Opinion
Civil Action No. 03-0645-P-L.
July 2, 2004
REPORT AND RECOMMENDATION
Plaintiff brings this action under 42 U.S.C. § 405(g) and § 1383(c)(3) seeking judicial review of a final decision of the Commissioner of Social Security denying her claim for a period of disability, Social Security disability insurance benefits and supplemental security income benefits. This action was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Oral argument was held on June 25, 2004. Upon consideration of the administrative record, oral argument and the memoranda of the parties, it is recommended that the decision of the Commissioner be reversed and remanded.
I. Issues on Appeal
1. Whether the Administrative Law Judge (ALJ) erred by failing to assign proper weight to the medical evidence from Dr. Mitchell, a treating physician.
2. Whether the ALJ improperly evaluated the evidence form Dr. Zweifler, an examining clinical psychologist.
3. Whether the ALJ improperly evaluated Plaintiff's credibility.
4. Whether the ALJ improperly determined Plaintiff's residual functional capacity.
5. Whether the ALJ relied upon erroneous testimony from the vocational expert.
II. Background Facts
Plaintiff was born on November 11, 1958 and was 43 years old at the time of the administrative hearing on June 12, 2002. (Tr. 105). Plaintiff has a sixth grade education. (Tr. 356). Plaintiff has completed six months of training as a nursing assistant and received her certificate as a nurse's aide. (Tr. 128, 147). Plaintiff has past relevant work experience as a deli worker, cashier, nurse's aide, and seafood processor. (Tr. 191-192). Plaintiff alleges that she became unable to work on July 15, 1999, due to diabetes mellitus; hypertension; chronic obstructive pulmonary disease; peripheral vascular disease; osteoarthritis; osteoporosis; obesity; depression NOS; and borderline intellectual functioning/learning disability. (Tr. 15, 19, 122).
III. Procedural History
Plaintiff applied for disability insurance benefits and supplemental security income with a protective filing date of February 15, 2000. (Tr. 13, 102-104). The applications were initially denied. (Tr. 70, 75-76) On June 12, 2002, the hearing was held before the ALJ. Plaintiff, her attorney and a vocational expert (VE) were present. (Tr. 25). On October 17, 2002 the ALJ entered a decision wherein he found the Plaintiff "not disabled". (Tr. 10-20). On August 22, 2003 the Appeals Council denied the request for review and the hearing decision became the final decision of the Commissioner of Social Security. (Tr. 3-5). IV. Findings of the Administrative Law Judge
The reconsideration stage was eliminated from this case pursuant to a test of modifications to the disability determination. 20 C.F.R. §§ 404.906, 404.966, 416.1406 and 416.1466.
The ALJ found Plaintiff has the severe impairments of diabetes mellitus; hypertension; chronic obstructive pulmonary disease; peripheral vascular disease; osteoarthritis; osteoporosis; obesity; depression NOS; and borderline intellectual functioning/learning disability. (Tr. 15). However, these impairments did not meet or medically equal a listing in the Listing of Impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1. (Tr. 15). The ALJ found Plaintiff's credibility concerning her testimony of disabling pain inconsistent with the medical evidence of record or the record in its entirety. (Tr. 18). The ALJ found Plaintiff has the residual functional capacity for work at the sedentary level of exertion that includes avoiding concentrated exposure to environmental pollutants, and excludes work requiring an ability to follow and carry out detailed instructions. (Tr. 19). Based upon the testimony of the vocational expert, the ALJ found plaintiff could perform other work which exists in significant number in the national economy and was "not disabled". (Tr. 19)
V. Plaintiff's Testimony
At the hearing, Plaintiff testified as follows:
Plaintiff was born on November 11, 1958. She attended school through the sixth grade, but never received her G.E.D. (Tr. 33). She received a nurse's assistant certification. (Tr. 34). She can read and write, but cannot spell with any proficiency. (Tr. 35). Plaintiff's various jobs have required nominal reading or writing duties. Her most difficult job required her to operate a cash register and make change. (Tr. 36). Plaintiff's height is between 5'3" and 5'4", and her weight has fluctuated in the past couple of years between 135 and 218 pounds. (Tr. 40).
Plaintiff testified that standing and sitting cause pain in her back, feet, and legs. (Tr. 41). The back pain feels like a vice twisting. Plaintiff feels the pain of a thousand needles sticking into her feet. (Tr. 41). She has numbness in her legs and feet. Since plaintiff stopped working her health has deteriorated, demonstrated by an increase in pain in her feet and legs. She wears no special shoes or stockings, but has been prescribed a cane for walking which she sometimes uses. (Tr. 45). Her legs often change colors due to poor circulation. (Tr. 50). Constant pain in her right forefinger has affected her ability to pick up items for several years. (Tr. 49).
Plaintiff is currently taking Vioxx and Lortab for pain and Amitriptyline for sleep. (Tr. 48). The medication side effects cause her to feel bad when attempting to get out of bed. By the time she gets up, takes a bath, eats, and takes her medication, she is tired and will usually lie back down. (Tr. 41). Plaintiff's level of pain increases when it is raining. (Tr. 41).
Plaintiff could not perform a job that would require being seated for 5 to 6 hours a day and standing for 1 to 2 hours. (Tr. 41). She is not physically capable of sitting in one position for more than 30 minutes or standing for more than 10 to 20 minutes and cannot walk "that far". (Tr. 42). Plaintiff testified that Dr. Mitchell recommended a health and conditioning program for her to follow. She attempted the recommended rehabilitation through the use of a treadmill until her back went out and her left leg and groin started hurting, causing severe pain. (Tr. 42). Plaintiff went to Dr. Park who recommended water activity to help in the rehabilitation process. She did not attempt the water activity because she "did not feel like it". (Tr. 43).
On a day-to-day basis plaintiff will get up to eat, sit back down to watch television, then lie down, and get back up again and repeat the process. (Tr. 43). She wakes up two or three times a night and generally takes a nap everyday. (Tr. 48). While sleeping at night Plaintiff puts pillows between her legs, as recommended by her doctor, in order for her to get comfortable. (Tr. 51). She sometimes makes her own food, occasionally cleans, but does not do other chores. (Tr. 44). Plaintiff used to cook, particularly on holidays for her family, but has not been able to for the last two or three years. Plaintiff uses an electric powered grocery cart when shopping. (Tr. 52). She has no hobbies or social activities. (Tr. 44). However, she used to go to the flea market, parks, and swimming. (Tr. 52). She sometimes drives with the farthest trip being to Mobile and back. (Tr. 44).
Plaintiff keeps a written log to monitor her blood sugar levels. Her blood sugar levels were high which cause her to feel discomfort. (Tr. 45). She has to watch her diet and avoid eating sweets in order to control her sugar intake. She smokes a pack of cigarettes a day, has attempted to cut down, but has shown little improvement. (Tr. 46). She also smokes inside of her home. (Tr. 47). Plaintiff has asthma that affects her during various parts of the year, particularly spring and winter. (Tr. 47).
VI. Vocational Expert Testimony
The VE testified that plaintiff's past work as a pizza baker was light and low semi-skilled, as a salad maker was light and semi-skilled, as a cashier was light and semi-skilled, and as a nurse's aide was medium and semi-skilled. (Tr. 54).
The ALJ presented a hypothetical question to the VE containing the elements of a person of plaintiff's age, education and work experience and the physical capacities identified by the State Agencies physical capacities evaluation. (Tr.302-305). The VE responded that the hypothetical person would be capable of medium work with no ladder climbing and could return to all past jobs except for the nurse's aide. (Tr. 55).
The State Agency found that Plaintiff could occasionally lift and/or carry 50 pounds or less, frequently lift and/or carry 25 pounds or less, stand and/or walk for about 6 hours in an 8-hour workday, sit for about 6 hours in an 8-hour workday, and limited in lower extremeties.
The ALJ presented a second hypothetical question to the VE placing the hypothetical person at a sedentary residual functional capacity, with a sixth grade education and with moderate limitations in the ability to work around environmental pollutants. The VE responded that there was work existing in the national economy for such an individual, and specifically cited the sedentary positions of cashier, surveillance monitor, and information clerk. (Tr. 55-56).
Concerning the same hypothetical the ALJ asked the VE what would be the outcome if he assigned greater weight to Dr. Mitchell's findings which limit Plaintiff to sitting, standing, or walking for no more than an hour each at a time and for no more than a total of two hours each during an eighthour day. (Tr. 57). The VE concluded that the hypothetical person would be precluded from all jobs. (Tr. 57). Furthermore, the ALJ asked the VE to consider the limitations of not using both feet for repetitive pushing or pulling, the effect of marked pain deficits, marked concentration deficits secondary to pain and no squatting. (Tr. 57). The VE again responded that Plaintiff would be precluded from all jobs. (Tr. 57).
