Opinion
Civil Action No. SA-03-CA-0735 FB (NN).
June 24, 2004
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: Hon. Judge Fred Biery United States District Judge
I. Introduction
Plaintiff Robert Patrick seeks review and reversal of the administrative denial of his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") by the Administrative Law Judge ("ALJ") on November 6, 2002. Plaintiff contends that ALJ Karen McCoy's conclusion that plaintiff retained the residual functional capacity ("RFC") to perform his past work as a copier of titles is not supported by the substantial evidence of the record. For this reason, plaintiff requests that the court reverse, remand and order the entry of a finding of disability, or, in the alternative, remand the case for proper development.After considering plaintiff's complaint and brief in support thereof, defendant's brief in support of the Commissioner's decision, plaintiff's reply brief, the transcript of the Social Security Administration (hereinafter "SSA") proceedings, the pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, and the entire record in this matter, it is my recommendation that plaintiff's request for an award of benefits be DENIED, his complaint DISMISSED, and the decision of the Commissioner AFFIRMED.
Docket Entries 1, 19.
Docket Entry 20.
Docket Entry 21.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
II. Jurisdiction
The court has jurisdiction under 42 U.S.C. § 405(g), 1383.
III. Administrative Proceedings
According to the record in this case, plaintiff fully exhausted his administrative remedies prior to filing this action in federal court. Plaintiff filed applications for DIB and SSI on September 22, 2003, alleging a disability beginning August 1, 1998. The SSA denied plaintiff's applications both initially, on February 28, 2001, and on reconsideration, May 21, 2000.
Administrative Transcript ("Transcript"), at 15, 110-113, 291-293.
Transcript, at 79-84, 295-300.
Transcript, at 87-90, 303-305.
On May 25, 2001, plaintiff requested a hearing before an ALJ. The hearing was held on September 5, 2002. Plaintiff was represented by counsel at the hearing. Plaintiff's attorney was able to examine and question plaintiff, the vocational expert, Judith Harper, and the medical expert, Dr. Arthur Briggs, during the hearing.
Transcript, at 91.
Transcript, at 26-68.
See Transcript, at 59-68.
See Transcript, at 51-59.
The plaintiff, who was fifty one (51) years old when the ALJ's November 2002 decision was issued, testified that he had a twelfth (12th) grade education and was functionally literate. Plaintiff further testified that he was single and lived in his own home.
Transcript, at 30, 31.
Transcript, at 31, 39.
When asked about his ability to maintain his home, plaintiff stated that he did his own cooking, cleaning, laundry and grocery shopping. Although he believed that his hip impairments generally precluded him from bending and stooping, plaintiff further testified that he was able to perform routine housecleaning tasks. Plaintiff stated, however, that he must take Celebrex after performing his household chores to alleviate the pain which results from engaging in those activities. Plaintiff also testified that, when his pain was at its worst, he had to take Celebrex every day for two (2) weeks. However, plaintiff testified that there are times when he has no need to take the Celebrex and takes Tylenol instead.
Transcript, at 39-40.
Transcript, at 42.
Transcript, at 42.
Transcript, at 42, 46-47.
When asked about his past relevant work experience, plaintiff testified that he worked as a sales clerk at a liquor store and the PXs on Fort Sam Houston and Randolph Air Force Bases. Plaintiff further testified that he worked as a copier for Chicago Title and as a land surveyor. Plaintiff told the ALJ that his supervisor at Fort Sam Houston terminated him (plaintiff) from his sales position because he was unable to move quickly enough to meet the demands of the job. Plaintiff also testified that he was terminated from his sales position at the convenience store due to absences — some of which he accrued when he missed his bus to work and some when he was unable to work because of pain.
Transcript, at 33-34.
Transcript, at 35.
Transcript, at 38.
Transcript, at 36.
Transcript, at 39.
Transcript, at 35-36.
Transcript, at 34. Plaintiff testified that he did not have a drivers license and, instead, relied on public transportation. Transcript, at 32.
When asked about his exertional limitations, plaintiff opined that he could walk a total of two to three hours in an eight hour workday, but could only walk in fifteen minute increments. Similarly, plaintiff estimated that he could stand three to four hours in an eight hour workday, but could only stand for one continuous hour at a time. Plaintiff further testified that his work at the Chicago Title company was a "sit down job" and that he might be able to return to the same if he were given a sit/stand option. However, plaintiff expressed some concern about the amount of bending required in his previous position with the title company and the stress it placed on his back and hips.
