Opinion
Civil Action No. 98-1077-RV-L.
April 7, 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 the administrative record, the memoranda of the parties, and oral arguments, it is recommended that the decision of the Commissioner be affirmed.
I. ISSUES ON APPEAL
The plaintiff presents one issue on appeal:
1. Whether the ALJ erred in finding that [plaintiff] can perform the jobs of telephone answering service operator and telemarketer?
II. BACKGROUND FACTS
The plaintiff was born on August 28, 1954, and was 42 years old at the time of the hearing decision. (Tr. 24, 83.) Plaintiff completed the ninth grade. (Tr. 63.) Plaintiff has past relevant work experience as a health care worker, gas station cashier and attendant, driver, and motel desk clerk. (Tr. 12-21, 131, 141.) She alleges disability since October 4, 1995 due to pain, arthritis, headaches, chronic diarrhea, and depression. (Tr. 127, 148.)
Plaintiff filed her application for supplemental security income, a period of disability, and disability insurance benefits on December 4, 1995, with a protective filing date of November 8, 1995. (Tr. 86.) These applications were denied initially and upon reconsideration. (Tr. 90-101, 104, 108.) A first hearing was convened on January 16, 1997, and postponed for plaintiff to obtain counsel. (Tr. 46, 53.) When the second hearing was convened on April 22, 1997, plaintiff informed the ALJ that she did not want legal representation. (Tr. 62.) A vocational expert testified at the hearing. (Tr. 76-81.) The ALJ issued a decision denying plaintiffs claim on June 16, 1997. (Tr. 23.) The Appeals Council denied review on September 25, 1998. (Tr. 3.) Plaintiff filed the present action on October 29, 1998. (Doc. 1.)
III. ALJ FINDINGS
The ALJ found as follows:
1. The claimant has not engaged in substantial gainful activity since October 4, 1995, her alleged onset of disability.
2. The claimant has met the special disability insured status requirements under Title II of the Act on October 4, 1995, her alleged onset of disability, and she will continue to meet such requirements through September 30, 2000.
3. The medical evidence establishes that the claimant has impairments which impose more than slight or minimal restrictions on her ability to perform some basic work-related activities. However, the claimant's impairments, considered both individually and in combination, do not meet or equal any criteria set forth in any Listing of Impairment in Appendix 1, Subpart P, Regulations No. 4, over a continuous period of twelve months.
4. The claimant's allegations of debilitating symptomatology cannot be considered credible because of the significant disparity existing between the medical evidence and the claimant's alleged symptoms, the lack of an opinion supportive of disability by an physician (and, in fact, suggestions that the claimant has the capacity to perform sedentary work or mild to moderate work activities), the lack of persistent and regular treatment for continuous complaints of symptoms which could have been expected of an individual with functionally debilitating impairments, the documented lack of use of even conservative treatments or medications on a regular basis to alleviate and control symptoms, and the absence of any documented persistent reliable, manifestations of a disabling loss of functional capacity resulting from such symptoms.
5. The claimant has the residual functional capacity to perform the exertional and non-exertional requirements of work except for those limitations described in the hypothetical.
6. The claimant is unable to perform any of her past relevant work.
8. Based on the testimony of the vocational expert, the claimant has acquired work skills which she demonstrated in the performance of past work and which, considering her residual functional capacity, can be applied to meet the requirements of other work.
9. In order to determine whether or not the claimant could perform other work existing in the national economy, considering her age, education, past work experience, and remaining physical and mental capabilities, I posed the aforementioned hypothetical question #1 to the vocational expert. Based on the hypothetical question posed by me to a vocational expert and his testimony, there are jobs which exist in significant numbers in the national economy and in this region which the claimant can perform. The vocational expert gave as examples of such jobs: (1) telephone answering operator, and (2) telemarketer.
10. Based upon the entire record, including the testimony of a vocational expert, the claimant was not under a disability as defined in the Social Security Act, at any time through the date of this decision." (Tr. 22-23.)
