October 17, 1995. Dr. Terry wrote,
The patient is a well developed, slightly obese black male who has good muscle tone. He walks slowly and deliberately as though his feet hurt. He either refuses or doesn't want to walk on his toes or heels, and he says he can't because it leaves him unstable. He gets on the table without any difficulty. (Tr. 258.)
Of the lower extremities, Dr. Terry wrote, "Patient had no evidence of swelling. In trying to do range of motion with elevating his legs, he gyrated and acted like it was going to kill him; the results of the test were not very good." Id Dr. Terry summarized,
The patient is a well-developed, muscular male of 37 years. He complains bitterly when I tried to examine him everywhere he has all this pain. He does complain of tenderness all over his back, not just his lumbar spine, but everywhere he's touched, and he was difficult to examine because of his constant complaints of pain.
Dr. Terry completed a physical capacities evaluation in which he found that plaintiff could sit, stand, or walk, 6 hours in a workday; sit or stand a total of 7 hours per 8 hour workday, and walk a total of 6 hours per workday. (Tr. 261.) In his opinion, the plaintiff can lift up to 20 pounds continuously, 25 pounds frequently, and 50 pounds occasionally. Id. Dr. Terry found no limitations in plaintiffs fine manipulation, ability to grasp, and ability to push or pull arm controls. Id. Likewise, he found no limitation in plaintiffs ability to operate leg controls. Plaintiff can bend and crawl and reach frequently, squat and climb occasionally. Id. Dr. Terry found moderate limitations in activities involving unprotected heights, moving machinery, marked changes in temperature, driving automotive equipment, and exposure to dust, fumes, and gases. Id
The record also contains treatment notes from Southwest Alabama Health Services which show one appointment in January 1995, and five visits in 1997 for various complaints of pain. It appears from the notes that plaintiff was treated by Dr. Hucette Douyon. (Tr. 298.) In his first 1997 visit to the Health Services clinic, the plaintiff alleged pain in his right knee and left hip and stated that he "usually has left-sided pains due to an injury six years ago." Id. Plaintiff was given a two week supply of Day Pro 600mg, and prescribed to use warm heat on his right knee and to take Tylenol as needed. Id.
Daypro is a nonsteroidal anti-inflammatory drug indicated for acute and long-term use in the management of the signs and symptoms of osteoarthritis and rheumatoid arthritis. Physicians' Desk Reference (Montvale, New Jersey: Medical Economics Company, 1999) at 2952-53.
The plaintiff returned to the Southwest Alabama clinic on April 7, 1997, complaining of pain in his right knee, fluid retention in his feet, and a rash between his toes. The somewhat illegible notes again mention Day Pro, and plaintiff was given samples of medication for the rash. On May 18, 1997, plaintiff returned, complaining of back cramps induced by cutting his yard. (Tr. 303.) The pain continued on June 25, 1997, when the plaintiff presented with lower back pain that he stated had not improved despite taking his medication. The plaintiff was given Ultram 50mg for back pain. (Tr. 304.) Plaintiff listed his back pain medications on an August 18, 1997 form, including ibuprofen, Ultram, and Day Pro for back pain. (Tr. 305.)
Ultram is a centrally acting analgesic, which is indicated for the management of moderate to moderately severe pain. Physician's Desk Reference, supra note 3, at 2254-55.
D. Plaintiff's Argument
1. ESTABLISHING A PRIMA FACIE CASE OF DISABILITY
In this case, the ALJ determined that the plaintiff had not engaged in substantial gainful activity since the date of disability onset and plaintiff suffered from a severe musculoskeletal impairment. (Tr. 148-149.) However, the ALJ determined that plaintiffs impairment did not meet or equal an impairment under the listings, and he determined that plaintiff could not perform his past relevant work. (Tr. 149.) This case therefore proceeded to the fifth step in the sequential evaluation process, in which the Commissioner has the burden of proving that the plaintiff is capable of engaging in another kind of substantial gainful employment which exists in the national economy given age, education, and work history. Sryock, supra.The plaintiff argues that the he met his burden at the fifth step in the process by showing that he was incapable of performing jobs at the medium level of exertion. The plaintiff relies on the vocational expert's answers at the third hearing to several questions alleging severe nonexertional impairments to meet his burden at the fifth step. At the hearing during questioning by the ALJ, the VE testified that a person with the plaintiffs background who suffered pain that could not be alleviated by medication and which markedly interfered with thought processes could not perform work. (Tr. 211-212.) The VE also answered the ALJ's questions that a person of plaintiffs background with pain that did not markedly interfere with the person's abilities, and which could be managed through medication would be capable of returning to his past relevant work. (Tr. 212.)
