T. LANE WILSON, Magistrate Judge.
This matter is before the undersigned United States Magistrate Judge for a report and recommendation. Plaintiff Tyrone D. Johnson seeks judicial review of the Commissioner of the Social Security Administration's decision finding that he is not disabled. As set forth below, the undersigned recommends that the Commissioner's decision denying benefits be
On appeal, plaintiff raises three points of error. First, plaintiff argues that the vocational expert's testimony is insufficient, in this case, to qualify as substantial evidence to support the ALJ's decision. (Dkt. 13). Second, plaintiff argues that the ALJ had a duty to develop the record by obtaining the opinion of an ophthalmologist to explain how the medical findings translated to functional limitations.
A claimant for disability benefits bears the burden of proving a disability. 42 U.S.C. § 423(d)(5); 20 C.F.R. §§ 404.1512(a), 416.912(a). "Disabled" is defined under the Act as an "inability 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." 42 U.S.C. § 423(d)(1)(A). To meet this burden, plaintiff must provide medical evidence of an impairment and the severity of that impairment during the time of his or her alleged disability. 20 C.F.R. §§ 404.1512(b), 416.912(b). A disability is a physical or mental impairment "that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). "A physical impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [an individual's] statement of symptoms." 20 C.F.R. §§ 404.1508, 416.908. The evidence must come from "acceptable medical sources," such as licensed and certified psychologists and licensed physicians. 20 C.F.R. §§ 404.1513(a), 416.913(a). A plaintiff is disabled under the Act only if his or her "physical or mental impairment or impairments are of such severity that he [or she] is not only unable to do his [or her] previous work but cannot, considering his [or her] age, education, and work experience, engage in any other kind of substantial gainful work in the national economy." 42 U.S.C. § 423(d)(2)(A).
Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920;
In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence.
Plaintiff, then a 34-year old male, filed for Title II benefits in January 2011, alleging a disability onset date of April 23, 2009. (R. 105-06). Plaintiff's date last insured was December 31, 2010. (R. 107). Plaintiff claimed that he was unable to work due to weakness, hemorrhaging, glaucoma, depression, blindness, mood disorder, cataract, and migraines. (R. 121). Plaintiff's claims for benefits were denied initially on June 15, 2011, and on reconsideration on October 10, 2011. (R. 48-55). Plaintiff then requested a hearing before an administrative law judge ("ALJ"), and the ALJ held a hearing on September 25, 2012. (R. 23-47). The ALJ issued a decision on October 12, 2012, denying benefits. (R. 10-22). The Appeals Council denied review, and plaintiff appealed. (R. 1-3; dkt. 2).
The ALJ found that plaintiff's date last insured, for purposes of his Title II claim, was December 31, 2010. (R. 15). The ALJ found that plaintiff had not engaged in substantial gainful activity since his alleged amended disability onset date of April 23, 2009.
The ALJ then reviewed plaintiff's testimony and the medical evidence. Plaintiff testified that he was not currently under the care of a doctor.
In August 2009, plaintiff reported that he had not used eye drops for two years. (R. 17). In November 2009, Dr. Phillip Cook performed an eye examination.
Following his date last insured, plaintiff did not seek additional treatment until October 2011.
The agency physicians who reviewed plaintiff's records found insufficient evidence to establish an impairment.
Based on this evidence, the ALJ concluded that plaintiff retained the residual functional capacity to perform work at all exertional levels with the following limitation: "[h]e had visual limitations of best corrected vision of 20/20 in the right eye and 20/60 in the left eye." (R. 16). Plaintiff could not perform his past relevant work. (R. 17). Relying on the testimony of the vocational expert, the ALJ found that plaintiff could perform other work. (R. 18). Representative jobs included dishwasher (DOT # 318.687-010); hand packager (DOT # 920.587-010); arcade attendant (DOT # 342.667-014); cafeteria attendant (DOT # 311.677-010); clerical mailer (DOT # 209.587-010); and table worker (DOT #739.687-182). (R. 19). Accordingly, the ALJ found plaintiff not disabled.
Plaintiff argues that the vocational expert's testimony, in this case, does not meet the standard for substantial evidence to support the ALJ's decision, due, in large part, to the ALJ's analysis. (Dkt. 13).
Plaintiff argues that the ALJ found the vocational expert's testimony unreliable at step four because, in contradiction to the vocational expert's testimony that plaintiff could perform some of his past relevant work, the ALJ found that plaintiff could not perform any of his past relevant work.