Finding No. 5 refers to a hypothetical question posed to the vocation expert at the hearing in which the ALJ enumerated plaintiffs residual functional capacity. He determined that plaintiff had the residual functional capacity to sit for four hours at one time, to sit for six hours during an eight hour day, to stand and walk for thirty minutes at a time, and that plaintiff can stand for two hours in an eight hour day and walk for one hour in an eight hour day. Further, the ALJ determined that plaintiff can occasionally lift six to ten pounds, can continuously lift between zero and five pounds, and may occasionally be limited in the ability to bend and squat. He also found that plaintiff cannot crawl, but she is able to climb and reach frequently. He found that plaintiff is totally restricted with respect to unprotected heights, moving machinery, exposure to marked changes to temperature and humidity, driving automotive equipment, and being exposed to dust, fumes, and gases. (Tr. 20.)
The ALJ also completed a Psychiatric Review Technique Form in which he found that plaintiff suffered from 12.04 affective disorders and 12.07 somatoform disorders. Specifically, the ALJ found that plaintiff suffered from depression and multiple somatic problems. (Tr. 24, 26.) Under the "`B' Criteria," the ALJ evaluated plaintiffs functional limitation and degree of limitation. The ALJ found that plaintiff had slight difficulties in maintaining social functioning, and that she often experienced deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner. (Tr. 26.) In short, the ALJ found that plaintiff had no marked degrees of limitation and no functional limitations at the listing level. (Tr. 27.)
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, however, 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 she 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 she is disabled. See 20 C.F.R. § 416.920. At the first step, the claimant must prove that she has not engaged in substantial gainful activity. At the second step, she must prove that she has a severe impairment or combination of impairments. If, at the third step, she proves that her impairment or combination of impairments meets or equals a listed impairment, she is automatically found disabled regardless of age, education, or work experience. If she cannot prevail at the third step, she must proceed to the fourth step where she must prove that she is unable to perform her 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 she 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
On January 30, 1996, plaintiff underwent a mental status examination by Donald W. Blanton, Ph.D., of the UAB Selma Family Medicine Center. (Tr. 162.) After conducting a clinical interview, Dr. Blanton formed the impression that plaintiff suffers from "Depression due to alcohol/drug use, and multiple somatic problems; rule out panic disorder; history of alcohol and drug abuse." (Tr. 163.)
On February 20, 1996, Timothy Jones, M.D., an internist, consultatively examined plaintiff for DDS. (Tr. 164.) After a physical exam, Dr. Jones noted plaintiff suffered from musculoskeletal pain, chronic diarrheal illness of 3-4 years duration, history of migraine headaches, hiatal hernia with symptoms of GE reflux, obesity, atypical chest pain, and decreased visual acuity. (Tr. 166.) He concluded based upon his medical findings that "the [plaintiff] could probably do some sedentary type work at the present time but above mentioned problems do need to be evaluated, and she could possibly be rehabilitated to be more functional in the future." ( Id.)
Patricia Hinton, Ph.D., a psychologist, consulted for DDS on plaintiffs case on February 29, 1996. Based on the evidence, Dr. Hinton found that Plaintiffs mental limitations were moderate. Specifically, plaintiff had moderate limitations in the ability to understand and remember detailed instructions; moderately limited ability to carry out detailed instructions, and moderately limited ability to maintain attention and concentration for extended periods. (Tr. 184.) Dr. Hinton concluded that plaintiff "can understand, remember, and carry out very short and simple instructions and that plaintiff had "no significant limitations" in social interaction or adaptation. (Tr. 186.) In addition to the conclusions in the mental residual functional capacity assessment, Dr. Hinton completed a psychiatric Review Technique Form. Although Dr. Hinton considered somatoform disorders and substance addiction disorders, she only found affective and anxiety related disorders present in plaintiffs case. (Tr. 167.) Dr. Hinton did not find one of the listed affective disorders, but instead found a disturbance of mood based upon plaintiffs "depression due to alcohol/drug abuse and multiple somatic problems." (Tr. 170.) Although Dr. Hinton noted plaintiff "appears to be having some rather severe anxiety attacks," she ruled out panic disorder. (Tr. 171.) In rating plaintiffs impairments under the "B" criteria of the listings, Dr. Hinton concluded that plaintiff had slight restriction of activities of daily living, slight difficulties in maintaining social functioning, and often deficiencies in concentration, persistence or pace. (Tr. 174.)
