KATHERINE P. NELSON, Magistrate Judge.
In this action under 42 U.S.C. § 405(g) Plaintiff, Betty Goree, ("Goree" or "Plaintiff") seeks judicial review of an adverse social security ruling denying supplemental security income. (Docs. 1, 18). With the consent of the parties, the Court has designated the undersigned Magistrate Judge to conduct all proceedings and order the entry of judgment in this civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73. (See Docs. 22, 23). The parties moved to waive oral argument and their request was granted. (See Docs. 21, 24). After considering the administrative record and the memoranda of the parties, it is
Plaintiff protectively applied for supplemental security income on May 1, 2013. (Doc. 18 at 1; Tr. 179)
At the time of her application, Plaintiff was thirty eight years old, had attended, but not completed, the twelfth grade, and had previous work history as a cosmetologist. (Doc. 17; Tr. at 57). Plaintiff alleges she is disabled due to depression/dysthymic disorder, high blood pressure, diabetes, back pain (broad based protrusion at L4-5 with radiculopathy; disc bulge L5-S1), hip pain, chronic keloid pain, anxiety/nervousness, obesity, side effects from medication, and chronic pain syndrome. (Doc. 17). On January 12, 2015, an ALJ denied benefits after determining that Plaintiff was capable of performing a limited range of light work. (Tr. at 20). Plaintiff requested review of the hearing decision, but the Appeals Council denied the request on June 13, 2016. (Id. at 1-6).
Plaintiff asserts that the following grounds for error: (1) the ALJ erred in failing to follow the Eleventh Circuit's pain standard, (2) the ALJ's decision is not supported by substantial evidence; and (3) the ALJ failed to include all of Ms. Goree's limitations in the hypotheticals posed to the vocational expert ("VE"). (Doc. 18 at 1). Defendant has responded to—and denies—these claims. (Doc. 19, generally).
"In Social Security appeals, [the Court] must determine whether the Commissioner's decision is `"supported by substantial evidence and based on proper legal standards. 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. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam) (internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997))). However, the Court "`may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner].'" Winschel, 631 F.3d at 1178 (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983))). "`Even if the evidence preponderates against the [Commissioner]'s factual findings, we must affirm if the decision reached is supported by substantial evidence.'" Ingram, 496 F.3d at 1260 (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
"Yet, within this narrowly circumscribed role, [courts] do not act as automatons. [The court] must scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence[.]" Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). See also Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) ("We are neither to conduct a de novo proceeding, nor to rubber stamp the administrative decisions that come before us. Rather, our function is to ensure that the decision was based on a reasonable and consistently applied standard, and was carefully considered in light of all the relevant facts."). "In determining whether substantial evidence exists, [a court] must . . . tak[e] into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
Although the "claimant bears the burden of demonstrating the inability to return to [his or] her past relevant work, the Commissioner of Social Security has an obligation to develop a full and fair record." Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987). See also Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam) ("It is well-established that the ALJ has a basic duty to develop a full and fair record. Nevertheless, the claimant bears the burden of proving that he is disabled, and, consequently, he is responsible for producing evidence in support of his claim." (citations omitted)). "This is an onerous task, as the ALJ must scrupulously and conscientiously probe into, inquire of, and explore for all relevant facts. In determining whether a claimant is disabled, the ALJ must consider the evidence as a whole." Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and quotation omitted).
Where, as here, the ALJ denied benefits and the Appeals Council denied review of that decision, the Court "review[s] the ALJ's decision as the Commissioner's final decision." Doughty, 245 F.3d at 1278. "[W]hen the [Appeals Council] has denied review, [the Court] will look only to the evidence actually presented to the ALJ in determining whether the ALJ's decision is supported by substantial evidence." Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998).