The plaintiffs attorney then examined the ALJ. When asked whether a person with plaintiffs background who experienced moderately severe or marked pain intermittently for an hour a day would be capable of work, the VE concluded that such an individual would be capable of performing work. (Tr. 214.) Plaintiffs counsel then asked if a person with plaintiffs background who was unable to cope with the stress and pressure of ajob would be capable of working. (Tr. 215.) The VE concluded that such an individual would not be capable of performing work. Id The plaintiffs counsel then asked a series of questions based upon the opinion of the consulting neuropsychologist, Dr. Thomas Boll, recounted earlier. The VE stated that a person with astereognostic difficulties, bilateral weakness of the upper extremities, and upper left extremity incoordination would be limited in the ability to do fine and course manipulation, and that the more unskilled ajob is, the more the job relies on the ability to grasp and handle. (Tr. 216.) The VE further opined that a person with the plaintiffs background who had a limited ability to stand, walk, and sit, and who needed to lie down for extended periods during the day would not be capable of performing work. (Tr. 216.)
The undersigned concludes that the ALJ properly disregarded the VE's answers to the questions posed by the plaintiffs counsel, because those questions were based on non-exertional impairments which are not established in the record. The only mention in the entire record of anxiety is found in Dr. Boll's opinion in a generalized context and not as a diagnosis: plaintiff's profile is consistent with that of "individuals who have sustained a trauma and are now generally anxious, fearful, easily upset, irritated, and somewhat depressed." (Tr. 111.) Moreover, Dr. Lambert specifically found that the plaintiff "does not appear to meet the criteria for any psychological diagnosis at this time." Accordingly, the VE's testimony regarding an individual with plaintiffs background who was unable "to cope with the stress and pressure of a job" was in response to a hypothetical no supported by the evidence in the record.
The plaintiff also argues that the VE's testimony that astereognostic difficulties would impair plaintiffs ability of fine manipulation establishes a prima facie case of disability. But once again, the VE's testimony is in response to a hypothetical not supported by substantial evidence in the record. Outside of Dr. Boll's report, the record contains no testimonial or medical evidence that the plaintiff has incoordination or astereognostic difficulties. The plaintiff never alleged, in treatment or at hearings, that he had trouble recognizing object by feel. And as for astereognostic difficulties or incoordination, Dr. Manolakas concluded only three days after Dr. Boll's exam that plaintiff could return to work and stated, "there is no demonstrable evidence of either neurological injury or musculoskeletal injury." (Tr. 100.) Moreover, Dr. Crump found no significant loss of function due to nerve damage or muscle weakness, and Dr. Tucker concluded that "the evidence shows no severe inability to move about, nor serious muscle weakness, nor severe nerve damage which would keep you from performing your ordinary daily activities." (Tr. 30, 36.) When the plaintiff reported to Dr. Lambert for examination, Dr. Lambert found no difficulty in motor functioning. (Tr. 253.) Also, Dr. Boll's statements, as interpreted, are inconsistent with the physical capacities evaluation performed by. Dr. Terry, who found no limitations in plaintiffs fine manipulation or his ability push or pull arm controls or grasp. (Tr. 261.)
Even Dr. Boll concluded that the plaintiffs "overall pattern is not consistent with that seen in individuals who have sustained significant neurological injury". (Tr. 111).
Astereognosis is defined as "The inability of a person to recognize familiar objects through the sense of touch, without looking; the inability to make out or comprehend the shape of an object by feeling it, without looking." Schmidt, J.E., Attorneys' Dictionary of Medicine (New York: Matthew Bender Co., 1999).
"The law is clear that, although the opinion of an examining physician is generally entitled to more weight than the opinion of a non-examining physician, the ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion." Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985) (citations omitted). The opinion of a one-time examiner is not entitled to deference. McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987); Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986). In this case, the opinion of Dr. Boll, a one-time examiner, is inconsistent with the record and with the conclusions of treating, examining, and other consultative physicians and psychologists. Therefore, the ALJ properly disregarded Dr. Boll's statements when he concluded, based on the vocational expert testimony, that the plaintiff was capable of performing a number of jobs at the medium level of exertion in the national economy. (Tr. 149-50, finding 9.) See Hudson v. Heckler, 755 F.2d 781, 784 (11th Cir. 1985); Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983).
2. DETERMINATION ON MEDICAL-VOCATIONAL GUIDELINES
The plaintiffs second issue also focuses on the fifth step in the sequential evaluation process, in which the ALJ concluded that Rule 203.25 mandated the conclusion that the plaintiff is not disabled. (Doc. 12, page 10.) Once again, the plaintiff argues that Dr. Boll's one-time examination and subsequent opinion establish significant non-exertional impairments. (Doc. 12.) But for the reasons discussed earlier in this report and recommendation, the ALJ properly concluded that Dr. Boll's statements were inconsistent with the record and therefore not a basis to establish non-exertional impairments.
