CHARLES S. COODY, Magistrate Judge
On October 2, 2006, Elaine Warren filed an application for a period of disability and disability insurance benefits, alleging disability beginning September 28, 2006. (R. 9). After the claim was initially denied, Warren filed a timely written request for a hearing before an administrative law judge ("ALJ"), who, after a hearing on July 28, 2008, denied the claim. (R. 9, 21). Following Warren's appeal of an affirmance by the Appeals Council, this court remanded the case on the motion of the Commissioner, and the Appeals Council remanded the case to the ALJ. M.D. Ala. Case No. 1:09-cv-897 (R. 613, 617-620). Because another ALJ had found, on a subsequent application, that Warren was disabled as of August 27, 2008, the sole issue before the ALJ on remand of this case was whether Warren was disabled from September 28, 2006 until August 27, 2008. (R. 520, 619). Following a hearing on February 26, 2011, the ALJ issued an opinion on March 2, 2011, finding that Warren was not disabled during the time period at issue. (R. 530). On July 17, 2011, the Appeals Council denied Warren's request for administrative review. (R. 652). The ALJ's decision consequently became the final decision of the Commissioner of Social Security ("Commissioner"). See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
Under 42 U.S.C. § 423(d)(1)(A) a person is entitled to disability benefits when the person is unable to
To make this determination
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The standard of 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. Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); 42 U.S.C. § 405(g). "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). A reviewing court may not look only to those parts of the record which supports 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).
The ALJ found that Warren met the insured status requirements of the Social Security Act through December 31, 2010. (R. 522). Further, the ALJ found that Warren had the following severe impairments:
(R. 522).
The ALJ concluded that Warren did not have an impairment or combination of impairments that met or medically equals any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 523).
(R. 524-25).
The ALJ also found that, "[t]hrough August 26, 2008, considering [Warren's] age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that [Warren] could have performed." (R. 529). Specifically, the ALJ found that, during the relevant time period, Warren had the residual functional capacity to perform the jobs of
(R. 530).
Therefore, the ALJ found that Warren was not disabled from the alleged onset date of September 28, 2006, through August 26, 2008. (R. 530).
As stated by Warren, the issues for review are as follows:
(Doc. 11 p. 1).
On January 24, 2006, Dr. Douglas H. Jones noted that Warren stated "she is under a great deal of stress recently." (R. 375). Dr. Jones diagnosed Warren with fatigue, insomnia, and anxiety, but did not prescribe medications for those conditions. (R 375). Dr. Jones directed Warren to return in two months "for follow-up and health maintenance issue review, earlier of course" if needed. (R. 376)
On January 23, 2006, Warren's oncologist made the following treatment notes and observations:
(R. 299).
On March 21, 2006, during a follow-up visit, Dr. Jones noted "no mental status change. No sleep problems except for some fatigue and only occasional mild insomnia, but nothing profound." (R. 374).
On October 31, 2007, during a routine examination, a nurse practitioner noted that Warren did not appear to be uncomfortable and exhibited no psychological symptoms. (R. 448).
During routine examinations, on November 8, 2007, November 29, 2007, April 11, 2008, and May 9, 2008, nurse practitioner Candace M. Hobbs noted "no psychological symptoms." (R. 450, 454, 463, 466).
On June 2, 2008, Warren referred herself to psychotherapist Dr. Theron Covin, Ed.D., for evaluation and treatment. (R. 424). Covin is not a licenced physician or psychologist. After evaluating Warren, Dr. Covin issued a report in which he concluded as follows:
Prognosis is poor. Her conditions seem chronic. She is totally and permanently disable[d].
(R. 424-30).
On June 3, 2008, Warren complained of depression and anxiety to Nurse Practitioner
Hobbs. Nurse Hobbs made the following findings:
(R. 473).
Nurse Hobbs diagnosed depression and anxiety, instructed Warren to "continue counseling as planned" and return "for any concerns otherwise [follow up] in one month to discuss treatment." (R. 473). Nurse Hobbs prescribed Aprazolam and Fluoxetine for depression and anxiety. (R. 473).
On July 7, 2008, when Warren returned for a follow-up visit, Nurse Hobbs noted that Warren "continues with therapy for depression issues. Doing well." (R. 477).
On October 1, 2008, Nurse Hobbs noted: "Depression med refilled. [Warren] feels the current medication(s) are working well. [Warren] has no complaints or problems with the medications." (R. 493).
