JOSEPH C. WILKINSON, Jr., Magistrate Judge.
Plaintiff, Elizabeth F. Thibodaux, 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 supplemental security income benefits ("SSI") under Title XVI of the Act. 42 U.S.C. §§ 405(g), 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).
As ordered, Record Doc. Nos. 10, 15, plaintiff filed a timely Memorandum of Facts and Law. Record Doc. No. 18. Despite being ordered to file a reply memorandum, Record Doc. No. 15, defendant filed a Cross Motion for Summary Judgment, and filed it two days after the deadline, without seeking leave to do so. Record Doc. Nos. 21, 22. The court has nonetheless considered defendant's submission.
Thibodaux filed applications for disability insurance benefits ("DIB") and SSI on January 31, 2009, alleging disability since January 1, 2009, due to diabetes, bursitis, arthritis, slow learner, feet and kidney problems and neuropathy in both feet. (Tr. 52, 97, 133, 137). On February 9, 2009, the Commissioner denied plaintiff's application for DIB because she had not earned enough quarters of work credit to qualify. Thibodaux acknowledged that the decision was accurate and did not seek any administrative review of it. (Tr. 54, 58). The decision regarding DIB is thus not before this court.
After her application for SSI was denied on April 2, 2009 (Tr. 62), Thibodaux requested a hearing before an Administrative Law Judge ("ALJ"), which was held on December 10, 2009. (Tr. 21-51). On February 26, 2010, the ALJ issued a decision denying plaintiff's application for SSI. (Tr. 11-17). After the Appeals Council denied review on December 23, 2010, the ALJ's decision became the final decision of the Commissioner for purposes of this court's review. (Tr. 1-3).
Plaintiff contends that the ALJ made the following errors:
The ALJ made the following relevant findings:
4. Although Thibodaux's medically determinable impairments could reasonably be expected to cause the alleged symptoms, her statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.
(Tr. 13-17).
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, plaintiff must show that she is unable "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 twelve months." 42 U.S.C. §§ 423(d)(1)(A). The Commissioner has promulgated regulations that provide procedures for evaluating a claim and determining disability. 20 C.F.R. §§ 404.1501 to 404.1599 & appendices, §§ 416.901 to 416.998 (2009). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity.
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."
Thibodaux testified that she was 49 years old on the hearing date, five feet one inch tall and weighed 142 pounds. She said she had lost more than 100 pounds since the previous year based on her doctor's advice to lose weight and maintain the weight loss. She stated that she lives with her husband in a trailer and that their only income is her husband's disability benefits of about $672 per month and food stamps of about $62 per month. (Tr. 24-26). She testified that they do not have medical insurance.
Plaintiff said she completed the tenth grade in high school, but did not go back to school because she could not read and it was too frustrating. She testified that she cannot read and that her daughter reads to her anything that she needs to have read to her. She said she cannot read a newspaper, can only write her name and does not write any grocery lists. (Tr. 26-27). She stated that she has a driver's license, which she obtained by taking an oral test, and that she had other people help her whenever she had to fill out a job application. She said that she is not good at making change and has never used a checking account. (Tr. 27-28).
Thibodaux testified that she last worked in January 2009 at a school for the handicapped, where she had to lift patients up from a wheelchair to change their diapers or for other tasks, and that she fed them. She stated that she only worked there for a few months and stopped because of tingling and numbness in her feet. Plaintiff said that, before that job, she worked as a sitter in patients' homes. She testified that she was able to fill out her paperwork by bringing with her another piece of paper to show her where she should put the words because she could not spell. (Tr. 28-29). She stated that she performed light housework for her patients and took them shopping in their own cars. She testified that she performed that job for four to six months and left to try to make more money because her hours were being cut.
Plaintiff said that, before the sitter job, she worked at Rouses Supermarket in the deli department initially, and then switched to working on the floor, where she retrieved grocery carts from outside, bagged groceries and cleaned the floors. She said that she needed assistance from "somebody to show me what stuff to put in the buffer and all." She testified that she asked to be moved out of the deli department because she could not read the menus and wanted a job that did not require reading. (Tr. 29-30).
Thibodaux said she worked at Rouses for a few months, but she really could not remember how long.
Plaintiff testified that, for the past year, her feet have tingled and hurt, which feels like standing in a bed of biting fire ants. She stated that her doctors told her this is caused by "nerve damage or dead in my feet." (Tr. 31-32). She said that her husband told her that her legs jump at night, but she has not noticed it. She testified that her pain does not happen every day, but occurs when she has been on her feet a lot during the day or when her legs have been "hanging" while sitting. She predicted that her feet would hurt that night after the hearing and she would have to elevate them for relief. (Tr. 32).
