VIRGINIA EMERSON HOPKINS, District Judge.
Plaintiff Sherry Denese Hulett ("Ms. Hulett") brings this action under 42 U.S.C. § 405(g), Section 205(g) of the Social Security Act. She seeks review of a final adverse decision of the Commissioner of the Social Security Administration ("Commissioner"), who denied her application for Disability Insurance Benefits ("DIB"). Ms. Hulett timely pursued and exhausted her administrative remedies available before the Commissioner. The case is thus ripe for review under 42 U.S.C. § 405(g).
Ms. Hulett was 52 years old at the time of her hearing before the Administrative Law Judge ("ALJ"). (Tr. 49, 88). She has completed two years of college. (Tr. 198). Her past work experience includes employment as a gate guard and a security console operator. (Tr. 73). She claims she became disabled on September 11, 2012, due to congested heart failure, fibromyalgia, diabetes mellitus, and lupus. (Doc. 10 at 2). Her last period of work ended on September 11, 2012. (Tr. 69).
On April 11, 2011, Ms. Hulett protectively filed a Title II application for a period of disability and DIB. (Tr. 41). On July 22, 2011, the Commissioner initially denied these claims. Id. Ms. Hulett timely filed a written request for a hearing on September 19, 2011. Id. The ALJ conducted a hearing on the matter on March 15, 2013. Id. On April 8, 2013, he issued his opinion concluding Ms. Hulett was not disabled and denying her benefits. (Tr. 49). She timely petitioned the Appeals Council to review the decision on June 3, 2013. (Tr. 36). On September 19, 2014, the Appeals Council issued a denial of review on her claim. (Tr. 1-7).
Ms. Hulett filed a Complaint with this court on October 6, 2014, seeking review of the Commissioner's determination. (Doc. 1). The Commissioner answered on January 9, 2015. (Doc. 8). Ms. Hulett filed a Statement of Claim (Doc. 10), and the Commissioner filed her own responding brief (Doc. 13) on March 30, 2015. With the parties having provided these documents, the court has carefully considered the record and affirms the decision of the Commissioner.
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 (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. 1986). The sequential analysis goes as follows:
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner must further show that such work exists in the national economy in significant numbers. Id.
After consideration of the entire record, the ALJ made the following findings:
(Tr. 43-49).
The court may only 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)).
Ms. Hulett, who is proceeding pro se in this appeal,
Ms. Hulett contends that she suffers from the severe medical impairment of fibromyalgia. (Doc. 10 at 2). However, the ALJ found that Ms. Hulett's "alleged fibromyalgia is not medically determinable." (Tr. 44). His reasoning was that, "[Ms. Hulett] does not receive any treatment for this alleged impairment and there is no evidence of a diagnosis of fibromyalgia in the objective evidence of record. . . ." (Id.). This court agrees with the ALJ, and finds that Ms. Hulett has not met her burden of proving she suffers from the severe impairment of fibromyalgia because she has not established the presence of a medically determinable impairment.
Objective evidence from an acceptable medical source is necessary to establish the presence of a severe impairment. 20 C.F.R. § 404.1513(a); Elam v. Railroad Retirement Bd., 921 F.2d 1210, 1215 (11th Cir.1991) ("While both the regulations and the Hand standard require objective medical evidence of a condition that could reasonably be expected to cause the pain alleged, neither requires objective proof of the pain itself."). To prove she suffers from fibromyalgia, Ms. Hulett must provide "medical evidence consisting of signs, symptoms, and laboratory findings" which establish the presence of the impairment, and not rely solely on her statements of symptoms. 20 C.F.R. § 404.1508.
Fibromyalgia is a medical impairment that complicates Social Security disability determinations, because the condition "often lacks medical or laboratory signs, and is generally diagnosed mostly on an individual's described symptoms." Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). The Social Security Administration has acknowledged that fibromyalgia is not detectable through diagnostic tests, but rather through medically accepted clinical techniques that show the existence of an impairment. Id. (citation omitted). Therefore, it is possible to objectively diagnose a patient with fibromyalgia despite the complicated nature of the condition.