Transcript, at 44.
Transcript, at 45.
Transcript, at 48.
Transcript, at 49.
When asked about impairments other than his hip impairments, plaintiff testified that he had a previous brain surgery. Plaintiff stated that he had partial amnesia and seizures for a brief period of time after the brain surgery, but that the only permanent impairment that resulted from the brain surgery was the complete loss of vision in his right eye. Plaintiff also testified that he had been diagnosed with a "mild case" of depression, but that he had not sought any treatment for the same.
Transcript, at 47, 48.
Transcript, at 49-50.
Medical expert, Dr. Arthur Briggs, testified at the hearing. Dr. Briggs opined that plaintiff could lift, but not carry, twenty (20) pounds occasionally. Dr. Briggs further estimated that plaintiff could sit six to eight hours in an eight hour workday, so long as he had a sit/stand option. The medical expert also testified that plaintiff could not do any climbing, squatting, crawling or crouching, but that he could bend from the waist. When asked about a possible cardiac condition noted in plaintiff's medical records, Dr. Brigg stated that the medical record indicated a possible infarct but that the absence of further testing indicated that plaintiff did not have a significant cardiac impairment.
Transcript, at 51-59.
Transcript, at 53-54.
Transcript, at 54.
Transcript, at 55.
Transcript, at 56, 58.
The last witness at the administrative hearing was vocational expert Judith Harper. Ms. Harper classified plaintiff's past work experience as: copier of titles — light, semi-skilled; land surveyor — light, skilled; clerk/cashier — light, unskilled; and sales clerk — light, semi-skilled. Based on the hypothetical presented to her by ALJ McCoy, Ms. Harper opined that plaintiff was able to perform his past work — copying title insurance. Ms. Harper testified that the copier position did not require squatting or crouching. Vocational expert Harper further stated that plaintiff was capable of performing the following jobs available in the local and national economies: storage facility rental clerk, baby stroller/wheelchair rental clerk, and furniture rental consultant.
Transcript, at 59-68.
Transcript, at 60.
Transcript, at 62, 67.
Transcript, at 63.
Transcript, at 63.
On November 6, 2002, the ALJ issued her decision in which she concluded that plaintiff was not under a "disability," as defined by the Social Security Act ("the Act"), at any time through the date of the decision. Specifically, ALJ McCoy found that plaintiff retained the RFC to perform his past work as a copier of titles.
Transcript, at 11-22.
After receiving the ALJ's unfavorable decision dated November 6, 2002, plaintiff requested review of the hearing and decision on December 18, 2002. On June 27, 2003, the Appeals Council concluded that there was no basis upon which it could grant plaintiff's request for review, thereby denying plaintiff's request. Plaintiff commenced the instant action in this court on July 30, 2003.
Transcript, at 9-10.
Transcript, at 5-8.
Docket Entry 1.
IV. Issue Presented
Whether the ALJ's decision is supported by substantial evidence and comports with relevant legal standards?V. Analysis
A. Standard of Review
In reviewing the Commissioner's decision denying disability insurance benefits, I am limited to a determination of whether substantial evidence supports the decision and whether the Commissioner applied the proper legal standards in evaluating the evidence. "Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but `no substantial evidence' will be found only where there is a `conspicuous absence of credible choices' or `no contrary medical evidence.'"
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); 42 U.S.C. § 405(g), 1383(c)(3) (2002).
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (quoting Hames, 707 F.2d at 164).
If the Commissioner's findings are supported by substantial evidence, then they are conclusive and must be affirmed. In my review of the Commissioner's findings, I must carefully examine the entire record, but refrain from re-weighing the evidence or substituting my judgment for that of the Commissioner. Conflicts in the evidence and credibility assessments are for the Commissioner and not for the courts to resolve. Four elements of proof are weighed by the courts in determining if substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience.
Martinez, 64 F.3d at 173.
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Villa, 895 F.2d at 1021 ("The court is not to reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner.").
Martinez, 64 F.3d at 174.
Id.
