JOSEPH C. WILKINSON, Jr., Magistrate Judge.
Plaintiff, Malinda Malley, seeks judicial review pursuant to Section 405(g) of the Social Security Act (the "Act") of the final decision of the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's claim for disability insurance benefits ("DIB") and disabled widow's benefits under Title II and supplemental security income benefits ("SSI") under Title XVI of the Act. 42 U.S.C. §§ 405(g), 423, 1381a. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2(B).
Malley filed applications for DIB, disabled widow's benefits and SSI on November 24, 2006, alleging disability since October 15, 2006, due to chronic obstructive pulmonary disease, osteoporosis and depression. (Tr. 123-25, 134-43, 150). After her applications were denied, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), which was held on November 12, 2008. (Tr. 23-48). On January 14, 2009, the ALJ issued a decision denying plaintiff's applications for benefits. (Tr. 13-22). After the Appeals Council denied review on January 13, 2011, the ALJ's decision became the final decision of the Commissioner for purposes of this court's review. (Tr. 1-5).
Plaintiff contends that the ALJ made the following errors:
The ALJ made the following relevant findings:
(Tr. 15-21).
The function of this court on judicial review is limited to determining whether there is substantial evidence in the record to support the final decision of the Commissioner as trier of fact and whether the Commissioner applied the appropriate legal standards in evaluating the evidence.
The ALJ is entitled to make any finding that is supported by substantial evidence, regardless whether other conclusions are also permissible.
To be considered disabled and eligible for SSI, DIB or disabled widow's benefits,
The claimant has the burden of proof under the first four parts of the inquiry. If she successfully carries this burden, the burden shifts to the Commissioner to show that other substantial gainful employment is available in the national economy that the claimant is capable of performing. When the Commissioner shows that the claimant is capable of engaging in alternative employment, the burden of proof shifts back to the claimant to rebut this finding.
The court "weigh[s] four elements of proof when determining whether there is substantial evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) [her] age, education, and work history."
Malley testified that she was diagnosed with chronic obstructive pulmonary disease with asthma by "Dr. Hugo" when she was admitted to North Oaks Hospital for six days in 2006.
Plaintiff testified that, for her chronic obstructive pulmonary disease, she takes a preventive medicine called "Aver,"
Malley said that, on a typical day, she gets up and brushes her teeth, but her granddaughter brushes her hair for her because her hands are numb. She testified that her daughter and granddaughter live with her. (Tr. 45). She stated that she gets dressed and eats breakfast after her granddaughter leaves for school, then she goes back to bed for most of the day. (Tr. 45-46). She said her daughter takes care of most of the household chores and that her mother, who lives next door, helps her daughter with the cooking. She stated that she has no hobbies and watches very little television, but likes to read spiritual books and the Bible. (Tr. 46). She has a driver's license and said that she drives a car with an automatic transmission when she drives, which is not often. She stated that her mother drove her to the hearing and that either her mother or her daughter take her wherever she needs to go. (Tr. 46-47, 48).
Plaintiff testified that she can walk about 50 feet, which is the distance from her house to the post office. She said she has to stop when she arrives because her legs and feet hurt and she is out of breath and very tired. She estimated she could stand for five to ten minutes. She stated that her daughter and granddaughter wash the dishes and wash and fold the clothes for the household. (Tr. 47).
When asked how much weight she could lift, Malley responded, "maybe about the size of a pencil or something" because her hands stay numb and painful, so that she cannot hold anything. She said she cannot grip to pick up change from a flat surface and would drop the coins unless she slid them off the surface and into her hand. (Tr. 47-48). She testified that, when she drives, she grips the steering wheel with one hand and that her hands are very numb and painful and she is also out of breath after about five minutes, which is the time it takes to drive to the grocery store from her house. She stated that her most comfortable position is lying down and that she can only sit for about 30 minutes before her back hurts. (Tr. 48).
Malley testified that her doctor has recommended surgery for her carpal tunnel syndrome and that she had an appointment on April 23, 2009 to see an orthopedic surgeon at Earl K. Long Hospital, where there is a long waiting period. She said she had been having trouble grasping or manipulating objects with her fingers for about eight to twelve months. She said she had some difficulty before that, but the problem had worsened during that time.
Upon questioning by her attorney, plaintiff testified that she gets very tired and short of breath because of her chronic obstructive pulmonary disease. She said she quit smoking ten years ago. (Tr. 49). She stated that she can raise her arms over her head without any problem, but cannot reach in front to push or pull anything because of the numbness, pain, tingling and burning sensation in her hands and that she cannot hold a cup or glass. She said she cannot bend, crawl or stoop. (Tr. 49-50).
