Summary
finding Coleman distinguishable on the basis that at step four, "[t]he ALJ had no burden placed upon him to prove that a significant number of jobs exists because [the claimant] did not prove she is disabled"
Summary of this case from Combs v. AstrueOpinion
CIVIL ACTION NO. 2:10-CV-200-TFM.
February 11, 2011
MEMORANDUM OPINION AND ORDER
Following administrative denials of applications for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., Plaintiff Naomi Watson ("Watson") received a requested hearing, represented by counsel, before an administrative law judge ("ALJ"), who rendered an unfavorable decision on January 31, 2008. When the Appeals Council rejected review, the ALJ's decision became the final decision of the Commissioner of Social Security ("Commissioner"), and this judicial review proceeds pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 636(c). After careful scrutiny of the record and briefs, the Magistrate Judge AFFIRMS the Commissioner's decision.
I. ADMINISTRATIVE FINDINGS
On April 6, 2006, Watson filed an application alleging disability since March 1, 2001. Denied administratively and represented by counsel, Watson requested and received a hearing before an ALJ, who rendered an unfavorable decision. Sixty-two years old at the time of the hearing, Watson has a GED.
R. 11.
Plaintiff's Brief ("Pl. Br.") at 3 (filed July 19, 2010).
The ALJ found Watson had not engaged in substantial gainful work and has severe impairments- diabetes mellitus, degenerative joint disease, degenerative disc disease, peripheral vascular disease, hypertension, and obesity-but concluded that Watson's severe impairments, considered singularly or in combination, do not meet or medically equal one of the listed impairments in 20 C.F.R. §§ 404, Subpart P, Appendix 1. The ALJ considered the evidence of record and determined that Watson has medically determined impairments, which one would reasonably expect to produce the alleged symptoms. However, Watson gave written statements in May 2006 that differed considerably from the testimony she provided at the October 16, 2007 video hearing. The ALJ deemed Watson's testimony from the October 16, 2007 video hearing less credible than the written statements Watson made in May 2006 because the written statements were closer to the time when her insured status expired and, thus, could reasonably be expected to be more accurate. Further, the ALJ reviewed Watson's medical records to determine whether her impairments functionally restricted her ability to perform work. Based on these statements and medical records, the ALJ found that Watson retained the residual functional capacity ("RFC") to perform her past relevant work as a sewing machine operator/shirt hemmer and/or janitor, which meant that Watson was not disabled with the meaning of the Act.
R. 13-14.
R. 18.
R. 17.
Id.
R. 14.
R. 22-23.
On January 31, 2008, the ALJ held that Watson was not disabled within the meaning of the Act. On January 11, 2010, the Social Security Administration Appeals Council denied Watson's request for review. The Appeals Council's order denying review is a "final decision" of the Commissioner under 42 U.S.C. § 405(g). This appeal to the United States District Court is timely and proceeds pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 636(c).
R. 23.
Pl. Br. at 2.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the person is unable to
Engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.
A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
The Commissioner of Social Security employs a five-step, sequential evaluation process to determine whether a claimant is entitled to benefits. See 20 C.F.R. §§ 404.1520, 416.920 (2010).
(1) Is the person presently unemployed?
(2) Is the person's impairment(s) severe?
(3) Does the person's impairment(s) meet or equal one of the specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of "not disabled."McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
This subpart is also referred to as "the Listing of Impairments."
Though a supplemental security income case (SSI), McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), applies the sequential process applicable to disability insurance benefits. Cases arising under Title II are appropriately cited as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F.3d 1232, 1237-39 (11th Cir. 2004). Claimants establish a prima facie case of qualifying disability once they meet the burden of proof from Step 1 through Step 4. At Step 5, the burden shifts to the Commissioner, who must then show there are a significant number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant's Residual Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do despite his impairments and is based on all relevant medical and other evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, the ALJ considers the claimant's RFC, age, education, and work experience to determine if there are jobs available in the national economy the claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical Vocational Guidelines (grids) or hear testimony from a vocational expert (VE). Id. at 1239-40.
See 20 C.F.R. pt. 404 subpt. P, app. 2.