At step two of the sequential process, the ALJ found that Plaintiff had severe impairments of keloids, diabetes mellitus, hypertension, lumbar disc disease with spondylosis/osteoarthritis, obesity, chronic pain syndrome, and dysthymic disorder (versus major depression) (20 CFR 416.920(c)). (Tr. at 16). At step three, the ALJ found that "[t]he claimant does not have an impairment or combination of impairments that meets or equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1(20 CFR, 416.920(d), 416.925 and 416.926)." (Id. at 17). The ALJ then determined Plaintiff's RFC as follows:
(Tr. at 20). With the help of a vocational expert, the ALJ then determined, at step five, that Plaintiff was capable of performing her past relevant work as a day worker and hand packer as previously performed by the claimant. It was additionally determined that Plaintiff was capable of performing other jobs which existed in the national economy and that Plaintiff was not disabled. (Id. at 27-28).
Plaintiff asserts that the following grounds for error: (1) the ALJ erred in failing to follow the Eleventh Circuit's pain standard, (2) the ALJ's decision is not supported by substantial evidence; and (3) the ALJ failed to include all of Ms. Goree's limitations in the hypotheticals posed to the vocational expert. (Doc. 18 at 1). Defendant contends the ALJ's followed the pain standard, that his decision was based on substantial evidence, and that there were no deficiencies with the vocational hypotheticals or the vocational expert's testimony. (Doc. 19, generally). The undersigned will address each contention of error in turn.
Pain is not amenable to objective measurement. See 20 C.F.R.§ 416.928. As a result, the Eleventh Circuit in Holt v. Sullivan, 921 F.2d 1221 (11th Cir. 1991), articulated the "pain standard," which applies when a disability claimant attempts to establish a disability through his own testimony of pain or other subjective symptoms. The pain standard requires:
Dyer v. Barnhart, 395 F.3d 1206, 1210-11 (11th Cir. 2005); see 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.929. "A claimant's subjective testimony supported by medical evidence that satisfies the pain standard is itself sufficient to support a finding of disability." Holt, 921 F.2d at 1223. If a claimant satisfies these criteria, an ALJ must explain the reasons for discrediting the claimant's allegations of subjectively disabling symptoms. Dyer, 395 F.3d at 1210-11. "It is established in this circuit that if the [ALJ] fails to articulate reasons for refusing to credit a claimant's subjective pain testimony, then the [ALJ], as a matter of law, has accepted that testimony as true. Implicit in this rule is the requirement that such articulation of reasons by the [ALJ] be supported by substantial evidence." Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987).
In assessing the credibility of an individual, the following factors should be considered:
20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); see also SSR 96-7p.
Plaintiff asserts that the ALJ failed to take into consideration any of the seven factors that an ALJ must consider in assessing the credibility of an individual's statements pursuant to 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3), and SSR 96-7 and ignored multiple records which resulted in a determination that is not supported by substantial evidence. (Doc. 18 at 2-3, 5). In support of her position, Plaintiff states that the ALJ extensively focused on the records of Dr. De La Torre who only treated Plaintiff's keloids and that the ALJ failed to cite multiple other records from Marion Clinic and Dr. Davis, covering the same period of time that show Plaintiff's complaints stemming from her diabetes, hypertension, depression, low back pain, and severe debilitating pain from the keloids. (Doc. 18 at 3). Namely, Plaintiff contends the ALJ completely ignored the following notations in Plaintiff's medical records:
(Doc. 18 at 3-5). Plaintiff also contends that both her protruding disc causing right sided radiculopathy and chronic keloids should satisfy this Circuit's pain standard. (Id. at 5). Defendant contends that the ALJ properly assessed Plaintiff's credibility and, as he articulated, his assessment was based on substantial evidence. (Doc. 19 at 5-8.)
After extensively summarizing Plaintiff's testimony and medical records (Tr. at 21-25), the ALJ stated as follows:
(Tr. at 25-26)(emphasis in original). The ALJ then went on to describe the discrepancies between Plaintiff's alleged pain and her medical records in relationship to her complained of impairments. In so doing, the ALJ explained that Plaintiff's complaints were inconsistent with the medical evidence of record relating to Plaintiff keloids, lumbar disc disease with spondylosis/osteoarthritis and chronic pain syndrome, diabetes mellitus, hypertension, dysthymic disorder vs. major depression, and obesity. (Id. at 26-27).
