Opinion
Civ. No. 99-1596, SECTION "LLM" (1).
February 16, 2000.
ORDER AND REASONS
Plaintiff Lucille P. Sartain seeks judicial review pursuant to Section 405(g) of the Social Security Act (the "Act") of the final decision of the Commissioner of Social Security Administration (the "SSA"), which denied her claim for disability insurance benefits ("DIB") and supplemental security income benefits ("SSI") under Title II and Title XVI, respectively, of the Social Security Act (the "Act"). 42 U.S.C. § 405(g), 416(i), 423, 1383(c)(3). Plaintiff and defendant filed timely cross-motions for summary judgment. Record Doc. Nos. 6, 7.
1. PROCEDURAL HISTORY
Sartain applied for DIB on May 23, 1996, alleging disability since June 17, 1992, due to high blood pressure, knee pain, scoliosis, and left hand pain. (Tr. 18, 82-84). The Commissioner denied her application initially and on reconsideration. (Tr. 18, 56, 62). Plaintiff requested a hearing before an administrative law judge ("ALJ"), which was held on October 3, 1997. (Tr. 24-53). The ALJ denied Sartain's application on December 17, 1997. (Tr. 15-22). After the Appeals Council denied review on April 12, 1999 (Tr. 5-6), the ALJ's decision became the final decision of the Commissioner for purposes of this Court's review.
2. STATEMENT OF ISSUES ON APPEAL
Plaintiff s request for judicial review raises the following issues:
(1) Whether the ALJ's finding that Ms. Sartain's impairment are "non-severe" is incorrect and unsupported by substantial evidence, and whether this determination violation violates the standard set by the Fifth Circuit's decision in Stone v. Heckler.
(2) Whether the ALJ failed to take into account the combined effects of Ms. Sartain's combined impairments.
(3) Whether the ALJ's finding that Ms. Sartain could return to her past relevant work is self-contradictory and unsupported by substantial evidence.
(4) Whether the ALJ's assessment of the claimant's credibility is not supported by substantial evidence and is marred by other legal errors.
3. ALJ'S FINDINGS RELEVANT TO ISSUES ON APPEAL
The Commissioner made the following findings relevant to the issues on appeal:
(1) Claimant has back and knee problems which are "non-severe." (SSR 96-p and Stone v. Heckler, 752 F.2d 1099 (5th circuit 1985).
(2) Claimant's impairments do not meet or equal the criteria of any impairment in the Listing of Impairments of Appendix 1, Subpt. P, Regulations No. 4.
(3) Claimant's assertions as to pain, limitations and the complete inability to do work are not substantiated by record evidence and are not credible.
(4) Claimant is a 58 year old female with a high school education.
(5) Claimant had the residual functional capacity to do light work.
(6) Claimant's impairment and residual functional capacity do not preclude her from doing her past relevant work as a bell service/bartender.
(7) Claimant has not demonstrated that she has had an impairment which prevented her from performing her past relevant work for 12 continuous months.
4. ANALYSIS
A. Standards of Review
The function of this Court on judicial review is limited to determining whether there is substantial evidence in the record to support the final decision of the Commissioner as trier of fact and whether the Commissioner applied the appropriate legal standards in evaluating the evidence. Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence is more than a scintilla but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.Richardson v. Perales, 402 U.S. 389, 401 (1971); Spellman, 1 F.3d at 360. This Court may not reweigh the evidence, try the issues de novo or substitute its judgment for the Commissioner's. Id.;Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
The Commissioner is entitled to make any finding that is supported by substantial evidence, regardless whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91 (1992). Despite this Court's limited function, it must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists to support it. Villa, 895 F.2d at 1022; Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). Any findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
To be considered disabled and eligible for DIB, plaintiff must show that she is unable "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), 1382c(a)(3)(A). The Commissioner has promulgated regulations that provide procedures for evaluating a claim and determining disability. 20 C.F.R. § 404.1501 to 404.1599 Appendices, §§ 416.901 to 416.998 (1995). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity. Id. §§ 404.1520, 416.920; Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); Moore v. Sullivan, 895 F.2d 1065, 1068 (5th Cir. 1990). The five-step inquiry terminates if the Commissioner finds at any step that the claimant is or is not disabled. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The five-step analysis requires consideration of the following:
First, if the claimant is currently engaged in substantial gainful employment, he or she is found not disabled. 20 C.F.R. § 404.1520(b), 416.920(b).
