Opinion
CIVIL ACTION 99-0957-AH-S.
May 3, 2000.
RECOMMENDATION OF MAGISTRATE JUDGE
This appeal is brought by Plaintiff, Betty G. Tanner, pursuant to 42 U.S.C. § 405 (g) and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of the Social Security Administration (Commissioner) denying her claim for disability insurance benefits. This matter has been referred to the undersigned Magistrate Judge for a recommendation pursuant to 28 U.S.C. § 636 (b)(l)(B) and SDAL LR 72.2. The undersigned has determined that oral argument is unnecessary to resolve this matter. See SDAL LR 7.3. Upon careful consideration of the administrative record and the arguments raised by the parties in their memoranda, it is recommended that the decision of the Commissioner be affirmed.
Procedural History and Background
Betty G. Tanner (Plaintiff) filed an application for disability insurance benefits on May 13, 1996, alleging disability since March 1, 1992, as a result of respiratory problems, depression, headaches, fluctuating blood pressure, and carpal tunnel syndrome. After unfavorable initial and reconsideration determinations, Plaintiff timely filed a request for hearing which was granted. Subsequently, a hearing was held on March 20, 1997, in Evergreen, Alabama, before Administrative Law Judge (AU) Joseph J. Micare. On May 20, 1997, Judge Micare entered a written decision finding that Plaintiff was not disabled. On August 20, 1999, Plaintiffs request for review of the AU's decision was denied by the Appeals Council, thus making Judge Micare's decision the final decision of the Commissioner. The parties agree that this case is now ripe for review and is properly before this Court pursuant to 42 U.S.C. § 405 (g) and 1383(c)(3).
Statement of Facts
Plaintiff was born on October 19, 1942, and was fifty-four years of age at the time of the administrative hearing. Plaintiff has a high school education and past work experience as a police dispatcher, police communications officer, waitress, insurance agent, and fast food worker. Plaintiff submits that she is disabled and unable to engage in gainful work activity as a result of respiratory problems, depression, headaches, fluctuating blood pressure, and carpal tunnel syndrome.
During the administrative hearing, Plaintiff testified that she had severe asthma and emphysema, carpal tunnel syndrome, and severe migraine headaches. Administrative Record, page 52 (R. at 52). Plaintiff stated that her breathing problems had gotten progressively worse as she had gotten older, that she had difficulty breathing when exposed to dust, fumes, and gases and changes in temperature and humidity, that standing, walking, and bending aggravated her breathing problems, that she had to lie down two to four times a day for thirty-five to forty-five minutes because of her breathing problems, and that the pulmonaid machine that she used for her breathing problems made her "extremely nervous and totally exhausted." R. at 58-60. According to Plaintiff, she had migraine headaches every four to six weeks, her carpal tunnel syndrome affected her ability to grasp, she experienced depression for which she took medication, and she drove very little. R. at 60-64. Plaintiff testified that she was not able to do any housework or yard work, that she did not have any hobbies or attend any meetings or events regularly, that she was sensitive to smoke and perfume, and that she had fluctuating blood pressure. R. at 64-65.
The AU determined that Plaintiff met the disability insured status requirements of the Social Security Act through December 31, 1994. R. at 30. Based on the evidence before him, the AU found that, during the relevant period for inquiry, Plaintiff had severe asthma and chronic obstructive pulmonary disease but had no other exertional or nonexertional impairments that lasted for a period of twelve consecutive months. R. at 30. The AU determined that Plaintiff did not have an impairment or combination of impairments which met or equaled the criteria for any of the impairments listed in 20 C.F.R. § 404, Appendix I, Subpart P, Regulations No. 4. R. at 30. Thereafter, the AU determined that Plaintiffs allegations of disability through December 31, 1994, were not credible in light of her history of medical treatment, in light of the absence of ongoing medical treatment for any specific and continuing impairment between March 1, 1992 and December 31, 1994, in light of the record documenting minimal abnormalities subsequent to December 31, 1994, and in light of the activities described by Plaintiff on her disability report. R. at 30. The AU found that Plaintiff had the residual functional capacity to perform work-related functions except for work involving lifting or carrying more than ten pounds or frequently lifting or carrying more than five pounds, and work involving extensive or prolonged standing or walking. R. at 30. The ALJ concluded that Plaintiffs impairments did not prevent Plaintiff from performing her past relevant work as a police dispatcher or police communications officer at any time through December 31, 1994, and therefore found that Plaintiff was not disabled within the meaning of the Social Security Act. R. at 30.
Issues on Appeal
Plaintiff presents the following issues on appeal: (1) whether the AU erred in finding that Plaintiff could return to her past relevant work as a police dispatcher or police communications officer, based on the description of those jobs contained in the record; (2) whether the AU erred in failing to call a medical expert; and (3) whether the AU erred in failing to identify significant nonexertional limitations that restrict Plaintiffs ability to work.