1. Entitlement to Benefits
Every individual who is insured for disability insurance benefits, has not reached retirement age, has filed an application for benefits, and is under a disability is entitled to receive disability insurance benefits. The term "disabled" or "disability" means 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." A claimant shall be determined to be disabled only if his physical or mental impairment or impairments are so severe that he is unable to not only do his previous work, but cannot, considering his age, education, and work experience, participate in any other kind of substantial gainful work which exists in significant numbers in the national economy, regardless of whether such work exists in the area in which he lives, whether a specific job vacancy exists, or whether he would be hired if he applied for work.
Id. § 1382c(a)(3)(A).
Id. § 1382c(a)(3)(B).
2. Evaluation Process and Burden of Proof
Regulations set forth by the Commissioner prescribe that disability claims are to be evaluated according to a five-step process. A finding that a claimant is disabled or not disabled at any point in the process is conclusive and terminates the Commissioner's analysis.
20 C.F.R. § 404.1520 and 416.920 (2002).
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The first step involves determining whether the claimant is currently engaged in substantial gainful activity. If so, the claimant will be found not disabled regardless of his medical condition or his age, education, or work experience. The second step involves determining whether the claimant's impairment is severe. If it is not severe, the claimant is deemed not disabled. In the third step, the Commissioner compares the severe impairment with those on a list of specific impairments. If it meets or equals a listed impairment, the claimant is deemed disabled without considering his age, education, or work experience. If the impairment is not on the list, the Commissioner, in the fourth step, reviews the claimant's RFC and the demands of his past work. If he is still able to do his past work, he is not disabled. If he cannot perform his past work, the Commissioner moves to the fifth and final step of evaluating the claimant's ability, given his residual capacities, age, education, and work experience, to do other work. If he cannot do other work, he will be found disabled. The claimant bears the burden of proof at the first four steps of the sequential analysis. Once he has shown that he is unable to perform his previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that the claimant is not only physically able to perform, but also, taking into account his exertional and non-exertional limitations, able to maintain for a significant period of time. If the Commissioner adequately points to potential alternative employment, the burden shifts back to the claimant to prove that he is unable to perform the alternative work.
20 C.F.R. § 404.1520 and 416.920.
Id.
Id.
Id.
20 C.F.R. § 404.1520 and 416.920.
Id.
Id.
Id.
Id.
Leggett, 67 F.3d at 564.
Watson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002).
Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989).
In the instant case, the ALJ reached her decision at step four of the evaluation process. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful employment since the date of his applications for SSI and DIB, and that all work attempts made after plaintiff's applications were filed constituted unsuccessful work attempts. ALJ McCoy then concluded at steps two and three that plaintiff had an impairment or combination of impairments (bilateral degenerative joint disease of the hip and status post total right hip replacement) which were severe, but did not meet or medically equal a listed impairment as of the date the plaintiff was last insured. At step four, the ALJ found that plaintiff retained the residual functional capacity to perform his past relevant work as a copier of titles at a titles company. Although ALJ McCoy adjudicated plaintiff's case at step four, she also noted in the decision that the vocational expert identified other light, unskilled jobs available in significant numbers in the local and national economies which plaintiff retained the RFC to perform. Those jobs included work as a storage facility rental clerk, a baby stroller/wheelchair rental clerk and a furniture rental consultant. Based on the foregoing, ALJ McCoy concluded that plaintiff was not under a disability. B. Is the ALJ's November 6, 2002 Decision Supported by Substantial Evidence?
See Transcript, at 11-22.
Transcript, at 16; ¶ 2, at 21.
Transcript, at 18; ¶ 3, at 21. Notably, ALJ McCoy also held that plaintiff's alleged nonexertional impairment (depression) did not constitute a severe impairment. See Transcript, at 18.
Transcript, at 18; ¶ 4, at 21.
Transcript, at 20; ¶¶ 8, 9, at 22.
Transcript, at 21.
Transcript, at 14, 21; ¶ 10, at 22.
Plaintiff challenges the ALJ's decision, asserting that the ALJ failed to fully develop the record and failed to properly assess plaintiff's RFC. Specifically, plaintiff avers that ALJ McCoy: (1) ignored portions of a medical record authored by Dr. Williams; (2) failed to explain fully her reasons for dismissing consultative physician Dr. Richmond's opinion that plaintiff's mental health prognosis was guarded; (3) ignored the opinions of the state agency psychiatric examiner; (4) failed to use properly the Stone criteria; and (5) erroneously concluded that plaintiff maintained the RFC to return to his past relevant work. Plaintiff argues that these mistakes constitute reversible error and that substantial evidence does not support the ALJ's decision. In my opinion, plaintiff's grounds for reversal are not meritorious. Plaintiff has failed to establish that the ALJ committed prejudicial (i.e. reversible) error. For that reason, I recommend that plaintiff's complaint be DISMISSED and the Commissioner's decision be AFFIRMED.