As an initial matter, it is clear that the ALJ extensively considered Plaintiff's medical records. Additionally, the ALJ's medical summary includes multiple references to Marion Clinic and Dr. Davis and, therefore, Plaintiff's allegation that the ALJ failed to cite those records is not compelling. The record also reflects that in determining the credibility of Plaintiff, the ALJ considered the seven factors utilized in the 11
Despite Plaintiff's contention that the ALJ ignored the seven factors he is required to consider when determining credibility, the ALJ's articulated reasoning addresses those very factors. Lastly, while Plaintiff points to multiple records which indicate that Plaintiff complained of or suffered from pain, there remains substantial evidence on which the ALJ relied in reaching his determination. As a result, the undersigned finds Plaintiff's first contention of error to be without merit.
Plaintiff's second point of error is based on the fact that several portions of the transcript were either "inaudible" or incorrectly transcribed, resulting in a decision that cannot be based on substantial evidence. (Doc. 18 at 5-6). Plaintiff asserts that because the entire record is not before this Court, the Court cannot reach a decision as to whether the ALJ's decision is reasonable. (Id. at 6). In support of this assignment of error, Plaintiff points to six specific instances of inaudible testimony and also asserts there were "several other exchanges between the ALJ and the VE where portions of the VE's testimony were inaudible during key portions of his testimony". (Id.) Defendant acknowledges that the VE's testimony contains inaudible portions, but asserts that those inaudible portions did not diminish the record such that it could not be determined whether substantial evidence existed to support the ALJ's decision. (Doc. 19 at 8-10).
When taken in a vacuum, the inaudible portions referred to by Plaintiff appear to have an impact on the record. However, after reviewing the VE's testimony as a whole, the inaudible portions do not call into question whether substantial evidence exists because either (1) the inaudible portions do not cause confusion as to the testimony being provided or (2) because those portions are not pertinent to the VE's testimony and/or the ALJ's decision.
The first four inaudible portions cited to by Plaintiff relate to questions regarding Plaintiff's previous work and despite the inaudible portions, the content of the testimony is apparent. More specifically, the first inaudible portion is pulled from within the ALJ's explanation that there was a VE present at the hearing before the VE was sworn in and is not part of the VE's testimony. The next three portions all relate to the VE's testimony as to Plaintiff's previous jobs. While there are inaudible portions, the undersigns finds that those portions do not overcome the testimony as a whole. Further, to the extent that there was confusion, the ALJ summarized this part of the ALJ's testimony in his decision at step five as follows:
(Tr. at 27). The fifth inaudible portion of the transcript referred to by Plaintiff, while relating to Plaintiff's hypothetical RFC, is much lengthier than the excerpt cited by Plaintiff. (Doc. 18 at 5)("I don't see the keloids [INAUDIBLE] but that's going to be something she's redoing."). The full testimony states as follows:
(Tr. at 59-61). Plaintiff may be correct that "it is impossible to know based on that statement alone [the one sentence including with the inaudible portion] what weight he [the ALJ] gave in his RFC to the keloids in the hypothetical posed to the VE." (Doc. 18 at 5). However, it is clear that the ALJ's hypothetical and/or RFC were not based on that statement alone. Rather, the record reflects that the ALJ first diminished Plaintiff's abilities to light work "because of keloids, because of her issues with her weight, some of the back problems" and the provided other extensive limitations for the VE to consider. As a result, based on the entirety of transcribed hearing, including, the question and response above, Plaintiff's assertion that the "inaudible" portions rendered the record incomplete is not compelling. Further, as discussed above, the ALJ also summarized the VE's testimony as to Plaintiff's ability to perform her previous work such that there is no gap in the record. (See Tr. at 27)("The expert testified that claimant could do the past work as a hand packer and a day worker as performed."). As a result, the undersigned finds Plaintiff's second contention of error to be without merit.