Burden of Proof and Standard of Review
The burden lies upon the claimant to prove disability. Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983). "Disability" is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423 (d)(l)(A). A claimant will be considered disabled only if:
his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. § 423 (d)(2)(A).
The standard or scope of review in Social Security cases comprises two factors: (I) whether the decision of the Secretary is supported by substantial evidence, and (2) whether the correct legal standards were applied. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). As set forth in 42 U.S.C. § 405 (g), "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . ." Substantial evidence is defined as "more than a scintilla but less than a preponderance," and consists of "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971);Bloodsworth, 703 F.2d at 1239. A court may neither reweigh the evidence nor substitute its judgment for that of the Secretary. Bloodsworth, 703 F.2d at 1239. Even if a court finds that the preponderance of the evidence is against the decision of the Secretary, the Secretary's decision must be affirmed if it is supported by substantial evidence.Id.
Discussion
In order for a claimant to be entitled to Social Security disability insurance benefits, the claimant must be unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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)(l)(A). Additionally, the claimant is not disabled if she is capable of performing her previous work. 42 U.S.C. § 423 (d)(2)(A), 1 382c(a)(3)(B). In this case, moreover, Plaintiff must show that she became disabled before her insured, status expired on December 31, 1994, in order to be entitled to disability insurance benefits. 42 U.S.C. § 423 (c)(1); Savor v. Shalala, 868 F. Supp. 1363, 1366 (M.D.Fla. 1994) (citing Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir. 1979)). The Social Security Act is clear in requiring that disability must be proven to exist during the time that the claimant is insured within the meaning of the special insured status requirements of the Act. Demandre, 591 F.2d at 1090. If a claimant becomes disabled after her insured status has expired, her claim must be denied despite her disability. Id. (emphasis added) (references omitted). It is undisputed that Plaintiffs insured status for the purposes of receiving disability insurance benefits expired on December 31, 1994. Therefore, Plaintiffs condition on or before December 31, 1994, is determinative of disability in this case.
Past Relevant Work Claim
Plaintiff contends that AU erred in finding that Plaintiff could return to her past relevant work as a police dispatcher or police communications officer, based on the description of those jobs contained in the record. Specifically, Plaintiff argues that the AU's conclusion that Plaintiff could return to her past relevant work as a police dispatcher or police communications officer is not supported by substantial evidence because the actual job description requires more physical activity than acknowledged by the AU. Plaintiff contends that her description of her past work as a police dispatcher and police communications officer required lifting and carrying more than ten pounds and required constant bending and reaching.
In his written decision, the ALJ found that Plaintiff had the residual functional capacity to perform work-related functions except for work involving lifting or carrying more than ten pounds or frequently lifting.or carrying more than five pounds, and work involving extensive or prolonged standing or walking. R. at 30. The ALJ then determined that Plaintiffs prior work as a police dispatcher and police communications officer did not require the performance of workrelated activities precluded by the above limitations. R. at 30. Specifically, the AU stated that:
The claimant retained the residual functional capacity for a full range of sedentary work through December 31, 1994. The claimant's past relevant work as a dispatcher or police communications officer was sedentary as described by the claimant and as generally performed in the national economy as defined in the Dictionary of Occupational Titles.
R. at 26 (references omitted).
The ALJ found that Plaintiff could perform sedentary work. Sedentary work is defined by Social Security Regulations as work that:
involves lifting no more than 10 pounds at a time and occasionally lifting articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.20 C.F.R. § 404.1567 (a).
The record contains two written descriptions by Plaintiff of the requirements of her work as a police communications officer. R. at 97, 106. The descriptions are identical except the later description differs from the earlier report in that Plaintiff stated that she was required to lift or carry over ten pounds. R. at 97, 106. In the earlier report dated May 9, 1996, Plaintiff stated that the heaviest weight that she was required to lift or carry was ten pounds. R. at 97. If the earlier report is accepted, this job was performed at the sedentary level of exertion; if the later report is accepted, the job was performed at the light level of exertion. However, as the ALJ noted, the job of police dispatcher is generally performed at the sedentary exertional level according to theDictionary of Occupational Titles (DOT). R. at 26. See DOT Code 379.362-010.
In the later report dated May 18, 1996, Plaintiff recorded that she was required to lift and carry up to twenty pounds and frequently lift and carry up to ten pounds and that the lifting/carrying involved carrying supplies from a supply closet for approximately ten feet. R. at 106.