Docket Entry 19.
1. Did ALJ McCoy erroneously disregard certain of the medical evidence of record?
One of plaintiff's broad arguments in support of reversal is that ALJ McCoy improperly ignored or discounted certain medical evidence in the record. In particular, plaintiff challenges the ALJ's evaluation of specific reports authored by: plaintiff's treating physician, Dr. Ronald Williams; the examining psychiatrist, Dr. Lewis Richmond, and the state agency psychiatric examiner.
a. Plaintiff failed to establish that the ALJ's assessment of medical reports authored by Dr. Williams constituted prejudicial error.
Plaintiff asserts that ALJ McCoy failed to acknowledge and discuss certain statements contained in reports authored by Dr. Williams. Although the ALJ discussed portions of Dr. Williams' January 1999 report, in which Dr. Williams wrote that plaintiff appeared to have a "dramatic improvement of hip pain" and might be able to return to full weight bearing status by March 1, 1999, plaintiff argues that
See Docket Entry 19, at 6; Transcript, at 16, 200.
the ALJ failed to continue with the particular exhibit by Dr. Williams which states that Mr. Patrick `has a relatively sedentary job. I again reviewed the precautions of no lifting, crawling on ladders, crouching, etc.' Tr. 223. Furthermore, the ALJ did, for unknown reasons, failed ( sic) to take into account the statement made by Dr. Williams in his letter to Social Security Administration dated November 9, 1998 stating ( sic) that `the patient has severe end-stage esteoarthritis ( sic) [. . .] The patient would not be employable for approximately three months following the surgical procedure [a total hip replacement]. He would then be permanently limited to sedentary activities.' Tr. 200.
Docket Entry 19, at 7.
Dr. Williams report of November 1998 does, in fact, opine that plaintiff would be permanently limited to sedentary activities after his then-anticipated total hip replacement surgery. In that same report, Dr. Williams further explained that plaintiff at that time had a "very limited ambulatory ability" which Dr. Williams hypothesized would "worsen as he ages until the patient has a hip replacement."
Transcript, at 200.
Transcript, at 200.
After the hip replacement was actually performed, however, Dr. Williams released plaintiff to return to his past work. Dr. Williams further noted, in the report of March 1999, that plaintiff was "walking full weight bearing without discomfort." In releasing plaintiff to return to his past work — the very same work which ALJ McCoy concluded plaintiff retained the RFC to perform — Dr. Williams stated
Transcript, at 223, "I gave him [plaintiff] a release to return to work."
Id.
He has a relatively sedentary job. I again reviewed the precautions of no lifting, crawling on ladders, crouching, etc.
Id.
Importantly, Dr. Williams' report does not explicitly limit plaintiff to sedentary work activities.
The March 1999 report was written after plaintiff's hip was replaced and Dr. Williams was able to witness and evaluate plaintiff's recovery from the operation. The conclusions and observations contained in the March 1999 report, therefore, should reasonably be accorded greater weight than a report hypothesizing about the effects of the hip replacement surgery before said surgery was performed.
Id.
ALJ McCoy properly acknowledged both Dr. Williams' November 1998 letter and his post-surgery progress notes of March 1999. The ALJ's decision states
Transcript, at 16.
In November 1998, the records indicate the claimant had been experiencing right buttock and groin pain for about three months duration which was evaluated orthopaedically and x-ray demonstrated severe end-stage osteoarthritis in the right hip with flattening of the femoral head and distortion of the acetabulum, with end-stage osteoarthritis in the left hip, not quite as severe, but with joint space narrowing, subchondral sclerosis and cyst formation. He was noted to ambulate with a right antalgic gait and stand with a slight list to the right. The claimant was told he could use a cane to provide some relief, and that he would ultimately require a total bilateral hip replacement, the right hip first, then eventually the left (Exhibit 1F/8-9).
