ROBERT N. CHATIGNY, District Judge.
Plaintiff Kathryn Ferris Stergue brings this action pursuant to 42 U.S.C. § 405(g) seeking review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance and supplemental security income benefits. Magistrate Judge Martinez has issued a recommended ruling that plaintiff's motion to reverse the Commissioner's decision be denied and that defendant's motion to affirm the decision be granted. Plaintiff has filed an objection to the recommended ruling and defendant has responded. For reasons that follow, the recommended ruling is approved and adopted.
Between 1988 and the mid-2000s, plaintiff was employed as a dental hygienist. Since then, her ability to work has been adversely affected by a number of impairments. Symptoms of fibromyalgia, which plaintiff has experienced since the mid-1990s, worsened after a cerebral hemorrhage in 2004. R. 851-52. Obesity contributed to pain in her back, legs and neck and complicated other ailments. She experienced edema in her legs, developed degenerative disc disease in her back, and had trouble in her left shoulder that compromised her range of motion.
Plaintiff's troubles prevented her from continuing to work as a dental hygienist and she has not been formally employed for any significant period of time since 2006. In the years since, a number of doctors, including mental health professionals, have credited her complaints and documented her struggles. R. 853-56. But at the same time, plaintiff has almost never been unable to function from day to day. At various points since she stopped working as a hygienist, she has been able to serve as primary caregiver to her sick father, to socialize, and to work for a dog-walking business she started with her roommate. R. 857. She has also regularly participated in religious services and instructed others in Bible study.
The plaintiff filed her first application for disability benefits in 2007. After several years of review at multiple levels and the filing of two more applications, an administrative law judge ("ALJ") determined that plaintiff was not disabled and denied her applications for disability insurance and supplemental security income benefits.
Plaintiff contends that the ALJ erred in his determination that she is not disabled. Her argument rests on four different grounds. First, she argues that the ALJ erred in assessing the severity of her impairments. Second, she argues that the ALJ improperly declined to credit some of her testimony. Third, she argues that the ALJ failed to comply with the treating physician rule. Finally, she contends that the ALJ should have called a vocational expert to determine whether she is able to work instead of relying on the Medical Vocational Guidelines. In the recommended ruling, Magistrate Judge Martinez concludes that the ALJ's finding should be affirmed over plaintiff's objections.
This Court may set aside the ALJ's decision "only if the factual findings are not supported by substantial evidence or if the decision is based on legal error."
A person who is disabled is entitled to benefits under the Social Security Act. 42 U.S.C. §§ 423(a)(1), 1381a. A "disability" is "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), 1382c(a)(3)(A). Under the Social Security regulations, determining whether an individual is disabled entails five steps:
In this case, the ALJ's five-step evaluation proceeded as follows. First, he found that plaintiff had not engaged in substantial gainful activity since December 2006. He then found that she suffered from a number of "severe impairments," including fibromyalgia, shoulder impingement, obesity, episodes of cellulitis, sleep apnea, depression, panic disorder, and obsessive-compulsive disorder. The ALJ found that these impairments did not meet or medically exceed the "listed impairments" in 20 CFR, Pt. 404. R. 849. He determined that the plaintiff had the "residual functional capacity to perform sedentary work . . . except she can only frequently use her upper extremities for reaching. She is limited to simple instructions and can perform routine, repetitive tasks." R. 850. At step four, the ALJ found that plaintiff could not perform her past relevant work as a dental hygienist. At step five, he concluded that, given her age, education, experience and residual functional capacity, "there are jobs that exist in significant numbers in the national economy" that she can perform. R. 860.
The thrust of plaintiff's first argument is that the ALJ misjudged the severity of her impairments. Plaintiff's briefing on this point discusses evidence that could support a finding that her ailments were serious enough to be disabling. But the issue is not whether the record evidence could have supported such a finding by the ALJ; the issue is whether the finding that the ALJ did render is supported by substantial evidence.