The grids allow the ALJ to consider factors such as age, confinement to sedentary or light work, inability to speak English, educational deficiencies, and lack of job experience. Each factor can independently limit the number of jobs realistically available to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorily-required finding of "Disabled" or "Not Disabled." Id.
Judicial review of the Commissioner's decision to deny benefits is limited. The court cannot conduct a de novo review or substitute its own judgment for that of the Commissioner. Walden v. Schweiker, 672 F.2d 835 (11th Cir. 1982). This court must find the Commissioner's decision conclusive "if it is supported by substantial evidence and the correct legal standards were applied." Kelley v. Apfel, 185 F. 3d 1211, 1213 (11th Cir. 1999), citing Graham v. Apfel, 129 F. 3d 1420, 1422 (11th Cir. 1997).
Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995), citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401 (1971).
If the substantial evidence supports the Commissioner's decision, the district court will affirm, even if the court would have reached a contrary result as finder of fact, and even if the court finds that the evidence preponderates against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n. 3 (11th Cir. 1991). The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992); Parker v. Bowen, 793 F.2d 1177 (11th Cir. 1986).
The district court will reverse a Commissioner's decision on plenary review if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law. Keeton v. Department of Health and Human Services, 21 F.3d 1064, 1066 (11th Cir. 1994). The case may be remanded to the Commissioner for a rehearing under sentence four of 42 U.S.C. § 405(g); under sentence six of 42 U.S.C. § 405(g); or under both sentences. Jackson v. Chater, 99 F.3d 1086, 1089 — 92, 1095, 1098 (11th Cir. 1996).
In deciding whether the Commissioner erred in denying review of the ALJ's decision, the court also must consider additional evidence considered and made a part of the record by the Appeals Council in denying requested review. The Appeals Council will review a case if there appears to be an abuse of discretion by the ALJ, if there is an error of law, or if substantial evidence does not support the ALJ's action, findings, or conclusions. 20 C.F.R. § 416.1470; see also, Parker v. Bowen, 788 F.2d 1512, 1518 (11th Cir. 1986) (en banc). The Appeals Council's denial of review is subject to judicial review to determine if it is supported by substantial evidence. Parker, 788 F.2d at 1520.
III. ISSUE
Watson raises one issue for review:
1. Whether the Court should reverse the Commissioner because the ALJ's RFC finding is not support by substantial evidence.
IV. DISCUSSION
To determine disability, the Social Security Regulations require a five-step sequential evaluation process. 20 C.F.R. § 404.1520(a). These regulations place a very heavy burden on the claimant to demonstrate both a qualifying disability and an inability to perform past relevant work. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).While her arguments somewhat overlap, Watson essentially argues two points as to why the ALJ's RFC finding lacks the substantial evidence. First, Watson argues that because the ALJ did not obtain a physical capabilities evaluation from a treating or examining physician to determine RFC the decision lacks the requisite substantial evidentiary support. Secondly, Watson asserts that the ALJ dismissed the only assessment of her physical capabilities provided by a non-examining State Agency medical consultant ("Robert Harris") who indicated that her physical capabilities were limited to light work.
Pl. Br. at 7.
Id.
As support, Watson cites Coleman v. Barnhart, 264 F. Supp.2d 1007 (S.D. Ala. 2003) and Doss v. Astrue, Case No. CA 07-0375-C, 2007 WL 4570551 (S.D. Ala. Dec. 20, 2007). In Coleman, the Court found that the Commissioner did not meet its fifth-step burden because there was no RFC assessment from a treating or examining physician. In Doss, the court held that when the ALJ rejects the only physical RFC assessment in the record, and the ALJ does not use a physical capacities evaluation to support his fifth-step determination his decision lacks substantial evidence to withstand review. The court concluded that the ALJ did not establish his fifth-step burden of proving that the claimant was capable of performing other work.
Coleman v. Barnhart, 264 F. Supp.2d 1007, 1010 (S.D. Ala. 2003).
Id. at 8.