On January 12, 1999, the claimant was admitted for degenerative joint disease of the right hip (avascular necrosis of the left femoral head) and underwent a right total hip arthroplasty (Exhibit 1F/25-37). Follow-on progress notes indicated dramatic improvement of hip pain and return to full weight bearing by March 1, 1999 without discomfort, and well within a 12-month time frame (Exhibit 1F/38-42).
Thus, ALJ McCoy referenced and discussed the reports at issue. Although she did not directly cite Dr. Williams' report in outlining the limitations included in her assessment of plaintiff's RFC, she included the very limitations he specified as well as others. Aside from incorporating a required sit/stand option in plaintiff's RFC, she further limited plaintiff to
no climbing of ladders, ropes, or scaffolds; only occasional bending from the waist; no squatting, crouching or crawling; no work at unprotected heights or around dangerous moving machinery; no job that requires balance; and no job that requires vision in both eyes . . .
Transcript, at 20.
Based on all the evidence the ALJ included in her decision, her failure to quote the specific passages to which plaintiff refers does not constitute prejudicial error. It is well settled in the Fifth Circuit that a plaintiff must not only identify an error made by the ALJ, but must also establish that the error was harmful or prejudicial. To establish prejudice, a claimant, "must show that, had the ALJ done his duty, she could and would have adduced evidence that might have altered the result." In this case, plaintiff has failed to establish that ALJ McCoy would have reached a different conclusion had she more fully quoted Dr. Williams' records in the decision.
See, e.g. Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984); Brock, 84 F.3d, at 728.
Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984); Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996).
b. Plaintiff failed to establish that the ALJ's assessment of Dr. Richmond's report constitutes reversible error.
Plaintiff has also argued that ALJ McCoy erroneously disregarded consultative examiner Dr. Richmond's report and failed to give a reason for so doing. In particular, plaintiff argues, in pertinent part,
The ALJ had to properly evaluate and either accept or reject Dr. Richmond's opinion but in either case fully explain why that opinion can or cannot be accepted as valid and given or not the proper weight. The review of the ALJ's decision shows that she failed to do so. The only note she made about it is to list the results of the evaluation.
Docket Entry 19, at 7.
In contrast to plaintiff's assertions, ALJ McCoy thoroughly reviewed Dr. Richmond's findings on their own — and in the context of the substantial evidence of the record — before concluding that plaintiff's non-exertional impairments were not severe. The ALJ wrote
On May 7, 2001, a psychiatric consultative evaluation by Lewis H. Richmond, M.D., indicates the claimant had essentially no restriction of activities of daily living, no limitation in social functioning, (working four-hour days, five days a week), and only mildly limited concentration, persistence, or pace, with no episodes of decompensation. After thorough interview, the claimant was diagnosed with an anxiety disorder, at times approaching panic proportions with agoraphobia, and a major depressive disorder, chronic, recurrent, and moderate, without overt psychotic symptoms. Dr. Lewis ( sic) indicated a global assessment of functioning of 50, with a guarded prognosis, but the ability to manage benefits on his own behalf. The claimant reported that he had never seen a psychiatrist and was on no psychotropic medications (Exhibit 1F/69-74).
Transcript, at 17-18.
Later in the decision, the ALJ concluded that plaintiff's symptoms were
only mild in nature, given the facts that the claimant admitted in testimony that it was only mild, that he has not sought any treatment or used any medication for this, and additionally admitting that treatment could help. Accordingly, the undersigned finds the claimant has no mental restriction in his activities of daily living, no difficulty in maintaining social functioning, only mild difficulty in maintaining concentration, persistence, or pace, and no episodes of decompensation. Given this assessment of the claimant's mental abilities, the undersigned finds the claimant has a medically determinable, but non-severe mental impairment that has no more than a minimal affect upon the claimant's ability to perform basic work activities.
Transcript, at 18.
Despite plaintiff's assertions to the contrary, ALJ McCoy did not lend short-shrift to Dr. Richmond's conclusions. Rather, ALJ McCoy thoroughly articulated both Dr. Richmond's findings, as well as the reasons she found that plaintiff's non-exertional limitations posed little or no interference to plaintiff's daily activities. For these reasons, I find plaintiff's arguments regarding the ALJ's treatment of Dr. Richmond's report unavailing.
c. Did the ALJ improperly disregard the findings of the state agency psychiatric consultant?