On October 14, 2008, Nurse Hobbs noted: "Depression med refilled. [Warren] feels the current medications are working well. [Warren] has no problems with the medications." (R. 488).
If Dr. Covin's opinion constituted the opinion of an acceptable medical source, 20 C.F.R. § 404.1513, the ALJ would have been obliged to give substantial weight to that opinion. Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). But Dr. Covin is not an acceptable medical source within the meaning of the regulations; thus, the ALJ cannot be faulted for not giving Covin's opinion weight.
Moreover, an ALJ is entitled to disregard the opinion of a treating physician or an acceptable medical source when the record substantially supports the conclusion that "the (1) treating physician's opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician's opinion was conclusory or inconsistent with the doctor's own medical records." Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). To begin with, Dr. Covin's statement that Warren "is totally and permanently disable[d]," (R. 430), R. 430, is an opinion on an issue that is reserved to the Commissioner and is not a medical opinion entitled to any special weight. 20 C.F.R. § 404.1527(d)(1).
(R. 527-28).
The ALJ's stated reasons for rejecting Dr. Covin's opinion are supported by the record. The court notes that, prior to referring herself to Dr. Covin (who noted that Warren had "applied for Social Security benefits due to her past and current health problems"), the extensive medical record contains only limited instances of treatment for mild anxiety, notably during times of stress (R. 299, 375), and "mild insomnia, but nothing profound." (R. 374). As the ALJ indicated in her opinion (R. 527), Warren's complaints of severe psychological symptoms occurred in June 2008 (R. 424-30, 473) and the first administrative hearing in this case occurred on July 28, 2008 (R. 621). Thereafter, contrary to Dr. Covin's opinion that Warren's prognosis was so poor that she was totally and permanently disabled due to mental impairments, the medical record establishes that, after consulting Dr. Covin and Nurse Hobbs, Warren reported that she was "doing well" on medications for anxiety and depression, and that the medications were working well. (R. 477, 488, 493). Accordingly, the ALJ's clearly-articulated reasons for rejecting Dr. Covin's opinion are supported by the evidence and constitute "good cause" for disregarding that opinion. Phillips, 357 F.3d at 1241.
On January 16, 2009, Dr. Dunn wrote a letter "to whom it may concern" stating that Warren suffered "some limitation in her activities due to surgery and chemotherapy and breast reconstruction surgery in 2002 and 2003" and that "more recently she has been limited in terms of her right upper extremity weakness and swelling and decreased range of motion." (R. 720). Dr. Dunn further stated: "Due to the chronicity of these complaints and the original diagnosis of breast cancer that necessitated the chemotherapy, surgery, and reconstruction, it is my opinion that [Warren] is totally disabled and will not have a recovery of the right upper extremity function that will allow her to maintain or obtain gainful employment." (R. 720).
Warren contends that the ALJ erred in not acknowledging Dr. Dunn's January, 16, 2009 letter in her opinion. However, Dr. Dunn's letter, which includes statements about "recent" right upper extremity limitations, postdates the relevant time period, which is from September 28, 2006 until August 27, 2008. (R. 720). The Commissioner has already determined that Warren was disabled after August 27, 2008.
Further, to the extent that Dr. Dunn opined in 2009 that in 2002 and 2003, Warren suffered from breast cancer, mastectomy, and breast reconstruction surgery, and that, "more recently," she had suffered from severe limitations in her right upper extremity, the ALJ clearly did not discount these limitations and, in fact, found them to be "severe impairments." (R. 522). However, an opinion from a medical provider on issues reserved to the Commissioner, such as opinions regarding the claimant's residual functional capacity and opinions that a claimant is "totally disabled," is not a medical opinion and is not due any significant weight. 20 CFR § 404.1527(d). Thus, the ALJ was not required to articulate specific reasons constituting "good cause" for failing to accord substantial weight to Dr. Dunn's opinion that, due to a history of breast cancer and right upper extremity limitations, Warren was "totally disabled" and would not recover sufficient right upper extremity function to allow her to maintain or obtain gainful employment. Id.; Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (holding that, in requiring the ALJ to afford substantial weight to a physician's opinion absent "good cause" to the contrary, "we are concerned . .. with the doctors' evaluations of [the claimant's] condition and the medical consequences thereof, not their opinions of the legal consequences of [the claimant's] condition. Our focus is on the objective medical findings made by each doctor and their analysis based on those medical findings.").
