VIRGINIA EMERSON HOPKINS, District Judge.
Plaintiff Steven Parker ("Mr. Parker") brings this action under 42 U.S.C. § 405(g)
Mr. Parker was forty-one years old at the time of his alleged amended onset date, forty-two years old on December 31, 2009, the date he was last insured for DIB, and forty-three years old on the date of the decision of the Administrative Law Judge ("ALJ"). (Tr. 22, 33). He claimed he became disabled on December 31, 2004 (Tr. 25), with an alleged amended onset date of December 5, 2008. (Id.) His last period of work ended on December 5, 2008. (Tr. 27).
On August 8, 2008, Mr. Parker protectively filed a Title II application for a period of disability and DIB, and also protectively filed a Title XVI application for SSI. (Tr. 25). In both applications, he alleged disability beginning December 31, 2004. On January 5, 2009, these claims were initially denied. (Id.). On February 10, 2009, Mr. Parker filed a written request for hearing. (Id.). He appeared and testified at a hearing held on May 4, 2010. (Id.) Julia A. Russell, Ph.D., vocational expert ("VE"), also appeared at the hearing. (Id.) Mr. Parker's representative, Don Bevill, Esq., moved, on Mr. Parker's behalf, to amend the alleged onset date to December 5, 2008, and the ALJ granted this motion. (Id.).
On January 14, 2011, the ALJ issued his opinion concluding Mr. Parker was not disabled and denying him benefits. (Tr. 22). Mr. Parker timely petitioned the Appeals Council to review the decision. (Tr. B4B). On August 17, 2012, the Appeals Council issued a denial of review on his claim. (Tr. 1-7).
Mr. Parker filed a Complaint with this court on October 10, 2012, seeking review of the Commissioner's determination. (Doc. 1). On January 22, 2013, the Commissioner filed an Answer. (Doc. 6). On April 8, 2013, Mr. Parker filed his brief. (Doc. 9). On May 7, 2013, the Commissioner filed her brief. (Doc. 10). With the parties having now fully briefed the matter, the court has carefully considered the record and affirms the Commissioner's decision.
The court's review of the Commissioner's decision is narrowly circumscribed. The function of this court is to determine whether the decision of the Commissioner is supported by substantial evidence and whether proper legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.2002). This court must "scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence." Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983). Substantial evidence is "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Id. It is "more than a scintilla, but less than a preponderance." Id.
This court must uphold factual findings that are supported by substantial evidence. However, it reviews the ALJ's legal conclusions de novo because no presumption of validity attaches to the ALJ's determination of the proper legal standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir.1993). If the court finds an error in the ALJ's application of the law, or if the ALJ fails to provide the court with sufficient reasoning for determining that the proper legal analysis has been conducted, it must reverse the ALJ's decision. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir.1991).
To qualify for disability benefits and establish his or her entitlement for a period of disability, a claimant must be disabled as defined by the Social Security Act and the Regulations promulgated thereunder.
The Regulations provide a five-step process for determining whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in sequence:
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.1993) (citing to formerly applicable C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir.1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir.1995). An ALJ may make this determination by posing hypothetical questions to a VE. See Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir.2011); 20 C.F.R. § 404.1520(a)(4)(v). The Commissioner must further show that such work exists in the national economy in significant numbers. Id. An ALJ may rely solely on the testimony of a VE in making this determination. Jones v. Apfel, 190 F.3d 1224, 1230 (11th Cir.1999), cert. denied, 529 U.S. 1089, 120 S.Ct. 1723, 146 L.Ed.2d 644 (2000). For the testimony of a VE to constitute substantial evidence, the ALJ must pose a hypothetical that comprises all of the claimant's impairments that significantly affect a claimant's ability to work. Wilson v. Barnhart, 284 F.3d at 1227 (citing Jones v. Apfel, 190 F.3d at 1229). Once the Commissioner has done so, the claimant has the burden to show that he cannot perform the identified work. Jones v. Apfel, 190 F.3d at 1228 ("If the Commissioner can demonstrate that there are jobs the claimant can perform, the claimant must prove she is unable to perform those jobs in order to be found disabled."). If the claimant does not do so, the claimant is not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(v) and (g).
