Opinion
Case No. 6:14-cv-64-Orl-DAB
02-23-2015
THOMAS EDWARD RICE, PLAINTIFF, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
MEMORANDUM OPINION AND ORDER
This cause came on for consideration without oral argument on review of the Commissioner's decision to deny Plaintiff's application for disability benefits. For the reasons set forth herein, the decision of the Commissioner is AFFIRMED.
Procedural History
Plaintiff applied for a period of disability and disability insurance benefits, alleging that he became unable to work on February 10, 2008, later amended to December 2, 2009 (R. 138-42,157). The agency denied Plaintiff's applications initially, but, on reconsideration, found Plaintiff to be disabled as of May 24, 2011 (R. 68-72,74, 143-146). Plaintiff disagreed with this determination and requested and received a hearing before an administrative law judge ("the ALJ"). The ALJ subsequently issued an unfavorable decision, finding Plaintiff to be not disabled (R. 9-22). The Appeals Council declined to grant review (R. 1-3), making the ALJ's decision the final decision of the Commissioner.
The Notice of Award provided that Plaintiff was entitled to monthly disability benefits beginning in November 2011, based on a finding that he became disabled on May 24, 2011(R. 143). Although Plaintiff contends that he sought review only to challenge the date of onset (R. 76), the Notice makes clear that requesting a hearing is a request for a de novo review. The Notice states:
If you think we are wrong, you have the right to request a hearing. At the hearing, a person who has not seen your case before will look at it. That person is an Administrative Law Judge. In the rest of our letter, we will call this person an ALJ. The ALJ will review those parts of the decision which you believe are wrong. The ALJ will look at any new facts you have and correct any mistakes. The ALJ may also review those parts which you believe are correct and may make them unfavorable or less favorable to you.(R. 145-emphasis added).
Plaintiff timely filed his complaint in this action, and the parties have consented to the jurisdiction of the undersigned United States Magistrate Judge. The matter has been fully briefed and the case is now ripe for review pursuant to 42 U.S.C. § 405(g).
Nature of Claimed Disability
Plaintiff claims to be disabled due to depression, shoulder problems and neck problems, insomnia, high blood pressure, high cholesterol, shortness of breath, fatigue and GERD (R. 38, 168).
Summary of Evidence Before the ALJ
Plaintiff was sixty-one years old as of the date of decision, with a high school education and one year of college, and past relevant work as a buyer and merchandise manager (R. 32, 34-36, 159).
The medical evidence relating to the pertinent time period is well detailed in the ALJ's opinion and in the interest of privacy and brevity will not be repeated here, except as necessary to address Plaintiff's objections. In addition to the medical records of the treating providers, the record includes Plaintiff's testimony and that of a Vocational Expert ("the VE"), written forms and reports completed by Plaintiff and his wife, and opinions from examining and non-examining consultants. By way of summary, the ALJ determined that Plaintiff had the severe impairment of a left shoulder degenerative joint disease (20 CFR 404.1520(c)) (R. 14), but found Plaintiff's dyspnea, degenerative joint disease of the cervical spine, hypertension, gastroesophageal reflux disease, seizure disorder, depression and insomnia to be "non-severe" impairments (R. 14-17). The ALJ determined that through the date of the decision (August 23, 2012), the claimant did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (R. 17-18). The ALJ then found that Plaintiff had the residual functional capacity ("RFC") to perform:
less than the full range of light work as defined in 20 CFR 404.1567(b). The claimant can frequently balance, stoop, kneel, and crouch; occasionally crawl and climb ramps or stairs; but never climb ladders, ropes, or scaffolds. The claimant can frequently reach with the left upper extremity. The claimant should avoid concentrated exposure to extreme temperatures and humidity and must avoid moderate exposure to hazards, machinery, and heights.(R. 18). With the assistance of the Vocational Expert, the ALJ determined that Plaintiff could return to his past relevant work as a Buyer and Merchandise Manager, and therefore, found Plaintiff was not disabled (R. 20-22).
