Opinion
No. 99-0915-P-S
April 26, 2000
RECOMMENDATION OF MAGISTRATE JUDGE
This appeal is brought by Plaintiff, William O. Moffett, pursuant to 42 U.S.C. § 405(g) and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of the Social Security Administration (Commissioner) denying his claim for disability insurance benefits and supplemental security income. This matter has been referred to the undersigned Magistrate Judge for a recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and SDAL LR 72.2. The undersigned has determined that oral argument is unnecessary to resolve this matter. See SDAL LR 7.3. Upon careful consideration of the administrative record and the arguments raised by the parties in their memoranda, it is recommended that the decision of the Commissioner be affirmed.
Procedural History and Background
William O. Moffett (Plaintiff) filed an application for disability insurance benefits and supplemental security income on April 4, 1996, and March 12, 1996, respectively, alleging disability since March 5, 1996, as a result of problems with his shoulders, eyes, stomach and back. After unfavorable initial and reconsideration determinations, Plaintiff timely filed a request for hearing which was granted. Subsequently, a hearing was held on February 19, 1997, in Mobile, Alabama, before Administrative Law Judge (ALJ) R.G. Goosens. On February 27, 1997, Judge Goosens remanded Plaintiffs claim to the state agency. On June 16, 1997, Plaintiffs claim was again denied at the initial determination level and upon reconsideration.
Pursuant to Plaintiffs request for hearing, a second administrative hearing was held on October 16, 1997. Thereafter, on May 27, 1998, the ALJ entered a written decision finding that Plaintiff was not disabled. On August 26, 1999, Plaintiffs request for review of the ALJ's decision was denied by the Appeals Council, thus making Judge Goosens' decision the final decision of the Commissioner. The parties agree that this case is now ripe for review and is properly before this Court pursuant to 42 U.S.C. § 405(g) and 1383(c)(3).
Statement of Facts
Plaintiff was born on August 4, 1944, and was fifty-three years of age at the time of the second administrative hearing. Plaintiff has a ninth grade education and past work experience as a mechanic and a logger. Plaintiff submits that he is disabled and unable to engage in gainful work activity as a result of problems with his shoulders, eyes, stomach and back, and that he last worked in March 1996.
During the administrative hearing, Plaintiff testified that he had problems with his back and shoulders, that he could not do any lifting, that he had headaches on a daily basis, that he had "dizzy spells," that he was unable to close his left eye, that he had undergone several hernia operations, that he had a stomach ulcer, and that he took prescription medication for pain. Administrative Record, pages 203-07 (R. at 203-07). Plaintiff stated that he did not do any housework, that he used a cane and a walker because he could not put much weight on his leg, that he could not read or write, and that he did not drive very often. R. at 207-12.
Based on the evidence before him, the ALJ determined that Plaintiff had the following severe impairments: arthritis of the shoulders, low back strain, left eye sensitivity and 20/60 visual acuity, and a low average range of intellectual functioning. R. at 149. The ALJ determined that Plaintiffs alleged hernia repairs, headaches, dizzy spells, ulcers and hearing problems were not shown to cause significant work-related limitations for a continuous period of twelve months. R. at 149. The ALJ found that Plaintiff had no single medically-determinable impairment or combination of impairments which has specific or equivalent severity of medical findings necessary to establish presumptive disability under the evaluative standards found in 20 C.F.R. § 404, Appendix 1, Subpart P, Regulations No. 4. R. at 150. After determining that Plaintiffs testimony of subjective complaints and functional limitations were not supported by the evidence as a whole to the disabling degree alleged and therefore lacked credibility, the ALJ found that Plaintiff had the residual functional capacity for light exertion that allows for communication on the job to be verbal not written, that would not involve overhead reaching, that would not involve exposure to occupational fumes, and that would allow for 20/60 left and 20/20 right eye visual acuity. R. at 150. Using Rules 202.11 and 202.12 of the Medical-Vocational Guidelines as a framework, the ALJ concluded that Plaintiff was able to perform one or more occupations existing in significant numbers in the national economy as identified by the vocational expert, and therefore found that Plaintiff was not disabled within the meaning of the Social Security Act. R. at 151.