Plaintiff's third assertion in support of his position that the ALJ improperly disregarded pertinent medical evidence of record is that the ALJ erroneously ignored the findings of the state agency psychiatrist and failed to provide reasons for rejecting said evidence in violation of Social Security Ruling 96-6p.
See Policy Interpretation Ruling Titles II and XVI: Consideration of Administrative Findings of Fact by State Agency Medical and Psychological Consultants and Other Program Physicians and Psychologists at the Administrative Law Judge and Appeals Council Levels of Administrative Review; Medical Equivalence, SSR 96-6p (July 2, 1996).
SSR 96-6p discusses the import of medical reports authored by the state agency medical consultants (SAMC). In pertinent part, SSR 96-6p provides
Because State agency medical and psychological consultants and other program physicians and psychologists are experts in the Social Security disability programs, the rules in 20 C.F.R. § 404.1527(f) and 416.927(f) require administrative law judges and the Appeals Council to consider their findings of fact about the nature and severity of an individual's impairment(s) as opinions of nonexamining physicians and psychologists. Administrative law judges and the Appeals Council are not bound by findings made by State agency or other program physicians and psychologists, but they may not ignore these opinions and must explain the weight given to the opinions in their decisions.
Id. , at *2.
In the instant case, the SAMC, Dr. Alexander, concluded that plaintiff had a medically determinable affective disorder and anxiety-related disorder, but that those impairments were not severe. Dr. Alexander further found that plaintiff was able to engage in substantial gainful activity and that his concentration and memory were adequate. Although ALJ McCoy committed an error in failing to refer to the aforementioned report, the error was not prejudicial. Dr. Alexander's report supports the ALJ's conclusions and is consistent with plaintiff's testimony and the substantial evidence of record. It would be futile to remand the case solely for the ALJ to include a citation to this report — particularly when the report supports the ALJ's findings. For these reasons, the ALJ's failure to refer to the SAMC report — although an error — does not provide a basis for remand
Transcript, at 164-177. Importantly, plaintiff does not refer the court to any specific SAMC report, or portion therein, to support his position that ALJ McCoy committed reversible error in disregarding the same. Dr. Alexander's report appears to be the only report authored by a SAMC that focuses on plaintiff's non-exertional impairments (e.g. his mental RFC).
Transcript, at 169, 176.
Transcript, at 49-50.
2. Did ALJ McCoy fail to utilize properly the Stone criteria?
In his second broad point of error, plaintiff asserts that ALJ McCoy failed to properly acknowledge and implement the Stone criteria in her decision. Plaintiff's argument regarding ALJ McCoy's use of the Stone criteria is unclear and the specific point of error alleged by plaintiff cannot be discerned from plaintiff's brief. The portion of plaintiff's brief asserting the Stone argument reads:
See Docket Entry 19, at 9. See also Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985). The Stone decision set forth the criteria by which an impairment could be considered "not severe." Id.
Also, the ALJ failed to properly use the standard of determining severity of the medically determinable impairment provided in Stone. The court in that case held that an ALJ who made the determination of severity of claimant's disability on the basis of the medical evidence alone, applied the wrong legal standard in determining that the claimant's impairment is not severe. Stone v. Heckler, 452 Fm2d ( sic) 1099 (5th Cir. 1985).
Docket Entry 19, at 9.
The aforementioned paragraph does not clearly indicate to which impairment plaintiff is referring — plaintiff's hip and other exertional impairments, his purported depression and anxiety impairments, or the minor cardiac anomaly noted in one of the medical records. Neither does said paragraph refer the court to any evidence in support of the proposition being asserted therein. Since other portions of plaintiff's brief protest the ALJ's assessment of plaintiff's credibility, the aforementioned paragraph — when taken in the context of the brief as a whole — cannot be read to argue that the ALJ relied solely on medical evidence (as opposed to all the evidence of the record). Neither the remaining portions of plaintiff's brief, nor his reply to defendant's brief, clarify plaintiff's Stone argument. For these reasons, I find plaintiff's argument regarding the Stone criteria unavailing and I shall not discuss it further.
See, e.g. Docket Entry 19, at 7.
3. Is ALJ McCoy's conclusion that plaintiff retained the RFC to return to his past relevant work supported by the substantial evidence of the record?