RFC is what the claimant is still able to do despite his impairments and is based on all relevant medical and other evidence. See Phillips v. Barnhart, 357 F.3d 1232, 1237-39 (11th Cir. 2004). It also can contain both exertional and nonexertional limitations. Id. Assessment of RFC falls squarely within the ALJ's province. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). It requires, in essence, a function-by-function assessment of a claimant's ability to perform work-related activities "on a regular and continuing basis." 20 C.F.R. § 404.1567(b).
The ALJ has the duty to develop the record fully and fairly. See, e.g., Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999) (citing Graham v. Apfel, 129 F.3d 1420, 1422-1423 (11th Cir. 1997)); Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). Here, there was substantial evidence in the record to allow the ALJ to make an informed decision. The ALJ had and considered numerous medical reports from treating physicians spanning a 4-year period and had numerous results from medical tests conducted by Watson's treating physicians. None of the doctor reports put functional limitations upon Watson. Further the ALJ had and considered disability reports, supplemental disability outlines, and questionnaires completed by Watson. Additionally, there was a transcript from a hearing where the ALJ and her attorney questioned Watson about her ability to work. The record contains substantial evidence to support the ALJ's decision. Watson had the burden of producing evidence that she was disabled, not the ALJ. See Griffin v. Astrue, 2010 WL 1905031 (M.D. Ala. May 12, 2010). Furthermore, while the ALJ did not mention the report from Robert Harris, the non-examining State Agency Medical consultant, in his decision, the Harris report is not helpful to Watson. Harris found that the medical evidence did not support Watson's subjective statements about her symptoms or functional limitations and her claims were only partially credible in this respect. Watson did not show that a reasonable person could not come to a similar conclusion.
R. 379.
It is also well established that the ALJ's credibility findings are to be given deference. See Wilson v. Heckler, 734 F.2d 513, 517 (11th Cir. 1984). The ALJ did not find that Watson's testimony regarding the limiting effects of her impairments or the strength requirements of her past employment as a sewing machine operator as credible. While the ALJ did find that Watson's impairments could cause the symptoms she alleges, the ALJ did not find Watson credible as to the intensity, persistence, and limiting effects of the symptoms based upon her initial statement in May 2006 that Watson cooks, cleans, shops, and was, in general, "very busy taking care of my family."
R. 17.
R. 16 18.
Additionally, both cases cited by Watson are distinguishable from her action. In Coleman and Doss, the ALJ found that the claimant was not able to perform her past relevant work. Coleman, 264 F. Supp.2d at 1009; Doss, Case No. CA 07-0375-C, 2007 WL 4570551 *3. In this case, the ALJ determined at step four of the sequential evaluation process that Watson was capable of performing her past relevant work. According to the Social Security Administration (SSA) regulations, should the SSA determine that the claimant has the RFC to do past relevant work, then, the regulations state that the claimant is not disabled and vocational factors (age, education, and work experience or significant amount of your past relevant work available in the national economy) will not be considered. 20 C.F.R. § 404.1560(b)(3). The regulations require the ALJ to provide evidence that a significant amount of jobs exist in the national economy that claimant is capable of given his/her RFC, age, education, and work experience only if the claimant's RFC does not enable them to perform past relevant work. 20 C.F.R. § 404.1560(c). In this instance, the ALJ found Watson was capable of performing past relevant work. By definition, a person who can perform past relevant work is not disabled under the Act. The disability inquiry is complete if the answer at step four is yes. The ALJ had no burden placed upon him to prove that a significant number of jobs exists because Watson did not prove that she is disabled. The ALJ had substantial evidence to find Watson has the RFC to engage in substantial gainful activity.
R. 15.
V. CONCLUSION
Based on the findings and conclusions detailed in this Memorandum Opinion, the court finds the decision of the ALJ supported by substantial evidence and a proper application of the law. Accordingly, it is ORDERED that the decision of the Commissioner is AFFIRMED.
A separate judgment is entered herewith.
Done this 11th day of February, 2011.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1 365 1 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co., 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc., 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc., Gillespie v. United States Steel Corp., 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing : Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , 368 (11th Ci r. 1 983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. 486 U.S. 196, 201, , , (1988); , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , 69S.Ct. 1221, 1225-26, (1949); 890 F.2d 371, 376 (11th Cir. 1989); , , , , (1964). Rev.: 4/04 The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).