Thibodaux said she sits most of the time with her feet resting on a pillow on the coffee table, which keeps the pain under control, until she has to get up and run to the bathroom because of her kidneys. She stated that the pain affects her a lot when she is walking. She said she recently took her daughter Christmas shopping in the evening until her legs felt weak and her feet hurt, and then she had to remain seated outside the stores and prop her feet up on the seat next to her. (Tr. 33-34). She testified that she bought and has been using a cane since February for balance when walking because her legs get weak and she does not trust them. She said that her physician, Dr. Reaves,
Plaintiff stated that she went to the emergency room on April 24, 2009
Thibodaux stated that she has to go to the bathroom every 15 to 20 minutes, but sometimes she does not make it to the bathroom on time, so she wets herself. She testified that she has to change her clothes four to five times a day. She said she had "thought about" and was going to ask her doctor about wearing diapers. (Tr. 35).
Plaintiff testified that sometimes she feels lightheaded and almost falls when she stands up, unless her daughter or husband helps to steady her. She said her doctor put her on blood pressure medication when she reported this problem. She stated that her blood pressure is good when she checks it, but the doctor tells her it is still a little high. (Tr. 36).
Thibodaux said she gets her medication through a $4.00 plan at Wal-Mart, but sometimes she has difficulty getting it and has to borrow money from her mother-in-law to afford the medicine. She stated that she was on insulin for a while, but her doctor discontinued it because her blood sugar was either too high or too low. She still takes pills for diabetes and measures her blood sugar at home. (Tr. 37-38). She testified that her blood sugar used to run between 400 and 500, but now stays between 116 and 119 when she is on medication and she feels pretty good.
Plaintiff stated that her legs get weak and she has to sit down when she walks out of her trailer, down the steps and a few feet from the porch. She said she does not go up stairs without holding on to the railing and having someone beside or behind her. (Tr. 38-39). She testified that she can lift a 25-pound bag of sugar, but nothing heavier, and could not lift it more than once because her lower back and kidneys would hurt. She stated that she can only stand for 10 to 15 minutes before she has to sit down because her legs get weak and she cannot feel her feet. (Tr. 39). She said that her lower back was hurting during the hearing and her legs were becoming completely numb. She said she usually gets up and walks whenever she sits for a while, and she has good days and bad days with regard to being able to sit.
Thibodaux testified that she cleans the kitchen a little bit, but her daughter helps with the housework every day. (Tr. 40). She said she tries to do the sweeping, but it does not work. She stated that she puts clothes in the washing machine and puts meals on to cook, but her husband or daughter then oversees the cooking. She testified that, on a typical day, she tries to do something in the morning, like go out in the yard to do what she can, and then watches television with her feet elevated. (Tr. 41-42). She said she shops for groceries with her daughter for 30 to 40 minutes once a month. For recreation, she said she goes outside, barbecues, visits friends and occasionally goes fishing, where she sits in a chair and props her feet up on a bucket. She stated that she does not do anything else. (Tr. 42-43).
Plaintiff stated that she made minimum wage when she was working as a sitter until January 2009 and that her take-home pay was a little less than $300 every two weeks. She said she changed patients' diapers, helped them walk around and fed them, but did not prepare meals. She testified that she was on her feet most of the time while working that job. (Tr. 44-45). She stated that she was a supervisor when she worked for the Sheriff at the jail and she left because she did not like the job. She said that, when she worked in the deli at Rouses, her job included putting food out on the hot table, then she moved to retrieving carts from the parking lot, bagging groceries and cleaning floors. She said she worked at McDonald's, which the ALJ stated was in 2002. (Tr. 45-46). She testified that she left one job (the question was partially inaudible regarding which one) because of problems with her feet. (Tr. 46). When asked if she had to choose between sitting and standing, she said she could not do too much of either because of her feet and her kidneys. She could not remember the name of the medication she takes for her feet. (Tr. 46).
A vocational expert, Beth Drury, testified consistently with the
The ALJ's hypothetical to the vocational expert was partially inaudible. As transcribed, the ALJ posited an
(Tr. 49). Drury replied: "[B]ased on the past work, it would appear that she might be able to return to that sitter position. She can stand and walk, and I'm saying that based on her description that's provided, she was able to alternate her positions and based on her testimony . . . [n]ot as per the [
Plaintiff's representative modified the hypothetical to include only occasional lifting; an ability to sit for six out of eight hours, but only with elevated feet resting on a pillow; accommodations so that Thibodaux could go to the bathroom as needed, possibly as often as three to four times per hour; and the need to walk with a cane. Drury testified that these restrictions would eliminate the past relevant sitter job and all work. (Tr. 50).
