SHARON LOVELACE BLACKBURN, Senior District Judge.
Plaintiff Terona Faye Cunningham brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the Commissioner of Social Security's final decision denying her application for a period of disability and disability insurance benefits [DIB]. Upon review of the record and the relevant law, the court is of the opinion that the Commissioner's decision is due to be affirmed.
On August 15, 2011, Ms. Cunningham protectively filed a Title II application for a period of disability and DIB, alleging that she became unable to work on February 1, 2011. (Doc. 7-3 at R.21; doc. 7-6 at R.141.)
The Social Security Administration denied her application initially, and Ms. Cunningham requested a hearing before an Administrative Law Judge [ALJ]. (Doc. 7-4 at R.74; doc. 7-5 at R.91.) The hearing before the ALJ was held on April 16, 2013. (Doc. 7-3 at R.21.)
After the hearing, the ALJ issued an unfavorable decision on May 10, 2013. (Doc. 7-3 at 21-29.) Ms. Cunningham asked the Appeals Council to review the ALJ's decision. (Id. at R.15.) The Appeals Council denied Ms. Cunningham's request for review of the ALJ decision, stating that it "found no reason under [its] rules to review the [ALJ's] decision." (Id. at 1.) Therefore, "the [ALJ's] decision is the final decision of the Commissioner of Social Security in [Ms. Cunningham's] case." (Id.)
Ms. Cunningham filed an appeal in this court on October 9, 2014. (Doc. 1.)
In reviewing claims brought under the Social Security Act, this court's role is a narrow one: "Our review of the Commissioner's decision is limited to an inquiry into whether there is substantial evidence to support the findings of the Commissioner, and whether the correct legal standards were applied." Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). The court gives deference to factual findings and reviews questions of law de novo. Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). The court "may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner], rather [it] must scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence." Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983)) (internal quotations and other citation omitted). "The Commissioner's factual findings are conclusive if supported by substantial evidence." Wilson, 284 F.3d at 1221 (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990); Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987)). "Substantial evidence" is "more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Winschel v. Commissioner of Social Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal quotations and citations omitted).
Conclusions of law made by the Commissioner are reviewed de novo. Cornelius, 936 F.2d at 1145. "No . . . presumption of validity attaches to the [Commissioner's] conclusions of law." Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
The regulations require the Commissioner to follow a five-step sequential evaluation to determine whether a claimant is eligible for DIB. See 20 C.F.R. § 404.1520; see also Bowen v. City of New York, 476 U.S. 467, 470 (1986). "[A]n individual shall be considered to be disabled for purposes of [determining eligibility for DIB benefits] if he 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. § 1382c(a)(3)(A). The specific steps in the evaluation process are as follows:
First, the Commissioner must determine whether the claimant is engaged in "substantial gainful employment." Bowen v. Yuckert, 482 U.S. 137, 137 (1987). The regulations define "substantial gainful activity" as "work activity that is both substantial and gainful."
The ALJ found that Ms. Cunningham had not engaged in substantial gainful activity during the period from her alleged onset date of February 1, 2011, through her date last insured of December 31, 2011. (Doc. 7-3 at R.23.)
If the claimant is not engaged in substantial gainful activity, the Commissioner must next determine whether the claimant suffers from a severe impairment or combination of impairments that significantly limits her physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii), (c). "[A] `physical or mental impairment' is an impairment 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)(3)(D). The regulations provide: "[I]f you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, [the Commissioner] will find that you do not have a severe impairment and are, therefore, not disabled." 20 C.F.R. § 404.1520(c). "An impairment can be considered as not severe only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience." Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984); see also 20 C.F.R. § 404.1521(a). A claimant may be found disabled based on a combination of impairments even though none of the individual impairments alone are disabling. Walker v. Brown, 826 F.2d 996, 1001 (11th Cir. 1985); see also 20 C.F.R. § 404.1523. A claimant has the burden to show that she has a severe impairment or combination of impairments. Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found that Ms. Cunningham had severe impairments of "obesity, gout, mild lumbar degenerative disc disease, trochanteric bursitis, and iliotibial band tendinitis." (Doc. 7-3 at R.23). Also, the ALJ found Ms. Cunningham had non-severe impairments of hypertension and migraine headaches; lupus was "not a severe medically determinable impairment during the period at issue," and "chronic pain syndrome [was] not a medically determinable impairment," but it was an apparent symptom of her severe impairments. (Id. at R.23-24).