Standard of Review
The scope of this Court's review is limited to determining whether the ALJ applied the correct legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390 (1971). The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla - i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995).
Where the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the evidence preponderates against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire record to determine reasonableness of factual findings).
Issues and Analysis
Plaintiff raises several issues for review, contending that: 1) the ALJ failed to state what weight he accorded to the opinion of the consultative psychologist; 2) the ALJ improperly accorded little weight to the opinion of the consultative medical examiner, Dr. Grant; and 3) the ALJ failed to properly evaluate Plaintiff's allegations of pain and limitations. The Court examines these objections in the context of the sequential evaluation applied by the ALJ.
The five step assessment
The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R. §§ 404.1520, 416.920. First, if a claimant is working at a substantial gainful activity, he is not disabled. 29 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or combination of impairments which significantly limit his physical or mental ability to do basic work activities, then he does not have a severe impairment and is not disabled. 20 C.F.R. § 404.1520(c). Third, if a claimant's impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is disabled. 20 C.F.R. § 404.1520(d). Fourth, if a claimant's impairments do not prevent him from doing past relevant work, he is not disabled. 20 C.F.R. § 404.1520(e). Fifth, if a claimant's impairments (considering residual functional capacity, age, education, and past work) prevent him from doing other work that exists in the national economy, then he is disabled. 20 C.F.R. § 404.1520(f).
The plaintiff bears the burden of persuasion through Step 4, while at Step 5 the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). Here, as the administrative determination was made at Step 4, the burden rested with the Plaintiff at all times.
Weighing Opinions
The first two objections go to the ALJ's consideration of the opinions of the consultative psychologist (Dr. Austin) and medical examiner (Dr. Grant).
On May 23, 2011, Plaintiff saw Dr. Austin for a consultative psychological evaluation (R. 405-407). Plaintiff alleged symptoms of depression for the prior five years, reported taking sertraline since 2006, and denied any history of counseling or psychiatric hospitalization (R. 405-06). Plaintiff reported he was able to perform self-care without assistance, and admitted to a variety of activities (during the day he used the computer, read, and washed dishes; he drove, had a few friends, attended church weekly, and was able to manage funds) (R. 406). On mental status examination, Plaintiff was alert and oriented to time, place, and person. He avoided eye contact, but demonstrated good basic functioning, grooming, and hygiene; his speech was logical, coherent, and of normal tone and rate; attention and concentration were within normal limits; and he attended to questions without distractions. Plaintiff denied any indications of psychosis such as hallucinations, and his thought processes were intact, with no gross impairment in memory functioning (R. 406). Plaintiff's mood was "nervous." Dr. Austin diagnosed major depressive disorder, recurrent, moderate; and assessed a global assessment of functioning (GAF) score of 53 (R. 406-07). Regarding Plaintiff's functional ability, Dr. Austin opined Plaintiff could manage his own funds, had fair social functioning based on his reports of interactions with same age peer group, and his "functional ability [was] significantly impaired based on [Plaintiff's] symptoms of depression" (R. 406).
One day later, on May 24, 2011, Plaintiff attended a consultative physical examination with Carol Grant, M.D. (R. 409-412). Plaintiff reported being diagnosed with hypertension twenty years earlier and complained of experiencing recurrent shortness of breath and fatigue for the prior five years and left shoulder pain in the prior four years. Plaintiff also complained of neck pain related to an accident twenty-five years earlier. As for his depression, Plaintiff reported being diagnosed with depression five years earlier, but he stated that his medication worked well and he had no complaints related to depression at that time (R. 409-10). Dr. Grant noted Plaintiff was alert and oriented times three, his affect and mood were normal, his intellectual functioning appeared normal, and he showed no signs of psychosis (R. 410).