Ms. Hulett testified at the administrative hearing that she was diagnosed with fibromyalgia in about 2008. (Tr. 78). She noted in her Disability Report that she has sought medical treatment for the condition from Dr. Mitchell Scott Tougher and Dr. Asuru from the Birmingham Health Clinic. (Tr. 202). However, none of the physicians she listed as evaluating and treating her for the condition of fibromyalgia made any mention of the impairment on their reports or in their clinical notes. (Tr. 239-258). The only conditions that the physicians diagnosed and treated during these visits were type II diabetes, hypertension, hyperlipidemia, and obesity. (Id.). There is no notation or recording in the reports of any "trigger point" testing and palpitations performed on Ms. Hulett in an attempt to diagnose fibromyalgia, and there is no evidence of prescribed treatment or medication that would address the condition. (Id.).
Furthermore, the court carefully scrutinized the record to find any evidence that may potentially be construed as a diagnosis, treatment, or testing for fibromyalgia,
Ultimately, Ms. Hulett bears the burden of proving that she suffers from a severe impairment. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986) ("It is also well settled that the claimant bears the initial burden of establishing a severe impairment that keeps him from performing his past work."). As Ms. Hulett has failed to provide any objective evidence from a medical source diagnosing or treating fibromyalgia, the ALJ did not err in determining that the condition is not medically determinable and he properly excluded it from his findings of Ms. Hulett's severe impairments.
Ms. Hulett also claims that her level of work activity is restricted because she suffers from depression.
Social Security Regulations provide the applicable standards for determining whether a mental disorder constitutes a severe impairment. The Regulations require Ms. Hulett to demonstrate that she has suffered a mental impairment that has lasted, or can be expected to last, for a period of twelve months and is so severe as to prevent her from be able to perform her past relevant work. 20 C.F.R. § 404.1505(a).
The record shows that Ms. Hulett received psychiatric treatment from UAB for major depressive disorder between January 22, 2013, and February 27, 2013.
Ms. Hulett testified at the hearing that she has suffered from depression for a while.
In assessing the severity of her mental impairment, and the extent to which it limits an individual's ability to function, the ALJ discussed the four criteria Regulations requires courts to consider: "[a]ctivities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation." 20 C.F.R. Pt. 404, Subpt. P, App. 1. 12.00(C). The ALJ referred to evidence in the record provided by Ms. Hulett to support his determinations with respect to these four broad functional areas. (Tr. 44-45).
The ALJ determined that Ms. Hulett only suffers a "mild limitation in activities of daily living," and in her "concentration, persistence, or pace." (Tr. 44). In doing so, the ALJ referred to Ms. Hulett's Function Report, and recognized her ability to conduct her daily activities independently.
The ALJ's determination is also supported by the UAB psychiatric treatment notes. Although Dr. Shelton notes in his initial assessment that Ms. Hulett suffers severe aches and pains and is susceptible to daytime napping, he observed that she presents normal behavior, speech, affect, thought process, cognition, insight, and judgment. (Tr. 43). He also opined that Ms. Hulett is only moderately ill. (Tr. 440, 441, 442, 443). These limitations are allowed for in the ALJ's findings given that he determined Ms. Hulett suffers "mild limitations" as opposed to "no limitations." Taking the evidence of the record as a whole, the ALJ's determination that Ms. Hulett only suffers a mild limitation in these two broad functional categories is supported by substantial evidence.
In the other two functional areas, "social functioning" and "episodes of decompensation," the ALJ determined Ms. Hulett has no limitations as a result of her major depressive disorder. (Tr. 44). The ALJ again refers to Ms. Hulett's Function Report with regards to her social functioning, noting that she reported that she attends church and that she gets along well with authority figures. (Tr. 44). In this report, Ms. Hulett wrote that she attends church twice a month and she checked the "no" box in answering the question as to whether she has "any problems getting along with family, friends, neighbors or others." (Tr, 218-19). Although Ms. Hulett testified that she is not capable of being around people,
The ALJ also determined that Ms. Hulett has not experienced any episodes of decompensation for an extended duration. Although Ms. Hulett testified that her symptoms of depression worsened in January 2013, the ALJ noted that she attended "regular weekly therapy session[s] for one month's duration," and that she "quit seeking treatment in February 2013." (Tr. 44). This determination is supported by the medical evidence in the record.
