Opinion
Civil Action No: 3:99CV73-A
April 3, 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 applications of plaintiff Annette M. King for disability insurance benefits (DIB) under Title II, as well as supplemental security income (SSI) benefits under Title XVI. 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 July 25, 1963, and attended school until the eleventh grade. She subsequently obtained her GED. Plaintiff's relevant employment experience was as a cook and cashier in the fast-food service industry. The plaintiff filed her applications for DIB and for SSI benefits on or about January 10, 1996, alleging a disability onset date of October 12, 1994. Plaintiff contends that she is disabled due to back pain after having been kicked in the back by the manager of the Burger King restaurant where she worked, as well as by dysthymia. Plaintiff's requests for benefits were denied at the initial and reconsideration stages, and she sought timely review from an administrative law judge (ALJ). In an opinion dated October 21, 1997, the ALJ found plaintiff failed to carry her burden to prove that she could not perform the exertional demands of her past relevant work, and he denied the request for benefits. Plaintiff sought unsuccessfully to have the Appeals Council review the ALJ's decision, and she timely filed suit in this court. The case is now ripe for review.
Dysthymia is defined as "a mood disorder characterized by depressed feeling (sad, blue, low, down in the dumps) and loss of interest or pleasure in one's usual activities and in which the associated symptoms have persisted for more than two years but are not severe enough to meet the criteria for major depression." Dorland's Illustrated Medical Dictionary 519 (28th ed. 1994).
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 her burden at each of the first four levels then the burden shifts to the Commissioner at step five. First, plaintiff must prove she is not currently engaged in substantial gainful activity. Second, the plaintiff must prove her impairment is "severe" in that it "significantly limits her physical or mental ability to do basic work activities. . . ." At step three the ALJ must conclude the plaintiff is disabled if she proves that her 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 she is incapable of meeting the physical and mental demands of her 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 she 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 she cannot, in fact, perform that work.
See 20 C.F.R. § 404.1520, 416.920 (1999).
Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991).
20 C.F.R. § 404.1520(b), 416.920(b) (1999).
20 C.F.R. § 404.1520(b), 416.920(c) (1999).
20 C.F.R. § 404.1520(d), 416.920(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), 416.920(e) (1999).
20 C.F.R. § 404.1520(f)(1), 416.920(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 dysthymia and "history of lower back pain" were severe, but he opined the impairments were not the same as or equivalent to a listed impairment. (R. at 14-15, 19.) Ultimately, the case was decided at step four, when the ALJ concluded that plaintiff's condition, though "severe," would not preclude her from performing her past relevant work. (R. at 18-19.) 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 urges the court to find that the ALJ erred in concluding plaintiff is not disabled because she can perform the exertional requirements of her past relevant work. Based upon the medical evidence, the ALJ concluded that plaintiff's residual functional capacity allowed her to perform the requirements of light work, which the Social Security regulations state "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds [and] requires a good deal of walking or standing. . . ." 20 C.F.R. § 404.1567(b), 416.927(b) (1999). Specifically, the ALJ concluded plaintiff could lift no more than twenty pounds occasionally and ten pounds on a regular basis, and her ability to perform light work was diminished by non-exertional limitations, including merely "fair" ability to follow complex instructions, deal with work stress and behave in an emotionally stable manner, in addition to being limited to occasional climbing, balancing, stooping, kneeling and crawling. (R. at 17-18.) The ALJ then stated that plaintiff's prior work as a cashier, as it was performed in the national economy, had required her to lift up to twenty pounds, perform simple calculations, follow simple instructions and interact with the public on a regular basis, (R. at 18); thus, the ALJ concluded plaintiff could return to her past relevant work and stopped the sequential evaluation process at step four.
Plaintiff makes three arguments to this court. Taking plaintiff's last argument first, she contends the ALJ failed to fulfill his duty to develop a complete record prior to issuing his decision. Indeed, the ALJ does have a duty "to develop the record fully and fairly to ensure that his decision is an informed decision based on sufficient facts. . . ." Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996) (citation omitted). This court will reverse an ALJ's decision "as not supported by substantial evidence if the claimant shows (1) that the ALJ failed to fulfill his duty to adequately develop the record, and (2) the claimant was prejudiced thereby." Id. In this case, the dearth of objective medical evidence to support plaintiff's claim of disability was readily apparent, and plaintiff underwent four consultative examinations. Nevertheless, the burden is the plaintiff's to produce evidence of her disability, and she failed to carry that burden in this case.
"To establish prejudice, a claimant must show that he `could and would have adduced evidence that might have altered the result.'" Id. (quoting Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984).
Plaintiff claims that "key information is missing from the record" regarding her alleged mental impairment. The ALJ ordered a mental consultative examination by Dr. H. R. Nail on July 3, 1997. (R. at 118-123.) Dr. Nail indicated plaintiff had a history of early childhood sexual abuse, including being raped and beaten repeatedly by her father. (R. at 118.) Plaintiff told Dr. Nail that she "used to go to a mental health clinic in Oxford," (R. at 118), and plaintiff seizes on this statement in Nail's report and claims the record was insufficient without any records from the mental health clinic. However, apparently neither plaintiff nor her attorney complained to the ALJ about any difficulty in obtaining records from this source. Although the avenue was available, plaintiff's counsel never actually sought help from the Social Security Administration in obtaining the records, nor did he attempt to have them subpoenaed. 20 C.F.R. § 404.950(d), 416.1450(d) (1999).