On examination, Dr. Grant noted Plaintiff appeared to be well nourished and in no cardiopulmonary distress (R. 410). The examination was mostly unremarkable, with Dr. Grant noting a regular heart rate and rhythm and normal S1 and S2 sounds with no gallops, clicks, rubs, or murmurs, and Plaintiff's lungs were clear to auscultation with good air entry (R. 411). Dr. Grant found Plaintiff's extremities had no cyanosis, clubbing, swelling, or pitting edema, and he had normal pulses (R. 411). Plaintiff exhibited tenderness to palpation in his paravertebral muscles and left shoulder and reduced range of motion in his cervical spine and shoulders, but he had normal range of motion and no tenderness, muscles spasm, or swelling in his thoracolumbar spine, right shoulder, elbows, forearms, wrists, hands, hips, knees, ankles, and feet (R. 411). Plaintiff's strength was 5/5 except for 4-5/5 in his left shoulder; his gait was normal, he walked without an assistive device, and he was able to squat and walk on heels and toes (R. 412). In terms of Plaintiff's neurological functioning, Dr. Grant found Plaintiff had no atrophy or tremors, his sensation was intact, his deep tendon reflexes were 2+/4+ throughout, straight leg raising testing was negative, his coordination was intact, and Romberg testing was normal (R. 412).
Dr. Grant diagnosed Plaintiff with hypertension, dyslipidemia, recurrent shortness of breath, fatigue, left shoulder pain, status post left shoulder surgery in 1973, chronic neck pain, and GERD (R. 412). Regarding Plaintiff's functioning, Dr. Grant stated Plaintiff's subjective complaints were consistent with the objective medical findings (R. 412).
The Eleventh Circuit has held that whenever a physician offers a statement reflecting judgments about the nature and severity of a claimant's impairments, including symptoms, diagnosis, and prognosis, what the claimant can still do despite his or her impairments, and the claimant's physical and mental restrictions, the statement is an opinion requiring the ALJ to state with particularity the weight given to it and the reasons therefor. Winschel v. Commissioner of Social Security, 631 F.3d 1176, 1178-79 (11th Cir. 2011) (citing 20 CRF §§ 404.1527(a)(2), 416.927(a)(2); Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987).)
Here, the ALJ mentioned Dr. Austin's opinion in several places in his determination, but did not expressly "weigh" the opinion. As recognized by the Eleventh Circuit:
Ordinarily, an ALJ's failure to explain the particular weight given to the different medical opinions provided is reversible error. Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir.1987). However, when the ALJ's error did not affect its ultimate findings, the error is harmless, and the ALJ's decision will stand. See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir.1983).Tillman v. Commissioner of Social Security, 559 Fed. Appx. 975 (11th Cir. 2014).
Upon review here, there is no doubt that the ALJ considered Dr. Austin's opinion, accepted the mild examination findings and discounted the conclusion that claimant's functional ability was significantly limited. As that finding is supported by overwhelming evidence, the Court finds the failure of the ALJ to explicitly weigh the opinion of Dr. Austin to be harmless.
The ALJ acknowledged Dr. Austin's conclusion that Plaintiff's functional ability was significantly impaired, but made an explicit finding that Plaintiff had no limitation in the ability to perform activities of daily living, stating:
The claimant and his wife admit that the claimant drives, shops, and has no problems maintaining personal care. (Exhibits 4E/3-5; 7E/4-6; 8E/5-7; 8F/3). Further, treatment records show that the claimant admitted that his depression was stable on Zoloft on December 2, 2009, and June 7, 2010, and Ambien was helpful with insomnia on December 2, 2009, and March 24, 2011. (Exhibit 6F/9, 32, 57). William Austin, Psy.D., who saw the claimant for a consultative examination, opined that the claimant's functional ability is significantly impaired. (Exhibit 8F/3 ). While David Clay, Ph.D., State agency consultant, opined that the claimant has no restriction in the activities of daily living. Todd Giardina, Ph.D., another State agency consultant, opined that the claimant has mild restrictions in the activities of daily living. (Exhibits l0F/11; l5F/ll).(R. 16 emphasis added).
Relying upon the admissions of the claimant and his wife, the undersigned finds that the claimant has no limitation in this domain of functioning.