The ALJ found that Mr. Parker met the insured status requirements of the Social Security Act through December 31, 2009. (Tr. 27). The ALJ then found that Mr. Parker had not engaged in substantial gainful activity since December 5, 2008, the alleged amended onset date of his disability. (Id.). He further concluded that Mr. Parker had the following severe impairments: chronic episodic inflamed varicose veins, panic disorder, chronic obstructive pulmonary disease, bipolar I disorder, and mild hypertrophic facet arthritic changes of lumbar spine. (Id.). The ALJ then held that these medically determinable impairments, in combination, did not meet or medically equal one of those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the Regulations. (Tr. 29).
After considering the entire record, the ALJ found that Mr. Parker had the residual functional capacity ("RFC") to perform "sedentary work" as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). (Tr. 31). He further found that Mr. Parker "has moderate restriction in the following areas: understanding, carrying out, and remembering simple instructions; using judgment; responding appropriately to supervision, co-workers and usual work situations; dealing with changes in a routine work setting; and responding to customary work pressures. He would miss no more than one and half days [sic] of work per month." (Id.).
The ALJ then found that Mr. Parker was unable to perform his past relevant work as a dump truck driver and a truck driver. (Tr. 33). He determined that Mr. Parker "has a limited education and is able to communicate in English." (Id.). He further found that transferability of job skills is not an issue in this case because Mr. Parker's past relevant work is unskilled. (Tr. 34).
The ALJ found Mr. Parker's ability to perform all or substantially all of the requirements
The court may reverse a finding of the Commissioner if it is not supported by substantial evidence. 42 U.S.C. § 405(g). "This does not relieve the court of its responsibility to scrutinize the record in its entirety to ascertain whether substantial evidence supports each essential administrative finding." Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir.1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir.1980)).
In his brief, Mr. Parker urges this court to reverse the Commissioner's decision on three grounds: (1) Mr. Parker is illiterate and the ALJ neither explored the conflict between Mr. Parker's illiteracy and the reading requirements for the jobs identified by the VE, nor did he set out a reasonable explanation supporting his decision that Mr. Parker could perform such work; (2) the ALJ's hypothetical question was incomplete in that it failed to include Mr. Parker's severe breathing impairments; and (3) the ALJ's hypothetical questions were incomplete in that they did not mention any of the work restrictions resulting from that condition. For the reasons set out below, the court rejects each of these grounds.
Perdue v. Astrue, 2012 WL 967629, *6 (N.D.Fla., 2012).
As stated above, at step three, the ALJ found that Mr. Parker's RFC was "sedentary work" as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with additional "moderate restriction in the following areas: understanding, carrying out, and remembering simple instructions; using judgment; responding appropriately to supervision, co-workers and usual work situations; dealing with changes in a routine work setting; and responding to customary work pressures. He would miss no more than one and half days [sic] of work per month." (Tr. 31). Thus, the ALJ found that Mr. Parker had both exertional and nonexertional limitations on his ability to meet the demands of jobs and properly included those additional limitations in his RFC and in his hypothetical questions to the VE.
Mr. Parker argues that he could not perform the jobs identified by the VE because Mr. Parker was illiterate. The burden, however, is on Mr. Parker to prove that he can not do the jobs identified by the VE, based on his RFC, because a claimant who can make an adjustment to other work is not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(v) and (g)(1). Mr. Parker argues that, according to the DOT, the jobs identified by the VE all require that the claimant be literate, and that it therefore was error for the ALJ to neither explore that conflict nor set out a reasonable explanation supporting his decision that Mr. Parker could perform such work. Even assuming that such a conflict exists, however, this argument fails because it puts upon the Commissioner the burden to prove that Mr. Parker can perform such work (that is, to prove that he is literate).
