KIMBERLY E. WEST, Magistrate Judge.
Plaintiff Dina F. Ackerman (the "Claimant") requests judicial review of the decision of the Commissioner of the Social Security Administration (the "Commissioner") denying Claimant's application for disability benefits under the Social Security Act. Claimant appeals the decision of the Administrative Law Judge ("ALJ") and asserts that the Commissioner erred because the ALJ incorrectly determined that Claimant was not disabled. For the reasons discussed below, it is the recommendation of the undersigned that the Commissioner's decision be AFFIRMED.
Disability under the Social Security Act is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . ." 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Social Security Act "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists 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. See, 20 C.F.R. §§ 404.1520, 416.920.
Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. § 405(g). This Court's review is limited to two inquiries: first, whether the decision was supported by substantial evidence; and, second, whether the correct legal standards were applied.
Claimant was born on October 10, 1980 and was 31 years old at the time of the ALJ's decision. Claimant completed her high school education attending special education classes and certified nurse's assistant training. Claimant has worked in the past as a CNA, home health provider, cook, factory line worker, and retail stocker. Claimant alleges an inability to work beginning August 12, 2009 due to limitations resulting from lower back pain, leg cramps, problems grasping, fibromyalgia, depression, sleep problems, and a learning disability.
On June 24, 2010, Claimant protectively filed for disability insurance benefits under Title II (42 U.S.C. § 401, et seq.) of the Social Security Act. Claimant's application was denied initially and upon reconsideration. On September 5, 2012, Claimant appeared before Administrative Law Judge John Belcher ("ALJ") for an administrative hearing by video with Claimant appearing in Miami, Oklahoma and the ALJ presiding in Tulsa, Oklahoma. On September 14, 2012, the ALJ issued an unfavorable decision. The Appeals Council declined to review the decision on December 9, 2013. As a result, the decision of the ALJ represents the Commissioner's final decision for purposes of further appeal. 20 C.F.R. §§ 404.981, 416.1481.
The ALJ made his decision at step four of the sequential evaluation. He determined that while Claimant suffered from severe impairments, she retained the RFC to perform her past relevant work as a hand packer.
Claimant asserts the ALJ committed error in (1) failing to perform a proper analysis at steps three, four, and five; (2) failing to properly evaluate the medical and non-medical source evidence; and (3) failing to perform a proper credibility analysis.
In his decision, the ALJ determined Claimant suffered from the severe impairments of obesity, chronic low back pain, and borderline intellectual functioning. (Tr. 28). The ALJ also found Claimant retained the RFC to perform her past relevant work as a hand packager. (Tr. 34). Alternatively, the ALJ found Claimant retained the RFC to perform medium work except she was limited to simple work involving no more than superficial contact with coworkers and supervisors. She must also avoid jobs requiring interaction with the public. (Tr. 30). After consultation with a vocational expert, the ALJ found Claimant could perform the representative jobs of laundry worker, janitor, and dishwasher, all of which the expert testified existed in sufficient numbers in the regional and national economies. (Tr. 36). Claimant was found to have not been under a disability since June 24, 2010 through the date of the decision.
Claimant first contends the ALJ erred at step three by failing to evaluate the effect of her obesity upon other severe impairments. This issue is tied to step three because the ALJ referenced Claimant's obesity in connection with an evaluation of the effect the condition has upon Claimant's ability to ambulate under Listing § 1.00B2b. (Tr. 30). Claimant asserts the effect of her obesity upon her back pain and spine should have been assessed by the ALJ.
An ALJ is required to consider "any additional and cumulative effects" obesity may have upon other conditions from which a claimant suffers, recognizing that obesity combined with other impairments may increase the severity of the condition. Soc. Sec. R. 02-1p; 20 C.F.R. Pt. 405, Subpt. P, App. 1 § 1.00(Q)(combined effect with musculoskeletal impairments).
At step three, "a listing is met if there is an impairment that, in combination with obesity, meets the requirements of a listing." Soc. Sec. R. 02-1p. "[O]besity may increase the severity of coexisting or related impairments to the extent that the combination of impairments meets the requirements of a listing. This is especially true of musculoskeletal, respiratory, and cardiovascular impairments."
The ALJ stated in his decision that he considered the combined effects of obesity upon other impairments, considered whether Claimant met a listing with consideration of her obesity, and emphasized the requirements of Soc. Sec. R. 02-1p as required by the regulations. (Tr. 30). This Court is required to take the ALJ at his word that he considered the condition, having found it to be a severe impairment, without speculating as to its effects. Indeed, the medical record does not indicate and Claimant has not directed this Court to the presence of any functional limitations which would stem from Claimant's obesity. The diagnosis of the condition does not automatically translate into functional limitations. The only effect upon Claimant to which she refers this Court is that she has been recommended to consider breast reduction surgery to possibly alleviate some back pain. (Tr. 292). Nothing in this record indicates that her large breasts are as a result of her obesity, save for Claimant's assumption. Accordingly, the ALJ did not err in his consideration of Claimant's obesity.