In his decision, the ALJ stated that "[t]he claimant had past relevant work as an usher, general laborer, janitor, and truck driver. The vocational expert testified that the claimant's past work was unskilled and semi-skilled, and classified as light to medium in exertion. Accordingly, the claimant was unable to perform past his [sic] relevant work." (R. 17-18). Nothing in that statement explains why the ALJ reached the conclusion that plaintiff could not perform his past relevant work. However, nothing in that statement indicates, as plaintiff argues, that the ALJ found the vocational expert's testimony not credible. To the contrary, the ALJ clearly accepted the vocational expert's testimony regarding the skill and exertional levels of plaintiff's past relevant work and went on, at step five, to accept the vocational expert's testimony regarding other work. (R. 17-19). It seems more likely that the ALJ either misunderstood the vocational expert's testimony or made a scrivener's error in drafting the decision. Regardless, any error at step four is harmless because the ALJ continued to step five.
Plaintiff also takes issue with the ALJ's hypothetical to the vocational expert and the vocational expert's response.
The ALJ's hypothetical to the vocational expert expressed plaintiff's visual limitations by reciting the results of plaintiff's medical examination: best corrected vision of 20/20 in the right eye and 20/60 in the left eye. (R. 42). The ALJ also added that "obviously" plaintiff would need glasses. (R. 42). Similarly, the ALJ's decision discusses plaintiff's vision impairments, including Dr. Cook's recommendation for glasses, and the ALJ's RFC findings include a specific limitation for corrected vision. (R. 16, 17). Further questioning from plaintiff's attorney revealed that the vocational expert interpreted that limitation as imposing restrictions on both near and far visual acuity. (R. 45-46). The vocational expert testified that his definitions of near and far acuity varied from the DOT, but that based on his extensive experience placing visually-impaired people in jobs, the more important criteria was "useful vision." (R. 45-46). He also stated that he believed the jobs he cited did not require near or far acuity, as defined by the DOT.
20 C.F.R. 404.1545 and SSR 96-8p discuss the ALJ's duty to assess a claimant's RFC in terms of functional limitations. SSR 96-8p specifically discusses how the ALJ must assess those limitations:
SSR 96-8p. In this case, the ALJ satisfied his duty to assess the functional limitations. He expressed to the vocational expert plaintiff's need to wear glasses based on the results of his medical examination, and the vocational expert properly interpreted that limitation to mean that plaintiff should not perform jobs that require either near or far acuity. (R. 42, 44-45).
To the extent that plaintiff objects solely to the use of medical terminology as a substitute for functional limitation in the RFC findings, the undersigned also finds no error. In part, this conclusion is based on the undersigned's analysis that the ALJ satisfied his duty to assess plaintiff's limitation on a function-by-function basis, as required by 20 C.F.R. § 404.1545 and SSR 96-8p.
Plaintiff argues that the ALJ erred in accepting the vocational expert's testimony because it deviated from the DOT requirements for near and far acuity. (Dkt. 13). Plaintiff also argues that he cannot perform two of the six jobs cited by the vocational expert because the DOT states that those jobs require frequent near acuity.
In making a step five determination, the ALJ has the discretion to use either the DOT or the testimony of a vocational expert to determine whether a claimant can perform other jobs existing in significant numbers in the economy.
SSR 00-04p. At the hearing, the vocational expert volunteered the testimony that his definition of near and far acuity, insofar as he compared plaintiff's visual limitation to other work plaintiff could perform, did deviate from the DOT.
However, the ALJ did not adopt the vocational expert's explanation regarding the deviation, instead finding that the vocational expert's testimony complied with the DOT. (R. 18). There is evidence in the vocational expert's testimony to support this conclusion. Upon questioning by plaintiff's attorney, the vocational expert explained that despite the difference between his and the DOT's definitions of near and far acuity, the jobs that he cited were consistent with the DOT because they did not require either near of far acuity. (R. 45-46). Accordingly, the ALJ satisfied his duty with respect to the basis for the vocational expert's testimony.
Plaintiff also challenges the ALJ's finding that plaintiff could perform the other work cited by the vocational expert. (Dkt. 13). Plaintiff argues that the job of clerical mailer requires constant near acuity and the jobs of table worker and hand packager require frequent near acuity.
In addition to the jobs of clerical mailer, table worker, and hand packager, the ALJ found that plaintiff could perform the jobs of dishwasher (195,000 nationally), arcade attendant (129,775 nationally), and cafeteria attendant (167,500 nationally). According to the SCO, near and far acuity are not physical demands of these jobs.
Plaintiff argues that the ALJ had a duty to develop the record by seeking a consultation with an ophthalmologist. (Dkt. 13). Plaintiff bases this argument on the fact that the agency physicians who reviewed the medical records found the evidence insufficient.
It is not clear whether plaintiff is arguing that the ALJ should have ordered a consultative examination with an ophthalmologist or that the ALJ should have sought the testimony of an ophthalmologist at the hearing. Either way, the ALJ did not need this additional evidence in order to assess plaintiff's RFC.
A claimant's RFC is an administrative determination, and "the final responsibility for deciding [this] issue[] is reserved to the Commissioner." 20 C.F.R. § 404.1527(d)(2).
