CHARLES J. KAHN, Jr., Magistrate Judge.
This case is before the court pursuant to 42 U.S.C. § 405(g) for review of a final determination of the Commissioner of Social Security ("Commissioner") denying Wendy Diamond's application for disability insurance benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 401-34, and supplemental security income ("SSI") under Title XVI of the Act, 42 U.S.C. §§ 1381-1383f. The parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and FEDERAL RULE OF CIVIL PROCEDURE 73 for all proceedings in this case, including entry of final judgment. Upon review of the record before this court, I conclude that the findings of fact and determinations of the Commissioner are supported by substantial evidence. The decision of the Commissioner, therefore, will be affirmed.
Plaintiff, who will be referred to as claimant, plaintiff, or by name, raises the following issues on appeal: (1) the ALJ failed to fully and fairly develop the administrative record; (2) the ALJ failed to take into account the side effects of medications and properly evaluate subjective complaints of pain and dysfunction; (3) the ALJ failed to comply with the HALLEX procedures in soliciting post-hearing evidence; and (4) the ALJ erred by posing hypotheticals to the vocational expert that did not reflect the specific capacity/limitations established by the record as a whole.
Claimant applied for DIB and SSI on June 10, 2009, alleging disability beginning on July 31, 2007. T. 31, 179-90.
In his written decision, the ALJ made a number of findings relative to the issues raised in this appeal:
• "The claimant has not engaged in substantial gainful activity since July 31, 2007, the alleged onset date (20 C.F.R. 404.1571 et seq., and 416.971 et seq.)." T. 36.
• "The claimant has the following severe medical impairments: bilateral carpal tunnel syndrome, mild lumbar spine degenerative disc disease/degenerative arthritis, mild hip arthritis, and obesity (20 C.F.R. 404.1520(c) and 416.920(c))." T. 36.
• "The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 405.1525, 404.1526, 416.920(d), 416.925 and 416.926)." T. 38.
• Claimant has the residual functional capacity ("RFC") "to perform many elements of light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b). However, the claimant cannot perform a `full range' of light work as defined in SSR 83-10. For example, the claimant can stand no more than two hours at a time and walk for thirty minutes at a time. She can stand and walk approximately four and a half hours in an eight-hour workday." T. 38. Claimant can sit for two hours at a time and for six hours total in an eight-hour workday. T. 38. Claimant can never climb ladders, ropes, or scaffolds, and she can never crawl. T. 38. Plaintiff "can lift and carry fifteen pounds occasionally or ten pounds frequently. The claimant can lift no more than ten pounds between the knee and chest levels. She can work with the fingers and hands, including fine manipulation, no more than fifty percent of an eight-hour day." T. 38. Claimant can occasionally reach overhead and frequently reach laterally and forward. T. 38. "The claimant can perform only brief and intermittent hand-intense activity, such as data entry, only for periods of five minutes for no more than two to three times per hour; however, this would require ergonometric support and wrist braces." T. 38-39.
• "The claimant is unable to perform any past relevant work (20 C.F.R. 404.1565 and 416.965)." T. 46.
• "Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. 404.1569, 404.1569(a), 416.969, and 416.969(a))." T. 46.
• "The claimant has not been under a disability, as defined in the Social Security Act, from July 31, 2007, through the date of this decision (20 C.F.R. 404.1520(g) and 416.920(g))." T. 47.
At the time the ALJ rendered his decision, plaintiff was forty-eight years old, had a high school diploma and a two-year Associate's degree, and lived with her husband and two of her four children, the youngest of whom was six years old. T. 62, 65-66, 178, 465. Plaintiff spent the bulk of her career as a collections manager. T. 62, 377. When she was laid off, plaintiff enrolled in college, purportedly to fulfill her dream of becoming a middle school teacher. T. 66, 81, 465. Plaintiff took four courses each semester to receive the maximum benefits available to help support her family.
While still working, plaintiff developed bilateral carpal tunnel syndrome, for which she received workers' compensation benefits until she settled her claim in May 2010. T. 63. She had endoscopic surgery on each wrist, followed by physical therapy, with no relief except for that provided by paraffin wax dips. T. 288-90, 292-96, 300-05, 358.
Testing conducted on August 18, 2008, suggested that plaintiff was malingering. T. 298, 307-09. Dr. W. Ian Rogers, a plastic and reconstructive surgeon, opined that plaintiff could type and return to work. T. 298. Although plaintiff returned to work, T. 342-44, she maintained that her symptoms persisted. On October 2, 2008, Dr. Steven C. Kronlage, an orthopedic surgeon, diagnosed unrelieved carpal tunnel syndrome and recommended additional surgery. T. 310. Plaintiff had open carpal release on her right wrist on December 10, 2008, and on her left wrist at some point thereafter. T. 375-76.