Further, the court has reviewed the record and finds that the evidence substantially supports the ALJ's stated reasons for her determination regarding the functional limitations caused by Warren's breast cancer, mastectomy, breast reconstruction surgery, and pain in her right shoulder. Accordingly, the ALJ did not commit reversible error by failing to state reasons for affording no special weight to Dr. Dunn's opinion that Warren was "totally disabled and will not have a recovery of the right upper extremity function that will allow her to maintain or obtain gainful employment." (R. 720). 20 CFR § 404.1527(d).
Warren argues that the ALJ erred in discounting her subjective complaints of pain. Warren does not specifically identify the subjective pain testimony to which she refers; however, she claims that "medical records and testimony offer evidence of underlying medical conditions including [d]egenerative [j]oint [d]isease, arthritis, [and] severe disc deterioration of her back as well as post breast cancer difficulties." (Doc. 11 p. 10).
"[A] three part `pain standard' . . . applies when a claimant attempts to establish disability through his or her own testimony of pain or other subjective symptoms. The pain standard requires (1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain." Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). When a claimant presents subjective testimony that meets this standard, the ALJ has the discretion to determine whether that testimony is credible; however, "[i]f the ALJ decides not to credit such testimony, he must articulate explicit and adequate reasons for doing so." Id.
In this case, the ALJ found that Warren had submitted subjective testimony of pain accompanied by evidence of underlying medical conditions that could reasonably be expected to cause her alleged symptoms. (R. 525). However, the ALJ stated the following reasons for concluding that Warren's testimony was not credible to the extent that it conflicted with the ALJ's residual functional capacity determination:
(R. 525-26).
The medical record substantially supports the findings of the ALJ with regard to the credibility of Warren's subjective testimony. In February, 2005, a routine yearly exam was unremarkable and Warren was noted to be "doing well without any complaints." (R. 247). On January 24, 2006, Dr. Jones noted "[n]o gait or balance trouble. No knee joint or ankle joint instability." (R. 375).
(R. 334).
(R. 298).
(R. 372).
Dr. Veneziano diagnosed Warren with degenerative joint disease of the knees with effusion on the left and bursitis and tendinitis in the right shoulder. He prescribed pain medications and knee pads for work and appropriate foot wear at all times. (R. 372).
On October 5, 2006, Dr. Roach made the following treatment notes:
(R. 333).
On October 19, 2006, Dr. Veneziano made the following observations:
(R. 369).
On November 14, 2006, Dr. Veneziano made the following notes:
IMPRESSION:
(R. 369).
On December 6, 2006, Dr. Veneziano noted that Warren's tendinitis was stable and an "MRI of the shoulder last week was good. No rotator cuff tear. She is not getting surgery." (R. 434). A December 20, 2006 radiology report indicated only "mild" osteoarthritis in Warren's left knee. (R. 399). On January 29, 2007, Dr. Dunn noted that Warren had complained of "some bone pain this year for which she has been on a pain medicine and as been seen by Dr. Brooks and Dr. Veneziano in Enterprise." (R. 443). On April 4, 2007, Dr. Veneziano noted that Warren's bursitis and tendinitis were "stable with medications." (R. 433).
On July 30, 2007, Dr. Dunn noted:
(R. 442).
On September 18, 2007, Nurse Hobbs noted that Warren had "normal movement of all extremities." (R. 446). On October 31, 2007, Nurse Hobbs noted that Warren exhibited "no muskuloskeletal symptoms." (R. 448).
On October 31, 2007, Dr. Dunn noted, "Eliane is doing very well. She has no complaints of right upper quadrant pain or nausea." (R. 441).
On November 8, 2007, Nurse Hobbs noted that Warren complained of "left knee tenderness for several days states `it's just arthritis[.]' She is ambulatory without difficulty[.] Knee joint stiffness on the left. The knee did not suddenly `lock up,' the kneecap does not feel `out of place' and no bone pain in the knee. No breast symptoms patient has history of breast cancer, last chemo treatment in Dec[ember] 200[2]. Dr. Dunn is her oncologist. She is doing well. . . . Normal movement of all extremities." (R. 449-50, R. 503).
On November 29, 2007, Nurse Hobbs noted Warren had "is doing well - no complaints . . . . normal movement of all extremities." (R. 454). On December 26, 2007, April 11, 2008, and May 9, 2008, Nurse Hobbs noted Warren had "normal movement of all extremities." (R. 459, 463).