Plaintiff's third assignment of error is that the ALJ's hypothetical to the VE did not take into account all of Plaintiff's limitations. (Doc. 18 at 6-7). In reality, Plaintiff does not assert that the ALJ failed to include his RFC finding in the hypothetical posed to the VE but, rather, asserts that the RFC did not include all of Plaintiff's impairments and, therefore, the hypothetical posed did not include all of Plaintiff's impairments. More specifically, Plaintiff asserts that the ALJ failed to include a portion of the opinion of Dr. Estock, who was accorded considerable weight by the ALJ, wherein Dr. Estock opined that Plaintiff "can adapt to occasional changes of routine for simple situations not calling for rapid or extensive changes in work tasks or procedures", which was not referenced in the RFC or hypothetical posed to the VE. (Id. at 7). Plaintiff further takes issue with the fact that there is no "sit/stand option" in the RFC even though the ALJ found Plaintiff's lumbar disc disease with spondylosis/osteoarthritis to be a severe impairment and asserts that the RFC is not sufficiently limiting because it failed to address Plaintiff's alleged severe pain. Defendant argues that the impairments allegedly omitted were not were not supported by the medical evidence of record and, therefore, the omission of those impairments in the RFC and the hypothetical posed to the VE was not error. (Doc. 19 at 10-11).
"The RFC assessment is a function-by-function assessment based upon all of the relevant evidence of an individual's ability to do work-related activities." Social Security Ruling 96-8p, Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims, 1996 WL 374184, *3. The Court notes that the ALJ is responsible for determining a claimant's RFC. 20 C.F.R. § 416.946 (2015). That decision cannot be based on "sit and squirm" jurisprudence. Wilson v. Heckler, 734 F.2d 513, 518 (11
Plaintiff's assertions are not compelling. First, Dr. Estock's opinion was not given controlling weight due to his lack of treating relationship. (Tr. at 27). Next, the record reflects that the ALJ in determining Plaintiff's RFC, considered not just Dr. Estock's opinion, but also Plaintiff's testimony and the objective medical record as a whole. (Tr. at 20). Lastly, the ALJ articulated that Dr. Estock's assessment of mild to moderate mental health problems were consistent with Plaintiff's near SGA-level work income for two years, conservative mental health care, and lack of inpatient care (Tr. at 27; See also FN4) and Plaintiff has not pointed to any other evidence to support that she has additional mental limitations to negate the ALJ's RFC. Additionally, with regard to Plaintiff's sit/stand option, there is no medical evidence that Plaintiff could not sit/stand, other than her own subjective testimony which, as discussed herein above, the ALJ properly found to be less than credible. The same holds true for Plaintiff's subjective complaints of pain from keloids.
As a result, the undersigned finds that the record as a whole contains substantial evidence on with the ALJ relied in determining Plaintiff's RFC. Accordingly, despite Plaintiff's assertion that the RFC should have been more restricting, the undersigned does not find that the ALJ's RFC determination was in error.
The hypothetical posed to the VE was, likewise, not erroneous. For a vocational expert's testimony on the availability of jobs to constitute substantial evidence, "the ALJ must pose a hypothetical that adequately describes all the claimant's impairments and accurately reflects the claimant's educational level, age, work skills, and experience." Lanier v. Commissioner of Social Security, 252 Fed. Appx. 311, 314-15 (11th Cir. 2007)(citing Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999)); see also Dial, supra, 403 Fed.Appx. at 421 (where ALJ failed to include all of the claimant's "employment limitations in the hypothetical questions posed to the VE . . ., the VE's testimony did not constitute substantial evidence upon which the ALJ could rely."). . However, the hypothetical question "need only include limitations supported by the record" and a claimant's "additional claimed impairments that [are] not supported by objective medical evidence" need not be included in the hypothetical. Lanier, 252 Fed. Appx. at 315.
In Plaintiff's case, the mental impairment supported by the objective medical evidence as stated in the RFC was as follows:
(Tr. at 20). The hypothetical posed to the VE (typed above in full) included mental restrictions based on "someone who going to simple, routine, competitive tasks where attention and concentration would be maintained for two-hour increments during the workday, and let's look at casual contact with the public." (Tr. at 60-61). The ALJ was not required to pose hypotheticals to the VE with impairments that were not supported by the record. See Lanier, 252 Fed. Appx. at 315. As a result, the ALJ did not commit error by way of excluding Plaintiff's additional complained of impairments.
Plaintiff has raised three claims in bringing this action and all three are without merit. Upon consideration of the entire record, the Court finds "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). Therefore, it is