The ALJ also found Plaintiff to have mild limitations in social functioning, noting:
According to the claimant, he spends time with others; shops for groceries, electronics, and automobile items; and regularly attends religious services. (Exhibits 4E/5-7; 7E/6-8; 8F/3). Mrs. Rice confirms the claimant's admissions. (Exhibit 8E/7-9). On May 23, 2011, the claimant avoided eye contact at his consultative examination. (Exhibit 8F/3). On the other hand, his speech was logical and coherent and he cooperated to complete the examination. (Exhibit 8F/3). Despite an absence of mental health counseling, there is no evidence of interpersonal difficulty during the claimant's consultative physical examination on May 24, 2011, or at any physical treatment examinations (Exhibits 6F; 9F; l 2F; and 19F). According to Dr. Austin, the claimant's social functioning is fair. (Exhibit 8F/3). On the other hand, Drs. Clay and Giardina opined that the claimant has no difficulty in maintaining social functioning. (Exhibits l0F/11; 15F/11).(R. 16 emphasis added).
The ALJ found Plaintiff to have only mild limitations in concentration, persistence and pace:
While the claimant alleges that he has difficulty concentrating and does not finish what he starts, both he and his wife admit that he reads books, uses the computer, and can pay bills, count change, and handle financial accounts. (Exhibit 4E/3-7; 5E/4; 7E/4-8; 8E/5-9; 8F/3). Physical treatment records document the claimant's alert and oriented presentation during the period at issue. (Exhibits 6F; 12F; and 19F). On May 23, 2011, a consultative mental status examination revealed the claimant's attention and concentration were within normal limits and there was no gross impairment of memory functioning. (Exhibit 8F/3). Dr. Austin opined that the claimant is capable of managing his own funds, should he be entitled to benefits. (Exhibit 8F/3). According to Drs. Clay and Giardina, the claimant has mild difficulty in maintaining concentration, persistence, or pace. (Exhibits l0F/11; 15F/11).(R. 17 emphasis added).
Giving the benefit of the doubt to the claimant, the undersigned finds that the claimant has mild limitations in maintaining concentration, persistence, or pace.
Where, as here, "an ALJ has expressly considered the evidence on which the physician relied in forming his opinion, and where that evidence, along with other objective medical evidence in the record, including the plaintiff's own testimony, showed that the plaintiff was not disabled and incapable of work, the ALJ's failure to specifically reference the physician's opinion did not affect the result in the case." Ricker v. Commissioner of Social Sec., No. 5:13-cv-479-Oc-18PRL, 2014 WL 6610849, at *8-9 (M.D.Fla. Nov. 21, 2014)(citing Tillman). The ALJ's finding that Plaintiff's depression was non-severe is supported by substantial evidence and any failure to more explicitly weigh Dr. Austin's opinion is harmless.
As pointed out by the Commissioner, Dr. Austin was a one time examiner. By contrast, the records of the treating providers show Plaintiff‘s depression to be stable; mental status exams were consistently unremarkable, Plaintiff tested negative on depression screening, and he reported good results with his medication with no complaints of depressive symptomology. (R. 336, 358-59, 374, 381, 386, 441, 584-85, 596, 600-01). Indeed, Plaintiff cites no other finding by any other provider to support a conclusion that his depression was severe.
The record shows that Plaintiff did not believe his depression was severe. Plaintiff declined referral to mental health services available at the VA, stating he "is doing good." (R. 371). He told Dr. Grant that his anti-depressant is working well for him and he "has no complaints with regard to this condition at this time." (R. 410). Indeed, Plaintiff had contacted the VA to request a letter saying he was capable of working after he was offered a job with the United State Postal Service; Dr. Tran provided the letter on November 24, 2010 (R. 350-54). In addition to the above and the absence of objective findings or complaints of significant depressive symptoms in the treating records, two state agency psychologists reviewed the evidence and determined that Plaintiff did not have a severe mental health impairment (R. 413-426; 487-500). Against this contrary record, Dr. Austin's finding of significant limitations from depression (denied by Plaintiff a mere day later) is not even a scintilla of evidence, and a reasonable person would not accept it as adequate to support a finding of disability.