On July 7, 2008, Nurse Hobbs noted that Warren was "[d]oing well. Says Motrin helps arthritis better than Etodolac. . . . Normal movement of all extremities." (R. 477).
In sum, the extensive medical record substantially supports the ALJ's determination that, despite subjective complaints of severe limitations, Warren was functionally limited but not totally disabled by pain due to degenerative joint disease, osteoarthritis, tendonitis, bursitis, and her history of breast cancer treatment. (R. 525-26). Accordingly, the ALJ did not err in discounting Warren's subjective complaints of pain because, as the ALJ explained, the medical record does not support the severity of those complaints. Holt, 921 F.2d at 1223 (holding that an ALJ has discretion to discredit a plaintiff's subjective complaints as long as he provides "explicit and adequate reasons for his decision").
The ALJ determined that, through August 26, 2008, Warren had the residual functional capacity
(R. 524-25).
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, [the claimant] must have the ability to do substantially all of these activities." 20 CFR § 404.1567 (b).
Warren argues that she cannot perform light work because she cannot "sit, stand or stand [sic] to a significant degree based on testimony and medical records that indicate that she experiences severe pain in her should[er] when walking." (Doc. 11 p. 12). The evidence cited by Warren does not support the proposition that shoulder pain affects Warren's ability to sit, stand, or walk at any time, and particularly during the time period at issue. (R. 38-39, 125, 302).
Warren also argues that she cannot perform light work because "[m]edical records .. . indicate that she cannot sit for most of the time and push and pull using arm and leg control[s] due to arthritis, degenerative joint disease, tendinitis, and general pain." (Doc. 11 p. 12). The evidence cited by Warren in support of this proposition, as well as the record as a whole, does not indicate that Warren will be unable to alternate sitting and standing as determined by the ALJ. Further, although the cited evidence indicates that Warren has pain that limits motion in her left knee, right hand, right shoulder, back, and neck (R. 39, 377, 398, 459
Warren also argues that she cannot perform light work because she cannot "work at a production rate described as physically demanding, which entails constant pushing or pulling of materials [even though the weight of those materials is negligible] since she is right-handed and using her left hand is awkward (R. 126) along with the ALJ finding that the claimant cannot push against resistance with her right upper extremity or bilateral lower extremities." (Doc. 11 pp. 12-13) (sic). However, the ALJ credited Warren with limitations in the ability to push against resistance with her right upper and bilateral lower extremities. The evidence cited by Warren, which is not medical evidence, does not support the proposition that Warren's alleged awkwardness in using her left hand would prevent her from performing a limited range of light work involving pushing or pulling of materials of negligible weight at a production pace. (R. 126).
Warren argues that, because she allegedly cannot perform the full range of light work, she can only perform sedentary work, and, therefore, the ALJ erred in concluding that she can perform a limited range of light work. (Doc. 11 pp. 11-13). However, Warren cites no authority, and the court is aware of none, which supports the proposition that a claimant who can perform less than a full range of light work is automatically limited to performing only sedentary work. Cf. 20 CFR § 404.1545(a)(1) ("Your impairment(s), and any related symptoms, such as pain, may cause physical and mental limitations that affect what you can do in a work setting. Your residual functional capacity is the most you can still do despite your limitations. We will assess your residual functional capacity based on all the relevant evidence in your case record." (emphasis added)).
The ALJ fully accounted for the limitations on Warren's ability to perform the full range of light work, and the reasons stated in the ALJ's opinion, as well as the record as a whole, substantially support that determination. Therefore, the ALJ did not err in finding that Warren had the residual functional capacity to perform less than a full range of light work.
The ALJ determined that Warren was unable to perform her past relevant work. Therefore, the ALJ proceeded to the next step of the sequential analysis, at which a finding of disability is required unless the ALJ "articulate[s] specific jobs that the claimant is able to perform," in light of the claimant's residual functional capacity, age, education, and work experience. Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002). "[T]his finding must be supported by substantial evidence, not mere intuition or conjecture." Id.