Issues on Appeal
Plaintiff presents the following issues on appeal: (1) whether the ALJ erred in finding that Plaintiffs testimony of complaints and functional limitations were not supported by the evidence as a whole to the disabling degree alleged and therefore lacked credibility; (2) whether the ALJ erred in using the Medical-Vocational Guidelines in finding that Plaintiff was not disabled; and (3) whether the ALJ erred in finding that Plaintiff is able to perform one or more occupations existing in significant numbers in the national economy.
Burden of Proof and Standard of Review
The burden lies upon the claimant to prove disability. Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983). "Disability" is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A). A claimant will be considered disabled only if:
his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. § 423(d)(2)(A).
The standard or scope of review in Social Security cases comprises two factors: (1) whether the decision of the Secretary is supported by substantial evidence, and (2) whether the correct legal standards were applied. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). As set forth in 42 U.S.C. § 405(g), "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 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, 28 L.Ed.2d 842 (1971);Bloodsworth, 703 F.2d at 1239. A court may neither reweigh the evidence nor substitute its judgment for that of the Secretary. Bloodsworth, 703 F.2d at 1239. Even if a court finds that the preponderance of the evidence is against the decision of the Secretary, the Secretary's decision must be affirmed if it is supported by substantial evidence.Id.
Pain Claim
Plaintiff contends that the ALJ erred in finding that Plaintiffs testimony of complaints and function limitations were not supported by the evidence as a whole to the degree alleged and lacked credibility. Specifically, Plaintiff argues that the evidence of record, including the reports of two examining physicians, supports Plaintiffs testimony that he suffers from disabling pain and functional limitations.
In his written decision, the ALJ acknowledged that Plaintiff complained of disabling pain. After summarizing Plaintiffs testimony during the hearing and reviewing the medical evidence of record, however, the ALJ rejected these subjective complaints as follows:
In reaching this conclusion, the Administrative Law Judge has evaluated all of the claimant's symptoms, including pain, in accordance with 20 C.F.R. § 404.1529 and 416.929, Social Security Rulings (SSR) 96-3p, 96-4p, and 96-7p. In accordance with the above, once the medical signs or laboratory findings show that the claimant has a medically determinable impairment that could reasonably be expected to produce the alleged symptoms, such as pain, the Administrative Law Judge must evaluate the alleged intensity and persistence of the claimant's symptoms by considering all of the available evidence. The undersigned has not required the presence of objective medical evidence in determining the intensity and persistence of the pain and other symptoms alleged. Rather, the Administrative Law Judge has specifically considered the nature, location, onset, duration, frequency, radiation, and intensity of any symptom, including pain; the precipitating and aggravating factors; the type, dosage, effectiveness, and adverse side effects of any medication; the treatment, other than medication, for relief of pain or other symptoms the claimant has undergone; the alleged functional restrictions; and the claimant's daily activities.
Specifically, the claimant testified that he had severe joint pain to the point that he can do no housework and must use a cane and walker (non-prescription) at home to ambulate. Despite these assertions, the claimant stated in a consultative psychological report on May 24, 1997, that he has five children, of which two are at home. He admitted that he helps around the house by shopping and cleaning. He was considered independent in his daily activities. He had been observed to ambulate without assistance. Thus, the claimant's testimony is not without conflict with other evidence in the record, which impacts negatively on his credibility.