Substantial evidence supports the ALJ's determinations with regard to each of the four broad areas of Ms. Hulett's mental functioning. As none of Ms. Hulett's limitations in any of these areas, individually or taken together, significantly affects her ability to function effectively on a sustained basis, the ALJ did not err in his finding that Ms. Hulett's mental impairments are nonsevere. Thus, the ALJ's RFC assessment does not require any additional accommodations relating to Ms. Hulett's mental impairments.
The ALJ concluded that Ms. Hulett had the residual functional capacity (RFC) to perform the full range of sedentary work. (Tr. 45). Ms. Hulett disagrees, and asserts that the ALJ was "in error in light of her medical record, testimony, and employment limitations." (Doc. 10, at 2).
Social Security Regulations require the ALJ follow a two-step process when determining a claimant's functional ability considering her symptoms. 20 C.F.R. § 404.1529. First, the ALJ must consider whether there is a "medically determinable impairment that could reasonably be expected to produce [her] symptoms." Id. Second, the ALJ must evaluate the "intensity and persistence of [her] symptoms . . . and determin[e] the extent to which [her] symptoms limit [her] capacity for work. Id. This court finds that the ALJ applied this standard properly and that substantial evidence supports his RFC assessment.
In evaluating the limiting effect of Ms. Hulett's symptoms, the ALJ must consider her subjective testimony in determining the severity of her pain and is also required to consider the objective medical evidence. See 20 C.F.R. § 404.1529(a). "If the ALJ decides not to credit a claimant's testimony as to her pain, he must articulate explicit and adequate reasons for doing so." Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir.1995).
The ALJ found that Ms. Hulett's medically determinable conditions of congestive heart failure, diabetes mellitus, obesity, and atrial fibrillation status post ablation "could reasonably be expected to cause the alleged symptoms," but that Ms. Hulett's "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible." (Tr. 46). In making this determination, the ALJ considered the objective medical evidence with regard to each of Ms. Hulett's conditions, the effects of her medication on her functional abilities, and subjective evidence from Ms. Hulett regarding her daily activities. (Tr. 46-48).
Regulations provide that that sedentary work involves minimal lifting, and can be performed mostly in a seated position.
Ms. Hulett's testimony is undermined by the lack of evidence in the record indicating Ms. Hulett has sought treatment for this pain. As the Commissioner's brief points out, Ms. Hulett's medical records from July 2012 report that Ms. Hulett stated "she has been feeling great" since she underwent atrial flutter ablation, and that "[s]he can do whatever activity she wishes without any shortness of breath and she denies any chest pain, palpitations, dizziness or syncope." (Tr. 362). Furthermore, the medical records from Ms. Hulett's latest course of hospitalization do not mention any pain aside from headaches. (Tr. 475). Aside from these records, there are no medical records which support Ms. Hulett's allegations of severe pain. Therefore, the ALJ's RFC assessment allowing for sedentary work is supported by the lack of medical records presenting pain at the level of severity to which Ms. Hulett testified. See Osborn v. Barnhart, 194 F. App'x 654, 663 (11th Cir.2006) (Claimant's testimony regarding the level of severity of migraines headaches was not supported by medical records).
With regard to the rest of Ms. Hulett's symptoms — shortness of breath,
Additionally, Ms. Hulett has supplemented her Statement of Claim with further medical evidence from the UAB Medical Center. (Doc. 10, at 3-41, Doc. 12). The Commissioner may consider new evidence presented for the first time in district court only if the evidence falls under sentence six of section 405(g). Ingram v. Commissioner of Social Sec. Admin., 496 F.3d 1253, 1267 (11th Cir. 2007) ("Sentence six of section 405(g) provides the sole means for a district court to remand to the Commissioner to consider new evidence presented for the first time in the district court). For the district court to remand a case based on new evidence, the new evidence must be material and there must be good cause for failing to previously present this evidence into the record.
