Recommended Disposition
JEROME T. KEARNEY, Magistrate Judge.
Instructions
The following recommended disposition was prepared for U.S. District Judge D.P. Marshall. A party to this dispute may file written objections to this recommendation. An objection must be specific and state the factual and/or legal basis for the objection. An objection to a factual finding must identify the finding and the evidence supporting the objection. Objections must be filed with the clerk of the court no later than 14 days from the date of this recommendation.1 The objecting party must serve the opposing party with a copy of an objection. Failing to object within 14 days waives the right to appeal questions of fact.2 If no objections are filed, Judge Marshall may adopt the recommended disposition without independently reviewing all of the record evidence.
Reasoning for Recommended Disposition
Tango Smith Jr. seeks judicial review of the denial of his application for disability benefits.3 Smith last worked as a cashier for a gas station convenience store.4 He stopped working in April 2010. His reasons for not working vary.5
This case considers Smith fourth application. The first application was approved; Smith received disability benefits from 1994 to 2001.6 The second application was denied on November 27, 2002; the third was denied on September 10, 2010.7 The denial of the third application fore-closed eligibility for early benefits,8 so this case considers whether Smith was disabled beginning September 11, 2010.9 Smith bases disability on the human immunodeficiency virus (HIV), peripheral artery disease, arthritis, and sleep apnea.10
The Commissioner's decision. After considering the third application, the ALJ determined Smith has severe impairments — degenerative disc disease, history of right ankle fracture, HIV-positive, history of sleep apnea, and status-post ascending aortic repair/femoral bypass11 — but he can do some sedentary work.12 Because a vocational expert identified available sedentary work,13 the ALJ determined Smith is not disabled and denied the application.14
After the Appeals Council denied review,15 the ALJ's decision became the Commissioner's final decision for the purpose of judicial review.16 Smith filed this case to challenge the decision.17 In reviewing the decision, the court must determine whether substantial evidence supports the decision and whether the ALJ made a legal error.18 This recommendation explains why substantial evidence supports the decision and why the ALJ made no legal error.
Smith's allegations. Smith challenges the determination that he can do some sedentary work; he claims fatigue and drowsiness prevent him from working and necessitate extra work breaks. He contends the ALJ failed to properly evaluate his credibility and characterizes the credibility evaluation as meaningless boilerplate. He complains about the ALJ's reliance on agency medical experts because their opinions predate his heart surgery. For these reasons, he maintains substantial evidence does not support the ALJ's decision.19
Applicable legal principles. For substantial evidence to support the decision, a reasonable mind must accept the evidence as adequate to show Smith can do some sedentary work.20 Sedentary work "involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools."21 Sedentary work "represents a significantly restricted range of work. Individuals who are limited to no more than sedentary work by their medical impairments have very serious functional limitations."22
The ALJ placed several limitations on sedentary work:
(1) occasional climbing, balancing, stooping, kneeling, climbing, crouching, and crawling;
(2) no concentrated exposure to air pollutants; and
(3) no unprotected heights, dangerous machinery/equipment, or motor vehicles.23
The court must determine whether a reasonable mind would accept the evidence as adequate to show Smith can work within these parameters.
Smith can work within the ALJ's parameters. A reasonable mind would accept the evidence as adequate because the medical evidence shows no serious functional limitation preventing sedentary work and because a vocational expert identified available work. When asked to identify the biggest problem preventing him from working, Smith identified his legs.24 He wasn't specific about his limitations, but he suggested his HIV-positive status and congestive heart failure prevent him from working.
Smith's allegations are not enough to prove he is disabled because a determination of disability must be supported by medical evidence.25 The ALJ followed the required two-step process and considered the required factors26 to evaluate Smith's allegations, so the dispositive question is whether substantial evidence supports the decision. The relevant medical evidence shows no serious functional limitation preventing sedentary work within the ALJ's parameters.27
The medical evidence shows HIV has responded to treatment. According to Smith, he tested positive for HIV in 2001.28 HIV "damages the immune system, leaving [a person] vulnerable to certain cancerous tumors and increasingly severe opportunistic infections."29 "When a person tests positive for HIV infection, the doctor . . . measure[s] the amount of virus in the patient's blood. This level is called the viral load. The viral load helps the doctor to decide when to start drug treatment for HIV."30 Stable or increasing viral load indicates disease progression and/or treatment failure; decreasing viral load indicates response to treatment. The treatment goal is an undetectable viral load — under 40 to 75, depending on the testing laboratory.