If the claimant has a severe impairment, the Commissioner must then determine whether the claimant's impairment meets the durational requirement and whether it is equivalent to any one of the listed impairments, which are impairments that are so severe as to prevent an individual with the described impairment from performing substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(iii), (d)-(e); see 20 C.F.R. pt. 404, Subpart P, Appendix 1 [The Listings]. If the claimant's impairment meets or equals a Listing, the Commissioner must find the claimant disabled, regardless of the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d). The claimant has the burden of proving that her impairment meets or equals the criteria contained in one of the Listings. Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found that Ms. Cunningham "did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1." (Doc. 7-3 at R.24.)
If the impairment does not meet or equal the criteria of a Listing, the claimant must prove that her impairment prevents her from performing her past relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv), (f). At step four, the Commissioner "will first compare [her] assessment of [the claimant's] residual functional capacity [RFC] with the physical and mental demands of [her] past relevant work. 20 C.F.R. § 404.1560(b). Past relevant work is work that [the claimant has] done within the past 15 years, that was substantial gainful activity, and that lasted long enough for her to learn to do it. 20 C.F.R. § 404.1560(b)(1). If the claimant is capable of performing her past relevant work, the Commissioner will find she is not disabled. 20 C.F.R. § 404.1520(e). The claimant bears the burden of establishing that her impairment prevents her from performing past work. Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found:
(Doc. 7-3 at R.24.) Based on his finding regarding her RFC and the testimony of a vocational expert [VE], the ALJ found that Ms. Cunningham was unable to perform her past relevant work as a warehouse worker-store laborer. (Id. at R.27-28.)
If the claimant establishes that she is unable to perform her past relevant work, the Commissioner must show that the claimant — in light of her RFC, age, education, and work experience — is capable of performing other work that exists in substantial numbers in the national economy. Reynolds-Buckley, 457 Fed. Appx. at 863; see also 20 C.F.R. § 404.1520(c)(1). The regulations provide:
Id. (c)(1)-(2). If the claimant is not capable of performing such other work, the Commissioner must find the claimant is disabled. 20 C.F.R. § 404.1520(g).
The ALJ found that Ms. Cunningham, who was born in 1962, was a "younger individual" on the date last insured, and that she had at least a high school education and could communicate in English. (Doc. 7-3 at R.28.) The ALJ consulted a VE; the VE testified that an individual with Ms. Cunningham's RFC and vocational factors could perform the jobs of cashier, sales attendant, and marker, and these jobs existed in significant numbers in the national economy. (Id. at R.28-29.) Based on this testimony, the ALJ found Ms. Cunningham could perform other work. (Id. at 29.)
Therefore, the ALJ found that Ms. Cunningham had not been under a disability at any time from February 1, 2011, the alleged onset date, through December 31, 2011, the date last insured. (Id.)
Ms. Cunningham states her issue on appeal as follows:
(Doc. 1 at 1.) For the reasons set forth below, the court finds that the decision to deny Ms. Cunningham's claim for a period of disability and DIB will be affirmed.
Ms. Cunningham contends that "The record including the ALJ's own RFC findings support a finding of [`]disabled[`] under the medical vocational rules." (Doc. 11 at 8.) She argues:
(Id. at 8-9.) As the court understands this argument, Ms. Cunningham contends the ALJ erred in not applying the grid rule for individuals of closely-approaching advanced age who are limited to sedentary work.
With regard to the grids, the Supreme Court held:
Heckler v. Campbell, 461 U.S. 458, 461-62 and n.5 (1983)(other footnotes omitted).
For the reasons set forth below, the court finds use of the grids was not proper in this case and the ALJ's determinations, that Ms. Cunningham was able to perform a limited range of light work and that she was a younger individual on the date last insured, are due to be affirmed.
As set forth above, Ms. Cunningham contends that the RFC, as determined by the ALJ, "better comport[s] with sedentary work." (Doc. 11 at 8.) The court disagrees.
The regulations provide:
20 C.F.R. § 404.1567(a)-(b).
The ALJ stated, "I conclude that the claimant can at least perform work activities at the light exertional level based on her relatively normal upper and lower extremity strength and range of motion." (Doc. 7-3 at R.26.) He found Ms. Cunningham —
(Id. at R.26.) These findings are supported by substantial evidence. Contrary to Ms. Cunningham's assertion, the court does not find that these limitations "better comport" with work at a sedentary level; rather given the lack of limitation on her ability to lift and to carry, the court finds that the exertional limitation falls somewhere between light and sedentary.