Malley testified that she tried to work in February 2008 at a doughnut shop as a cashier and cleaning off tables, but she only worked about four weeks because she could not do the work. The ALJ determined that this was not past relevant work. (Tr. 52).
A vocational expert, Patricia Knight, testified at the hearing that plaintiff's past relevant work as both a home attendant for the elderly and a truck driver were semi-skilled at a medium exertional level; her work as a bartender and waitress were also semi-skilled, but at the light level; and her work as a home and business cleaner was unskilled and medium. (Tr. 51).
The ALJ posed a hypothetical of an individual with the same age, education and past relevant work experience as plaintiff with the residual functional capacity for light work, except that she must avoid even moderate exposure to fumes, gases, odors, dust and poor ventilation; can never climb ladders, ropes or scaffolds; and can sit for six hours and stand or walk for two hours in an eight-hour day. Knight testified that such a person could perform the past relevant job of waitress and probably bartender, although she had some reservations about the bartender job because of the increased exposure to smoke.
Plaintiff's attorney modified the hypothetical to include the claimant's need to recline at will during the day. Knight testified that such a limitation would eliminate all work. (Tr. 53). Plaintiff's attorney then modified the hypothetical to include a moderate problem with grasping, handling and fingering that occurred occasionally, which he defined as occurring during one-third of the day. Knight testified that this restriction would eliminate waitress and bartender work. (Tr. 54-55).
I have reviewed the medical records in evidence and the ALJ's summary of the medical evidence. (Tr. 16, 18-20). I find the ALJ's summary of the medical evidence substantially correct and incorporate it herein by reference, with the modifications, corrections and highlights noted below.
The ALJ found that Malley has the residual functional capacity to perform light work, with the added limitations that she must avoid even moderate exposure to dust, fumes, gases and poor ventilation; must avoid climbing ladders, ropes and scaffolds; and can sit for six hours and stand or walk for two hours out of an eight-hour day. Based on the testimony of Knight, the vocational expert, in response to the ALJ's hypothetical question that incorporated these limitations, the ALJ held that plaintiff can perform her past relevant work as a waitress.
The job of waitress is defined as light work both by Knight in her testimony and in the
The Commissioner's regulations define light and sedentary work, as follows.
20 C.F.R. § 404.1567(b).
These definitions do not contain any specific length of time that the worker must be able to spend standing and/or walking. However, Social Security Ruling 83-10 "elaborates on the definition of `sedentary work' and explains that `standing or walking should generally total no more than about 2 hours of an 8-hour workday, and sitting should generally total approximately 6 hours of an 8-hour workday.'"
Malley argues that the ALJ's hypothetical, in which he told the vocational expert that the claimant had the residual functional capacity for light work, but that she can sit for six hours and stand and/or walk for only two hours in an eight-hour day, actually posited a claimant with the capacity for sedentary work only. I cannot accept this argument.
The Commissioner's definitions and Social Security Ruling 83-10 describe the requirements for a
The ALJ in this case did not determine that Malley can perform the
Malley cites the descriptions of waitress and bartender from the
Once the ALJ determines plaintiff's residual functional capacity, he may rely on vocational expert testimony at the fourth and/or fifth steps of the sequential evaluation to reach conclusions about the specific requirements of a particular occupation, including working conditions and the attributes and skills needed.
In the instant case, before responding to the ALJ's hypothetical question, the vocational expert specifically clarified that the ALJ actually meant light work, but limited by the ability to stand and/or walk for only two hours. (Tr. 52-53). Within those parameters, as well as the other restrictions regarding environmental exposure and climbing, Knight testified that plaintiff could return to her past relevant work as a waitress. Although the court is inclined to agree with Malley's argument that it seems "intuitively obvious that waitressing or bartending is not sedentary work," Record Doc. No. 22 at p. 12, Knight's testimony was substantial evidence on which the ALJ was entitled to rely that plaintiff can perform her past relevant work as a waitress with the limitations identified in the hypothetical.
The Fifth Circuit's discussion in
Even if the vocational expert and the ALJ somehow erred by finding that Malley can perform her past relevant work as a waitress, it seems not only "intuitively obvious," but legally sound, that she could perform sedentary work with the limitations identified by the ALJ's assessment of her residual functional capacity. "[A] Commissioner's finding that plaintiff is capable of performing light to less than medium work activity includes the ability to perform sedentary work."