VII. Analysis A. Standard of Review.
In reviewing claims brought under the Act, this court's role is a limited one. The court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). The Commissioner's findings of fact must be affirmed if they are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991) (citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). 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, 1427 (1971); Bloodsworth, 703 F. 2d at 1239. The Commissioner's decision must be affirmed if it is supported by substantial evidence even when a court finds that the preponderance of the evidence is against the decision of the Commissioner. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (1971); Bloodsworth, 703 F.2d at 1239. "In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Further, it has been held that the Commissioner's "failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal." Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). This court's review of the Commissioner's application of legal principles is plenary.Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
B. Statement of the Law
An individual who applies for Social Security disability benefits or supplemental security income must prove their disability. See 20 C.F.R. § 404.1512; 20 C.F.R. § 416.912. Disability is defined 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. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a); 20 C.F.R. § 416.905(a). The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven their disability. See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. At the first step, the claimant must prove that he or she has not engaged in substantial gainful activity. At the second step, the claimant must prove that he or she has a severe impairment or combination of impairments. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. If the claimant cannot prevail at the third step, he or she must proceed to the fourth step where the claimant must prove inability to perform their past relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether the claimant has met this burden, the examiner must consider the following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; (4) the claimant's age, education and work history. Id., at 1005. Once a claimant meets this burden, it becomes the Commissioner's burden to prove at the fifth step that the claimant is capable of engaging in another kind of substantial gainful employment which exists in significant numbers in the national economy, given the claimant's residual functional capacity and age, education, and work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985). If the Commissioner can demonstrate that there are such jobs the claimant can perform, the claimant must prove inability to perform those jobs in order to be found disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
C. Medical Evidence
From March 10, 1999 through October 26, 2000, plaintiff was treated by Dr. Charles H. Allen, a general practitioner, for the following ailments: abdominal pain with gastritis; type II diabetes mellitus; hyperlipidemia; obesity; chronic anxiety; back pain; and severe bilateral leg and foot pain. (Tr. 262-284, 356). On her visit of May 13, 1999, Dr. Allen, a treating physician, noted Plaintiff's leg pain was probably due to diabetic neuropathy and was certain that arterial insufficiency was producing her pain, and that this was rather advanced for a 40 year old female. He also noted that she was hyperlipidemic in addition to having diabetes. Dr. Allen also warned plaintiff to quit smoking cigarettes. (Tr. 273-275). Plaintiff responded that she cannot get off cigarettes even though smoking may contribute to her losing her legs. Plaintiff was seen in follow-up for hyperlipidemia, diabetes, diabetic neuropathy, intermittent claudication and abdominal pain on November 16, 1999 and December 29, 1999. (Tr. 271-272). She received refills of medications including Lortab, Elavil, Tylenol 3, and Amitriptyline from January through August of 2000. (Tr. 266-270).
"Blockage of leg arteries results from poor circulation of blood in the leg arteries. This produces an aching, tired, and sometimes burning pain in the legs that is brought on by exercise, and relieved by rest. Claudication refers to the limping that occurs from leg cramps." National Library of Medicine, National Institutes of Health.http://www.nlm.nih.gov/medlineplus.
On June 8, 2000, Plaintiff was consultatively examined by Dr. Charles D. Terry, who evaluated her for back, hip and leg pain. (Tr. 257). Dr. Terry reported that plaintiff had experienced pain for approximately three years, and indicated she was diabetic, but took no medication for this condition. (Tr. 257). On examination, Plaintiff complained of nighttime numbness in her legs, however, there was no evidence of abnormalities involving upper or lower extremities. (Tr. 259). Dr. Terry further reported that Plaintiff demonstrated no difficulties with range of motion, and was able to adequately walk on her toes and heels. (Tr. 259).
On November 27, 2000, Plaintiff was evaluated by treating physician Dr. Barbara C. Mitchell. (Tr. 327-330, 352). She was subsequently treated through August 7, 2002, for type II diabetes, peripheral vascular disease, claudication of the lower extremities with trouble walking, foot pain, hyperlipidemia, hypertension, asthma, right hand pain, left hip pain with tendinitis and bursitis, back pain with degenerative disc disease, osteoarthritis, and bursitis of the left shoulder, among other general medical complaints. (Tr. 311-331, 363-365). Dr. Mitchell recommended an upper and lower arterial evaluation, which was performed on December 15, 2000. The study was interpreted as showing only minimal tibial vessel occlusive disease on the right leg. (Tr. 333).
On January 16, 2001, plaintiff returned to Dr. Mitchell for complaints to include right foot pain when walking, high blood sugar, and wheezing and coughing at night. Dr. Mitchell prescribed Pletal for relief of claudication symptoms and Lortab for pain relief. (Tr. 321-323).
Dr. Mitchell referred Plaintiff to the Providence Hospital Fit For Life cardiopulmonary rehabilitation and adult wellness program with special needs on March 28, 2001. Deconditioning was indicated as her diagnosis and moderate osteoporosis was noted as an orthopedic limitation. (Tr. 285-292). Plaintiff attended five conditioning sessions. (Tr. 285-290).
On May 17, 2001, Plaintiff was evaluated by Dr. William Isiah Park, a consulting orthopedic surgeon, for complaints of left hip, buttocks and posterior thigh pain which began after use of the bike and treadmill in an attempt to lose weight. (Tr. 293-294, 353). The examination revealed "some extra weight on board" with tenderness over the SI joint and marked tenderness over the left hip. (Tr. 294). X-rays of the lumbar spine revealed degenerative disc disease at L5-S1. (Tr. 293-294). Dr. Park diagnosed bursitis and tendonitis of the hip as well as a muscle/ligament strain of her back. Dr. Park also recommended water aquatics to eliminate impact loading to the hip. (Tr. 293). On her return visit of May 31, 2001, plaintiff reported that her back felt 50% better. She was advised to continue walking, reduce weight, perform back exercises, and wean of Lortab and Soma. (Tr. 293). Plaintiff was scheduled to return on June 23, 2001, but did not keep the appointment. (Tr. 293).
On July 24, 2001, Plaintiff saw Dr. Mitchell for ongoing back pain and stiffness with wheezing on examination. (Tr. 315-316). Dr. Mitchell noted her need for a cane and prescribed one specifically for the diagnosis of lumbar degenerative disc disease and left hip bursitis and tendinitis. (Tr. 190, 311).
On September 28, 2001, Henrietta T. Kovacs, M.D., a general practitioner with a specialization in internal medicine, performed a consultative examination. (Tr. 295-300). Dr. Kovacs noted that Plaintiff's range of motion of the lumbosacral spine was moderately limited, but that she thought plaintiff had exaggerated her limitation of range of motion and was able to move better than indicated on the range of motion form. (Tr. 297, 299). Dr. Kovacs diagnosed plaintiff with status post cholecystectomy; status post abdominal hysterectomy and bilateral salpingo-oophorectomy; and incidental appendectomy and mild limitation of range of motion of the left hip. (Tr. 298). Dr. Kovacs noted diabetes mellitus by history, dyslipidemia by history, obesity, hypertension by history but normotensive during examination, history of lower back pain with mild limitation of the lumbosacral spine, history of "weak heart", history of a "sensitive stomach", and a history of cigarette smoking. (Tr. 298)
On December 17, 2001, Dr. Mitchell completed a Physical Capacities Evaluation and a Clinical Assessment of Symptoms in which she opined that during the course of an eight hour day Plaintiff could sit, stand and walk for two hours each; and could occasionally lift ten pounds; but could carry only five pounds on an occasional basis. (Tr. 338). Plaintiff was also unable to use her feet for repetitive movements, could never squat or crawl, and could only occasionally bend and climb. (Tr. 339). Dr. Mitchell noted that pain would be distracting to the adequate performance of daily activities or work; that physical activity would increase the severity and degree of pain and other symptoms to such an extent that Plaintiff would be unable to sustain work on a regular basis; and that the side effects of medications would be severe and limit her effectiveness due to distraction, inattention, and drowsiness. (Tr. 340-341). She also noted that Plaintiff would need to lie down every one to two hours for twenty or thirty minutes. (Tr. 341).
Plaintiff had an emergency hospitalization at USA Medical Center from December 29, 2001 to December 30, 2001, for pneumonia complicated by intractable nausea, vomiting, and diarrhea. She was discharged with final diagnoses to include pneumonia, gastroenteritis, diabetes mellitus, hypertension, hyperlipidemia, chronic obstructive pulmonary disease, peripheral vascular disease, osteoarthritis, and osteoporosis. (Tr. 343-350).
On April 5, 2002, plaintiff complained to Dr. Mitchell of left ankle pain following a fall. An xray of the ankle showed no joint effusion, fracture or dislocation. (Tr. 363).
On July 10, 2002, plaintiff saw Dr. Mitchell for complaints of finger pain, sinus headaches, and pain in the back, left hip, and right leg. (Tr. 364). On examination, Dr. Mitchell found a decreased range of motion of the hips and decreased sensation in the lower extremities. The diagnosis included back pain/tendinitis, stable asthma, type II diabetes, acceptable blood pressure, allergic rhinitis, and neuropathic leg pain. (Tr. 365).