A Commissioner's Ruling provides:
SSR 83-12, 1983 WL 31253, *2-3.
In this case, because the RFC, as determined by the ALJ, fell somewhere between light and sedentary work, the use of a VE or VS to determine the occupational base was required. Use of the Medical-Vocational Rules based on Ms. Cunningham's ability to perform a full range of sedentary work would not have been appropriate.
Ms. Cunningham contends that the ALJ should have considered she was "closely approaching advanced age" because the date last insured was within a few months of her fiftieth birthday. (Doc. 11 at 4, 9.) In this Circuit, a claimant arguing to be treated at a different level than her chronological age, "must proffer evidence tending to establish that fact." Miller v. Comm'r of Soc. Sec., 241 Fed. Appx. 631, 635-36 (11th Cir. 2007)(citing Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir. 1984). Simply arguing that she should be treated differently because of her imminent birthday is insufficient. Id. (citing Patterson v. Bowen, 799 F.2d 1455, 1458-59 (11th Cir. 1986)). Nothing in Ms. Cunningham's brief "suggests that [her] ability to adapt to new work environments was less than the level established under the grids for persons [her] age." Id.
Therefore, the court finds no error in the ALJ's determination that Ms. Cunningham was a younger individual on the date last insured.
The ALJ's determination that Ms. Cunningham was not disabled was based in part of the testimony of a VE. The VE testified as follows:
(Doc. 7-3 at R.61-62.) The ALJ relied on this testimony to determine that there were a significant number of jobs that Ms. Cunningham could still perform despite her limitations.
The court agrees with the Commissioner in that the ALJ properly relied on the grids as only a framework for decision-making and on the VE's testimony to find at step five that Ms. Cunningham was not disabled because a person with her same characteristics could perform a significant number of jobs in the national economy, and substantial evidence supports that finding.
Therefore, the court will affirm the decision of the Commissioner on this ground.
Ms. Cunningham contends, "The sole issue before the ALJ was whether disability could be established prior to the expiry of claimant's DLI [date last insured] on December 31, 2011. The ALJ
The ALJ found that Ms. Cunningham was not disabled prior to the date last insured. In making this finding, the ALJ considered Ms. Cunningham's medical record for the relevant period. These records showed limited treatment and good results from medication and other treatment. (Doc. 7-3 at R.25-26; see also doc. 7-8 at R.215, R.234-37, R.245-47, R.251, R.254-55.) The ALJ also considered Ms. Cunningham's statements and testimony regarding her limitations during this period. He found she "provided extreme limitations of her activities of daily living and functional abilities," — including the fact that she asserted "her disabled husband, who is in considerable pain," did all the household chores — that were not supported by the record. (Doc. 7-3 at 26 [emphasis deleted].) Therefore, the ALJ found "the credibility of the claimant's allegations [of disabling pain was] substantially weakened through exaggeration and inconsistency." (Id. at R.27.) These findings are supported by substantial evidence.
The ALJ found that Ms. Cunningham retained the ability to perform a limited range of light work during the period between her alleged onset date and the date last insured. He presented these limitations and Ms. Cunningham's vocational factors to the VE, who testified that an individual with Ms. Cunningham's RFC and vocational factors could perform the jobs of cashier, sales attendant, and marker. Therefore, the ALJ determined that Ms. Cunningham was not disabled during the period February 2011 through December 2011.
Contrary to plaintiff's contention, SSR 83-20 does not, as a matter of law, require the use of a Medical Expert in this case because the ALJ found that Ms. Cunningham was not disabled before the date she was last insured. In an unpublished opinion, the Eleventh Circuit held, "The plain language of SSR 83-20 indicates that it is applicable
Ms. Cunningham also argues that the ALJ
Therefore, the court finds no reason to reverse the decision of the Commissioner on the basis that the ALJ did not utilize a Medical Expert.
For the reasons set forth above, the decision of the Commissioner is due to be affirmed. An Order affirming the decision of the Commissioner will be entered contemporaneously with this Memorandum Opinion.
20 C.F.R. § 404.1572(a)-(c).