Despite having had two surgeries and after steroid injections, plaintiff continued to complain of pain — in her wrists, as well as in her neck and back. T. 370-71, 378, 438-50, 455-57, 481-83. Dr. Robert Cameron, another orthopedic surgeon, limited plaintiff to light duty work that did not require lifting more than five to ten pounds with the right upper extremity. T. 372. Dr. Cameron found plaintiff close to maximum medical improvement on April 7, 2009, and recommended a functional capacities evaluation, which was performed by J.L. Irving, M.S, CEES, on May 5, 2009. T. 370, 377-81. Irving found that plaintiff had a work tolerance level in the sedentary to light range. T. 377-81. In particular, Irving found that plaintiff could lift and carry up to fifteen pounds; could lift objects greater than ten pounds only between the knee and chest level; could perform minimal to no step ladder climbing; could not crawl; and could perform hand intense activities, such as data entry, for brief and intermittent time periods of five to ten minutes, two to three times an hour, with appropriate support and neutral wrist positioning. T. 381.
Plaintiff visited the office of Dr. Edwin Taylor, a family practitioner, for carpal tunnel symptoms, headaches, and low back and right hip pain. T. 438-39, 447-49, 451-57, 487-89, 494-96, 527-30. An MRI of plaintiff's lumbar spine showed degenerative changes at L5-S1 and mild lateral bulges at L3-4 and L4-5, but no stenosis. T. 498, 510. According to Brandy Franklin, a physician's assistant in Dr. Taylor's office, "there [was] not a lot showing on her MRI that deem[ed] additional treatment." T. 519. Franklin thus referred plaintiff to physical therapy and instructed her to follow up in six to eight weeks. T. 519.
At plaintiff's request, Dr. Taylor completed a Medical Verification on June 21, 2011, indicating that plaintiff could work up to ten hours a week doing activities involving little strain or demand. T. 490. Dr. Taylor's office also noted that plaintiff could not attend the training required to receive cash assistance. T. 491-93, 524-26. On November 10, 2011, Franklin completed an Impairment Questionnaire essentially indicating that plaintiff was unable to work. T. 499-503. Plaintiff submitted the form to the Appeals Council — with Dr. Taylor's signature — along with a list of her medications. T. 530-34, 536-41. Plaintiff submitted additional evidence to the Appeals Council, but it was returned to her because it related to the time period after the ALJ's decision.
A federal court reviews a Social Security disability case to determine whether the Commissioner's decision is supported by substantial evidence and whether the ALJ applied the correct legal standards. See Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997); see also Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991) ("[T]his Court may reverse the decision of the [Commissioner] only when convinced that it is not supported by substantial evidence or that proper legal standards were not applied."). Substantial evidence 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938)). With reference to other standards of review, the Eleventh Circuit has said that "`[s]ubstantial evidence is more than a scintilla. . . .'" Somogy v. Comm'r of Soc. Sec., 366 F. App'x 56, 62 (11th Cir. 2010) (quoting Lewis, 125 F.3d at1439). Although the ALJ's decision need not be supported by a preponderance of the evidence, "it cannot stand with a `mere scintilla' of support." See Hillsman v. Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986). Even if the evidence preponderates against the Commissioner's decision, the decision must be affirmed if supported by substantial evidence. See Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).
When reviewing a Social Security disability case, the court "`may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner] . . . .'" Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). A reviewing court also may not look "only to those parts of the record which support the ALJ[,]" but instead "must view the entire record and take account of evidence in the record which detracts from the evidence relied on by the ALJ." See Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983). Review is deferential to a point, but the reviewing court conducts what has been referred to as "an independent review of the record." See Flynn v. Heckler, 768 F.2d. 1273, 1273 (11th Cir. 1985); see also Getty ex rel. Shea v. Astrue, No. 2:10-cv-725-FtM-29SPC, 2011 WL 4836220 (M.D. Fla. Oct. 12, 2011); Salisbury v. Astrue, No. 8:09-cv-2334-T-17TGW, 2011 WL 861785 (M.D. Fla. Feb. 28, 2011).
The Social Security Act defines a disability 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 qualify as a disability, the physical or mental impairment must be so severe that the plaintiff not only is unable to do her previous work, "but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Id. § 423(d)(2)(A).
Pursuant to 20 C.F.R. § 404.1520(a)-(g), the Commissioner analyzes a disability claim in five steps:
1. If the claimant is performing substantial gainful activity, she is not disabled.
2. If the claimant is not performing substantial gainful activity, her impairments must be severe before she can be found disabled.
3. If the claimant is not performing substantial gainful activity and she has severe impairments that have lasted or are expected to last for a continuous period of at least twelve months, and if her impairments meet or medically equal the criteria of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is presumed disabled without further inquiry.
4. If the claimant's impairments do not prevent her from doing her past relevant work, she is not disabled.
5. Even if the claimant's impairments prevent her from performing her past relevant work, if other work exists in significant numbers in the national economy that accommodates her residual functional capacity and vocational factors, she is not disabled.