R. at 147 (references omitted).
In this Circuit, an evaluation of a claimant's subjective complaints of pain requires the application of a three-part "pain standard" when a claimant attempts to establish disability through his testimony of pain or other subjective symptoms. This standard 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 severity that it can be reasonably expected to give rise to the alleged pain. Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986). The Plaintiffs subjective testimony supported by medical evidence that supplies this standard is itself sufficient to support a finding of disability. Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987). If the Secretary decides not to credit such testimony, he must discredit it explicitly, MacGregor v. Bowen, 786 F.2d 1050 at 1054, and articulate explicit and adequate reasons for doing so. Hale, 831 F.2d at 1011. Failure to articulate the reasons for discrediting subjective pain testimony requires, as a matter of law, that the testimony be accepted as true. Cannon v. Bowen, 858 F.2d 1541, 1545 (11th Cir. 1988). Where the Secretary discredits pain testimony, this finding is subject to a limited review by the courts to ensure that the finding is supported by substantial evidence. Hand v. Heckler, 793 F.2d 275, 276 (11th Cir. 1986).
In addition to the judicial standards set forth in Landry, etc., there are other factors that are considered when evaluating a claimant's subjective complaints of pain. 20 C.F.R. § 416.929(a) provides in relevant part:
(a) General. In determining whether you are disabled, we consider all your symptoms, including pain, and the extent to which your symptoms can be reasonably accepted as consistent with the objective medical evidence and other evidence. . . By other evidence, we mean the kinds of evidence described in §§ 416.912(b)(2) through (6) and 416.913(b)(1), (4), and (5) and (e). These include statements or reports from you, your treating or examining physician or psychologist, and others about your medical history, diagnosis, prescribed treatment, daily activities, efforts to work, and any other evidence showing how your impairment(s) and any related symptoms affect your ability to work.
However, the above factors cannot alone establish that Plaintiff is disabled; there must be objective medical evidence that demonstrates the existence of a medical impairment or impairments which could reasonably be expected to produce pain in the severity claimed by Plaintiff. See 20 C.F.R. § 416.929(a); Landry, 782 F.2d at 1553.
As set forth above, the ALJ discounted and discredited Plaintiffs testimony regarding disabling pain and function limitations. The written decision reflects that the ALJ articulated explicit reasons for discounting this pain testimony. After reviewing the medical evidence of record and Plaintiffs testimony at the administrative hearing, the undersigned finds that the ALJ's decision to discredit Plaintiffs subjective complaints of pain is supported by substantial evidence. The evidence of record reveals that Plaintiff was seen for a consultative examination by Eric G. Becker, D.O., on August 23, 1996. R. at 369-71. While Dr. Becker reported that Plaintiff had a diminished range of motion to the right shoulder and loss of strength in both shoulders, he also reported that Plaintiff could take care of his activities of daily living and that Plaintiff did some light housework. R. at 369-70. Dr. Becker found that Plaintiffs hand grip was 5/5 bilaterally, that Plaintiffs gait was unimpaired and that he was able to walk on his toes and heels. R. at 370. On April 22, 1997, Plaintiff was seen by William A. Crotwell, III, M.D., for a consultative examination. R. at 494-95. Dr. Crotwell reported that Plaintiff ambulated without assistance, that Plaintiffs toe/heel walk was good and that Plaintiff was able to bend over and remove his socks. R. at 494. Dr. Crotwell recorded that Plaintiff had a gunshot wound to the left shoulder with moderate arthritis and a gunshot wound to the right shoulder with minimal arthritis and some residual neurological deficit, and that Plaintiff had a lumbosacral strain with no neurological deficit. R. at 495. However, Dr. Crotwell stated that he thought Plaintiff could carry out light and sedentary work. R. at 495. In her psychological evaluation report, Patricia G. McCleary, Ph.D., recorded that Plaintiff stated that he helped around the house by shopping and cleaning and that he was independent in his activities of daily living. R. at 496.
In addition, Dr. McCleary administered standardized tests to Plaintiff and found that he was functioning in the low average range of intellectual functioning with a full scale IQ of 82; however, there is absolutely no indication that Plaintiff was unable to read or write. R. at 498. This is completely inconsistent with Plaintiffs testimony that he could not read or write. R. at 202, 210-11. While Plaintiff has not based his claim on a mental impairment, this inconsistency further erodes the credibility of his testimony.