As for Dr. Grant, the ALJ set forth the examination findings and her opinion that Plaintiff's "subjective complaints are consistent with the objective medical findings," but accorded the opinion "little weight because it is inconsistent with the overall normal clinical signs contained in her report, including a normal gait, intact motor strength in three out of four extremities, and intact sensation and reflexes. (Exhibit 9F/4-5)." (R. 20). Plaintiff claims that this rationale is not supported by substantial evidence, in that Dr. Grant found tenderness to palpitation and limited range of motion at the left shoulder and tenderness to palpation at the paravertebral muscles of the cervical spine.
Substantial weight must be given to the opinion, diagnosis and medical evidence of a treating physician unless there is good cause to do otherwise. See Lewis v. Callahan, 125 F.3d 1436 (11th Cir. 1997); Edwards v. Sullivan, 937 F.2d 580, 583 (11th Cir. 1991); 20 C.F.R. § 404.1527(d). If a treating physician's opinion on the nature and severity of a claimant's impairments is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with the other substantial evidence in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(d)(2). The ALJ may discount a treating physician's opinion or report regarding an inability to work if it is unsupported by objective medical evidence or is wholly conclusory. See Edwards, 937 F.2d 580 (ALJ properly discounted treating physician's report where the physician was unsure of the accuracy of his findings and statements.)
By contrast, Dr. Grant was not a treating provider, but a one time consultant and, as such, her conclusory opinions are not entitled to great weight. See 20 C.F.R. §§ 404.1502, 404.1527(c)(2); Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1160 (11th Cir. 2004). Moreover, the ALJ explained that Dr. Grant's conclusions were not supported by the objective evidence and were inconsistent with the record:
[S]ince the amended alleged onset of disability, outpatient treatment records generally indicate an absence of complaints or clinical signs of impairment related to the claimant's left upper extremity. (Exhibits 6F; 12F; and 19F). On December 2, 2009, there is no evidence that the claimant complained of left shoulder pain. (Exhibit 6F/57). Moreover, the claimant demonstrated a normal gait, 5/5 motor strength in all four extremities, and intact sensation and vibration during his neurologic examination on July 18, 201l.(Exhibit19F/54).(R. 19).
Consultative examination findings suggest some level of left upper extremity impairment but not such that would preclude the above-mentioned residual functional capacity. On May 24, 2011, there was tenderness to palpation and slightly diminished motor strength (4-5/5) of the claimant's left shoulder. (Exhibit 9F/4). On the other hand, the claimant's gait was normal, he was able to squat and heel and toe walk, motor strength was otherwise normal throughout, and sensation and reflexes were intact. (Exhibit 9F/4-5). On September 26, 2011, consultative left shoulder x-rays showed moderate hypertrophy of the AC joint but no acute bony abnormality and surgical clips in place. (Exhibit 16F/2).
The ALJ also observed that another reviewer, Dr. Desi, "appropriately considered the consultative x-rays of moderate hypertrophy but also accounted for the minimal diminished motor strength of the claimant's left upper extremity. (Exhibits 9F/4-5; 16F/2)." (R. 20). Thus, the ALJ adopted an RFC to accommodate the left shoulder impairment and set forth a reasoned rationale for discounting Dr. Grant's conclusory opinion to the extent it implied limitations greater than those found in the RFC, and this rationale is supported by the evidence cited. No error is shown.
Evaluating Allegations of Pain and Limitations
Plaintiff's last contention is that the ALJ erred in evaluating his contentions of pain and limitations. When a claimant attempts to establish disability through subjective symptoms, the Eleventh Circuit follows a three-part test that requires: "(1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged [symptom] arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged [symptom]." Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). If the objective medical evidence does not confirm the severity of the claimant's alleged symptoms but the claimant establishes that he has an impairment that could reasonably be expected to produce his alleged symptoms, the ALJ must evaluate the intensity and persistence of the claimant's alleged symptoms and their effect on the claimant's ability to work. See 20 C.F.R. §§ 404.1529(c), (d), 416.929(c), (d); Mack v. Commissioner of Social Security, 420 Fed.Appx. 881, 883 (11th Cir. 2011).