On July 17, 2002, plaintiff underwent a consultative psychological evaluation by Dr. Kim Zweifler, a clinical psychologist, at the request of the state agency. (Tr. 356-359). Dr. Zweifler observed that Plaintiff was of average height and overweight build, showed no obvious difficulties with fine motor skills, walked slowly and appeared uncomfortable sitting. (Tr. 356). Dr. Zweifler noted Plaintiff spoke at a normal pace, her speech was easily understood, that she was generally pleasant and showed no unusual behavior. (Tr. 357).
Concerning plaintiff's "mental status", Dr. Zweifler found she was oriented to time, place, person, and situation. (Tr. 357). Her ability to perform simple calculations was poor. (Tr. 357). She was unable to subtract serial 7's from 100 correctly. (Tr. 357). She was able to subtract serial 4's. (Tr. 357). Dr. Zweifler found Plaintiff's abstract reasoning skills were poor, her general fund of information was adequate and her immediate memory seemed adequate. (Tr. 357). There were no signs of loose associations or confusion and no signs or reports of hallucinations, delusions, ideas of reference, phobias, obsessions, or compulsions. (Tr. 357)
Dr. Zweifler found that Plaintiff had limited insight into herself and her condition, but she did not appear to need assistance managing funds. (Tr. 357). Plaintiff described her daily activities as getting up between 9:00 a.m. and 12:00 p.m., eating two meals, watching television, listening to the radio, cooking and completing limited domestic chores, taking a bath, and going to bed between midnight and 2:00 a.m. (Tr. 357).
Dr. Zweifler administered the Wechsler Adult Intelligence Scale-Third Edition (WAIS-III) and Wide Range Achievement Test-III (WRAT-III). (Tr. 357). Concerning the WAIS-III, Dr. Zweifler noted Plaintiff appeared motivated to complete tasks presented and exhibited good effort. Her concentration seemed good and she was appropriately persistent. (Tr. 357). Dr. Zweifler also noted that the test results were felt to be a valid estimate of Plaintiff's present level of functioning. (Tr. 357). On the WAIS-III, Plaintiff scored a Verbal IQ Score of 80, a Performance IQ Score of 72, and a Full Scale IQ Score of 74, which Dr. Zweifler interpreted as placing Plaintiff in the borderline intellectual range. (Tr. 357). On the Verbal Subtests, Plaintiff displayed significant weaknesses in word knowledge and expressive vocabulary, verbal concept formation, and numerical reasoning ability. (Tr. 357).
Concerning the WRAT-III, Dr. Zweifler found Plaintiff's abilities in basic reading, arithmetic and spelling were within the mildly retarded range. (Tr. 358). Dr. Zweifler noted Plaintiff's scores were significantly lower than expected in consideration of her assessed intelligence level which suggested a learning disabilities in these areas. (Tr. 358).
Dr. Zweifler also diagnosed Plaintiff with depression NOS, but noted that Plaintiff should respond favorably to treatment within six to twelve months. (Tr. 358). On a Medical Source Opinion Form (Mental) dated July 17, 2002, Dr. Zweifler indicated a total of six moderate limitations. (Tr. 360-361). The following areas of functioning were limited:
1. The ability to respond appropriately to supervisors;
2. The ability to respond appropriately to co-workers;
3. The ability to respond appropriately to customers or other members of the general public;
4. The ability to use judgment in detailed or complex work-related decisions;
5. The ability to deal with changes in a routine work setting; and
6. The ability to understand, remember, and carry out detailed or complex verbal instructions.
(Tr. 360-361). Of these limitations, Dr. Zweifler noted that the first five were due to depression, and the last to Plaintiff's borderline intellectual functioning. (Tr. 360-361). Dr. Zweifler found plaintiff was mildly restricted in her ability to understand, remember and carry out simple one and two step verbal instructions and was mildly limited in her ability to maintain concentration persistence and pace because of her borderline intellectual functional. (Tr. 361)
D. Plaintiff's Argument
1) Whether the Administrative Law Judge (ALJ) erred by failing to assign proper weight to the medical evidence from Dr. Mitchell, a treating physician.
Plaintiff argues that the ALJ failed to give appropriate weight to the medical opinion of Dr. Mitchell, the treating physician who determined that plaintiff was capable of sitting or standing for only two hours each day. Plaintiff points out that the ALJ reported Dr. Mitchell's opinion as stated in her CAS form, but failed to mention any review of her medical records other than documenting the findings of an x-ray examination of the left ankle on April 5, 2002. (Tr. 16). Plaintiff contends this is noteworthy because Dr. Mitchell was Plaintiff's primary physician.
Dr. Mitchell documented Plaintiff's report of back and leg pain and treated plaintiff for type II diabetes, peripheral vascular disease, claudication of the lower extremities with trouble walking, foot pain, hyperlipidemia, hypertension, asthma, right hand pain, left hip pain with tendinitis and bursitis, back pain with degenerative disc disease, osteoarthritis, and bursitis of the left shoulder, among other general medical complaints. (Tr. 311-331, 363-365). An upper and lower arterial evaluation showed minimal tibial vessel occlusive disease on the right. (Tr. 333).
Plaintiff also contends the documented medical evidence demonstrates a legitimate medical basis for Dr. Mitchell's opinion. In support, plaintiff relies upon the treatment records of Dr. Allen, Dr. Terry, Dr. Park, and Dr. Kovacs. Plaintiff argues the ALJ substituted his judgment for that of the medical experts, and thus committed reversible error.
Dr. Allen treated Plaintiff before Dr. Mitchell. Dr. Allen record plaintiff's complaints of the inability to stand or walk without the severe pain of intermittent claudication. (Tr. 278-281). Dr. Allen stated he was certain arterial insufficiency produced Plaintiff's pain. (Tr. 273).
Dr. Terry consultatively examined Plaintiff and documented her complaints of bilateral leg, hip and back pain for three years, and her statement that she had stopped working because her feet and legs bothered her. (Tr. 257).
Dr. Park, an orthopedic surgeon, obtained X-rays of Plaintiff's spine which showed degenerative disc disease. He also diagnosed with bursitis and tendinits of the left hip, in addition to a back strain. (Tr. 293-294).
Plaintiff was consultatively examined by Dr. Kovacs who documented Plaintiff's complaints of constant lower back pain for three years accompanied by pain in both legs and feet, left hip pain, and the inability to walk more than half a block or stand for more than ten to fifteen minutes because of pain. (Tr. 295).
Plaintiff argues that the medical records support Dr. Mitchell's finding on the physical capacities evaluation. Specifically, Plaintiff argues that Dr. Mitchell's records indicate that plaintiff routinely complained of either back, hip or leg pain beginning in November 2000 and that Dr. Mitchell diagnosed peripheral vascular disease with claudication and pain, left hip pain and osteoarthritis, and degenerative disc disease of the lumbar spine and prescribed anti-inflammatory and pain medication to treat plaintiff's chronic pain and other symptoms (loss of balance, difficulty with stairs, morning stiffness, prescription for a cane for multiple falls secondary to back pain and spasm). Plaintiff argues that despite the finding of minimal tibial artery occlusion in December 2000, Dr. Mitchell continued to treat plaintiff for peripheral vascular disease and her other medical conditions including her chronic pain.
Plaintiff argues that the ALJ failed to adequately explain why he placed greater weight on the evaluation by Dr. Kovacs, a consultative examiner. Plaintiff points out that in discrediting Dr. Mitchell, the ALJ stated only that there was "no objective/physiological basis for [Ms. Sellers'] inability to do prolonged sitting, since her primary condition is shortness of breath and lower extremity pain." (Tr. 17).
The ALJ summarized Dr. Mitchell's findings on the physical capacities evaluation (PCE) and noted her report that plaintiff could sit, stand and walk for two hours each in an eight hour day; occasionally lift ten pounds but could occasionally carry only five pounds. (Tr. 16). He noted also Dr. Mitchell's report that plaintiff was "unable to use her feet for repetitive movements, could never squat or crawl, and could only occasionally bend and climb." (Tr. 16).
The ALJ summarized Dr. Mitchell's findings on the clinical assessment of symptoms and found as follows:
Dr. Mitchell noted that pain would be distracting to the adequate performance of daily activities or work; that physical activity would increase the severity and degree of pain and other symptoms to such an extent that the claimant would be unable to sustain work on a regular basis; and that the side effects of medications would be severe and limit her effectiveness due to distraction, inattention and drowsiness. She also noted that the claimant would need to lie down every one to two hours for 20 to 30 minutes.
(Tr. 16). In summarizing Dr. Mitchell's medical records the ALJ stated only that "[r]eview of [plaintiff's] complaints of left ankle pain, x-rays conducted on April 5, 2002, revealed no evidence of joint effusion, fractures, or dislocations." (Tr. 16). The ALJ did not summarize or discuss the remaining treatment notes from Dr. Mitchell's records.
The ALJ discussed Dr. Kovacs' consultative report and noted that Dr. Kovacs found plaintiff had "full range of motion of her left hip, but exaggerated limitation on range of motion — by not fully complying with instructions during the examination." (Tr. 16). He also noted Dr. Kovacs' report that plaintiff could heel and toe walk and squat "without particular difficulties" and that plaintiff "could move better than indicated based on test results." (Tr. 16).