Robert Harris, M.D. also completed a Residual Functional Capacity Assessment in the plaintiff's case on February 29, 1996. Under "exertional limitations," Dr. Harris found that plaintiff could occasionally lift or carry 20 pounds and could frequently carry 10 pounds; plaintiff could also stand, walk, or sit, for a total of about 6 hours in an 8 hour day. (Tr. 177.) Dr. Harris also found that plaintiff had no limitations in her ability to push and/or pull (including operation of hand or foot controls). ( Id.) Dr. Harris found no postural limitations, no visual limitations, no communicative limitations, and no environmental limitations. (Tr. 179-180.)
Peter S. Bertucci, M.D., with DDS, consulted on the case on April 4, 1996. Dr. Bertucci completed a Mental Residual Functional Capacity Assessment in which he evaluated plaintiffs physical limitations. (Tr. 188.) Dr. Bertucci concluded that plaintiff could occasionally lift or carry 20 pounds; frequently lift or carry 10 pounds, stand and/or walk about 6 hours in an 8 hour workday, sit (with normal breaks) for about 6 hours in an 8 hour workday, and no limitations on plaintiffs ability to push and pull (including operation of hand and foot controls). (Tr. 189.) Dr. Bertucci found that plaintiff could never climb ropes or ladders. (Tr. 190.) Otherwise, he concluded that plaintiff could occasionally climb ramps or stairs, and could occasionally balance, stoop, kneel, crouch, or crawl. Dr. Bertucci found no manipulative, visual, communicative, or environmental limitations. Finally, Dr. Bertucci concluded that "the objective evidence supports light residual functional capacity." (Tr. 194.)
Ellen Eno, Ph.D. a psychologist with DDS, consulted on plaintiffs case and completed a mental functional capacity assessment, and a psychiatric review technique form on April 5, 1996. IN the functional capacity assessment, Dr. Eno found only three restrictions among 20 criteria: moderate limitation in ability to understand and remember detailed instructions, moderately limited ability to carry out detailed instructions, and moderately limited ability to maintain attention and concentration for extended periods. (Tr. 196.) In the PRTF under 12.04 affective disorders, Dr. Eno marked "other" and specified a "diagnosis of depression." Dr. Eno also found that plaintiff had a 12.06 anxiety disorder specified as "rule out panic disorder." Under section 12.07, Dr. Eno noted "multiple somatic problems." Dr. Eno rated in impairment severity (the "B" Criteria of the Listings) as slight restrictions of activities of daily living, slight difficulties in maintaining social functioning, often deficiencies of concentration, persistence or pace resulting in failure to complete tasks, insufficient evidence to find episodes of deterioration or decompensation in work or work-like settings, and no symptoms resulting in complete inability to function independently outside the area of one's home. (Tr. 205-208.)
Mohammed A. Nayeem consultatively examined plaintiff on February 7, 1997. He diagnosed gross obesity, with hyperlipemia; fibromyalgia, generalized; multiple somatic complaints of pains in soft tissue and bone and joints all over, due to fibromyalgia; ulcerative colitis with episodes of diarrhea and bloody stools, multiple joint pains as a result of arthritis, usually associated with ulcerative colitis; chronic smoking; status post-hepatitis C with test still positive; chronic fatigue syndrome as a result of hepatitis C, fibromyalgia, and arthritis. (Tr. 221.) He concluded that plaintiff could perform mild to moderate activities, but ruled out strenuous activities. (Tr. 222.) Dr. Nayeem completed a physical capacities evaluation in which he determined that plaintiff could sit four hours at a time; stand or walk 30 minutes at one time, sit six hours in an eight hour day, stand two hours in an eight hour day, and walk one hour in an eight hour day. (Tr. 227.) Dr. Nayeem also concluded that plaintiff can lift or carry up to 5 pounds continuously and 6-10 pounds occasionally (Tr. 227). Dr. Nayeem found no limitations in plaintiffs abilities of simple grasping, pushing and pulling arm controls, fine manipulation, or pushing and pulling leg controls. Id. He concluded that plaintiff can occasionally bend or squat, and can frequently climb or reach. Id. Dr. Nayeem found plaintiff completely restricted from activities involving unprotected heights, moving machinery, exposure to marked changes in temperature and humidity, driving automotive equipment, or exposure to dust, fumes, and gases. Id.