I have reviewed the medical records in evidence and the ALJ's summary of the medical evidence. (Tr. 15-16). 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.
As required, the ALJ determined plaintiff's residual functional capacity at the fourth step of the sequential evaluation.
Past relevant work is defined as "work that you have done within the past 15 years, that was
Past relevant work must consist of "substantial gainful activity," which is further defined as follows:
20 C.F.R. § 416.972(a) (emphasis added);
The ALJ's finding that Thibodaux performed substantial gainful activity (implicit in his finding that her job as a sitter was past relevant work) is supported by substantial evidence. First, plaintiff testified that she left her home sitter job,
Second, plaintiff testified that she performed the home sitter job for four to six months. Her earnings reported to the Commissioner were $6,335.30 in 2008 and $4,023.64 in 2007, for a total of $10,358.94. (Tr. 106, 115, 130). If she earned $10,358.94 in four months, she was earning the equivalent of approximately $2,600 per month. The same total amount earned over a six-month period constitutes about $1,725 per month. Either amount more than qualifies as gainful activity, even when compared to the average monthly amounts described in the legally non-binding Program Operations Manual System of the Social Security Administration that plaintiff cites in her memorandum.
Third, in the Disability Report that she completed when she applied for benefits, Thibodaux stated that she had worked full-time, eight hours per day, five days per week, as a sitter for the handicapped from 2007 to 2008 at a pay rate of $7.00 per hour. (Tr. 138). Her Disability Report thus reflects an income level of approximately $280 per week, $1120 per month or $14,000 per year, if she worked for a full year. Even if she only worked at the sitter job for a partial year, plaintiff's Disability Report, earnings record and testimony demonstrate that she performed substantial gainful activity because the job is the kind of work usually done for pay or profit and was actually performed for pay or profit.
Thibodaux argues that the ALJ erred by finding that she could perform her past relevant work as a sitter, which the vocational expert testified was either medium or light work, because the ALJ's residual functional capacity assessment limited her to sedentary work. This argument misinterprets both the ALJ's findings regarding her residual functional capacity and the vocational expert's testimony.
"Sedentary work," as defined by the Commissioner's regulations and the case law, involves lifting
"Light work," which is the next most strenuous category,
20 C.F.R. §§ 404.1567(b), 416.967(b) (emphasis added).
The ALJ found that plaintiff has the residual functional capacity to perform sedentary work, including the ability to stand and/or walk for two hours and sit for six hours in an eight-hour work day, "except [that she can] lift 10 pounds frequently and 25 pounds occasionally." (Tr. 14). Thus, he determined that Thibodaux actually can lift
Based on that residual functional capacity and the vocational expert's testimony, the ALJ found that Thibodaux is capable of performing her past relevant work as a sitter
Although Drury testified that the
Therefore, the ALJ did not err by relying on the vocational expert's testimony that plaintiff can perform her past relevant work as a sitter, as she described and performed it.
Thibodaux argues that the parties and the court cannot determine what hypothetical question the ALJ asked the vocational expert because the transcript of the ALJ's question was "broken up by 13 inaudible gaps." Record Doc. No. 18 at p. 10. Plaintiff contends that Drury's responsive testimony is therefore not substantial evidence.
According to the transcript, the ALJ posed a hypothetical of an
(Tr. 49).
Drury replied: "[B]ased on the past work, it would appear that she might be able to return to that sitter position. She can stand and walk, and I'm saying that based on her description that's provided, she was able to alternate her positions and based on her testimony . . . [n]ot as per the [
"Procedural perfection in administrative proceedings is not required as long as the substantial rights of a party have not been affected."
Although there are gaps in the transcript of the ALJ's single, one-paragraph hypothetical question, Drury's responses are transcribed fully. This fact distinguishes the two cases cited by plaintiff, which were remanded for further proceedings because the
In the instant case, the ALJ found in his written opinion that Thibodaux has the residual functional capacity to perform sedentary work as defined by 20 C.F.R. § 416.967(a), except that she can lift ten pounds frequently and 25 pounds occasionally; stand and/or walk two hours in an eight-hour work day; sit six hours in an eight-hour work day; activities of daily living including cooking, washing clothes, cleaning house with stops and starts, mopping the floors, making beds, watching television and occasional fishing; able to push, pull, reach, crouch, squat and stoop; and has normal hand and arm function, including gripping, pinching, grasping, handling and fingering. The printed transcript of his hypothetical question to Drury contains sufficient information to indicate that the question matched the residual functional capacity stated in his written opinion.