Both reports indicate that Plaintiff was required to bend constantly. R. at 97, 106. The earlier report indicates that Plaintiff was required to reach constantly. R. at 97. Plaintiff did not give an oral description of her job as a police dispatcher or police communications officer during the hearing. When asked by the AU what would prevent her from doing her past work as a police dispatcher and police communications officer, Plaintiff replied that she had "severe asthma and emphysema, carpal tunnel syndrome and severe migraine headaches." R. at 52. The only specific limitation with regard to her ability to perform her prior work that Plaintiff mentioned was the inability to think, concentrate and act quickly due to depression. R. at 63. Plaintiff mentioned no other limitations that would prevent her from performing her prior work as a police dispatcher and police communications officer.
In this Circuit, the burden is on the Plaintiff to demonstrate an inability to return to the previous type of work she was engaged in.Jackson v. Bowen, 801 F.2d 1291, 1293 (11th Cir. 1986). "The regulations require that the claimant not be able to perform his past kind of work, not that he merely be unable to perform a specific job he held in the past." Jackson, 801 F.2d at 1293 (citing 20 C.F.R. § 404.1520 (e), 416.920(e)). Accordingly, it is the Plaintiff, not the AU, who has the burden of proving her inability to perform her former type of work. That burden necessarily includes an obligation to produce evidence on that issue. Plaintiff has produced no evidence that she is unable to return to her past work as a police dispatcher and police communications officer. In her brief, Plaintiff argues only that her reported job descriptions contradict each other and that the AU failed to consider whether Plaintiff had the ability to reach and bend constantly. Plaintiff references no medical evidence of record which indicates that she is unable to reach or bend constantly. In fact, Plaintiff does not even argue that she is unable to reach or bend constantly; she merely argues that the AU failed to consider whether Plaintiff had the ability to reach and bend constantly. In his written decision, the AU reviewed and discussed the disability reports submitted by Plaintiff which contain Plaintiffs job descriptions, including reaching and bending requirements. R. at 26. The Court finds that the AU considered Plaintiffs ability to reach and bend in making his determination that Plaintiff was capable of performing her past work and then determined that Plaintiff had the requisite abilities to perform her past work as a police dispatcher and police communications officer. Plaintiffs argument that the actual job description requires more physical activity than acknowledged by the AU is without merit. Therefore, the undersigned finds that the evidence of record substantially supports the AU's decision that Plaintiff was able to return to her past relevant work as a police dispatcher and police communications officer. Medical Expert Claim
On page six of her brief, Plaintiff focuses on a comment the AU made during the administrative hearing regarding her inability to perform her past work. R. at 55. However, the Court notes that the Commissioner's final decision is the written decision of the ALJ and is the decision reviewed by this Court.
Plaintiff contends that the AU erred in failing to call a medical expert. Specifically, Plaintiff argues that, because evidence of disability prior to the date last insured does not exist and because evidence of onset of Plaintiffs alleged disability is ambiguous, the disability onset date must be inferred and therefore the testimony of a medical expert is required. Plaintiff maintains that the AU should have obtained the testimony of a medical expert to determine whether Plaintiffs alleged disabling medical condition that was allegedly present in 1996 existed prior to Plaintiffs date last insured, December 31, 1994.
Here, as in all Social Security disability cases, Plaintiff bears the ultimate burden of proof on the issue of disability. In this case, Plaintiff has not met her burden. The AU reviewed all of the treating physicians' reports in the record quite thoroughly (R. at 19-27), noting that "none of the evidence through December 31, 1994 establishes recurrent or severe asthmatic attacks or ongoing symptomatology of a severe pulmonary impairment." R. at 25. Dr. Mark A. Roberts, who treated Plaintiff during her April 1994 admittance to the hospital, released her on April 19, 1994, four days after she was admitted (R. at 184), without any mention of an inability to work or without using the disability language later used by Dr. Gerald R. Roberts in his notes more than two years later (R. at 23 8-240). Upon discharge from the hospital in April 1994, Plaintiff was diagnosed with acute asthmatic bronchitis (COPD) and cigarette abuse. R. at 184. Thereafter, Plaintiff did not seek treatment for her breathing problems for almost two years. R. at 242. In those later 1996 and 1997 treatment notes and forms, Dr. G. R. Roberts recorded that he had not treated Plaintiff in some time and that she continued to smoke one and a half packs of cigarettes a day as she had for the past 30 years. R. at 238-240. Thus, while the record might support a conclusion that Plaintiffs COPD worsened in 1996-97, such evidence does not establish a disability prior to the expiration of Plaintiffs insured status. Instead, Dr. Mark Roberts' 1994 treatment notes support the AU's decision that Plaintiff was not disabled pursuant to the Social Security Act on or before December 1994. Moreover, neither the Physical Capacities Evaluation form prepared by Dr. G. R. Roberts on February 10, 1997 (R. at 260-26 1), nor the one prepared by Dr. Mark Roberts on March 28, 1997 (R. at 264-266), relate the degree of severity as observed by the respective doctors in 1997, to the relevant period of time for inquiry, on or before December 31, 1994.