In determining plaintiff's residual functional capacity, the ALJ rejected Dr. Mitchell's opinion in favor of the assessment by Dr. Kovacs and stated as follows:
The undersigned accords greater weight to the consultative evaluation [by Dr. Kovacs] than to the treating physician's assessment . . ., since there was no objective/physiological basis for claimant's inability to do prolonged sitting, and since her primary condition is shortness of breath with lower extremity pain.
(Tr. 17). In regard to Dr. Mitchell's pain assessment, the ALJ found that the
marked concentration deficits recited in [Dr. Mitchell's clinical assessment of symptoms] are not consistent with the full record, particularly claimant's activities of daily living, and her treatment history which indicates complaints of pain of that severity on only a few occasions.
(Tr. 17).
Generally, the opinion of a treating physician must be given substantial weight, or credit, unless "good cause" is shown to the contrary. See Lewis v. Callahan, 125 F. 3d 1436, 1440 (11th Cir. 1997); Hillsman v. Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986). However, an ALJ may properly discount the opinion of a treating physician if the opinion is conclusory, inconsistent with their own medical records, or if the evidence supports a contrary finding. See Edwards v. Sullivan, 937 F.2d 580 (11th Cir. 1991) (citing Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987)); Lewis, 125 F.3d at 1440;see also 20 C.F.R. § 404.1527(c)(2) (if medical evidence is internally inconsistent, the Commissioner may weigh all the evidence and make a decision if he can do so on the available evidence); 20 C.F.R. § 404.1527(d)(4) (generally, the more consistent an opinion with the record as a whole, the greater weight it will be given). If the ALJ discounts the opinion of a treating physician, he must clearly articulate his reasons. Marbury v. Sullivan, 957 F. 2d 837, 841 (11th Cir. 1992) (per curiam); Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987). Also, the ALJ's reasons must be legally correct and supported by substantial evidence in the record. Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988);Hale, 831 F.2d at 1012.
The ALJ referenced adequate reasons for giving less than controlling weight to Dr. Mitchell's opinion. He found that "there was no objective/physiological basis for claimant's inability to do prolonged sitting . . . since her primary condition is shortness of breath with lower extremity pain." (Tr. 17). He also found that the "marked concentration deficits recited in [Dr. Mitchell's clinical assessment of symptoms] are not consistent with the full record, particularly claimant's activities of daily living, and her treatment history which indicates complaints of pain of that severity on only a few occasions." (Tr. 17).
The medical treatment records indicate that plaintiff continued to smoke cigarettes after her treating physicians, including her internist Dr. Mitchell, advised her to stop.
In regard to the absence of an objective physiological reason for plaintiff's inability to do prolonged sitting, plaintiff argues that Dr. Park's diagnosis of degenerative disc disease in the lumbar spine supports Dr. Mitchell's finding that plaintiff can not sit for more than two hours at a time. However, Dr. Park, an orthopedic physician, placed no functional limitations upon plaintiff's activities, including sitting, but instead recommended that she exercise and lose weight. On May 17, 2001, Plaintiff was evaluated by Dr. Park, for complaints of left hip, buttocks and posterior thigh pain which began after use of the bike and treadmill. Dr. Park found tenderness over the sacroiliac joint and marked tenderness over the left hip and his x-ray of the lumbar spine showed degenerative disc disease. He diagnosed bursitis and tendonitis of the hip and muscle/ligament strain of her back. However, he noted Plaintiff had good range of motion in general, and excellent motion in the hip. (Tr. 294). On her return visit of May 31, 2001, plaintiff reported her back felt "50% better." (Tr. 293). She was advised to participate in water exercises, continue walking, reduce weight, perform back exercises, and wean off the Lortab and Soma. (Tr. 293-294). However, Plaintiff was a "no show" for her following visit and admitted that she did not participate in the water aquatics because she did not feel like it. (Tr. 43). Dr. Park's recommendation for Plaintiff to walk, use bikes, treadmills, and water aquatics for rehabilitation, and his observation of good motion in general and excellent motion in the hip, is not consistent with Dr. Mitchell's conclusion that Plaintiff is unable to perform a job that entails sitting for prolonged periods of time. Also, Dr. Park's reported no complaints from Plaintiff regarding difficulty sitting. (Tr. 293-294).
Moreover, Dr. Mitchell did not indicate in her treatment notes any limitation on plaintiff's ability to sit because of her degenerative disc disease. In March 2001, Dr. Mitchell recommended plaintiff participate in a rehabilitation program for deconditioning despite her multiple diagnoses. Plaintiff returned to Dr. Mitchell on July 24, 2001, October 24, 2001, December 5, 2001, April 5, 2002 (ankle pain following a fall), and July 10, 2002, for complaints of pain primarily in her back, left hip and left leg. In July, Dr. Mitchell noted decreased range of motion of both hips and a questionable decrease of sensation in the lower extremities. However, Dr. Mitchell did not indicate any functional limitations or restrictions on plaintiff's physical exertional activity or ability to sit in her treatment records.
Moreover, though plaintiff reported constant pain to Dr. Kovacs, the doctor noted plaintiff reported "no apparent limitations on sitting." (Tr. 295). On September 28, 2001, Dr. Kovacs' consultative report showed that Plaintiff's range of motion of the lumbosacral spine was moderately limited, but that she thought Plaintiff had exaggerated her limitation of range of motion and was able to move better than indicated on the range of motion form. (Tr. 297, 299).
Additionally, on June 8, 2000, Plaintiff complained to Dr. Terry of nighttime numbness in her legs; however, he noted no evidence of abnormalities involving upper or lower extremities. Dr. Terry reported that Plaintiff demonstrated no difficulties with range of motion and was able to adequately walk on her heels and toes. He also noted that Plaintiff got on and off the examination table without difficulty. (Tr. 258-259). Significantly, Dr. Terry's report contains no complaints by the Plaintiff concerning her ability to sit. (Tr. 257-260). This evidence lends no support to Dr. Mitchell's conclusion that Plaintiff is unable to sit for prolonged periods of time.
In discrediting Dr. Mitchell's finding that plaintiff had marked concentration deficits because of pain, the ALJ found this statement not consistent with the record and specifically referenced plaintiff's daily activities and treatment history indicating complaints of severe pain "on only a few occasions." (Tr. 17). The ALJ may rely upon plaintiff's report and testimony of her daily activities. See Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987) (An ALJ may also consider daily activities when evaluating subjective complaints of disabling pain and other symptoms.); see also 20 C.F.R. § 404.1529(c)(3)(i); 416.929(c)(3)(i) ("Factors relevant to your symptoms, such as pain, which we will consider include: (i) Your daily activities[.]"); cf. Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir. 1997) ("participation in everyday activities of short duration, such as housework or fishing" does not disqualify a claimant from disability and does not establish that a claimant can perform sedentary work.)
The ALJ noted plaintiff's report that each day she ate, watched television, slept, and performed light housework, and that she sometimes used a cane and operated a motor vehicle. (Tr. 15). Though the ALJ did not give a more thorough summary of plaintiff's daily activities, plaintiff testified or reported that each day she would rise and get breakfast, and then alternate between watching television and returning to bed. (Tr. 43, 51). She also reported that she lived alone, walked at her residence, drove when necessary, performed light cooking and light cleaning (no vacuuming or mopping) though her son took care of her yard and another relative helped with heavy cleaning and some errands. (Tr. 52, 162). Plaintiff's daily activities are restricted, however, her reports do not indicate that she is incapable of the sitting necessary to accomplish sedentary exertional work and there are no treatment records from any other physician advising plaintiff to limit her activities to the extent reported by Dr. Mitchell.
Plaintiff reported that she had poor circulation and a blockage in her foot. (Tr. 162). However, the only evidence to support this complaint is the finding of a minimal occlusion in the right tibial artery. She also reported that when she tries to do things, pain shoots down her back and legs into her feet. Her lumbar spine x-ray showed only degenerative disc disease and there is no mention in Dr. Park's records of any evidence of spinal nerve impingement. (Tr. 293-294).
Plaintiff also argues that the ALJ misinterpreted Dr. Kovacs' opinion regarding plaintiff's range of motion of the left hip. Plaintiff points out that the ALJ stated Dr. Kovacs noted "full range of motion of her left hip, but exaggerated limitation on range of motion — by not fully complying with instructions during the examination . . . [Dr. Kovacs] was of the opinion that the claimant could move better than indicated on test results." (Tr. 16). Plaintiff then sets forth that Dr. Kovacs actually wrote that "[r]ange of motion of the left hip appeared to be limited on the range of motion chart but I think that her range of motion of the hip is probably full. She resisted in every direction with the passive range of motion." (Tr. 297). The undersigned finds no error with the ALJ's interpretation of Dr. Kovacs' assessment. The ALJ understood and Dr. Kovacs plainly stated that plaintiff's range of motion on the chart was limited but that Dr. Kovacs thought she probably had full range of motion of the left hip. Dr. Kovacs noted plaintiff resisted the doctors attempts at passive range of motion which indicates that she did not comply with instructions. Plaintiff also argues that because limited hip motion was documented by Dr. Terry and Dr. Mitchell, and Dr. Park diagnosed tendonitis and bursitis though with full range of motion, plaintiff's resistance to Dr. Kovacs' attempts to assess range of motion may have been "guarding" due to pain. However, Dr. Kovacs did not make any notation in her record to support this argument.