The ALJ made explicit and well-supported findings as to Plaintiffs lack of credibility in his pain testimony. The mere fact that Plaintiff has been diagnosed with medically determinable impairments does not necessarily mean that Plaintiff meets the standard for pain in this Circuit. Plaintiff complained of disabling pain and functional limitation in his shoulders and back, alleged that he needed a cane or walker in order to ambulate, and alleged that he could not read or write. Although the evidence of record reflects and the ALJ acknowledged that Plaintiffs ability to reach was limited, the evidence of record does not support Plaintiffs allegation of incapacitating pain or inability to ambulate unassisted. Moreover, it certainly does not support his allegation that he cannot read or write. While there is evidence of underlying medical conditions, there is neither objective medical evidence that confirms the severity of the alleged pain or other symptoms arising from these conditions, nor is there evidence that these medical conditions are of such a severity that they could reasonably be expected to give rise to the alleged disabling pain and functional limitations. Moreover, the ALJ gave adequate reasons for discrediting Plaintiffs subjective allegations of disabling symptoms. The undersigned finds that the ALJ's decision to discredit Plaintiffs testimony is supported by substantial evidence. Therefore, the "pain standard" applicable in this Court has not been met by Plaintiff, and the ALJ's evaluation of Plaintiff's testimony was not in error.
Grid Claim
Plaintiff contends that the ALJ erred in using the Medical-Vocational Guidelines (the grids) in finding that Plaintiff was not disabled.
Once the ALJ has determined that a claimant is unable to return to his past relevant work, the burden is on the Commissioner to establish that a significant number of jobs exist in the national economy which the claimant can perform. The ALJ must articulate specific jobs that the claimant is capable of performing, and this finding must be supported by substantial evidence, not mere conjecture. Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989) (citing Cowart v. Schweiker, 662 F.2d 731, 736 (11th Cir. 1981)). The Supreme Court has upheld the validity of the grids. See Heckler V. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). However, exclusive reliance on the grids is not appropriate when the claimant has a nonexertional impairment that significantly limits basic work skills or when the claimant cannot perform a full range of work at a given exertional level. Allen, 880 F.2d at 1202; Wolfe v. Chater, 86 F.3d 1072, 1077 (11th Cir. 1996). In this Circuit, the preferred method of demonstrating job availability is through the testimony of a vocational expert. Welch v. Bowen, 854 F.2d 436, 439-40 (11th Cir. 1988); Allen, 880 F.2d at 1202.
In this case, because the ALJ found that Plaintiff could not return to his past work and was not able to perform a full range of light work, he relied on the testimony of the vocational expert to establish that Plaintiff could perform other work. Using Rules 202.11 and 202.12 of the grids as a framework for decision-making and relying on the testimony of the vocational expert, the ALJ concluded that Plaintiff was able to perform one or more occupations existing in significant numbers in the national economy. R. at 149, 151 (emphasis added). In his decision, the ALJ specifically stated that "Rules 202.11 and 202.12 are not wholly determinative of the issue of disability," and acknowledged that the rules merely provided a framework for his decision-making. R. at 148. The ALJ's decision to use the grids as a framework for decision-making and to rely on the testimony of the vocational expert in making his decision that Plaintiff is not disabled is supported by substantial evidence.
Job Requirements Claim
Plaintiff contends that he cannot perform the jobs identified by the vocational expert because all of the jobs require at least frequent reaching and one of the jobs is in the medium level of exertion. Thus, Plaintiff argues, the ALJ erred in finding that there are a significant number of jobs available in the national economy that Plaintiff can perform.