As stated above, the burden lies upon the claimant to prove disability.Bloodsworth, 703 F.2d at 1240; see also 20 C.F.R. § 404.1512 (a). Moreover, the Social Security Act is clear in requiring that disability must be proven to exist during the time that the claimant is insured within the meaning of the special insured status requirements of the Act. Demandre, 591 F.2d at 1090. If a claimant becomes disabled after her insured status has expired, her claim must be denied despite her disability. Id. (emphasis added) (references omitted). In this case, it is undisputed that Plaintiffs insured status for the purposes of receiving disability insurance benefits expired on December 31, 1994. Plaintiff cannot demonstrate that she became disabled on or before December 31, 1994; indeed, Plaintiff admits in her brief that evidence of disability prior to the date last insured does not exist. Here, Plaintiff attempts to circumvent the insured status requirements by arguing that the onset date of her alleged disability is ambiguous and therefore the onset date must be inferred via the testimony of a medical expert. Plaintiffs argument is rejected. While there may be evidence that Plaintiffs condition had worsened by 1996-97, there is no evidence that Plaintiff suffered from a disabling impairment prior to the expiration of insured status. As such, there is no evidence from which a medical expert could infer that Plaintiff was disabled on or before December 31, 1994. Whether or not the medical evidence of record demonstrates that Plaintiff became disabled thereafter is irrelevant. If the Court were to endorse Plaintiffs theory of disability onset, any plaintiff whose insured status had expired prior to the establishment of disability would be able to argue that they were entitled to remand for the purpose of obtaining the testimony of a medical expert to infer that their onset date was actually prior to the expiration of their insured status. The Court refuses to do so. Thus, Plaintiffs contention that this case should be remanded to the Commissioner for a supplemental hearing for the purpose of obtaining the testimony of a medical expert on the issue of whether her alleged disability that allegedly existed in 1996 can reasonably be related to the condition that Plaintiff had when she was hospitalized in April 1994 is without merit.
Nonexertional Limitations Claim
Plaintiff contends that the AU erred in failing to identify significant nonexertional limitations that restrict Plaintiff's ability to work. Plaintiff does not argue that Plaintiffs alleged nonexertional limitations are disabling; Plaintiff argues only that the AU failed to consider her nonexertional limitations.
The regulations require that the AU consider all of a claimant's impairments, exertional and nonexertional, in making his assessment of residual functional capacity. 20 C.F.R. § 404.1545. Contrary to Plaintiffs assertions, the AU thoroughly addressed Plaintiffs alleged nonexertional limitations and treating source opinions. R. at 19-27. The AU thoroughly reviewed the medical evidence of record (R. at 19-23), and then addressed all of Plaintiffs alleged impairments including her alleged nonexertional impairments: fluctuating blood pressure, headaches, depression and anxiety, carpal tunnel syndrome, and various respiratory conditions. R. at 23-25. For example, the AU thoroughly reviewed the physicians' opinions as to Plaintiffs alleged carpal tunnel syndrome. He concluded that "[f]ollowing a follow-up examination for carpal tunnel syndrome, the record is void of any allegations of wrist pain or symptoms resulting from a history of a wrist fracture or carpal tunnel syndrome through December 31, 1994." R. at 24. The AU also addressed Plaintiffs alleged impairment of concentration due to anxiety-related disorders, noting "[t]here are absolutely no references to severe mental symptomatology through December 31, 1994, and those impairments were not so severe [as] to be disabling." R. at 25. After his review and discussion of Plaintiffs alleged exertional and nonexertional impairments, the AU found that Plaintiff had severe asthma and chronic pulmonary disease but no other "severe" exertional or nonexertional impairments. R. at 30.
As evidenced by the body of the AU's written decision and his written findings, the AU clearly considered each of Plaintiffs alleged nonexertional impairments. The ALJ is only required to consider each of Plaintiffs conditions; he is not required to find that each of Plaintiffs conditions is an impediment to her ability to work, if the evidence does not support such a finding. Accordingly, the undersigned finds that Plaintiffs contention that the AU failed to identify and consider her nonexertional limitations is without merit.
As stated previously, this Court may reverse the decision of the AU only when convinced that the decision is not supported by substantial evidence or that proper legal standards were not applied. Martin, 894 F.2d at 1529. The undersigned has reviewed the evidence of record and finds that this evidence substantially supports the conclusions of the AU and his determination that Plaintiff is not disabled. Accordingly, it is the recommendation of the undersigned that the decision of the Commissioner be affirmed.
Conclusion
For the reasons set forth above, the Magistrate Judge recommends that the decision of the Commissioner be affirmed.
The attached sheet contains important information regarding objections to this recommendation.
DONE this the 3rd day of May 2000.