In this case, the ALJ determined that, through August 26, 2008, Warren had the residual functional capacity to perform light work with some limitations, including the limitation that she "cannot reach overhead with her right upper extremity but she is not precluded from reaching with her right upper extremity." (R. 524-25). Therefore, in order to rely on the testimony of the vocational expert ("VE") in determining whether a significant number of jobs existed in the national economy that Warren could have performed, the ALJ was required to include in her hypothetical questions to the VE the limitation that Warren cannot reach overhead but was not precluded from reaching with her right upper extremity. See Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002) ("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.").
In this case, the ALJ asked the VE to assume the limitations of the ALJ's residual functional capacity determination. This hypothetical included the limitation that Warren "should not perform overhead reaching with the right dominant upper extremity" although the ALJ specified that Warren was otherwise "not preclude[d] [from] reaching . . . with the right upper extremity." (R. 561-62, 566). The VE testified that, given those restrictions, Warren could perform the jobs of ticket taker/seller, medical supplies packer, and car wash attendant. (R. 567). The VE confirmed that his testimony in this regard was "consistent with the Dictionary of Occupational Titles" ("DOT"). (R. 567).
Warren argues, however, that the DOT specifies only that the jobs of ticket taker/seller, medical supplies packer, and car wash attendant require "reaching." As the VE testified, the word "reaching" is used throughout the DOT to refer to extending the arms away from the body in any direction; the DOT does not distinguish between overhead reaching and reaching in any other direction. (R. 564). According to Warren, because the DOT is not more specific about the directional reaching requirements of the jobs of ticket taker/seller, medical supplies packer, and car wash attendant, the VE could not reasonably have testified that these particular jobs require no overhead reaching with the right arm.
The law does not support Warren's theory that a VE cannot provide more specific information about the reaching requirements of a job than is contained within the DOT. "The DOT `is not the sole source of admissible information concerning jobs,'" and "the SSA itself does not consider the DOT dispositive," Jones v. Apfel, 190 F.3d 1224, 1230 (11th Cir. 1999) (quoting Barker v. Shalala, 40 F.3d 789, 795 (6th Cir.1994)). One "vital" function of a VE is to "supplement the DOT data" where the DOT provides insufficient detail regarding job requirements. Jones, 190 F.3d at 1230.
Here, the VE specifically stated that his testimony was consistent with the DOT (R. 567), and there is simply no basis to conclude that, contrary to the testimony of the VE, the "reaching" requirement referenced in the DOT necessarily refers to overhead reaching with the right upper extremity. Moreover, the Eleventh Circuit has held that reliance on the DOT is strictly within the discretion of the ALJ and "an ALJ may rely solely on the VE's testimony," even where the VE's testimony conflicts with the DOT. Id. Further, the court notes that the VE specifically stated that he had personally "performed at least one, if not more, ergonomic job studies" on the job of ticket taker/seller "in the past ten years." (R. 564). The VE's testimony supplements the information contained in the DOT and constitutes substantial evidence that the jobs of ticket taker/seller, medical supplies packer, and car wash attendant require no overhead reaching with the right upper extremity. Jones, 190 F.3d at 1230 (quoting Dictionary of Occupational Titles, Special Notice at xiii (4th ed.1991)) ("The DOT itself states that it is not comprehensive. It provides occupational information on jobs in the national economy, and it instructs `DOT users demanding specific job requirements [to] supplement th[e] data with local information detailing jobs within their community.'").
Accordingly, the ALJ did not err in relying on the testimony of the VE to supplement the information available in the DOT regarding the overhead reaching requirements of the jobs of ticket taker/seller, medical supplies packer, and car wash attendant. Jones, 190 F.3d at 1230 ("[T]he ALJ should supplement the DOT data with local information detailing jobs in the regional community. The VE provides this vital information." (emphasis added)); see also Wilson, 284 F.3d at 1227-28 ("The ALJ properly utilized the . . . testimony of the VE in finding that a significant number of jobs exist in the economy that [the claimant] could perform. Also, the record is devoid of any objective medical evidence to support [the claimant's] subjective assertions of [shoulder] pain and extreme limitations. . . . [T]he ALJ's decision was supported by substantial evidence.").
For the reasons as stated, the court concludes that the decision of the Commissioner denying benefits to Warren should be affirmed. See Landry v. Heckler, 782 F.2d 1551, 1551-52 (11th Cir. 1986) ("Because the factual findings made by the [ALJ] . . . are supported by substantial evidence in the record and because these findings do not entitle [the claimant] to disability benefits under the appropriate legal standard, we affirm.").
The Court will enter a separate final judgment.