Accordingly, the undersigned finds that there is substantial evidence in the record to support the ALJ's decision to discount the treating physician's medical opinion. Dr. Mitchell's medical conclusions are not consistent with her treatment records and the medical evidence derived from Dr. Terry, Dr. Kovacs and Dr. Park. Furthermore, Dr. Mitchell's opinion regarding the Plaintiff's functional limitations resulting from her alleged chronic pain is not consistent with her daily activities or the medical evidence from the physicians. Therefore, the undersigned finds that because there is substantial evidence to support the ALJ's decision to give greater weight to the evaluation by Dr. Kovacs, he did not erroneously substitute his opinion for that of Dr. Mitchell or fail to properly evaluate Dr. Mitchell's medical treatment records.
2) Whether the ALJ improperly evaluated the evidence from Dr. Zweifler, an examining clinical psychologist.
Plaintiff argues that the ALJ improperly treated her diagnosis of depression as an incidental finding and rejected the five moderate mental functional limitations arising therefrom because Plaintiff did not receive treatment for her depression and because Dr. Zweifler indicated plaintiff's depression would resolve in six to twelve months with treatment. Plaintiff argues that if her depression and borderline intellectual functioning were properly considered by the ALJ as cumulative impairments and the six moderate mental functional limitations resulting therefrom were properly considered, Plaintiff may have equaled in severity the criteria in Listing 12.05C. See 20 C.F.R §§ 404.1526, 416.926 (2004).
The ALJ considered Dr. Zweifler's narrative report and test results when determining plaintiff's mental residual functional capacity and found that she was "moderately limited in her ability to understand and carry out detailed instructions" because of her borderline intellectual functioning. (Tr. 16-17). The ALJ did not incorporate into plaintiff's residual functional capacity Dr. Zweifler's other findings of moderate limitations which the doctor indicated were based upon plaintiff's depression. (Tr. 17). In so doing, the ALJ found "no ongoing treatment for depression or other basis to find moderate limitations in claimant's ability to adapt to work place stress or to receive supervision" as identified by Dr. Zweifler. He then found that "only those restrictions related to claimant's intellectual deficits are incorporated into claimant's residual functional capacity." (Tr. 17). The ALJ then included the finding that plaintiff was "moderately limited in her ability to understand and carry out detailed instructions" in his residual functional capacity determination. (Tr. 17).
Dr. Zweifler indicated a total of six moderate limitations: 1. The ability to respond appropriately to supervisors; 2. The ability to respond appropriately to co-workers; 3. The ability to respond appropriately to customers or other members of the general public; 4. The ability to use judgment in detailed or complex work-related decisions; 5. The ability to deal with changes in a routine work setting; and 6. The ability to understand, remember, and carry out detailed or complex verbal instructions. (Tr. 360-361). Dr. Zweifler noted that the first five were due to depression and the last to borderline intellectual functioning. (Tr. 360-361). Dr. Zweifler also found plaintiff was mildly restricted in her ability to understand, remember and carry out simple one and two step verbal instructions and was mildly limited in her ability to maintain concentration persistence and pace because of her borderline intellectual functional. (Tr. 361).
It is the ALJ's function to determine plaintiff's residual functional capacity through examination of the evidence and resolution of conflicts in the evidence. "The ALJ's task is to examine the evidence and resolve conflicting reports." Wolfe v. Chater, 86 F.3d 1072, 1079 (11th Cir. 1996) citing Powers v. Heckler, 738 F.2d 1151, 1152 (11th Cir. 1984) (per curiam); Grant v. Richardson, 445 F.2d 656 (5th Cir. 1971) (per curiam). The ALJ has wide latitude as finder of fact to evaluate the weight of the evidence, Owens v. Heckler, 748 F.2d 1511, 1514 (11th Cir. 1984); 20 C.F.R. § 404.1546, 20 C.F.R. § 416.946. As there was no evidence that the additional impairments related to plaintiff's depression would last more than twelve months if properly treated, the ALJ did not err in failing to include the impairments in plaintiff's RFC.
Plaintiff also argues that the ALJ erred by failing to find that her combination of impairments functionally equaled Listing 12.05C and failed to find plaintiff disabled at step three of the sequential evaluation process. Plaintiff argues that the moderate mental functional limitations identified in six areas of functioning when combined with her performance IQ of 72 and scores on the WRAT-III functionally equal the requirements for Listing 12.05C.
Plaintiff argues that the nearness of her lowest IQ score to the requirement of the listing — 72 versus 70, and her scores on the WRAT-III which show she functions at the mildly mentally retarded range in spelling, reading and math, functionally equal the IQ component of the Listing. Plaintiff also argues a finding of moderate limitations in six mental areas of function when considered in combination constitutes the equivalent of an extreme or marked limitation of function which would meet the second prong of the listing: a mental impairment imposing an additional and significant work-related limitation of function. See 20 C.F.R. §§ 404.1520a and 416.920a; Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50745, 50755 (Aug. 21, 2000).
The introductory section of Listing 12.05 sets forth as follows:
Mental retardation refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22. The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied.20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.05 (2002). Listing 12.05(C) sets forth as follows:
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function.Id. In addition to the requirements of 12.05(C), the introductory section of Listing 12.00A, Mental Disorders, sets forth as follows:
The structure of the listing for mental retardation (12.05) is different from that of the other mental disorders listings. Listing 12.05 contains an introductory paragraph with the diagnostic description for mental retardation. It also contains four sets of criteria (paragraphs A through D). If your impairment satisfies the diagnostic description in the introductory paragraph and any one of the four sets of criteria, we will find that your impairment meets the listing. . . . For paragraph C, we will assess the degree of functional limitation the additional impairment(s) imposes to determine if it significantly limits your physical or mental ability to do basic work activities, i.e., is a "severe" impairment(s), as defined in §§ 404.1520(c) and 416.920(c). If the additional impairment(s) does not cause limitations that are "severe" as defined in §§ 404.1520(c) and 416.920(c), we will not find that the additional impairment(s) imposes "an additional and significant work-related limitation of function," even if you are unable to do your past work because of the unique features of that work.20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.00A (2002).
The Eleventh Circuit explained the purpose and application of the listings of impairments, as follows:
The Listings include medical criteria for specified disorders of thirteen major body systems. These impairments are so severe that an individual who has a listed impairment is generally considered unable to work based upon medical considerations alone. 20 C.F.R. § 416.925(a). A claimant may prove that he is disabled by either (1) meeting the Listings or (2) equaling the Listings. In order to meet a Listing, the claimant must (1) have a diagnosed condition that is included in the Listing and (2) provide objective medical reports documenting that this condition meets the specific criteria of the applicable Listing and the duration requirement. A diagnosis alone is insufficient. 20 C.F.R. § 416.925(c)-(d). In order to equal a Listing, the medical findings must be at least equal in severity and duration to the listed findings.Wilkinson on behalf of Wilkinson v. Bowen, 847 F. 2d 660, 663 (11th Cir. 1987); see also Bell v. Bowen, 796 F. 2d 1350, 1353 (11th Cir. 1986) ("when a claimant contends that he has an impairment meeting the listed impairments . . ., he must present specific medical findings that meet the various tests listed under the description of the applicable impairment[.]"); see also Carnes v. Sullivan, 936 F. 2d 1215, 1218 (11th Cir. 1991) ("diagnosis of a listed impairment is not alone sufficient; the record must contain corroborative medical evidence supported by clinical and laboratory findings"). Moreover, the United States Supreme Court has found:
Each impairment [in the Listings] is defined in terms of several specific medical signs, symptoms, or laboratory test results. For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify.Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 891-92 (1990) (emphasis in original).
In order to prove equivalency to a listed impairment, plaintiff must provide objective medical evidence to support each criteria for the impairment under which equivalence is claimed. Bell, 796 F.2d at 1353 ("if in the alternative [claimant] contends that he has an impairment which is equal to one of the listed impairments, the claimant must present medical evidence which describes how the impairment has such equivalency."). Plaintiff must show that the impairments produce functional limitations or restrictions equivalent to those required under the particular listing. Objective tests must be present to support a finding of equivalence. 20 C.F.R. § 416.926(a); see Zebley, 493 U.S. at 530, 110 S.Ct. at 891-892 (1990). Also, the medical findings must at least be equal in severity and duration to the criteria in the listing. Wilkinson, 847 F. 2d 662. Plaintiff has the burden of producing medical evidence that establishes all of the required medical findings to establish equivalency. See Bowen v. Yuckert, 482 U.S. 137, 146 n5, 107 S.Ct. 2287, 2294 (1987);see also 20 C.F.R. § 416.926 (determining medical equivalence for adults and children); 20 C.F.R. § 416.926a (determining functional equivalence for children).
