WALLACE CAPEL, Jr., Magistrate Judge.
Plaintiff, William Diven Osborne, applied for disability insurance benefits under Title II of the Social Security Act ("the Act"), 42 U.S.C. §§ 401 et seq, and supplemental security income ("SSI") payments under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. His disability insurance benefits application was denied at the initial administrative level.
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the person is unable to
42 U.S.C. § 423(d)(1)(A).
To make this determination, the Commissioner employs a five-step, sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2006).
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying disability once they have carried 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
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.
The court's review of the Commissioner's decision is a limited one. This Court must find the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). See also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) ("Even if the evidence preponderates against the Commissioner's findings, [a reviewing court] must affirm if the decision reached is supported by substantial evidence."). A reviewing court may not look only to those parts of the record which support the decision of the ALJ, but instead must view the record in its entirety and take account of evidence which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
Plaintiff was twenty-nine years old at the time of the hearing before the ALJ. Tr. 37. Plaintiff had at least a high school education. Tr. 27; 52. Plaintiff's past relevant work experience was as an "overnight stocker," "assistant retail manager," "cashier," and "fast food worker." Tr. 26. Following the administrative hearing, and employing the five-step process, the ALJ found Plaintiff "has not engaged in [substantial gainful activity] since July 13, 2009, the alleged onset date." (Step 1) Tr. 20.
Tr. 24. The ALJ then concluded that Plaintiff "is unable to perform any past relevant work." (Step 4) Tr. 26. At Step 5, the ALJ found that, "[c]onsidering the claimant's age, education, work experience, and residual functional capacity," and after consulting with a VE, "there are jobs that exist in significant numbers in the national economy that the claimant can perform." Tr. 27. The ALJ identified the following occupations as examples: "small products assembler," "office helper," and "routing clerk." Tr. 27.
Plaintiff presents two issues for this court's consideration in review of the ALJ's decision: 1) whether "[t]he Commissioner's decision should be reversed, because the ALJ's residual functional capacity determination was not supported by substantial evidence"; and 2) whether "[t]he Commissioner's decision should be reversed, because the ALJ failed to pose a complete hypothetical question to the VE." Pl.'s Br. (Doc. 12) at 6. The court will address each argument below.
Plaintiff challenges the ALJ's RFC determination, arguing that "the ALJ's residual functional capacity determination was not supported by substantial evidence." Pl.'s Br. (Doc. 12) at 6. Plaintiff points out that "the ALJ noted that the record does not contain an assessment of Mr. Osborne's physical limitations from a state agency medical consultant or an assessment of his mental limitations from a state agency psychological consultant (Tr. 26)," and requests remand of this case in order for the ALJ "to include a physical capacity evaluation by a treating physician or a consultative examination." Id. at 9-10. Essentially, Plaintiff argues the ALJ's RFC assessment cannot be supported by substantial evidence absent either a physical capacity evaluation by a treating physician or a consultative examination. The court disagrees.
At the administrative law judge hearing level, the ALJ is responsible for assessing a claimant's RFC. 20 C.F.R. § 404.1546(c). The ALJ must assess a claimant's RFC "based on all of the relevant medical and other evidence[,]" and, in general, the claimant will be responsible for providing the evidence used to make a finding about the RFC. 20 C.F.R. § 404.1545(a)(3). Neither a physical capacity evaluation by a treating physician nor a consultative examination are required in order for the ALJ's decision to be supported by substantial evidence.