Claimant next contends the ALJ's analysis of her past relevant work at step four was flawed. Claimant is curiously vague about which elements in the
In the second phase, the ALJ must determine the demands of the claimant's past relevant work.
The third and final phase requires an analysis as to whether the claimant has the ability to meet the job demands found in phase two despite the limitations found in phase one.
Straying from his stated challenge to the ALJ's step three, four, and five analysis, Claimant inserts a step two argument, contending the ALJ should have included low back pain as a severe impairment. At step two, Claimant bears the burden of showing the existence of an impairment or combination of impairments which "significantly limits [his] physical or mental ability to do basic work activities." 20 C.F.R. § 416.920(c). An impairment which warrants disability benefits is one that "results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 1382c(a)(1)(D). The severity determination for an alleged impairment is based on medical evidence alone and "does not include consideration of such factors as age, education, and work experience."
The burden of showing a severe impairment is "de minimis," yet the presence of a medical condition alone is not sufficient at step two.
A claimant's testimony alone is insufficient to establish a severe impairment. The requirements clearly provide:
42 U.S.C.A. § 423(d)(5)(A).
The functional limitations must be marked and severe that can be expected to result in death or to last for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(1)(C)(i); 20 C.F.R. § 416.927(a)(1). Claimant has not met her burden of demonstrating that her low back pain constituted a severe impairment. In fact, she has offered absolutely no references to the record to support such a finding.
Continuing with the litany of sub-issues, Claimant states that "[t]he ALJ failed for another reason at steps 4 and 5." Claimant contends the ALJ did not accommodate her moderate limitation of concentration, persistence or pace in his hypothetical questioning of the vocational expert. This Court disagrees with Claimant that the limitation to simple, unskilled tasks would fail to incorporate any restriction on concentration, persistence, or pace. No error is attributed to the hypothetical questioning of the expert.
Claimant objects to the weight the ALJ gave to the opinions of Dr. Dianne Hardy and Dr. Michael Karathanos. Claimant contends the ALJ erred when he gave less than controlling weight to Dr. Hardy's "findings." This Court is unsure why the ALJ felt it necessary to give weight to treatment records. Dr. Hardy did not offer a medical opinion nor did the ALJ or Claimant rely upon any opinion by Dr. Hardy to support their positions. Essentially, the ALJ made a superfluous finding on weight that does not require remand.
The ALJ gave "great weight" to the evaluation of Dr. Karathanos' examination. Dr. Karathanos recognized Claimant's past medical history included a diagnosis of fibromyalgia. (Tr. 292). He noted he found an specified number of trigger points mostly in back. (Tr. 294). The ALJ specifically rejected any diagnosis of fibromyalgia based upon a considered view of the required findings for the condition. (Tr. 31-32). Even when the ALJ recognized Dr. Karathanos' diagnosis, he also noted that Dr. Karathanos indicated the condition was not severe. (Tr. 32). It was not inconsistent for the ALJ to give "great weight" to Dr. Karathanos' opinions while also finding the condition was not severe. The ALJ did not err in his analysis of the medical source evidence.
Even if the diagnosis was appropriate, Claimant fails to state how the failure to adopt the diagnosis of fibromyalgia prejudices Claimant. She has not established that the diagnosis would constitute a severe impairment. The only effect Claimant draws from the potential omission is "[a] reasonable ALJ would have properly evaluated the medical opinions and would have altered the course of this case by finding her disabled and paying the claim." The finding of fibromyalgia would not have necessarily resulted in a finding of disability.
Claimant also contends the ALJ failed to properly evaluate her credibility. The ALJ found contradictions in Claimant's testimony by testifying she suffered from back pain which limited her ability to walk while also stating that she had been walking for twenty minutes in the park every day. Contradictions were also noted in her ability to lift, sit, and engage in activities of daily living. (Tr. 32). It is well-established that "findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings."
The decision of the Commissioner is supported by substantial evidence and the correct legal standards were applied. Therefore, the Magistrate Judge recommends for the above and foregoing reasons, the ruling of the Commissioner of Social Security Administration should be
The parties are herewith given fourteen (14) days from the date of the service of these Report and Recommendation to file with the Clerk of the court any objections, with supporting brief. Failure to object to the Report and Recommendation within fourteen (14) days will preclude appellate review of this decision by the District Court based on such findings.
