Filed: Jan. 19, 2016
Latest Update: Jan. 19, 2016
Summary: Recommended Disposition BETH DEERE , Magistrate Judge . Instructions The following recommended disposition was prepared for Judge Billy Roy Wilson. Either party to this dispute may file written objections to this recommendation. Objections 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 day
Summary: Recommended Disposition BETH DEERE , Magistrate Judge . Instructions The following recommended disposition was prepared for Judge Billy Roy Wilson. Either party to this dispute may file written objections to this recommendation. Objections 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..
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Recommended Disposition
BETH DEERE, Magistrate Judge.
Instructions
The following recommended disposition was prepared for Judge Billy Roy Wilson. Either party to this dispute may file written objections to this recommendation. Objections 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 Wilson may adopt the recommended disposition without independently reviewing all of the record evidence.
Reasoning for Recommended Disposition
Tina Earnest seeks judicial review of the denial of her application for disability insurance benefits.3 In the past, Ms. Earnest worked as a certified nursing assistant (CNA) for a hospital.4 She stopped working after she was diagnosed with breast cancer. She claims she has been disabled since the diagnosis. She based disability on breast cancer, high blood pressure, back pain, knee pain, respiratory issues, and fatigue.5
The Commissioner's decision. After considering the application, the Commissioner's ALJ identified severe impairments: history of stage II breast cancer (without recurrence), morbid obesity, mild to moderate osteoarthritis in the left knee, and mild to moderate generalized joint pain.6 The ALJ determined Ms. Earnest could do some light work.7 Because a vocational expert identified available light work, the ALJ determined Ms. Earnest was not disabled and denied the application.8
After the Commissioner's Appeals Council denied a request for review,9 the decision became a final decision for judicial review.10 Ms. Earnest filed this case to challenge the decision.11 In reviewing the decision, the court must determine whether substantial evidence supports the decision and whether the ALJ made a legal error.12 This recommendation explains why the court should affirm the decision.
Ms. Earnest's allegations. Ms. Earnest contends that the ALJ should have credited a primary-care-provider (PCP) medical statement. She argues that the Appeals Council did not properly consider new evidence. For these reasons, she maintains, substantial evidence does not support the ALJ's decision.
Applicable legal principles. For substantial evidence to support the decision, a reasonable mind must accept the evidence as adequate to show Ms. Earnest could do some light work. "Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds."13 The ALJ limited stooping and bending, and excluded crouching. For the following reasons, a reasonable mind would accept the evidence as adequate to show Ms. Earnest could work with these limitations:
1. Medical evidence establishes no disabling symptoms. A claimant must prove disability with medical evidence; her allegations are not enough to prove she is disabled.14 The medical evidence shows that Ms. Earnest was diagnosed with Stage II breast cancer.15 A few weeks later, she underwent a double mastectomy. The left breast was benign.16 After surgery, Ms. Earnest began chemotherapy. Six months later, she was cancer free,17 but complained about chemotherapy side effects and menopause symptoms. After chemotherapy, Ms. Earnest's surgeon removed a mass that formed in the right chest wall.18 Ms. Earnest remained cancer free.19
Ms. Earnest complained about joint pain — especially, the left knee.20 A rheumatologist ruled out connective tissue disease and attributed symptoms to chemotherapy.21 Ms. Earnest's PCP encouraged diet management and exercise.22 Medical experts who reviewed the medical evidence limited Ms. Earnest to light work.23 A reasonable mind would accept the evidence as adequate to support the decision because the ALJ required light work limited to functions that would not aggravate joint pain.
2. The ALJ properly discounted the PCP medical statement. Ms. Earnest contends that the ALJ should have credited her PCP's report of disabling symptoms,24 but the ALJ properly observed that the statement is internally inconsistent and inconsistent with medical evidence as a whole. "An ALJ may discount or even disregard the opinion of a treating physician where other medical assessments are supported by better or more thorough medical evidence, or where a treating physician renders inconsistent opinions that undermine the credibility of such opinions."25
The reported limitations are inconsistent with PCP treatment notes. The contemporaneous treatment note documents no negative medical findings and encourages physical exercise.26 An earlier treatment note documents tenderness in the spine, left shoulder, and knees, but nothing supporting reported limitations.27 Repeated recommendations for physical exercise contradict reported limitations.28
3. The Appeals Council properly considered new evidence. Ms. Earnest complains about the consideration of new evidence, but the Appeals Council properly determined that most of it falls outside the time period for which benefits were denied. "[T]o support a remand, new evidence must be `relevant, and probative of the claimant's condition for the time period for which benefits were denied.'"29 Only one piece of new evidence falls within the time period for which benefits were denied — a PCP treatment note.30 The note documents a complaint of a rash and a referral to a dermatologist.
The remainder — attached to Ms. Earnest's brief — was generated after the ALJ's decision. The remainder shows that Ms. Earnest underwent breast reconstruction surgery, experienced complication in the form of an infection, had breast implants removed, was diagnosed with degenerative changes in the knees, and received knee injections for pain control. That evidence is not relevant to the claim because it documents a subsequent deterioration of a previously non-disabling condition and a later-acquired problem.31
4. Vocational evidence supports the decision. After determining that Ms. Earnest could do some light work, the ALJ consulted a vocational expert. When asked about past work, the vocational expert stated that Ms. Earnest could no longer work as a CNA, because that job is medium work.32 Upon further questioning, the vocational expert identified transferrable skills and representative available work: light jobs such as a membership solicitor and sedentary jobs such as an information clerk. The availability of these jobs shows that work exists that Ms. Earnest could do, regardless of whether such work exists where she lives, whether a job vacancy exists, or whether she would be hired if she applied for work.33
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. To the extent Ms. Earnest relies on her work record, work history is but one factor in evaluating a credibility. The ALJ properly considered all factors and all evidence. The ALJ made no legal error. For these reasons, the undersigned magistrate judge recommends DENYING Ms. Earnest's request for relief (docket entry # 1) and AFFIRMING the Commissioner's decision.