The ALJ's opinion addressing plaintiff's physical impairments discusses evidence tending to show that she was not disabled during the relevant period of time. In 2007, a physical therapist noted that plaintiff had been making "slow, steady gains"; had a marked decrease in the pain associated with her fibromyalgia; and was regularly performing household chores and physical labor outside the home. R. 853-54. Epidural steroid injections were providing plaintiff with relief from most symptoms for months at a time. R. 854. In consultative examinations between 2008 and 2010, state agency physicians found that plaintiff's level of pain was low and she was able to sit and stand without discomfort. R. 855. Between 2010 and 2012, plaintiff reported that she was caring for her father, cooking his food, and operating a dog-walking business with a friend. R. 856-57.
With regard to plaintiff's mental health, the record shows that between 2008 and 2010, state agency physicians examined her and found no debilitating difficulty with her activities of daily living or social interaction. R. 855. Use of pharmaceuticals provided her with relief from symptoms of depression.
Plaintiff points to medical evidence tending to show that her impairments were more severe than found by the ALJ. However, the ALJ considered this evidence and provided a reasoned explanation for his conclusion that it failed to support plaintiff's claim. For instance, one doctor indicated in 2009 that plaintiff needed to elevate her legs for eighty or ninety percent of every day. R. 857. The ALJ determined that the doctor's statement was entitled to little weight because it was inconsistent with record evidence from the same time period and rested "heavily" on plaintiff's subjective complaints.
As just mentioned, the ALJ found that plaintiff's testimony about the nature and extent of her impairments was not entirely credible. R. 851. Plaintiff argues that this finding is not adequately supported. I disagree. In support of his credibility determination, the ALJ explained that plaintiff's testimony concerning the severity of her impairments was inconsistent with other evidence, including the evidence discussed above. In addition, he explained that when plaintiff testified at the hearing, she omitted to discuss matters that could hurt her case. She did not mention her role in her father's life, her job as a dog-walker, or her participation in other activities requiring some degree of physical exertion.
The ALJ had a duty to assess plaintiff's testimony concerning the severity of her impairments in light of the record as a whole, and he was entitled to consider that plaintiff omitted to testify about participating in activities that could undercut her claim. Having done so, the ALJ could reasonably conclude that plaintiff's testimony concerning her impairments should be discounted.
Under the treating physician rule, "[t]he opinion of a treating physician on the nature or severity of a claimant's impairments is binding if it is supported by medical evidence and not contradicted by substantial evidence in the record."
The treating physician rule permits an ALJ to decline to give controlling weight to the opinion of a treating physician if the opinion is contradicted by substantial evidence in the record.
Plaintiff contends that the ALJ erred in relying on the Medical Vocational Guidelines rather than consulting a vocational expert. These Guidelines, known as the "Grids," are a "shorthand way of evaluating vocational factors that take into consideration a claimant's age, education, and previous work experience."
In this case, at step 3 of the sequential evaluation process, the ALJ found that plaintiff had the capacity to "perform sedentary work . . . except she can only frequently use her upper extremities for reaching. She is limited to simple instructions and can perform routine, repetitive tasks." R. 850. After determining that plaintiff could not perform her past relevant work, the ALJ moved on to step 5, and stated the following with regard to her nonexertional limitations: "[T]he additional limitations have little or no effect on the occupational base of unskilled sedentary work. . . . The claimant's mental limitations would not preclude her from performing unskilled work. Her upper extremity limitations would not significantly erode the occupational base of sedentary work." R. 860.
This determination by the ALJ, viewed in light of the record as a whole, suffices as an affirmative determination that plaintiff's non-exertional limitations were negligible. If this finding is supported by substantial evidence, the ALJ was permitted to rely on the Grids and did not have to consult a vocational expert.
The ALJ's finding that plaintiff's non-exertional impairments were negligible is supported by substantial evidence. Regarding plaintiff's mental limitations, the ALJ explained that plaintiff was capable of following "simple instructions" and performing "routine, repetitive tasks." R. 850. Such a nonexertional limitation is not significant in terms of its impact on a claimant's possible range of work.
Accordingly, the recommended ruling (ECF No. 22) is hereby approved and adopted. The motion to reverse the decision of the Commissioner (ECF No. 20) is denied, and the motion to affirm (ECF No. 21) is granted.
So ordered.