D. Plaintiff's Argument
The plaintiff argues that the ALJ erred by finding that plaintiff can perform the jobs of telephone answering service operator and telemarketer. Specifically, the plaintiff argues that the ALJ erred because the plaintiff is only able to perform unskilled work and these jobs are semiskilled. To support her argument that she is only capable of unskilled work, plaintiff cites the comment of Disability Examiner D. Bertagnolli, in her "Report of Contact" dated April 3, 1996. (Tr. 120.) The examiner stated, "Claimant is restricted to light unskilled work." Id. The plaintiff also points out that the Dictionary of Occupational Titles classifies both jobs offered by the vocational expert as having a Specific Vocational Preparation of three, which makes them semi-skilled. ( Dictionary of Occupational Titles, Fourth Ed., 1991.) Appendix C of the DOT explains that jobs with SVP-3 are such that a typical worker would take between one month and three to learn the job, and that such time could encompass on the job training. (Doc. 8, attachment.)
The ALJ concluded that plaintiff was not capable of performing her past relevant work (Tr. 23). Therefore, the Commissioner had the burden to prove that plaintiff is capable of engaging in another kind of substantial gainful employment which exists in the national economy given plaintiffs age, education, and work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985.) The ALJ, based on the record and the testimony of the vocational expert, concluded that plaintiff has "acquired work skills which she demonstrated in the performance of past work and which, considering her residual functional capacity, can be applied to meet the requirements of other work" and that there was other work in the national economy that plaintiff could perform. (Tr. 23). This conclusion was supported by substantial evidence.
The record, contains two vocational worksheets. One, which plaintiff relies upon, states that plaintiff is limited to unskilled work and that her past work was unskilled. (T. 120). The second vocational worksheet is of disability examiner Carolyn Cramer, and is dated February 29, 1996. (Tr. 121.) Ms. Cramer classified plaintiffs past work as both unskilled and semi-skilled. Id.
At the hearing the ALJ called a vocational expert to determine whether there were jobs available for a person with plaintiffs limitations and past work experience. The ALJ's hypothetical to the vocational expert assumed a person of plaintiffs age, education, work experience, the physical limitations as described by Dr. Nayeem. and the mental limitations reflected on the RFC assessments completed by the DDS psychological consultants. (Tr. 77-78) The vocational expert testified that such a person could perform the desk clerk functions of plaintiffs past work at a motel. (T. 78) He also gave examples of other jobs such a person could do as telephone answering service operator and telemarketer. (Tr. 78-79). The two jobs that the vocational expert cited are semi-skilled jobs. However, the descriptions in the DOT show both jobs are sedentary and do not entail physical or mental activities beyond Plaintiffs RFC. (Dictionary of Occupational Titles, 299.357-014 and 235.662-026). Prior to giving his opinion the vocational expert reviewed plaintiffs work record, and questioned plaintiff about her work at an auto auction. (Tr. 76-77.) Hence, the vocational expert's answers were based upon his familiarity with plaintiffs actual work history.
The plaintiff does not object to the physical and mental limitations posed by the ALJ to the vocational expert, instead the plaintiff argues that the vocational expert erred in his assessment of her skill level.
In sum, substantial evidence in the record supports the ALJ's conclusion that plaintiff is capable of the sedentary, light, semi-skilled work of telephone answering service operator or telemarketer. Plaintiff has not proven that she is unable to perform those jobs, and therefore has failed at the fifth step in the sequential evaluation process to establish disability. 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. 1984).
V. 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.