Opinion
Civil Action No. 00-0195-CB-S
May 4, 2001
REPORT AND RECOMMENDATION
The plaintiff in this action seeks judicial review of an adverse ruling denying her claim for disability insurance benefits and supplemental security income. The administrative hearings were conducted on June 10 and October 21, 1997, and the ALJ's decision was handed down on June 2, 1998. The Appeals Council denied review on January 11, 2000, and this action followed.
The action has been referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). The undersigned has concluded that oral argument is unnecessary to resolve this matter. See Local Rule 7-3. Upon careful consideration of the administrative record and the parties' arguments as raised in their memoranda, the undersigned respectfully recommends that the decision of the Commissioner be affirmed.
I. Issue on Appeal.
The plaintiff presents a single issue on appeal:
(1) whether the ALJ improperly failed to obtain supplemental vocational expert testimony before concluding the plaintiff could return to her past relevant work.
II. Background Facts.
The plaintiff was 37 years old at the time of the ALJ's decision. She has eleven years education and past relevant work experience, inter alia, as a cook and as a bartender. (Tr. 51-53, 57). Her administrative filings allege an onset date of March 16, 1995 and an impairment of "nerves." (Tr. 73, 108, 155).
The ALJ found the plaintiff has a severe impairment or combination of impairments, including migraine headaches, but concluded she retains the residual functional capacity to perform her past relevant work as a cook or bartender. (Tr. 20-21).
III. Discussion.
The ALJ considered medical records from a variety of sources and concluded the plaintiff does not experience any mental health symptomology or resulting functional limitations. (Tr. 19). However, he also accepted the Physical Capacities Evaluation ("PCE") of Dr. Crotwell, (Tr. 235), as accurately stating the plaintiff's physical functional limitations from her alleged back, shoulder and leg pain. (Tr. 19).
The ALJ asked the vocational expert whether an individual with these limitations, and also with headaches, depression, drowsiness and moderate reduction in concentration, could engage in substantial gainful activity. The vocational expert testified that such a person could return to her past relevant work as a cook or bartender. (Tr. 68-70). The plaintiff does not question that, based on the evidence before the ALJ at the hearing and the findings he made concerning such evidence (which are uncontested), the vocational expert's testimony supports the ALJ's finding that she can return to her past relevant work.
The plaintiff's only challenge on this appeal is to the ALJ's failure to take additional vocational testimony after a post-hearing consultative examination. After the hearing, the ALJ had the plaintiff undergo an examination by Dr. Yager, a neurologist, to consider her complaints of headaches. (Tr. 71). Dr. Yager completed a PCE that was no more restrictive than Dr. Crotwell's in any respect relevant to the plaintiffs ability to perform light work. (Tr. 235). However, Dr. Yager also stated that the plaintiffs headaches "may intermittently interfere with activity, . . . may interfere with work at times [and] may keep her from doing certain kinds of activities." (Tr. 246, 249).
The jobs of cook and bartender are classified as light work. (Jr. 67). See generally 20 C.F.R. § 404.1567(b), 416.967(b).
The ALJ described Dr. Yager's report, along with those of Dr. Crotwell and two psychologists, as "controlling." (Tr. 13). The plaintiff argues that the quoted language from Dr. Yager's report imposes restrictions beyond those included in the ALJ's hypothetical question and that the ALJ therefore could not rely on the vocational expert's testimony to conclude that the plaintiff can return to her past relevant work.
The defendant responds that vocational testimony is not required at Step 4, so that the ALJ's failure to recall the vocational expert and pose another hypothetical question, incorporating the elements of Dr. Yager's report not included in the previous hypothetical question, cannot be error. It is clear that vocational testimony is not ordinarily required at Step 4. See Lucas v. Sullivan, 918 F.2d 1567, 1573 n. 2 (11th Cir. 1990)("[B]ecause the ALJ concluded that [the plaintiff) is capable of performing her past relevant work, testimony from a vocational expert was not necessary."). The undersigned finds it unnecessary to determine whether vocational testimony may ever be an essential predicate to a Step 4 finding of no disability, because it is clear that the hypothetical question on which the ALJ relied did in fact incorporate all functional limitations identified by Dr. Yager.
Dr. Yager's statement that the plaintiffs headaches may restrict her from performing certain kinds of activities was limited to the activities of operating motor vehicles or dangerous machinery and being at unprotected heights. (Tr. 247). Such restrictions were included in the ALJ's hypothetical question, which incorporated all the limitations identified in Dr. Crotwell's PCE. While the degree of restriction in these activities identified in Dr. Yager's PCE, (Tr. 248), somewhat exceeds that identified in Dr. Crotwell's PCE, (Tr. 235), the difference is irrelevant because the jobs of cook and bartender do not require such activities. The plaintiff does not argue otherwise.
Dr. Yager's opinion that the plaintiff's headaches may "intermittently interfere" with her work is also incorporated in the ALJ's hypothetical. That hypothetical asked the vocational expert to assume a moderate reduction in concentration due to the plaintiff's alleged impairments, including headaches, (Tr. 68-70), and the plaintiff has not even suggested — much less shown that the ALJ was required to conclude — that the "intermitten[t] interfere[nce]" caused by the plaintiff's headaches represents anything different than, or additional to, a moderate reduction in concentration. On the contrary, Dr. Yager completed a Clinical Assessment of Pain ("CAP") form in which he did not select the response, "[p]ain is present to such an extent as to be distracting to adequate performance of . . . work." (Tr. 249). Thus, whatever intermittent interference the plaintiff may experience is insufficient to distract her from adequately performing her job — a level of interference certainly no greater than that resulting from the "moderate reduction in concentration" incorporated in the ALJ's hypothetical question.
Because the ALJ's hypothetical question incorporated all the relevant functional limitations he found to exist, including those embodied in Dr. Yager's report, the vocational expert's testimony that the plaintiff can perform her past relevant work with these functional limitations constitutes substantial evidence supporting the ALJ's determination that she can do so.
IV. Conclusion.
For the reasons set forth, it is recommended that the decision of the Commissioner denying the plaintiff's claim 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 this 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 case 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.