With respect to the question of consultative examinations, the ALJ has "broad latitude in ordering consultative examinations."
Accordingly, the decision to order a consultative examination depends on the facts of the case, and "the appropriate inquiry continues to be whether the ALJ met his responsibility to ensure the record was sufficiently developed to decide the issues presented at the hearing."
The ALJ also has discretion to seek medical expert testimony at a hearing.
The ALJ rejected the agency physician's opinions in favor of the opinions of plaintiff's treating physicians. The ALJ adopted Dr. Cook's finding from October 2009 that plaintiff's best corrected vision (with glasses) was 20/20 in the right eye and 20/60 in the left eye. (R. 17). The ALJ also accepted Dr. Townsend's opinion that plaintiff required vitrectomy of the left eye in December 2009.
Dr. Cook and Dr. Townsend treated plaintiff for the same conditions. Dr. Cook diagnosed plaintiff with glaucoma and macular pucker in the left eye in October 2009. (R 178). He recommended glasses based on the recommendation of two other physicians (whose treatment notes are not included in the record) that plaintiff did not need surgery. (R. 180). Plaintiff sought a second opinion from Dr. Townsend in December 2009, and Dr. Townsend recommended surgery for the macular pucker, which he called preretinal membrane. (R. 185-87). Dr. Townsend's treatment notes indicate that plaintiff was seeing 20/40 in his left eye one-day post-op, and 20/30 in March 2010, approximately three months after surgery. (R. 182-83). The March 2010 followup with Dr. Townsend was plaintiff's last appointment before his date last insured, and plaintiff never followed up with Dr. Cook.
Accordingly, all of the medical evidence points to the conclusion that plaintiff's visual impairment improved with treatment, initially with glasses and additionally with surgery. There is no ambiguity in the medical record and no reason to believe that additional information would have assisted the ALJ. While there is a conflict in the recommendations of Dr. Cook and Dr. Townsend, plaintiff resolved the conflict by having surgery, which improved his vision even more than the glasses did. There is also no indication that additional testing is needed. In fact, the ALJ's reliance on Dr. Cook's opinion gave plaintiff the benefit of the doubt.
Plaintiff's argument that the ALJ should have imposed additional visual limitation regarding depth perception and field of vision is not persuasive. Other than plaintiff's testimony at the hearing, there is no evidence that plaintiff suffered any visual limitation other than acuity. In fact, Dr. Cook's opinion states that plaintiff has a full field of vision with glasses. (R. 177-80).
The ALJ did not err in failing to order a consultative examination or to call a medical expert to present testimony at the hearing.
Plaintiff argues that the ALJ's credibility analysis relies too heavily on activities of daily living, fails to address all of plaintiff's symptoms, and penalizes plaintiff for not being able to afford treatment. (Dkt. 13).
This Court is not to disturb an ALJ's credibility findings if they are supported by substantial evidence because "[c]redibility determinations are peculiarly the province of the finder of fact."
The ALJ discussed plaintiff's testimony on his activities of daily living in detail and then contrasted them with plaintiff's own function report from April 2011, which indicated that his visual impairment had minimal impact on those activities of daily living. (R. 17). Thus, the ALJ was not relying on plaintiff's activities of daily living but on the inconsistencies in plaintiff's statements. The ALJ also relied on the objective medical evidence and plaintiff's treatment history, which was sporadic and included a large gap following plaintiff's surgery in December 2009. (R. 17).
As discussed supra, the ALJ included all of the limitations borne out by the medical evidence in assessing plaintiff's RFC. The ALJ also did not fail to consider whether plaintiff failed to receive treatment for financial reasons because the record does not include any evidence that the claim is true for the time period plaintiff cites. Plaintiff references a brief delay in treatment with Dr. Mark Weiss, who examined plaintiff in August 2009. (R. 173). Plaintiff's treatment notes state that a follow-up appointment set for October 2009 was denied because "no case was in place," but plaintiff was able to return to Dr. Weiss in November 2009. (R. 173-174). Plaintiff also cites treatment that plaintiff received in January 2012, well after his date last insured, in which the physician's office asks for a copy of the authorization. (R. 244). However, that same physician also noted in March 2012 that plaintiff "is known not to keep his appointments" and had been warned of being charged with a no-show fee if he continued to miss appointments. (R. 242). The ALJ did not discuss this evidence, likely because it was created long after his date last insured, but it is consistent with the ALJ's credibility analysis regarding plaintiff's spotty treatment history.
Accordingly, the undersigned finds that the ALJ conducted a proper credibility analysis.
For the reasons set forth above, the undersigned
In accordance with 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b)(2), a party may file specific written objections to this report and recommendation. Such specific written objections must be filed with the Clerk of the District Court for the Northern District of Oklahoma by February 21, 2017.
If specific written objections are timely filed, Federal Rule of Civil Procedure 72(b)(3) directs the district judge to