After considering a claimant's subjective complaints, the ALJ may reject them as not credible. Where an ALJ decides not to credit a claimant's testimony about pain or limitations, the ALJ must articulate specific and adequate reasons for doing so, or the record must be obvious as to the credibility finding. Jones v. Department of Health and Human Services, 941 F.2d 1529, 1532 (11th Cir. 1991) (articulated reasons must be based on substantial evidence). A reviewing court will not disturb a clearly articulated credibility finding with substantial supporting evidence in the record. Foote, 67 F.3d at 1562.
Applied here, the ALJ found that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment" (R. 19). As Plaintiff acknowledges, the ALJ "gave various reasons why he found Mr. Rice's testimony not credible" (Brief, citing R. 18-19). Plaintiff does not directly challenge any of the stated reasons but nonetheless contends that the ALJ failed to properly evaluate Plaintiff's allegations of pain and limitations because "Drs. Austin and Grant's opinions supported Mr. Rice's testimony, but the ALJ did not properly weigh these opinions" and, as "the ALJ did not consider whether these opinions supported Mr. Rice's testimony," the credibility finding is not supported by substantial evidence and not based on the correct legal standards. This contention is without merit.
As detailed above, the ALJ considered the opinions of Drs. Austin and Grant and the ALJ's decision not to credit these opinions was adequately supported. As such, the ALJ's analysis of these opinions supports the instant credibility finding. Although Plaintiff contends that a finding of disability is supported by the evaluations of Drs. Austin and Grant, the issue is not whether an alternative decision can be supported by the record, but whether this decision is. To the extent Plaintiff's objection is simply meant to suggest that the evidence could support a different finding, "[i]f the Commissioner's decision is supported by substantial evidence, this Court must affirm, even if the proof preponderates against it." Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004). Here, the ALJ provided a detailed analysis of the evidence of record and his conclusions are supported by the evidence he cites. "We may not decide facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner.]" 357 F.3d at 1240 n. 8 (internal quotation and citation omitted). As the Court finds the decision meets the legal standard, no error is shown.
A final note is in order. Having obtained a favorable determination at the reconsideration level, Plaintiff nonetheless decided to seek review from an ALJ in the hope that the ALJ would revise the agency's determination of disability onset to an earlier date. The matter was referred to an ALJ who commenced his duty to consider the application anew. The ALJ developed the record and, following the required de novo review, concluded that Plaintiff was not disabled at any relevant time. Post-determination, Plaintiff sought to reverse that finding, by agreeing to accept the earlier determination that Plaintiff was disabled as of May 24, 2011(R. 135). That earlier determination was extinguished, however, by the decision to seek a hearing before the ALJ. There is no procedure to reinstate a prior, superseded determination if an applicant is dissatisfied with the result of the requested subsequent determination. Although Plaintiff now says that he "did not realize that he was putting his current benefits in jeopardy by attending the hearing," he was represented by counsel at all relevant times (R. 76-78). Moreover, the decision to seek review in the hope of a more generous award was made with explicit notice from the agency that the ALJ could make a decision that was less favorable. While the Court understands Plaintiff's regret and chagrin, by its nature, a de novo review encompasses all issues and is not a free shot at obtaining greater relief.
"The ALJ will consider the issue(s) you raise, the evidence now in your file, and any additional evidence you provide. The ALJ may also consider other issues, including issues that were decided in your favor in the decision you appealed." (R. 80, 82). See also the Notice of Award (R. 145).
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The law defines disability as the inability to do 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. § § 416(I), 423(d)(1); 20 C.F.R. § 404.1505. The impairment must be severe, making the claimant unable to do his or her previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. § § 404.1505-404.1511. The only issue before the Court is whether the decision by the Commissioner that Plaintiff did not meet this standard is adequately supported by the evidence and was made in accordance with proper legal standards. As the Court finds that to be the case, the decision is affirmed.
Conclusion
For the reasons set forth above, the administrative decision is AFFIRMED. The Clerk is directed to enter judgment accordingly, terminate all pending matters, and close the file.