Malley's first assignment of error therefore lacks merit.
Plaintiff argues that the ALJ erred by failing to include in his determination of her residual functional capacity and in his hypothetical question to the vocational expert any limitations on the use of her hands. The ALJ found at the second step of the sequential evaluation that Malley was diagnosed with bilateral carpal tunnel syndrome after a nerve conduction study on November 3, 2008, but that, in the absence of any prior diagnosis, this condition had neither lasted nor could be expected to last for a continuous period of 12 months. Therefore, the ALJ found that the condition did not satisfy the duration requirements for a severe impairment. (Tr. 16).
Malley contends that the medical evidence supports her complaints of pain, neuropathy and arthritis in her hands for years, beginning as early as August 2006. She asserts that her carpal tunnel syndrome was diagnosed on April 22, 2008 and that, regardless of the date, the ALJ erred by focusing solely on her diagnosis, rather than on the long-term medical evidence of her symptoms. She contends that, if the ALJ's residual functional capacity assessment and hypothetical question had accurately incorporated the alleged limitations in her hands, she could not perform the job of waitress because, as the vocational expert testified during examination by plaintiff's attorney, the work requires occasional fingering and frequent reaching and handling. (Tr. 54). Malley also argues that she could not perform even a sedentary job because of her problems with grasping, handling and fingering.
The ALJ posed a hypothetical to the vocational expert that accounted for plaintiff's age, education, work experience, and physical limitations, which the ALJ found to be credible. The vocational expert testified that such a person could perform plaintiff's past relevant work as a waitress.
Plaintiff was represented by counsel at the hearing, and her counsel also questioned the vocational expert. An ALJ's hypothetical question is defective and will not be allowed to stand unless it reasonably incorporated all of the disabilities recognized by the ALJ, "and the claimant or his representative is afforded the opportunity to correct deficiencies in the ALJ's question by mentioning or suggesting to the vocational expert any purported defects in the hypothetical questions (including additional disabilities not recognized by the ALJ's findings and disabilities recognized but omitted from the question)."
In this case, plaintiff's counsel questioned the vocational expert and asked her about the effects of plaintiff's alleged additional impairment of moderate problems in grasping, handling and fingering during one-third of a work day. Knight testified that such a claimant could not perform the job of a waitress. However, the ALJ found that the record did not support such a requirement.
Concerning Malley's allegations of severe pain in her hands and inability to hold objects since the alleged onset date, the ALJ found that the medical evidence "did not support such limited functioning abilities as" she alleged. Citing her allegation that she can only lift a pencil, the ALJ found that, when compared to the evidence of record, plaintiff's "description of the severity of the pain and physical limits have been so extreme as to appear implausible." (Tr. 19). The ALJ also found that, although Malley experiences some discomfort and limitations due to her chronic obstructive pulmonary disease and osteoarthritis that would impact her ability to perform work-related activities, her complaints of functional impairments so severe as to preclude all sustained work activity were not credible. (Tr. 21).
The ALJ has the responsibility to evaluate the credibility of witnesses,
Here, the ALJ explained at length why Malley's subjective symptoms and alleged limitations were not credible, including that her subjective complaints were inconsistent with the clinical and objective findings, which did not substantiate disabling impairments; that the medical records revealed a motive for secondary gain when she presented disability papers to her long-term primary health care provider, Nurse Practitioner Paretti, to fill out, but Paretti declined because plaintiff was seeing multiple doctors (Tr. 408); and that Malley stated in a written function report that she is the sole provider for a handicapped adult daughter, takes care of her school-age granddaughter's daily needs, cooks all three meals daily, does some light housework, takes care of two pets, drives, shops and goes to church on Sundays. (Tr. 168-70).
Substantial evidence supports the ALJ's finding that Malley had not suffered from severe limitations in the use of both of her hands for a continuous 12-month period. Therefore, the ALJ was not required to include such a limitation in his hypothetical question to the vocational expert.