Plaintiff argues her performance IQ score of 72 is sufficiently close to the required IQ score of 70 to establish that she functionally equals Listing 12.05C. On the WAIS-III, Plaintiff scored a Verbal IQ Score of 80, a Performance IQ Score of 72, and a Full Scale IQ Score of 74, which Dr. Zweifler interpreted as placing Plaintiff in the borderline range of intelligence. (Tr. 357). Dr. Zweifler attributed plaintiff's scores on the WRAT-III as indicative of a learning disorder instead of mild mental retardation because of plaintiff's overall IQ scores. (Tr. 358).
Arguably, there is an approximate measurement error of five points in assessing IQ. See Diagnostic and Statistical Manual of Mental Disorders, 41-42 (4th ed. 2000) (DSM-IV). However, this issue was addressed in the case of Burns v. Barnhart, 312 F.3d 113 (3rd Cir. 2002). In Burns, the court found as follows:
We conclude that if we were to read an error range of five points into the regulation, it would violate the plain language of the regulation, which requires "[a] valid verbal, performance, or full scale IQ of 60 through 70." 20 C.F.R. Pt. 404, Subpt. P, Appx. I, § 12.05. The basic tenets of statutory construction hold true for the interpretation of a regulation such as this, see Idahoan Fresh v. Advantage Produce, Inc., 157 F.3d 197, 202 (3d Cir. 1998), and we cannot ignore the plain wording of the regulation. See Wilson v. United States Parole Comm'n, 193 F.3d 195, 198-200 (3d Cir. 1999) (refusing to defer to the Sentencing Commission's interpretation of one of its own regulations where that regulation is clear and unambiguous). Where the language of a regulation is plain and unambiguous, as it is here, further inquiry is not required. Idahoan Fresh, 157 F.3d at 202.
Moreover, Burns has not offered any reason why we should not assume that the Commissioner, in promulgating the regulation, was aware of the standard margin of error and could have incorporated or referenced it if the stated numbers were to be given an expansive reading. (Footnote discussed below) Incorporating the error range would essentially alter the regulatory language to say "IQ of 60 through 75," rather than "IQ of 60 through 70." We know of no authority allowing us to do so. In fact, the true five-point error in Burns' score of 75 could just as easily mean that his actual IQ is 80 rather than 75. So, automatically reading 75 to mean "70" could result in a number of persons who are clearly not mentally retarded under the regulations qualifying for benefits. We will thus not assume that a score of 75 should be read as "70."Id. at 125-126. In a footnote, the court in Burns also noted as follows:
Another factor counseling against the incorporation of the error range is the fact that, as mentioned above, the regulations already have directed that "[i]n cases where more than one IQ is customarily derived from the test administered, e.g., where verbal, performance, full scale IQs are provided in the Wechsler series, we use the lowest of these in conjunction with 12.05." Thus, a policy of giving the claimant the "benefit of the doubt" is already incorporated into the regulations. Burns, in fact, benefitted from the policy. While he scored a verbal score of 75, a performance score of 77, and a full scale score of 75, the regulations instruct that his score be considered a 75.Id. at 125 n6. The court then concluded that
[g]iven the plain and unambiguous wording of the statute, as well as the absence of a mandate in the regulations to consider error ranges where specific IQs are referenced and the other concerns detailed above, we find that the Commissioner properly refused to factor the possible measurement error in calculating Burns' IQ and that Burns, with an IQ of 75, does not meet or equal § 12.05. (Footnote omitted) See also Howard v. Massanari, 255 F.3d 577, 582-83 (8th Cir. 2001) (holding that a claimant with an IQ score of 71 should not be "allowed the benefit of the mental retardation categorization"); Cockerham v. Sullivan, 895 F.2d 492, 495-496 (8th Cir. 1990) (refusing to give the claimant "the benefit of the doubt" and consider an IQ score of 71 presumptively to establish disability)."Id. at 125-126.
The undersigned adopts the reasoning of the Third Circuit and finds that plaintiff's Performance IQ score is not functionally equal to the requisite score in Listing 12.05C based on the fact that her I.Q. score was close to the required score of 70. Additionally, in regard to plaintiff's intelligence test results the Listing states that
The results of standardized intelligence tests may provide data that help verify the presence of mental retardation or organic mental disorder, as well as the extent of any compromise in cognitive functioning. However, since the results of intelligence tests are only part of the overall assessment, the narrative report that accompanies the test results should comment on whether the IQ scores are considered valid and consistent with the developmental history and the degree of functional limitation.20 CFR Pt. 404, Subpt. P, App. 1, Listing 12.00(D)(6)(a). Dr. Zweifler has interpreted plaintiff's objective tests and clinical examination as indicative of borderline intellectual functioning and a learning disability but not mental retardation.
Equivalency to the mental retardation listing would require evidence of deficits of adaptive behavior to support a measurement error in the IQ determination. As previously stated, the introduction to Listing 12.05 states that mental retardation "refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning[.]" 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.05 (2002). Thus, plaintiff must establish adaptive behavior which supports a finding of mental retardation. See Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) ("This court, however, has recognized that a valid IQ score need not be conclusive of mental retardation, where the IQ score is inconsistent with other evidence in the record concerning the claimant's daily activities and behavior."); Popp v. Heckler, 779 F. 2d 1497, 1500 (11th Cir. 1986) (per curiam) (holding that "the ALJ was not required to find that [the plaintiff] was mentally retarded based on the results of the I.Q. test. The ALJ is required to examine the results in conjunction with other medical evidence and the [plaintiff's] daily activities and behavior.")
In that regard, Plaintiff argues that her school records support her equivalency argument. Her grade report shows that in academic subjects she obtained primarily grades C, D, and E and in her sixth grade year which she repeated. Thereafter, at the age of thirteen, plaintiff withdrew from school. (Tr. 187). However, her records do not contain any IQ test scores or evidence that she was placed in special education or mental retardation classes. (Tr. 187).
It appears that tests were administered in 1965 and 1968 but the results are not interpreted in terms of IQ scores but rather in terms of chronological age, mental age (which is blank) and grade placement. (Tr. 187).
Plaintiff also testified that she took the written driver's examination six or seven times, that she could read, write and perform math on a limited basis and did not take the General Educational Development examination. During the application process, an examiner noted that plaintiff did not read or write but signed her name and that plaintiff's cousin helped with the application. (Tr. 117). Also, in her work history report and her disability report, plaintiff reported that she could not read or write. (Tr. 138, 154).
However, despite these reported functional mental limitations, Plaintiff also reported that from 1995 to 1999 she worked as a cashier at Wal-Mart where she used a cash register and also returned items to the shelf. (Tr. 152, 156). Plaintiff also reported in her application, that she obtained additional education at a health care training school and worked as a nurse's aide in a nursing home for ten years but did not write or complete reports. (Tr. 128, 123, 140, 147). At the hearing, the VE testified that both of these jobs were semi-skilled. (Tr. 54).
Additionally, plaintiff also reported that she lived alone, walked at her residence, drove when necessary, performed light cooking and light cleaning (no vacuuming or mopping) and that her son took care of her yard and another relative helped with heavy cleaning and some errands. (Tr. 52, 162). Plaintiff did not report that she stopped work or quit any job because she was not intelligent enough to perform the work. She has reported that her inability to work results from her physical incapacity rather than any mental incapacity despite her limited ability to read, write, spell and perform math computations.
Accordingly, the undersigned finds that substantial evidence supports a finding that plaintiff does not meet or functionally equal the requirements of Listing 12.05C and that the ALJ did not commit reversible error by failing to find that she met or equaled the Listing. Plaintiff has demonstrated adaptive skills which do not support a finding of mental retardation and she has presented no objective clinical evidence of mental retardation.
3. Whether the ALJ improperly evaluated Plaintiff's credibility.
Plaintiff argues that the ALJ's analysis of her daily activities was not reflective of the severity of functional impairments depicted in the forms she completed for the Social Security Administration. Plaintiff argues that the ALJ disregarded portions of her reports of daily activity which support her allegations. Plaintiff also argues that her performance of light household duties and light shopping or participation in activities of short duration does not indicate that she can perform sedentary work on a regular and sustained basis for eight hours per day, five days per week
Plaintiff further argues that her complaints of pain and other exertional limitations as documented by her treating and evaluating physicians were consistent with her testimony and her written reports. Plaintiff argues that because the ALJ improperly rejected the findings of her treating physician in regard to the limiting effects of plaintiff's pain, the ALJ improperly found that her allegations of pain were not credible. Plaintiff also argues that because she established underlying medical conditions which could reasonably give rise to the pain and other limitations alleged, the ALJ was required to consider her subjective complaints, however, he failed to properly consider her subjective complaints (her testimony and reports to the Social Security Administration) and failed to articulate explicit and adequate reasons for rejecting them.