The court finds that the ALJ's RFC is supported by the evidence of record in this case. As to Plaintiff's physical limitations, the ALJ noted "X-rays of [Plaintiff's] right knee have been negative (Exhibits 3F, 4F, 7F, 8F, 9F, and 12F)," and a January 25, 2010 MRI of Plaintiff's right knee showed "very minimal chondromalacia patella with slight fissuring of the cartilage noted without full thickness abnormality or osteochondral defect." Tr. 25. The ALJ considered Plaintiff's testimony that he "can't stand to be on [his] knee very long . . . probably 15 minutes at the most" before he has to sit down, and that he also has problems sitting for too long because his back will "cramp, [his] back starts hurting and [he] ha[s] to move around." Tr. 48-49. The ALJ also considered Plaintiff's self-report that he had no problems with his own personal care, takes care of pets, does light yard work, washes dishes, takes the trash out, helps set the table, helps clean the house, goes outside often, drills with the National Guard,
As to Plaintiff's mental RFC, this too is supported by substantial evidence. "Agency regulations require the ALJ to use the `special technique' dictated by the PRTF [Psychiatric Review Technique Form] for evaluating mental impairments." Moore v. Barnhart, 405 F.3d 1208, 1213 (11th Cir. 2005) (citing 20 C.F.R. § 404.1520a-(a)). "This technique requires separate evaluations on a four-point scale of how the claimant's mental impairment impacts four functional areas: `activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation.'" Id. (quoting 20 C.F.R. § 404.1520a-(c)(3-4)). The ALJ is required "to complete a PRTF and append it to the decision,
In evaluating Plaintiff's mental limitations, the ALJ noted Plaintiff's PTSD and MDD diagnoses and that he has been treated with psychotherapy, counseling, and psychotropic and anticonvulsant medications and has generally shown improvement though he reported the side effect of drowsiness from Zoloft. Tr. 25.
Moreover, in evaluating Plaintiff's RFC, the ALJ noted inconsistencies in Plaintiff's testimony. For example, on February 24, 2010, Plaintiff "reported that he needs someone to accompany him when he goes places, needs reminders to shave and to take his medications, and needs reminding and encouragement to do household chores (Exhibit 11E). He testified that he has a loss of interest, does not help with housework, and that his father-in-law does the yard work." Tr. 21-22. Plaintiff also reported that he "does not handle stress well, handles changes in routine so-so, and can only pay attention for 10 minutes at a time." Tr. 23. However, this testimony contradicted Plaintiff's self-report of his daily activities. See supra at 11-12.
Accordingly, upon review of the record, the court finds that the ALJ's RFC is supported by substantial evidence and Plaintiff's argument lacks merit.
Next, Plaintiff argues that "the ALJ noted that Mr. Osborne has been prescribed a walking cane for his right knee pain, but failed to include any limitations regarding the use of his cane in the hypothetical question posed to the VE." Pl.'s Br. (Doc. 12) at 10-11.
The hypothetical questions posed to the VE must include all of Plaintiff's impairments. See Pendley v. Heckler, 767 F.2d 1561, 1562 (11th Cir. 1985). However, although the ALJ must include all of the Plaintiff's impairments in her hypothetical questions to the VE, she is not required to include any limitations or allegations that are not supported by substantial evidence and/or were properly discounted. See Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004); McSwain v. Bowen, 814 F.2d 617 (11th Cir.1987).
In this case, while the ALJ noted Plaintiff was prescribed a cane, the ALJ also noted that Plaintiff testified that he uses the cane only "[e]very time [he's] in town." Tr. 39. The ALJ specifically asked him if he used the cane "day-to-day walking around the house or anything" and Plaintiff indicated that he did not. Tr. 39. Plaintiff further testified that he "can probably walk about 20 feet [. . .] without a cane." Tr. 47. While the ALJ did not affirmatively reject Plaintiff's need for a walking cane, it appears she impliedly did so.
Moreover, when describing his limitations due to his right knee pain, Plaintiff testified that he "can't stand to be on [his] knee very long . . . probably 15 minutes at the most" before he has to sit down. Tr. 48. He further testified that he has problems sitting for too long because his back will "cramp, [his] back starts hurting and [he] ha[s] to move around." Tr. 49. The ALJ's hypothetical clearly accounts for these limitations as the hypothetical individual was limited to "lifting and carrying no more than 20 pounds occasionally and 10 pounds frequently; only occasionally climbing stairs and ramps, never climbing ladders, scaffolds or ropes; no kneeling or crawling; no unprotected heights or dangerous equipment, and no operation of a commercial vehicle." Tr. 59-60. The ALJ further restricted the hypothetical to "
The court has carefully and independently reviewed the record and concludes that, for the reasons given above, the decision of the Commissioner is AFFIRMED. A separate judgment will issue.