Second, if it is determined that, although the claimant is not engaged in substantial employment, he or she has no severe mental or physical impairment which would limit the ability to perform basic work-related functions, the claimant is found not disabled. Id. §§ 404.1520(c), 416.920(c).
Third, if an individual's impairment has lasted or can be expected to last for a continuous period of twelve months and is either included in a list of serious impairments in the regulations or is medically equivalent to a listed impairment, he or she is considered disabled without consideration of vocational evidence. Id. §§ 404.1520(d), 416.920(d).
Fourth, if a determination of disabled or not disabled cannot be made by these steps and the claimant has a severe impairment, the claimant's residual functional capacity and its effect on the claimant's past relevant work are evaluated. If the impairment does not prohibit the claimant from returning to his or her former employment, the claimant is not disabled. Id. §§ 404.1520(e), 416.920(e).
Fifth, if it is determined that the claimant cannot return to his or her former employment, then the claimant's age, education and work experience are considered to see whether he or she can meet the physical and mental demands of a significant number of jobs in the national economy. If the claimant cannot meet the demands, he or she will be found disabled. Id. §§ 404.1520(f)(1), 416.920(f)(1). To assist the Commissioner at this stage, the regulations provide certain tables that reflect major functional and vocational patterns. When the findings made with respect to claimant's vocational factors and residual functional capacity coincide, the rules direct a determination of disabled or not disabled. Id. § 404, Subpt. P, App. 2, §§ 200.00-204.00, 416.969 (1994) ("Medical-Vocational Guidelines").
The claimant has the burden of proof under the first four parts of the inquiry. Id. If she successfully carries this burden, the burden shifts to the Commissioner to show that other substantial gainful employment is available in the national economy, which the claimant is capable of performing. Greenspan, 38 F.3d at 236;Kraemer v. Sullivan, 885 F.2d 206, 208 (5th Cir. 1989). When the Commissioner shows that the claimant is capable of engaging in alternative employment, "the ultimate burden of persuasion shifts back to the claimant." Id.; accord Selders, 914 F.2d at 618.
The Court "weigh[s] four elements of proof when determining whether there is substantial evidence of disability: (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) [her] age, education, and work history." Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). "The Commissioner, rather than the courts, must resolve conflicts in the evidence." Id.
B. Factual Background
Ms. Sartain was born on January 3, 1939. She was 58 at the time of her hearing, and has a tenth grade education. According to plaintiff's counsel, the ALJ incorrectly characterized her employment as Bell Service/Bartender, without any explanation. He maintains she actually had past relevant work as a Room Service Waitress. Actually, at the hearing she testified that she was a "busser" at the New Orleans Hilton Hotel for seven-and-a-half-years, and a "refreshment center bar attendant" for three-and-a half-years. (Tr. 28). She said that she lifted trays from the floor that weighed up to twenty or twenty-five pounds. (Tr. 30).
Plaintiff testified at the hearing that she is not able to work due to her multiple impairments, which include high blood pressure, knee pain, scoliosis, and left and right hand pain. However, she also stated that she is able to lift 10 pounds frequently and 20 pounds occasionally, when specifically asked that question by the ALJ. (Tr. 37). The ALJ found that plaintiff was able to mop, sweep, wash clothes, and clean her house, although at the hearing, plaintiff testified that she could not mop or sweep. She did say that she could wash clothes, clean up and cook. (Tr. 33-36).
C. Medical Evidence
This Court has reviewed the medical records in evidence and the ALJ's summary of the medical evidence (Tr. 19-21), and finds the ALJ's summary of the evidence was substantially correct and incorporates it herein by reference, with the following revisions and notations:
As noted by the plaintiff, the Fifth Circuit has long held that "an impairment can be considered non-severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience." Stone v. Heckler, 752 F.2d 1099, 1101, (5th Circuit 1985). Plaintiff maintains that the ALJ clearly failed to apply this legal standard correctly. Plaintiff further maintains that the ALJ's own opinion belies his finding of no severe" impairment. Although he should have stopped his evaluation at the finding of non-severity, the ALJ improperly proceeded to steps three and four of the sequential evaluation. See Fn.1. The ALJ assigned Ms. Sartain a light residual functional capacity. (RFC). R. 22. That RFC reflects major limitations in the claimant's ability to work, disqualifying her from three of the five categories recognized by SSA (medium, heavy, and very heavy). Such a finding obviously shows an impairment of more than "minimal effect." If the claimant has no severe impairments, then her RFC should logically be unlimited. Plaintiff argues that a "light" RFC finding clearly cannot be reconciled with a finding of non-severity at step two.