In his final point of error, plaintiff asserts that ALJ McCoy's conclusion that plaintiff retained the RFC to return to his past relevant work is not supported by the substantial evidence of the record. Specifically, plaintiff contends that the ALJ's conclusions regarding plaintiff's ability to perform sedentary work were contradictory; that plaintiff's eye impairment (right eye blindness) should have been included in plaintiff's RFC; and that plaintiff's past work as a copier of titles required activities plaintiff did not retain the RFC to perform. For the reasons which follow, plaintiff has failed to meet his burden of establishing that any of the aforementioned errors constitute grounds for reversal.
Plaintiff's first argument regarding the ALJ's RFC assessment is unclear and is not made by reference to any of the evidence of record. Plaintiff avers, in pertinent part,
the medical expert `opined that the claimant would be limited to walking/standing in the sedentary range of exertion.' Tr. 19. It is obvious that the ALJ did not rely on the opinion of the medical expert when reaching her decision for the residual functional capacity of Mr. Patrick. When the ALJ hypothesized that the claimant could do `only occasional bending from the waist `( sic) (Tr.20), she was obviously outside the requirement that court opinions have held that in the definition of sedentary work `sedentary work does not require bending or twisting.'
Docket Entry 19, at 10, quoting Quinlan v. Chater, 966 F. Supp. 854, 858 (E.D. Mo. 1997).
Yet, plaintiff's argument ignores the medical expert's full testimony. The medical expert testified that, although plaintiff was limited to sedentary work with a sit/stand option, plaintiff was able to "bend from the waist" but that he might have trouble squatting, that is, bending from the knees. The ALJ incorporated these precise limitations in his RFC assessment, concluding that plaintiff was only capable of "occasional bending from the waist," but "no squatting." Thus, plaintiff's "bending" argument is unavailing and should be disregarded.
Transcript, at 55.
Transcript, at 20.
Plaintiff's second RFC challenge centers around his eye impairment. Plaintiff asserts that his right eye blindness, and accompanying lack of depth and light perception,
should have been used as an exertional limitation or restriction in the residual functional capacity of Mr. Patrick. This would have eliminated his alleged ability to obtain and maintain the storage facility rental clerk position offered by the vocational expert who stated `that a storage rental facility clerk usually has the use of a gold car for transportation to and from the units.' Tr. 21. Mr. Patrick is blind in his right eye and has no light perception; therefore, he would be unable to drive a `gold car'. ( sic)
Docket Entry 19, at 10.
Yet, plaintiff has failed to cite any evidence — medical, vocational or otherwise — that his right eye blindness precluded him from driving a "gold car." In addition, the ALJ incorporated the optical limitations in her assessment of plaintiff's RFC by stating that plaintiff was unable to perform any "job that requires vision in both eyes (20/30 on the left and blind in the right eye)." Thus, contrary to plaintiff's assertions, ALJ McCoy incorporated plaintiff's eye impairments into the RFC.
Transcript, at 20.
Importantly, plaintiff's argument that he was unable to drive a vehicle contradicts his testimony at the administrative hearing. Plaintiff testified that the only reason he allowed his drivers' license to expire was because he did not have "the means to buy a vehicle." Transcript, at 32. Plaintiff never testified, or presented any evidence, that his eye condition prevented him from being able to operate safely a vehicle.
Finally, plaintiff's argument that he was incapable of performing his past relevant work is unavailing. Plaintiff contends
since Mr. Patrick's past relevant work as a copier at a title company was performed at a semi-skilled light level of exertion, this would be outside the recommendations of all medical opinions (except, apparently, of the ALJ's), including his treating doctor, the consultative examiner provided by Social Security, and the medical expert utilized by the ALJ at Mr. Patrick's hearing.
Docket Entry 19, at 10.
Plaintiff's assertion, however, ignores the fact that his own treating physician — Dr. Williams — authored a report releasing plaintiff back to his previous employment as a copier of titles. Thus, the medical evidence of record establishes that plaintiff is capable of performing his past relevant work. For all the foregoing reasons, I find that plaintiff has failed to meet his burden of proving that the ALJ's decision was not supported by the substantial evidence of the record.
See Transcript, at 223.
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's complaint (docket entry 1) be DISMISSED and the Commissioner's decision be AFFIRMED. ALJ McCoy's decision was made by application of the correct legal standards and was supported by the substantial evidence of the record.
VII. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual\findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 149-152 (1985).
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).