During the second administrative hearing, the ALJ posed a series of hypothetical questions to the vocational expert regarding Plaintiffs abilities. R. at 215-19. The vocational expert identified three jobs that Plaintiff could perform given his limitations: dining room attendant, production assembler, and ticket taker. R. at 216-19. In question three, the ALJ specifically included the restriction that the individual should perform no overhead reaching. R. at 218. The vocational expert testified that this restriction would not reduce or eliminate the number of jobs available to Plaintiff. R. at 218.
Plaintiff argues that Plaintiff cannot perform any of the three jobs identified by the vocational expert because, according to the Dictionary of Occupational Titles ("DOT"), the jobs require frequent reaching. Plaintiff also argues that he is unable to perform the jobs of dining room attendant because, according to the DOT, the job is in the medium exertion level. Based on the definitions in the Dictionary of Occupational Titles, Plaintiff states that he is unable to perform the jobs identified by the vocational expert.
While this Court notes that the DOT is considered to be an authoritative government publication of which the Commissioner has taken administrative notice for use in determining whether work exists in substantial numbers in the national economy, Gibson v. Heckler, 762 F.2d 1516, 1518 n. 2 (11th Cir. 1985), the Social Security Regulations themselves provide that the DOT is not the sole source of admissible information concerning jobs. § 404.1566 of the Social Security Regulations provides that the ALJ may enlist the services of a vocational expert in determining whether a claimant is disabled and whether a claimant's work skills can be used in other work, as well as the specific occupations in which claimant's skills can be used. 20 C.F.R. § 404.1566(e). In fact, the preferred method of demonstrating job availability where a plaintiff is unable to perform a full range of work at a given functional level or when a claimant hasboth exertional and nonexertional limitations is through the testimony of a vocational expert. Welch, 854 F.2d at 439-440 (emphasis added). Most significantly, however, the Eleventh Circuit has held that, when the vocational expert's testimony conflicts with the DOT, the vocational expert's testimony "trumps" the DOT. Jones v. Apfel, 190 F.3d 1224, 1229-30 (11th Cir. 1999). The DOT itself states that it is not comprehensive. Jones, 190 F.3d at 1230. The DOT contains a disclaimer noting that the dictionary provides only "composite descriptions of occupations as they may typically occur." Dictionary of Occupational Titles (4th ed. 1991). According to the dictionary, the descriptions listed "may not coincide with a specific job as actually performed in a particular establishment or any given industry." Id.
In this case, the ALJ obtained the testimony of a vocational expert. Without objection from Plaintiffs counsel, the vocational expert was qualified as an expert during the hearing. R. at 214. The ALJ posed hypothetical questions to the vocational expert which encompassed all of Plaintiffs limitations, including his limited ability to reach. R. at 218. The vocational expert took those limitations into consideration in determining that there were jobs available which Plaintiff could perform. The vocational expert has on-going knowledge and familiarity with current local vocational practices and is best qualified to determine which jobs that Plaintiff could perform. Accordingly, it would be manifestly inappropriate to make the DOT the sole source of evidence concerning gainful employment. Therefore, the ALJ's reliance on the testimony of the vocational expert regarding the impact of Plaintiffs limitations on his ability to obtain employment does not constitute error. Plaintiffs claim that he cannot perform the jobs identified by the vocational expert is without merit. The ALJ's determination that there are a significant number of jobs available in the national economy that Plaintiff can perform is supported by substantial evidence.
As stated previously, this Court may reverse the decision of the ALJ only when convinced that the decision is not supported by substantial evidence or that proper legal standards were not applied. Martin, 894 F.2d at 1529. The undersigned has reviewed the evidence of record and finds that this evidence substantially supports the conclusions of the ALJ and his determination that Plaintiff is not disabled. Accordingly, it is the recommendation of the undersigned that the decision of the Commissioner be affirmed.
Conclusion
For the reasons set forth above, the Magistrate Judge recommends that the decision of the Commissioner be affirmed.
The attached sheet contains important information regarding objections to this recommendation.