As argued by defendant, the Fifth Circuit has recognized that an ALJ may make a determination that goes beyond a particular step in the sequential evaluation process. In Hernandez v. Heckler, 704 F.2d 857, 860 (5th Cir. 1983), it was held that an ALJ could determine that medical equivalency did not exist simply by proceeding to the fourth step in the sequential evaluation process, thus making by inference a judgment that the prior three steps were not determinative. In this case, the ALJ determined that plaintiff's impairments were not severe because they did not prevent "her from returning to work for 12 continuous months" and that her impairments did not meet or equal the requirements for any listing or a combination of impairments. (Tr. 19-22). The ALJ then proceeded to determine plaintiff's residual functional capacity based upon the evidence contained in the record, showing that he determined that steps two and three were not conclusive. (Tr. 21-22).
The ALJ also addressed plaintiff's impairments in combination to determine her residual functional capacity. (Tr. 21-22). The ALJ's finding was not a rote statement because the decision reveals that he reviewed the relevant evidence to arrive at this determination. (Tr. 21). The ALJ noted that plaintiff's problems with carpal tunnel syndrome and a knee injury had timely resolved, that plaintiff had a "full range of motion of her back and neck," and that there were no limitations from any physician relating to her ability to perform work activities. (Tr. 21).
The Court finds that whatever inconsistencies exist in the ALJ's findings do not constitute reversible error, since the substantive rights of the plaintiff were not affected. See Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988). There exists substantial evidence to support the ALJ's finding that plaintiff has the residual functional capacity to do light work. Whether plaintiff's past relevant work could be classified as light work is not clear from the evidence. The only evidence regarding her past work was her own testimony. The ALJ may have found from her testimony, for example, that she could return to her past work as a "refreshment center bar attendant."
In pertinent part, the regulations discuss light work as follows:
202.00 Maximum sustained work capability limited to light work as a result of severe medically determinable impairment(s).
(a) The functional capacity to perform a full range of light work includes the functional capacity to perform sedentary as well as light work. Approximately 1,600 separate sedentary and light unskilled occupations can be identified in eight broad occupational categories, each occupation representing numerous jobs in the national economy. These jobs can be performed after a short demonstration or within 30 days, and do not require special skills or experience.
(b) The functional capacity to perform a wide or full range of light work represents substantial work capability compatible with making a work adjustment to substantial numbers of unskilled jobs and, thus, generally provides sufficient occupational mobility even for severely impaired individuals who are not of advanced age and have sufficient educational competencies for unskilled work.
(e) "The presence of acquired skills that are readily transferable to a significant range of semi-skilled or skilled work within an individual's residual functional capacity would ordinarily warrant a finding of not disabled regardless of the adversity of age, or whether the individual's formal education is commensurate with his or her demonstrated skill level. The acquisition of work skills demonstrates the ability to perform work at the level of complexity demonstrated by the skill level attained regardless of the individual's formal educational attainments.
(f) For a finding of transferability of skills to light work for individuals of advanced age who are closely approaching retirement age (age 60-64), there must be very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry.20 C.F.R. Pt. 404, Subpt. P, App. 2
Defendant claims that the job of Room Service Clerk closely conforms to the duties described by plaintiff. The Dictionary of Occupational Titles defines that job as:
324.577-010 ROOM-SERVICE CLERK Industry Designation: Hotel and Restaurant Industry
Alternate Titles: Delivery-Room Clerk; Package Clerk; Receiving-Room Clerk; Runner
Performs any combination of following tasks related to serving guests in apartment hotels: Delivers and removes packages, laundry, clothes, groceries, and other articles to and from guests rooms or servidors (cabinets built into doors of hotel rooms). Collects supply orders from various departments and delivers to PURCHASING AGENT (profess. kin.). Delivers mail to various departments and guests. Records information pertaining to services rendered. May arrange for pressing clothes and shining shoes, sending and receiving packages, and in maintaining valet service. May press clothes and shine shoes [SHOE SHINER (personal ser.)]. May supervise activities of workers engaged in delivering packages to hotel guests.