As plaintiff contends, the medical records show that at times between August 2006 and November 2008 she complained about pain, tingling and/or numbness in her hands, wrists and/or fingers. She specifically complained of difficulty grasping at a visit to the Earl K. Long neurology clinic on October 30, 2006, but physical examination revealed good strength and no atrophy bilaterally. (Tr. 196). During her admission to North Oaks Hospital on November 29, 2006 for exacerbation of her chronic obstructive pulmonary disease and asthma, her treating physicians noted that she had "numerous vague" complaints of myalgias, arthralgias and paresthesias in her legs, but no complaints or physical findings were noted regarding her hands or wrists. (Tr. 221, 223, 228). On September 27, November 1 and December 20, 2007, she was examined in the arthritis clinic at Earl K. Long Medical Center, where it was noted that she had a history of joint pain. She had aching wrists and pain in her finger joints, but there was no mention of any difficulty grasping or holding objects. (Tr. 471-73). On March 30, 2008, when she returned to the arthritis clinic, she complained of constant pain in both hands and said that she had dropped objects from her right hand. However, the examining physician found no objective signs of inflammation or evidence of inflammatory arthropathy or connective tissue disease. She was discharged from the arthritis clinic, with a note that her osteoarthritis or fibromyalgia could be managed by her primary care provider and she should be evaluated by neurology with a nerve conduction study. (Tr. 470).
On March 30, 2008, R.P. Ceruti, M.D., whose signature appears to be the same as the signature on the arthritis clinic notes of the same date, completed a checklist, preprinted form opining, among other things, that Malley has episodic neuropathy in the hands, worse on the right, exacerbated by use, and that she cannot perform tasks that require significant use of her hands. (Tr. 400-01). The ALJ accorded little weight to the opinions on this form because they are conclusory and unsupported by appropriate diagnoses or narrative evaluations and because it is unclear the extent of treatment that Dr. Ceruti provided to plaintiff. (Tr. 20).
Mark Hamblin, M.D., an internist, found during a consultative examination on February 19, 2007 that her grip strength was normal "with easy ability to manipulate objects"and that her range of motion, motor strength, sensation and reflexes were normal throughout her extremities. His impression was arthritis or possibly mixed connective tissue disease. (Tr. 327).
Internist Adeboye Francis, M.D., performed another consultative examination on April 22, 2008, more than one year later. He also found that Malley had normal grip and grasp strength, range of motion, sensation, reflexes and muscle tone without atrophy. (Tr. 363). Although Dr. Francis diagnosed plaintiff with carpal tunnel syndrome and osteoarthritis (Tr. 364), he opined in a Medical Source Statement of Ability to Do Work-Related Activities that she could frequently reach, finger, feel, handle, push and pull objects with either hand. (Tr. 367).
On July 21, 2008, Malley was examined at the Neurology Clinic at Earl K. Long Hospital. Her motor strength and reflexes in her upper extremities were normal and her finger joints were within normal limits, but she exhibited mild atrophy in a muscle in her right thumb. (Tr. 486). The only medical evidence of any decreased grip strength was a decrease in her left hand strength on November 3, 2008, after a nerve conduction study had confirmed her diagnosis of bilateral carpal tunnel syndrome. She had good grip strength in her right hand, but complained of pain. (Tr. 511).
These medical records constitute substantial evidence on which the ALJ could rely to find that plaintiff was not as severely limited in the use of both hands as she alleges. Accordingly, this assignment of error lacks merit.
The ALJ and the vocational expert did not misinterpret "light work." The ALJ was not required to include severe limitations on plaintiff's use of her hands in his hypothetical question to the vocational expert. Substantial evidence supports the ALJ's findings regarding plaintiff's residual functional capacity to perform light work, with the restrictions noted in his opinion, and her ability to perform her past relevant work as a waitress.
For the foregoing reasons, IT IS RECOMMENDED that plaintiff's complaint be DISMISSED WITH PREJUDICE.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object.
First, if the claimant is currently engaged in substantial gainful employment, he or she is found not disabled. 20 C.F.R. §§ 404.1520(b), 416.920(b).
Second, if it is determined that, although the claimant is not engaged in substantial employment, he or she has no severe mental or physical impairment which would limit the ability to perform basic work-related functions, the claimant is found not disabled.
Third, if an individual's impairment has lasted or can be expected to last for a continuous period of twelve months and is either included in a list of serious impairments in the regulations or is medically equivalent to a listed impairment, he or she is considered disabled without consideration of vocational evidence.
Fourth, if a determination of disabled or not disabled cannot be made by these steps and the claimant has a severe impairment, the claimant's residual functional capacity and its effect on the claimant's past relevant work are evaluated. If the impairment does not prohibit the claimant from returning to his or her former employment, the claimant is not disabled.
Fifth, if it is determined that the claimant cannot return to his or her former employment, then the claimant's age, education, and work experience are considered to see whether he or she can meet the physical and mental demands of a significant number of jobs in the national economy. If the claimant cannot meet the demands, he or she will be found disabled.