The ALJ then held that
(Tr. 17) (emphasis added). The ALJ accurately described Drury's testimony. His finding that plaintiff could perform her past relevant work as a sitter as actually performed is consistent with that testimony. Drury's testimony is substantial evidence upon which the ALJ was entitled to rely.
Accordingly, this assignment of error lacks merit.
Thibodaux argues that the ALJ's determination of her residual functional capacity failed to take into account her incontinence, her need to use a cane to ambulate and her need to elevate her feet to relieve pain. When her representative added these limitations to his hypothetical question to the vocational expert, Drury testified that plaintiff would be unable to perform any jobs. The ALJ found that Thibodaux's incontinence was "under treatment" and that her allegations of disabling pain and other symptoms were not credible to the extent alleged. She contends that her alleged limitations are supported by her testimony and by a nerve conduction study on July 1, 2009, which confirmed that she has lower extremity motor-sensory axonal peripheral neuropathy. (Tr. 200).
The ALJ posed a hypothetical to Drury 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 claimant could perform Thibodaux's past relevant work as a sitter, as she had actually performed it, and other sedentary work, such as a ticket taker, assembler or packager.
Plaintiff was represented at the hearing, and her representative also questioned Drury. 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 representative questioned Drury and asked her about the work-related effects of plaintiff's alleged abilities to perform only occasional lifting; to sit for six out of eight hours, but only with elevated feet resting on a pillow; with accommodations so that she could go to the bathroom as needed, possibly as often as three to four times per hour; and the need to walk with a cane. Drury testified that these restrictions would eliminate all work. However, the ALJ found that the record did not support such requirements. The record substantially supports his findings. Therefore, the ALJ was not required to include such limitations in his hypothetical.
Regarding her incontinence, Thibodaux was diagnosed with polyuria
Plaintiff was seen in the Chabert Urology Clinic on April 24, 2009 for symptoms of urinary incontinence. The urologist diagnosed mixed urinary incontinence, a combination of urge and stress incontinence,
Thibodaux was scheduled to return to the Urology Clinic on October 23, 2009 (Tr. 198-99) and to the Internal Medicine/Family Practice Clinic on October 20, 2009. (Tr. 197). Other than an electromyelogram/nerve conduction study to evaluate the tingling and pain in her feet on July 1 (Tr. 200) and an eye examination on July 16, 2009 (Tr. 194), there are no medical records of any additional medical treatment through the date of the ALJ's opinion.
Although plaintiff testified that she had a doctor's appointment scheduled for the day after the hearing, no medical records document any treatment
Thibodaux testified that she needs a cane to ambulate, but admitted that no doctor had prescribed the cane. No medical records indicate that she needs to use a cane or to elevate her feet constantly. Dr. Carhill noted that she did
A claimant's lack of need for medication or failure to seek treatment is a relevant factor to consider in determining the severity of an alleged impairment and may be used in conjunction with the medical reports to discount plaintiff's complaints of disabling pain or other limitations.
This assignment of error lacks merit.
Thibodaux's claimed illiteracy is irrelevant to the ALJ's finding at step
Even if the ALJ had found at step four that she cannot return to any past relevant work and had proceeded to step five, her residual functional capacity to perform more than sedentary work alone would preclude application of Rule 201.17 of the Medical-Vocational Guidelines. In addition, the record does not substantially support her alleged illiteracy, which also precludes use of Rule 201.17.
"Illiteracy means the inability to read or write. We consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling." 20 C.F.R. § 416.964(b)(1).
Thibodaux testified that she cannot read or write. However, she completed at least the tenth, and possibly the eleventh, grade without attending special education classes. (Tr. 26, 141-42, 175, 176). She therefore completed more than the requirements for a marginal education and actually has a limited education, which are the next two defined levels
The ALJ did not err in finding that plaintiff's recent sitter job was "past relevant work" or that she can return to her past relevant work as a sitter as she performed it. The vocational expert's testimony was clearly transcribed and is substantial evidence upon which the ALJ could rely. The ALJ's determination of Thibodaux's residual functional capacity was supported by substantial evidence. The ALJ did not need to proceed to the fifth step of the sequential evaluation, but even if he had, Thibodaux failed to establish either that she was restricted to sedentary work or that she is illiterate, thus precluding application of Rule 201.17 of the Medical-Vocational Guidelines.
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.