GUIDE FOR OCCUPATIONAL EXPLORATION: 09.05.03
STRENGTH: Light Work — Exerting up to 20 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or up to 10 pounds of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) and/or a negligible amount of force constantly (Constantly: activity or condition exists 2/3 or more of the time) to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though the weight lifted may be only a negligible amount, a job should be rated Light Work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible.
The ALJ found that the plaintiff's testimony of subjective complaints and functional limitations, including pain, were not supported by the evidence as a whole in the disabling degree alleged, and therefore lacked credibility. (Tr. 19, 22). The Court thoroughly reviewed the medical evidence submitted as exhibits, as well as plaintiff's testimony, and agrees with the ALJ.
Whether pain is disabling is an issue for the ALJ, who has the primary responsibility for resolving conflicts in the evidence.Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir. 1991). It is within the ALJ's discretion to determine the disabling nature of a claimant's pain, and the ALJ's determination is entitled to considerable deference. Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir. 1991); James v. Bowen, 793 F.2d 702 (5th Cir. 1986). The determination whether an applicant is able to work despite some pain is within the province of the administrative agency and should be upheld if supported by substantial evidence. Jones v. Heckler, 702 F.2d 616 (5th Cir. 1983); Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980).
Subjective complaints must be corroborated by objective medical evidence. Houston v. Sullivan, 895 F.2d 1012, 1016 (5th Cir. 1989). When the medical signs or laboratory findings show that the claimant has medically determinable impairments that could reasonably be expected to produce the alleged symptoms, the Commissioner must evaluate the intensity and persistence of the symptoms, so that he can determine how the symptoms limit the claimant's capacity for work. 20 C.F.R. § 404.1529(c). In evaluating the intensity and persistence of symptoms, the following objective factors can corroborate the existence of disabling pain: limitations on range of motion, muscular atrophy, weight loss, impairment of general nutrition, x-ray evidence, neurological deficits and muscle spasms. Hollis, 837 F.2d at 1384.
The Court finds that the Commissioner considered all the objective factors presented in the medical evidence, and his conclusion is substantially supported by the medical evidence.
The Commissioner also properly considered plaintiff's combined impairments. An individual's combined impairments can prohibit substantial gainful activity. 20 C.F.R. § 404.1523, 416.923;Owens v. Heckler, 770 F.2d 1276, 1282 (5th Cir. 1985). It is well settled that "the Commissioner must analyze both the disabling effect of each of the claimant's ailments and the combined effect of all of these impairments." Fraga v. Bowen, 810 F.2d 1296, 1305 (5th Cir. 1987) (quotations omitted). However, an ALJ's finding that multiple impairments do not render a plaintiff disabled will be upheld unless the Commissioner "so fragmentized [plaintiff's] several ailments" that he failed properly to evaluate their combined effect upon plaintiff. Id. This Court finds that the Commissioner properly evaluated plaintiff's combined effects upon her ability to work, and correctly concluded that they did not render her disabled under the Act. The Commissioner has sole responsibility for determining a claimant's disability status.Moore, 919 F.2d at 905.
Substantial evidence supports the ALJ's conclusion that Sartain's daily activities indicate she is able to perform a full range of light work. Under step four of the disability analysis, the Commissioner may consider evidence of participation in daily activities and household chores in conjunction with other evidence, Reyes v. Sullivan, 915 F.2d 151, 154-55 (5th Cir. 1990).
"The Commissioner, rather than the courts, must resolve conflicts in the evidence." Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). As stated earlier, the Commissioner is entitled to make any finding that is supported by substantial evidence, regardless whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91 (1992). Despite this Court's limited function, it must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists to support it. Villa, 895 F.2d at 1022; Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). Any findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). In this case, the Court has scrutinized the record in its entirety, and has determined that the decision was reasonable and that substantial evidence exists to support it.
CONCLUSION
Substantial evidence in the record supports the ALJ's decision that the limitations resulting from Sartain's combined impairments were not so severe as to be disabling and that she has the residual functional capacity to perform light work activity available in the national economy. Accordingly, IT IS ORDERED that plaintiff's complaint be and is hereby DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 15th day of Feb., 2000.
MINUTE ENTRY DUVAL, J. FEBRUARY 11, 2000