Plaintiff also claims the ALJ should have obtained the records of neurologist Dr. Windham, who appears to have treated plaintiff according to the records of Dr. Richard Glasgow. (R. at 100.) Dr. Glasgow's records do indicate plaintiff asked to see Dr. Windham, (R. at 101), who apparently referred plaintiff to a rehabilitation clinic for her back condition. (R. at 100.) Nevertheless, plaintiff has not shown she was prejudiced in any way by the ALJ's failure to elicit records from Dr. Windham or the mental health clinic. Brock, 84 F.3d at 728. As defendant's brief points out, Dr. Glasgow's report suggests plaintiff saw Dr. Windham on only one occasion. Even if Dr. Windham had opined that plaintiff was disabled, his opinion would likely be discounted as the opinion of a "one-shot" physician that is contrary to all the other evidence of record, including the records of plaintiff's treating physician, Dr. Glasgow. See Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987) (citation omitted).
To the extent that plaintiff claims more testing was required, the court finds no merit to that position. If the evidence is not "sufficient medical evidence about your impairment for [the Secretary] to determine whether [claimant] is disabled," 20 C.F.R. § 404.1517, 416.917 (1999), the ALJ does have the discretion to order a consultative examination at government expense. Jones v. Bowen, 829 F.2d 524, 526 (5th Cir. 1987); see Diaz v. Secretary, 898 F.2d 774, 778 (10th Cir. 1990) (holding "Secretary has broad latitude in ordering a consultative examination"). The ALJ is not required to do so unless the plaintiff has carried his burden of raising "the requisite suspicion" that the examination is "necessary" to discharge the ALJ's responsibility to conduct a full inquiry into the facts. Haywood v. Sullivan, 888 F.2d 1463, 1472 (5th Cir. 1989) (quoting Pearson v. Bowen, 866 F.2d 809, 812 (5th Cir. 1989)). As stated above, the plaintiff underwent four consultative examinations in this case, none of which indicated she was under any disability. Plaintiff failed to raise the "requisite suspicion" that any additional testing was necessary in order for the ALJ to reach a decision based upon substantial evidence.
Plaintiff also claims that the ALJ erred in rejecting plaintiff's subjective complaints of disabling pain. "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)).
What is consistent throughout the medical records in this case is that no physician indicated plaintiff's condition was disabling. Records from Baptist Memorial Hospital — North Mississippi indicated plaintiff suffered a back contusion, but an x-ray of her lumbar spine was completely normal. (R. at 97-98.) Dr. Glasgow opined plaintiff's back contusion was "resolved," and he released her to work in 1993. (R. at 101.) Although plaintiff later returned to Dr. Glasgow complaining of back pain, Dr. Spencer stated plaintiff's subjective complaints of back problems were "not documented" by his physical examination, and again plaintiff's lumbar x-ray was normal in 1996. (R. at 102-05.) Dr. Lowe's orthopedic consultative examination in 1997 indicated plaintiff had full range of motion in her back and normal neurological findings, and x-rays were again normal. (R. at 107.) Lowe found plaintiff's condition had no effect on her ability to lift objects and only occasionally limited her ability to perform postural activities, such as climbing, balancing, stooping and crawling. (R. at 111-13.) Dr. Arnold's consultative exam revealed absolutely no impairment-related physical limitations. (R. at 115.) Finally, Dr. Nail concluded plaintiff was "somewhat depressed," (R. at 119), and he diagnosed mild depression, but he found plaintiff could perform tasks, work, with others and maintain concentration, persistence and pace. (R. at 120.) 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). The ALJ was warranted in discounting plaintiff's subjective testimony in light of her relatively infrequent treatment for the condition and the general lack of objective medical evidence to corroborate the degree of pain alleged. Given the ALJ's consideration of factors contained in 20 C.F.R. § 404.1529, 416.929 (1999), and the state of the evidence of record, the court concludes that substantial evidence existed for his decision that plaintiff's testimony was not credible to the extent that she alleged pain that was disabling.
Plaintiff also claims the ALJ's decision is not supported by substantial evidence because he relied upon the testimony of a vocational expert who was not aware of all of plaintiff's impairments when he testified. Specifically, the vocational expert did not have the benefit of reviewing Dr. Nail's mental consultative examination of the plaintiff or Dr. Windham's records. This case was decided at step four of the sequential evaluation process, however, and expert testimony is not required unless the process proceeds to step five. Shepherd v. Apfel, NO. CIV. A. 99-0717, 1999 WL 1277530, at *4 (E.D.La. Dec. 30, 1999). Nevertheless, the expert testified that, on the basis of plaintiff's testimony and the evidence available at the time of the hearing, plaintiff would be able to return to her past relevant work as a cashier. (R. at 34.) Plaintiff does not challenge the ALJ's conclusion that the job of cashier, as it is performed in the national economy, requires the ability to lift up to twenty pounds, perform simple calculations, follow simple instructions and interact with the public on a regular basis. (R. at 18.) Considering the evidence described above, a reasonable person could conclude the ALJ's findings about plaintiff's residual functional capacity were supported by the substantial evidence, as was his decision that plaintiff could return to her past relevant work.
Plaintiff has failed to convince the court that the ALJ committed reversible error in this case. Plaintiff's testimony was less than credible because it was not consistent with the objective medical records. The ALJ fulfilled his duty to fully develop the record, but there was no evidence of disability. As such, the decision of the Commissioner that plaintiff can return to her past relevant work as a cashier must be affirmed. 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.