In evaluating plaintiff's subjective symptoms, the ALJ found as follows:
[ 20 C.F.R. §§ 404.1529 and 416.929] and Social Security Ruling 96-7p require that further evaluation of the claimant's complaints be made if the allegations exceed the limitations reasonably expected from the medical findings. The undersigned is required to consider the claimant's prior work record, observations by treating physicians, precipitating and aggravating factors of the symptoms, the use of medication and other methods for relief of symptoms, functional restrictions, and daily activities. With regard to her activities of daily living, the claimant reported . . . that she is unable to care for herself, but noted she lived alone, primarily, cares for her own personal needs, prepares light meals, [sandwiches, soups, etc], and does grocery shopping on days "when she feels like doing things." The claimant further indicated that she can do some light household chores, i.e., dusting, sweeping — all of which suggest that she is capable of performing some types of work-related activity, albeit, she does require some assistance from her son with yard work. After review of the full record, the undersigned finds the claimant's testimony of disabling level pain is not in accordance with the medical evidence of record or the record in its entirety.
(Tr. 17-18) (Brackets in original). The ALJ also found that plaintiff's testimony regarding her pain and functional limitations did not "support a finding of disabling level impairment[s] when considered in the context of the full record." (Tr. 19) (Brackets in original). Additionally, as previously discussed, in discrediting Dr. Mitchell's finding that plaintiff had marked concentration deficits because of pain, the ALJ found this statement not consistent with the record and specifically referenced plaintiff's daily activities and treatment history indicating complaints of severe pain "on only a few occasions." (Tr. 17).
In Foote v. Chater, 67 F.3d 1553 (11th Cir. 1995), the Eleventh Circuit set forth as follows:
A clearly articulated credibility finding with substantial supporting evidence in the record will not be disturbed by a reviewing court. MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986). A lack of an explicit credibility finding becomes a ground for remand when credibility is critical to the outcome of the case. Smallwood v. Schweiker, 681 F.2d 1349, 1352 (11th Cir. 1982). While an adequate credibility finding need not cite "particular phrases or formulations . . . broad findings that [a claimant] lacked credibility and could return to her past work alone are not enough to enable us to conclude that [the ALJ] considered her medical condition as a whole." Jamison v. Bowen, 814 F.2d 585, 588-90 (11th Cir. 1987). If proof of disability is based upon subjective evidence and a credibility determination is, therefore, critical to the decision, "the ALJ must either explicitly discredit such testimony or the implication must be so clear as to amount to a specific credibility finding." Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983) (ALJ did not specifically address testimony by claimant and her daughter about claimant's pain). Explicit credibility findings are "necessary and crucial where subjective pain is an issue." Walden v. Schweiker, 672 F.2d 835, 839 (11th Cir. 1982).Id. at 1561-67; see also Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991) (if an ALJ decides to discredit a claimant's testimony, the ALJ must do so explicitly and articulate explicit and adequate reasons in support of that decision). If the ALJ fails to set forth adequate and explicit reasons for rejecting the claimant's testimony, then it must be accepted as true. Cannon v. Bowen, 858 F. 2d 1541, 1545 (11th Cir. 1988). When making a credibility determination, the ALJ may consider plaintiff's daily activities. Macia, 829 F. 2d at 1012; see also 20 C.F.R. § 404.1529(c)(3)(i); 416.929(c)(3)(i) ("Factors relevant to your symptoms, such as pain, which we will consider include: (i) Your daily activities[.]"). The ALJ may also consider treatment and medication taken to relieve or control pain. 20 C.F.R. § 404.1529(c)(3) (The ALJ may consider "(iv) [t]he type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms; [and] (v) [t]reatment, other than medication, you receive or have received for relief of your pain or other symptoms"). Moreover, "[t]he credibility of witnesses is for the [Commissioner] to determine, not the courts." Carnes v. Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991) citing Kelly v. Heckler, 736 F.2d 631, 632 (11th Cir. 1984).
The ALJ relied upon plaintiff's reports and testimony of her daily activities and the medical record to discredit her allegations of disabling functional limitations. Additionally, as previously discussed, the supporting opinion regarding plaintiff's functional limitations resulting from pain as expressed by Dr. Mitchell was found to lack evidentiary support in the medical records of Dr. Mitchell and the other treating and consultative physicians. Plaintiff's treatment records show that she complained to Dr. Mitchell about pain in her back and legs. Dr. Mitchell then consistently prescribed Lortab and Soma, a narcotic pain medication and a muscle relaxer, and also Pletal for the claudication symptoms in Plaintiff's legs after the arterial study. However, Dr. Mitchell did not refer plaintiff for pain management, prescribe other methods for relief of pain, or report in the treatment records that she was placing any functional limitations upon Plaintiff. Also, as previously discussed in the section addressing Plaintiff's first issue, the reports of Dr. Terry, Dr. Park and Dr. Kovacs do not support the functional exertional limitations which Plaintiff alleges. Importantly, the only two medical signs and clinical findings resulting from objective medical tests do not support Plaintiff's allegations. The arterial study showed only minimal occlusion of the right tibial artery, (Tr. 333), and the lumbar spine x-ray showed degenerative disc disease at the L5-S1 vertebrae but was not interpreted a showing any nerve impingement such that would support pain shooting into both legs. (Tr. 293-294).
Pletal is a brand name for generic Cilostazol which "is used to reduce the symptoms of intermittent claudication (pain in the legs that happens when walking and goes away with rest). Cilostazol helps people walk a longer distance before leg pain starts." National Library of Medicine, National Institutes of Health. www.nlm.nih.gov/medlineplus/druginfo/.
Additionally, at the time that the orthopedic surgeon Dr. Park ordered the spine x-ray he found plaintiff had a negative straight leg raise test and that her lower extremities had normal strength, reflex and sensation but for the tenderness resulting from her recent injury while attempting to exercise. (Tr. 293-294).
It should be noted that the ALJ did not find that Plaintiff was without pain. He found that Plaintiff's "testimony of disabling level pain" was not supported by the medical or other evidence. (Tr. 19). Because there is a lack of objective medical and clinical evidence to support the severity of the pain alleged and daily activities inconsistent with Plaintiff's reported level of disabling pain, the undersigned finds that the ALJ did not err by discounting Plaintiff's credibility and his decision is supported by substantial evidence. The undersigned further finds that the ALJ set forth adequate and explicit reasons for rejecting plaintiff's subjective allegations and that those reasons are supported by substantial evidence in the record: the medical treatment records from the treating and consultative physicians and plaintiff's report of daily activities.
4. Whether the ALJ improperly determined Plaintiff's residual functional capacity.
Plaintiff argues that because the ALJ erred in his evaluation of the treating physician's evidence and Plaintiff's allegations of pain and other symptoms, i.e. her credibility, the ALJ improperly determined her residual functional capacity. Plaintiff further argues that an appropriate step-by-step analysis would have led to the conclusion that Plaintiff had significant exertional and nonexertional limitations that would prevent her from making a vocational adjustment to other jobs that existed in significant numbers in the national economy, even at the sedentary level.
Plaintiff argues that because the ALJ had improperly discredited the opinion of Dr. Mitchell and failed to accept plaintiff's testimony as credible, his residual functional capacity determination is not supported by substantial evidence.
Residual functional capacity is defined as follows:
Ordinarily, RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis. A "regular and continuing basis" means an 8 hour day, 5 days a week, or an equivalent work schedule.
Social Security Ruling 96-8p: Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims, 1996 WL 374184 *1.
It is an assessment which is based on all of the relevant evidence of a claimant's remaining ability to do work despite her impairments. Lewis v. Callahan, 125 F.3d 1436 (11th Cir. 1997), citing 20 C.F.R. § 404.1545(a). Once a credibility determination is made, the ALJ must then consider the impact of a claimant's symptoms at each step of the sequential evaluation set forth in 20 C.F.R. § 416.920, beginning at Step 2. Social Security Ruling 96-7p: Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing The Credibility of an Individual's Statements, 1996 WL 374186 at *2.
The ALJ assessed Plaintiff's residual functional capacity based upon all the relevant evidence of Plaintiff's remaining ability to work despite her impairments. The relevant evidence assessed included: claimant's prior work record, observations by treating physicians, precipitating and aggravating factors of the symptoms, the use of medication and other methods for relief of symptoms, functional restrictions, and daily activities. (Tr. 18). The ALJ then determined Plaintiff had the residual functional capacity "for work at the sedentary level of exertion that includes avoiding concentrated exposure to environmental pollutants, and excludes work requiring an ability to follow and carry out detailed instructions." (Tr. 18). The ALJ then applied Plaintiff's residual functional capacity at all subsequent steps of the sequential evaluation and found she was not disabled. (Tr. 17-19). As previously discussed the undersigned finds no error with the ALJ's rejection of the treating physician's conclusions or the plaintiff's allegations of disabling pain, thus the undersigned finds no error in the determination of plaintiff's residual functional capacity.
5. Whether the ALJ relied upon erroneous testimony from the vocational expert.
Plaintiff argues that the ALJ erred when he relied upon VE testimony in the fifth step of the sequential evaluation process, thus violating Social Security Ruling 00-4p Social Security Ruling 00-4p: Titles II and XVI: Use of Vocational Expert and Vocational Specialist Evidence, and other Reliable Occupational Information in Disability Decisions, 2000 WL 1898704 (requiring that regulatory policies or definitions be followed). Plaintiff specifically objects to the VE's conclusions that Plaintiff was able to meet the requirements of a check cashier, surveillance-system monitor or information clerk as set forth in the Dictionary of Occupational Titles. Dictionary of Occupational Titles, 4th ed. 1991 (DOT). Plaintiff argues that the skill level of the jobs identified by the VE (semi-skilled) exceed Plaintiff's intellectual functioning level identified by her psychological evaluation by Dr. Zweifler (borderline intellectual functioning and mild mental retardation in Plaintiff's capability for reading, mathematics and spelling).