The new evidence Ms. Hulett submitted includes medical records from UAB Medical Center from March 4 to 5, 2015. (Doc. 12, at 1). In these records, Dr. Jeffrey Hawkins diagnoses Ms. Hulett with sleep apnea. Id. at 8. However, nowhere did the study Ms. Hulett participated in indicate that Ms. Hulett's sleep apnea was a disabling condition. See Couch v. Astrue, 267 Fed.Appx. 853, 857 (11th Cir. 2008) (finding additional evidence of sleep apnea study to not be new and material so as to warrant a remand of the ALJ's decision). Further, Dr. Hawkins noted that Ambien helped Ms. Hulett sleep. (Doc. 12, at 8). Therefore, this new evidence does not meet the applicable remand standard because the new evidence does not contradict the ALJ's findings of the severity of the limiting effects of Ms. Hulett's mental impairments.
Without further evidence indicating Ms. Hulett's impairments cause her greater limitations after her alleged onset date, the ALJ's finding that Ms. Hulett can perform the full range of sedentary work accommodates the limitations supported by the record taken as a whole. Therefore, substantial evidence supports the ALJ's RFC assessment, and thus substantiates the ALJ's conclusion that Ms. Hulett did not demonstrate a sufficiently severe disability.
The ALJ determined that Ms. Hulett could perform her past relevant work as a gate guard and security console operator, given the physical and mental demands of this work.
Social Security Regulations provide that the ALJ will use his RFC findings to determine whether Ms. Hulett can perform her past relevant work. 20 C.F.R. § 404.1560. The ALJ may rely on vocational expert testimony to compare the RFC assessment to the physical and mental demands of Ms. Hulett's past relevant work.
At the hearing, the vocational expert (VE) testified that Ms. Hulett's past relevant work as a gate guard and security console operator are classified as semi-skilled work and can be performed at either the light or sedentary level of exertion.
Substantial evidence supports the ALJ's findings that Ms. Hulett has the RFC to perform work activity at the full range of sedentary work, (Tr. 45), and that her mental impairments do not cause more than a minimal limitation on her ability to perform basic mental work activities. (Tr. 44). According to the VE's testimony, these limitations do not preclude Ms. Hulett from returning to her past relevant work as a security console operator and gate guard. Therefore, substantial evidence supports the ALJ's finding that Ms. Hulett is capable of performing her past relevant work and his ultimate determination that Ms. Hulett is not disabled.
Based upon the court's evaluation of the evidence in the record and the parties' submissions, the court finds that the decision of the Commissioner is supported by substantial evidence and that she applied proper legal standards in arriving at it. Accordingly, the decision will be affirmed by separate order.
Although fibromyalgia is listed in the clinical notes from UAB Highlands in Ms. Hulett's past medical history, there is no evidence of a diagnosis or treatment for the condition. (Tr. 475-521). Furthermore, there is no mention of fibromyalgia whatsoever in the discharge summary from the hospital, only discussion of headaches, "atrial fibrillation with atrial flutter," and "[d]iabetes that is poorly controlled." (Tr. 475-76).
Ms. Hulett visited Dr. Richard Shelton at UAB for psychiatric treatment between January 22, 2013, and February 27, 2013. (Tr. 435-443). During Ms. Hulett's first visit, Dr. Shelton completed a "UAB Psychiatry Clinician Diagnostic Interview Form." (Tr. 436-439). He listed fibromyalgia in the "Past Medical History" section, and noted the condition in his "Diagnoses" section under Axis III. However, this listing does not serve as a diagnosis of fibromyalgia, but as an acknowledgment that this condition may affect an understanding of the client's mental disorder.