Smith's viral load has been undetectable.31 The last time Smith was tested — in February 2011 — his HIV viral load was 40.32 His viral load was detectable in September 2010, but Smith missed his antiviral medication during a three-month incarceration.33 Smith has no HIV-related symptoms. A reasonable mind would accept the evidence about HIV as adequate to support the ALJ's decision because Smith viral load is undetectable and he has no HIV-related symptoms.
Right ankle pain doesn't prevent Smith from doing sedentary work. Smith's right ankle was fractured in June 2007.34 The fracture healed, but with some deformity in the angulation of the ankle.35 Right ankle pain prevents Smith from walking on his heels or toes, but he has a normal gait.36
The ALJ's reference to degenerative disc disease is a likely an erroneous finding for degenerative joint disease in the right ankle.37 Walking or standing a lot probably causes some right-ankle pain, but sedentary work doesn't require much standing or walking. A reasonable mind would accept the evidence as adequate to show Smith can do sedentary work because the ALJ required mostly sitting, limited postural functions that might aggravate Smith's pain, and eliminated workplace hazards.
The record shows no impairment from sleep apnea. Smith isn't sure about why he received disability benefits in the past, but he thinks it was for sleep apnea.38 If sleep apnea was the reason, the cessation of benefits in 2001 indicates it no longer posed a disability. There is no evidence of sleep apnea in the record before the court. Without medical evidence, Smith cannot qualify for disability benefits based on sleep apnea. A reasonable mind would accept the evidence as adequate to show Smith can do sedentary work because there is evidence of sleep apnea.
Despite heart surgery, Smith is "doing quite well."39 In December 2011 — ten months after applying for disability benefits — Smith presented to the emergency room and complained about chest pain radiating down the left leg.40 Smith had aortic dissection,41 "a rare, but potentially fatal, condition in which blood passes through the inner lining and between the layers of the aorta."42 In addition, one of the major arteries in the neck and a large artery in the thigh were blocked. Smith underwent immediate surgery to repair the damaged aorta and restore blood flow,43 but he had some complications.44 Smith remained on a ventilator for a couple of weeks.
By the end of January 2012, Smith had recovered. He had no complaints, but he was smoking "despite strict recommendations . . . not to use any substances or tobacco smoking."45 In May 2012, Smith denied leg, abdominal, or back pain.46 Despite incarceration, he was walking without difficulty, eating well, gaining weight, and "doing quite well."47 A reasonable mind would accept the evidence as adequate to show Smith can do sedentary work because Smith is doing quite well.
According to agency medical experts, Smith can do sedentary work with postural limitations.48 Even though expert opinion predates Smith's heart surgery, treatment records show no basis for further reducing Smith's ability to work. Prior to heart surgery, the agency physical examiner reported a mild limitation in standing and walking,49 but the agency experts reduced Smith's ability to work based on obesity and right ankle pain.50 The ALJ further limited Smith's ability to work based on complaints of fatigue and drowsiness.51 Despite allegations of disabling limitation, Smith does more than sedentary work.52 Smith has no problems with sitting, using his hands, or reaching.53 No evidence shows he needs extra work breaks.
Vocational evidence supports the ALJ's decision. The ALJ asked a vocational expert about sedentary work for a person with Smith's limitations.54 The vocational expert identified inspecting jobs like table worker, and assembly jobs like fishing reel assembler, as representative work.55 The vocational expert's response shows work exists that Smith can do, regardless of whether such work exists where he lives, whether a job vacancy exists, or whether he would be hired if he applied for work.56 Because such work exists, Smith is not disabled under social security law.
Smith's complaint about the ALJ's hypothetical question fails because the question captured the concrete consequences of Smith's deficiencies.57 The ALJ captured the consequences of fatigue and drowsiness by requiring sedentary work and eliminating protected heights, dangerous machinery/equipment, and motor vehicles.
Conclusion and Recommended Disposition
Substantial evidence supports the ALJ's decision because a reasonable mind would accept the evidence as adequate to support the decision. The ALJ made no legal error. For these reasons, the undersigned magistrate judge recommends DENYING Smith's request for relief (docket entry # 2) and AFFIRMING the Commissioner's decision.