The Ruling sets forth that before relying on VE testimony, the ALJ must "[i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs or VSs and information in the Dictionary of Occupational Titles (DOT), including its companion publication, the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO), published by the Department of Labor, and explain in the determination or decision how any conflict that has been identified was resolved." 2000 WL 1898704 at *1.
Plaintiff also argues that the hypothetical question presented to the VE did not contain the element of a moderate limitation in the ability to understand and carry out detailed instructions which the ALJ included in his residual functional capacity assessment. (Tr. 17-19). Plaintiff argues that the answer to a deficient hypothetical question cannot form the basis of a valid determination that plaintiff can perform other work which exists in significant number in the national economy, thus the Commissioner's burden was not met at the fifth step.
Initially, the ALJ found plaintiff has the severe impairments of diabetes mellitus, hypertension, chronic obstructive pulmonary disease, peripheral vascular disease, osteoarthritis, osteoporosis, obesity, depression NOS, and borderline intellectual functioning/learning disability. (Tr. 15). The ALJ then found plaintiff had a residual functional capacity for sedentary exertional work which avoided concentrated exposure to environmental pollutants. (Tr. 17, 19). He also included the finding that she was moderately limited in her ability to understand and carry out detailed instructions. (Tr. 17, 19). Based upon this residual functional capacity determination, the ALJ found plaintiff could not perform her past relevant work which was light to heavy exertional work but could perform other work which exists in significant numbers in the national economy as identified by the VE. (Tr. 18-19). In his decision, the ALJ set forth as follows:
The [ALJ] asked the [VE] whether jobs exist in the national economy for an individual of the claimant's age, education and residual functional capacity as determined. The [VE] testified that assuming the hypothetical individual's specific work restrictions, she is precluded from all past relevant work, but is capable of making a vocational adjustment to other work, and identified a significant number of unskilled/semiskilled sedentary jobs that she could perform. Such jobs included work as a cashier . . .; security system monitor . . .; and information clerk. . . .
(Tr. 18-19). The ALJ also noted that the VE testified that although plaintiff had a 6th grade education she could perform cashiering work because she had successfully performed that type of work in the past. (Tr. 19).
The record indicates that Dr. Zweifler examined plaintiff after the administrative hearing and no supplemental hearing was held, thus the limitations found by Dr. Zweifler were not presented to the VE in a hypothetical question. The transcript indicates that the restriction adopted by the ALJ; that plaintiff was moderately limited in her ability to understand and carry out detailed instructions, was not presented to the VE as an element of the hypothetical question. "In order for a vocational expert's testimony to constitute substantial evidence, the ALJ must pose a hypothetical question which comprises all of the claimant's impairments." Wilson v. Barnhart, 284 F. 3d 1219, 1227 (11th Cir. 2002) citing Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999), cert. denied, 529 U.S. 1089, 120 S.Ct. 1723 (2000). If a plaintiff has nonexertional impairments, then the ALJ may use the Medical-Vocational Guidelines as a framework for evaluation of plaintiff's vocational factors such as age, education, past work, but the ALJ must also introduce other evidence, preferably the testimony of a VE regarding the existence of jobs in the national economy which plaintiff can perform. See Wolfe v. Chater, 86 F.3d 1072, 1077-78 (11th Cir. 1996). If the ALJ relies upon a VE's response to a hypothetical question as substantial evidence to support a determination that plaintiff can perform other work which exists in significant number in the national economy, then the elements of the hypothetical question must comprehensively describe all of plaintiff's exertional and non-exertional functional limitations.See Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995);Welch v. Bowen, 854 F.2d 436, 440 (11th Cir. 1986);McSwain v. Bowen, 814 F. 2d 617, 619-620 (11th Cir. 1986. Also, the elements of the hypothetical question must be supported by substantial evidence. Graham v. Bowen, 790 F.2d 1572, 1573 (11th Cir. 1986); see Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989); Cowart v. Schweiker, 662 F.2d 731, 736 (11th Cir. 1981) ("Although there is no per se rule that a vocational expert be called to testify . . . the ALJ must articulate specific jobs that the claimant is able to perform, and this finding must be supported by substantial evidence, not `mere intuition or conjecture by the administrative law judge.'").
In Pendley v. Heckler, 767 F.2d 1561, 1562-1562 (11th Cir. 1985) (per curiam), the Eleventh Circuit Court of Appeals held that the ALJ's failure to include plaintiff's severe impairments in a hypothetical question to a VE was reversible error where the ALJ relied on that VE's testimony to make a disability decision. Moreover, in Owes v. Barnhart, 02-11139 (11th Cir. Oct. 8, 2002) (unpublished memorandum opinion), the Eleventh Circuit reversed and remanded for additional VE testimony because the hypothetical question did not include all the elements of the residual functional capacity as found by the ALJ. The Owes court found as follows:
When a hypothetical question includes a claimant's physical impairments but fails to mention his psychological impairments, the hypothetical question does not accurately represent a claimant's impairments, and the vocational expert's response to that hypothetical question cannot satisfy the Commissioner's burden of proving that the claimant can perform other work. Pendley v. Heckler, 767 F.2d 1561, 1562-1562 (11th Cir. 1985) (per curiam) . . . Even though the ALJ in this case described Owes's depression as "mild" and stated that he suffers only "slight" restrictions in his daily living and in maintaining social functioning, this does not give us license to ignore the omission of Owes's mental impairments from the hypothetical question. In Brenem v. Harris, 621 F. 2d 688, 690 (5th Cir. 1980) (per curiam), the claimant also suffered from only "mild" mental impairments, but the court nevertheless reversed because of the failure to include these impairments in the hypothetical question to the vocational expert, finding that "mental and psychological defects can combine with physical impairments" to prevent a claimant from working. Because the second hypothetical question failed to include all of Owes's impairments, the vocational expert's response to that hypothetical is inadequate to support a finding of no disability.
The Commissioner argues that any error in the hypothetical question was harmless, because the ALJ considered Owes's mental impairments in determining that he could perform unskilled work, and two of the jobs the vocational expert listed in response to the second hypothetical question involved unskilled work. Although the ALJ found that Owes could perform "simple and routine unskilled jobs consisting of repetitive activities" and the jobs of agricultural produce sorter and sedentary food sorter involve unskilled work, this does not mean that the failure to include the mental impairments in the second hypothetical question was harmless. (Citation omitted). Here, as in Pendley and Brenem, we cannot assume that the vocational expert would have responded in the same way to the second hypothetical question if the question had included Owes's mental impairments. (Citations omitted). We do not know whether the fact that Owes "often" experiences "deficiencies in concentration, persistence, or pace resulting in the failure to complete tasks in a timely manner" would make him unable to perform the job of agricultural produce sorter or sedentary food sorter. Thus, we cannot say that the Commissioner met the burden of proving that Owes could perform other work in the national economy.Owes, at p. 5-7.
In the present case the ALJ relied upon the VE's testimony to find that plaintiff could perform other work. (Tr. 18-19). However, the record indicates that the ALJ did not present the element of a moderate limitation in the ability to perform work requiring detailed instruction in the hypothetical question to the VE even though the ALJ included that element in his residual functional capacity determination. Additionally, the ALJ found plaintiff has the severe impairments of depression NOS, borderline intellectual functioning and a learning disorder but did not include them in his hypothetical question to the VE. (Tr. 15). Accordingly, this case should be remanded to the ALJ for further proceedings to address these deficiencies.
The ALJ stated that he posed a hypothetical question to the VE which included a person of plaintiff's age, education (6th grade), past work experience, and residual functional capacity and the VE responded that such a person could not perform plaintiff's past relevant work but could perform other work such as cashier, security system monitor and information clerk. (Tr. 18-19). (underlining added). However, the record reflects that the ALJ did not include in the hypothetical question the plaintiff's full residual functional capacity but only stated that she was limited to sedentary work. (Tr. 55-56).
VIII. Conclusion
Upon consideration of the administrative record, the memoranda of the parties, oral argument, and for the reasons set forth, it is recommended that this action be reversed and remanded to the Commissioner of Social Security pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings not inconsistent with this report and recommendation. Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157 (1991). Remand pursuant to sentence four of § 405(g) makes plaintiff a prevailing party for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625 (1993), and terminates this court's jurisdiction over this matter.
The attached sheet contains important information regarding objections to this report and recommendation.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection. Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides, in part, that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Opposing party's response to the objection. Any opposing party may submit a brief opposing the objection within ten (10) days of being served with a copy of the statement of objection. Fed.R.Civ.P. 72; SD ALA LR 72.4(b).
3. Transcript (applicable where proceedings tape recorded). Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessaryis required before the United States will pay the cost of the transcript.