"[R]esidual functional capacity is the most [claimant] can still do despite [claimant's] limitations."
As set forth above, claimant argues that the ALJ erred in a number of ways. First, she argues that the ALJ failed to fully and fairly develop the administrative record. In particular, plaintiff maintains that the ALJ mischaracterized her school performance when relying on her ability to attend and excel in college in determining that she was capable of performing semi-skilled work. T. 47. According to claimant, although she graduated from college ten months after the ALJ's decision, she did not obtain a degree in education and did not obtain any honors or distinction, as the ALJ indicated, instead graduating with a 3.33 G.P.A. The fact that plaintiff ultimately did not obtain the degree she initially sought or graduate with honors or distinction does not render the ALJ's decision erroneous. Indeed, the ALJ properly characterized the evidence that was before him at the time of his decision. Even if the ALJ erred with regard to plaintiff's school performance, such error was harmless as it would have had minimal, if any, impact on the ALJ's conclusion.
In support of her contention that the ALJ failed to fully and fairly develop the administrative record, plaintiff also argues that after the ALJ decided to afford little weight to the records of Brandy Franklin, the ALJ should have obtained updated records from Dr. Taylor. Based on the record before the court, it appears that the ALJ did exactly as plaintiff contends he should have done. T 481-98. Indeed, the record reflects that the ALJ obtained updated charts from Dr. Taylor. T. 481-98. No merit, therefore, appears in plaintiff's first assignment of error.
Turning to plaintiff's second assignment of error, plaintiff argues that the ALJ failed to take into account the side effects of medications and properly evaluate subjective complaints of pain and dysfunction, which she says can reasonably be accepted as consistent with the objective medical evidence. Contrary to plaintiff's assertions, the ALJ plainly considered pain and medications when he assessed plaintiff's credibility. The ALJ noted inconsistencies in plaintiff's testimony regarding whether she actually took the pain medications prescribed for her. T. 42. As the ALJ pointed out, plaintiff initially testified that she refused to take narcotics because she was caring for her young child; she later testified that she took narcotics for headaches and carpal tunnel syndrome; she then testified that she had not taken narcotic medications for nearly a year. T. 42. The treatment notes also are inconsistent regarding plaintiff's pain medication. T. 42.
Because plaintiff bases her claim upon pain, the ALJ was required to make a credibility determination. See Shallow v. Schweiker, 655 F.2d 645, 649 (5th Cir. 1981) (noting that "the ascertainment of the existence of an actual disability depended on [the ALJ's determination of] the truth and reliability of [the claimant's] complaints of subjective pain").
If the Commissioner refuses to credit the plaintiff's subjective testimony concerning pain, he must do so explicitly and give reasons for his decision in that regard. MacGregor v. Bowen, 786 F.2d at 1054. Where he fails to do so, the testimony is to be accepted as true as a matter of law. Holt, 921 F.2d at 1223; MacGregor, 786 F.2d at 1054.
Here, the ALJ considered plaintiff's medical conditions and records, her daily routine, and her testimony regarding her use of pain medication. Based on all of the evidence, including plaintiff's MRI results, the ALJ found plaintiff's statements concerning the intensity, persistence, and limiting effects of her pain not fully credible. The ALJ's decision was abundantly reasonable in that regard.
In support of her third assignment of error, plaintiff argues that the ALJ failed to comply with the HALLEX procedures in soliciting post-hearing evidence. Specifically, plaintiff contends the ALJ failed to comply with procedures set forth in HALLEX 1-2-5-30 and 1-2-5-35 in failing to proffer the evidence to plaintiff and/or plaintiff's counsel. The undersigned disagrees. The evidence to which plaintiff refers was submitted by her attorney. As a result, no proffer was required. See Hearings Appeals and Litigation Law Manual (HALLEX) 1-2-7-30 (stating that proffer is not required when evidence is submitted by claimant's representative).
Finally, plaintiff argues that the ALJ erred by posing hypothetical questions to the vocational expert that did not reflect the specific capacity/limitations established by the record as a whole. As the Eleventh Circuit has explained,"[i]f nonexertional impairments exist, the ALJ may use Medical-Vocational Guidelines as a framework to evaluate vocational factors, but must also introduce independent evidence, preferably through a vocational expert's testimony, of existence of jobs in the national economy that the claimant can perform." Wilson, 284 F.3d at 1227. "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." Id. In this case, the ALJ posed the following hypothetical to the vocational expert:
T. 90-92. Notably, plaintiff does not specify a single capacity or limitation the ALJ should have included but did not. The ALJ's hypothetical, in fact, seems to incorporate all of plaintiff's limitations. This contention thus likewise is without merit.
1. The decision of the Commissioner is AFFIRMED and plaintiff's applications for Disability Insurance Benefits and Supplemental Security Income are DENIED.
2. The clerk is directed to close the file.
20 C.F.R. § 404.1545(a)(3).