As pointed out by Mr. Parker, the ALJ acknowledged his testimony that Mr. Parker could read and write "only small words" (Tr. 32) and that the ALJ "did not discredit it." (Doc. 9, p. 11). However, the ALJ's inclusion of that testimony in his determination of Mr. Parker's residual functional capacity and his failure to list "illiteracy" as an additional limitation does not show that the ALJ was erroneous in the limitations he listed in that RFC determination
Mr. Parker next alleges error because the ALJ did not include Mr. Parker's "severe breathing impairments" in the hypothetical questions to the VE and failed to include "some mention of the work restrictions resulting from that condition." (Doc. 9, p. 15). The court agrees that the ALJ must pose a hypothetical that comprises all of the claimant's impairments that significantly affect a claimant's ability to work. Wilson v. Barnhart, 284 F.3d at 1227 (citing Jones v. Apfel, 190 F.3d at 1229).
The hypothetical questions to the VE included all of Mr. Parker's significant work limitations, as determined by the ALJ in his RFC. Additionally and appropriately, it included Mr. Parker's age, education, and past relevant work. Specifically, the ALJ told the VE to assume that: Mr. Parker at least went into the ninth grade, but had a history of Special Education; Mr. Parker's age; his past relevant work was as a dump truck driver and a truck driver; he would be able to lift occasionally ten pounds, five pounds frequently; sit two hours at a time, eight hours during an eight-hour day; walk two hours at a time and two hours during an eight-hour day; he would be able to do fingering and handling constantly bilaterally; a borderline range intellectually, 71 to 84; would have not more than moderate limitations in mental basic work activities of understanding, remembering and carrying out simple instructions, use of judgment, responding appropriately to supervision, co-workers and usual work situations, dealing with changes in a routine work setting and responding to customary work pressures; he would miss no more than one-and-a-half days of work per month; he has diminished hearing in the right ear, apparently little, if any, functional deficit; and would not be able to do his past work due to the exertional differences. (Tr. 72-73).
"The RFC assessment only considers functional limitations and restrictions that result from an individual's medically determinable impairment or combination of impairments, including the impact of any related symptoms." SSR 96-8p. Nonexertional limitations affect a claimant's ability to meet the demands of jobs, other than strength demands. 20 C.F.R. § 404.1569a(c). For example, a claimant has a nonexertional limitation if he has "difficulty tolerating some physical feature(s) of certain work settings, e.g., [he] cannot tolerate dust or fumes." 20
Mr. Parker accurately points out that,
(Doc. 9, p. 14). Although posed as an error in the hypothetical questions asked of the VE, in essence, Mr. Parker is saying that substantial evidence does not support the failure to include his pulmonary conditions or environmental limitations in the RFC.
This argument also fails. As to Mr. Parker's pulmonary issues, the ALJ specifically reviewed and addressed the medical opinions and records of treating physician Craig Young, M.D. (Tr. 27). He also, in assessing RFC, considered Mr. Parker's subjective allegations of his symptoms, and appropriately applied what is referred to as the "pain standard."
(Tr. 32-33).
Thus, the ALJ correctly applied the "pain standard" to Mr. Parker's breathing problems and found evidence of an underlying medical condition (COPD) but also found neither objective medical evidence that confirms the severity of the alleged limitations arising from that condition nor that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged limitations.
Further, the ALJ was not required to include in his hypothetical questions to the VE impairments which he had correctly determined did not significantly impair Mr. Parker's ability to work. McSwain v. Bowen, 814 F.2d 617, 620 n. 1 (11th Cir. 1987); Graham v. Bowen, 790 F.2d 1572, 1576 (11th Cir.1986) (ALJ did not err in failing to include in hypothetical question limitations that did not significantly effect the level of work the claimant can do); Smith v. Commissioner of Social Sec., 422 Fed.Appx. 855 (11th Cir.2011) (ALJ was not required to consider additional impairments named by claimant in determining her eligibility for Social Security disability benefits, where the additional impairments did not affect claimant's ability to work, were not severe, and did not impact the severity of the combination of impairments considered by the ALJ.).
Based upon the court's evaluation of the evidence in the record and the submissions of the parties, the court finds that the ALJ applied proper legal standards in reaching his decision and that his decision was supported by substantial evidence. Accordingly, the decision will be affirmed by separate order.
20 C.F.R. § 220.135
(Tr. 72).
20 C.F.R. § 404.1564 (emphasis supplied).