In addition to Dr. Boll's findings, the plaintiff also alleged pain, which is a non-exertional impairment that must be considered. (Tr. 203, 205.) Walker v. Bowen, 826 F.2d 996, 1003 (11th Cir. 1987). However, before allegations of pain are to be considered, the regulations require a plaintiff to produce objective medical evidence of a condition that could reasonably be expected to produce the level of pain alleged. 20 C.F.R. § 404.1529, 416.929. As explained by the Eleventh Circuit, the standard for evaluating plaintiffs subjective complaints of pain requires
(1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain.Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991), citing Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986). The Eleventh Circuit has also held that the determination of whether objective medical impairments could reasonably be expected to produce the pain was a factual question to be made by the Secretary and, therefore, "subject only to limited review in the courts to ensure that the finding is supported by substantial evidence." Hand v. Heckler, 761 F.2d 1545, 1549 (11th Cir.), vacated for rehearing en banc, 774 F.2d 428 (1985), reinstated sub nom. Hand v. Bowen, 793 F.2d 275 (11th Cir. 1986). Finally, the plaintiffs subjective allegations of pain (pain testimony) can be discredited but the reasons must be clearly articulated by the ALJ. Foote v. Chater 67 F.3d 1553, 1561-62 (11th Cir. 1995).
In this case, the ALJ cited the relevant caselaw in the body of the opinion as well as in Finding number four. (Tr. 146-49.) The ALJ concluded that the plaintiffs pain testimony lacked credibility and was not supported by the medical evidence. (Tr. 146-147.) The ALJ stated that the medical evidence showed plaintiffs pain is "not severe, it can be controlled by medication, and that the pain does not markedly interfere with thought processes in a work setting. (Tr. 148.) The ALJ also noted the only restriction placed on plaintiffs residual functional capacity was by a consulting physician who limited plaintiff to medium work, and there was no indication plaintiffs pain was severe. (Tr. 149, finding 4.) Early medical evaluations after the 1991 accident established some degree of pain (Tr. 69, 71. 104). But five months after the accident, Dr. Manolakas noted that plaintiffs limp in the right leg was "inconsistent and not noticed when he was walking in the parking lot and in the lobby." (Tr. 100-101.) Dr. Manolakas found the plaintiff showed "multiple exaggerations and inconsistencies, and there is no demonstrable evidence of either neurological injury or musculoskeletal injury." Dr. Terry also wrote skeptically regarding plaintiffs alleged pain. (Tr. 257-259). Dr. Terry completed a physical capacities evaluation in which he determined that plaintiff could sit, stand, or walk 6 hours at one time in a workday, sit or stand a total of 7 hours per 8-hour work day, and walk a total of 6 hours per workday. (Tr. 261). Also, Dr. Terry concluded plaintiff could lift up to 20 pounds continuously, 25 pounds frequently, and 50 pounds occasionally. Id. Dr. Terry's evaluation does not suggest a person whose pain is disabling.
The objective medical evidence of record regarding plaintiffs pain and treatment is insufficient to support plaintiffs assertion (and hypothetical to the VE) that any pain can not be managed with medication or that it markedly interferes with the plaintiffs ability to work. Therefore, under the relevant caselaw and based upon the facts reiterated herein, the undersigned concludes that there is substantial evidence to support the ALJ's determination that plaintiffs pain was not severe or significant, and that plaintiffs pain would not markedly interfere with his ability to perform work. (Tr. 216, finding 4.)
With no significant non-exertional impairments established, the ALJ turned to the Medical Vocational Guidelines to determine whether plaintiff was disabled. Foote v. Chater, 67 F.3d 1553, 1559 (llth Cir. 1995). The ALJ considered the plaintiffs residual functional capacity, age, education, functional illiteracy, and work experience, and he properly concluded that the plaintiff must be found "not disabled" under Rule 203.25. The ALJ also cited the testimony of the vocational expert that there are "still significant numbers of medium jobs available in the national economy with the claimant's restriction to occasional squatting and climbing." (Tr. 150, Finding 9.) The undersigned concludes, therefore, that the Defendant satisfied its burden at the fifth step in the sequential evaluation process.
3. SUBSTANTIAL EVIDENCE
The plaintiffs third issue is
Is the decision of the commissioner of Social Security denying the plaintiffs claim of disability under the Social Security Act supported by substantial evidence and in accordance with applicable law?
(Doc. 12, page 4.) Under this heading, the plaintiff has briefed the standard of review and cited authority for the same. After citing this authority, the briefed issue includes only the following single sentence: "In Mrs. Hallman's case, substantial evidence does not support the decision denying disability benefits and improper legal standards were applied." (Doc. 12, page 5.)
The Court has outlined the standard of review that controls in this report and recommendation in Part IV, A, supra. As to plaintiffs statement of this issue, the undersigned has already explained in its treatment of the first and second issues why the opinion of the ALJ in this case was supported by substantial evidence and in accordance with applicable law.
VI. CONCLUSION
For the reasons set forth, and upon consideration of the administrative record, the hearing decision, and the memoranda of the parties, it is recommended that the decision of the Commissioner of Social Security be affirmed.
The attached sheet contains important information regarding objections to this report and recommendation.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. OBJECTION . Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636 (b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) ( en banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636 (b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable where proceedings tape recorded) . Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.