SONJA F. BIVINS, Magistrate Judge.
Plaintiff Billy J. Buxton (hereinafter "Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security denying his claim for a period of disability, disability insurance benefits, and supplemental security income under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401, et seq., and 1381, et seq. On October 5, 2017, the parties consented to have the undersigned conduct any and all proceedings in this case. (Doc. 18). Thus, the action was referred to the undersigned to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Upon careful consideration of the administrative record and the memoranda of the parties, it is hereby
Plaintiff filed his application for benefits on April 30, 2013, alleging disability beginning March 1, 2011, based on learning disability, hip problems, and knee problems. (Doc. 12 at 181, 188, 201, 204). Plaintiff's application was denied and upon timely request, he was granted an administrative hearing before Administrative Law Judge Renee Blackmon Hagler (hereinafter "ALJ") on May 20, 2015. (Id. at 44). Plaintiff attended the hearing with his counsel and provided testimony related to his claims. (
Having exhausted his administrative remedies, Plaintiff timely filed the present civil action. (Doc. 1). Oral argument was conducted on October 26, 2017 (Doc. 21), and the parties agree that this case is now ripe for judicial review and is properly before this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Plaintiff was born on September 28, 1964, and was fifty years of age at the time of his administrative hearing on May 20, 2015. (Doc. 12 at 44, 49). Plaintiff was in regular classes in school but only completed the fifth grade. (
Plaintiff last worked from 2004 to 2010 at BAE Systems/Atlantic Marine as a laborer, sand blaster, and painter. (Doc. 12 at 51-52). Prior to that, he worked from 1989 to 2004 at Mitchell Company in the area of ground maintenance and Henry Marine Services on a tugboat as a deckhand. (
Plaintiff testified that he can no longer work due to pain in his knees and his hip. (
In reviewing claims brought under the Act, this Court's role is a limited one. The Court's review is limited to determining 1) whether the decision of the Secretary is supported by substantial evidence and 2) whether the correct legal standards were applied.
An individual who applies for Social Security disability benefits must prove his or her disability. 20 C.F.R. §§ 404.1512, 416.912. Disability is defined as the "inability 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 12 months." 42 U.S.C. §§ 423(d)(1)(A);
The claimant must first prove that he or she has not engaged in substantial gainful activity. The second step requires the claimant to prove that he or she has a severe impairment or combination of impairments. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. If the claimant cannot prevail at the third step, he or she must proceed to the fourth step where the claimant must prove an inability to perform their past relevant work.
If a claimant meets his or her burden at the fourth step, it then becomes the Commissioner's burden to prove at the fifth step that the claimant is capable of engaging in another kind of substantial gainful employment which exists in significant numbers in the national economy, given the claimant's residual functional capacity, age, education, and work history.
In his brief, Plaintiff argues that the ALJ erred in finding that his bursitis of the hip was not a severe impairment. (Doc. 14 at 5-6, 8). The Commissioner counters that the ALJ's finding that Plaintiff's bursitis is non-severe is supported by substantial evidence. (Doc. 15 at 8-9). Having carefully reviewed the record in this case, the Court finds that Plaintiff's claim is without merit.
In order for an impairment to be severe, it must be more than a slight abnormality or a combination of slight abnormalities "that causes no more than minimal functional limitations." 20 C.F.R. § 416.924(c) (emphasis added). Indeed, it must "significantly limit[]" an individual's "ability to do basic work activities." 20 C.F.R. § 416.920(c) (emphasis added). "It is [the] Plaintiff's burden to prove the existence of a severe impairment, and she must do that by showing an impact on her ability to work."
At the outset, the Court notes that, even if Plaintiff's bursitis of the hip is severe, the ALJ's failure to classify it as a severe impairment at step two of the sequential evaluation process is not fatal.
In this case, the ALJ found at step two of the evaluation process that Plaintiff had the severe impairment of arthritis of the knees. (Doc. 12 at 31). After evaluating the evidence related to Plaintiff's bursitis of the hip, the ALJ determined that it was not a severe impairment. (Doc. 12 at 31-32). The ALJ then proceeded with the subsequent steps of the determination process and rendered an RFC finding, based on the record as a whole. Therefore, even if the ALJ should have found this additional impairment to be severe at step two, the error would be harmless and would provide no basis for remand.
That being said, the substantial evidence in this case supports the ALJ's finding that Plaintiff's bursitis of the hip is non-severe. Plaintiff's treatment records show that he reported moderate right hip pain and received a diagnosis of bursitis of the hip from orthopedic surgeon, Dr. Herbert Allen, M.D., on April 27, 2015. (Doc. 12 at 290-95). The record also shows that Plaintiff's treatment for this condition has been infrequent and conservative, essentially consisting of pain medication and an injection on April 27, 2015. (Doc. 12 at 262-64, 290-95). Dr. Allen's physical examination findings on April 27, 2015, also reflect normal strength (5/5) in both hips, with only "tenderness" in the greater trochanter and a positive Ober's test (indicating a "tight" iliotibial band)
Plaintiff also argues that the ALJ's RFC for a range of light work is not supported by substantial evidence because the ALJ gave only "some" or "little" weight to the opinions of his treating physician, Dr. Wilsania Rodriguez, M.D. (Doc. 14 at 1-2, 4, 8). The Government counters that the ALJ assigned the proper weight to Dr. Rodriguez's opinions as they are inconsistent with the substantial evidence in the case, including Dr. Rodriguez's own treatment records. (Doc. 15 at 3-7). Having reviewed the record at length, the Court finds that Plaintiff's claims are without merit.
Residual functional capacity (hereinafter "RFC") is a measure of what Plaintiff can do despite his or her credible limitations.
As stated, Plaintiff argues that the ALJ erred in failing to give controlling weight to the opinions of his treating physician, Dr. Wilsania Rodriguez, M.D. As part of the disability determination process, the ALJ is tasked with weighing the opinions and findings of treating, examining, and non-examining physicians. In reaching a decision, the ALJ must specify the weight given to different medical opinions and the reasons for doing so.
When weighing the opinion of a treating physician, the ALJ must give the opinions "substantial weight," unless good cause exists for not doing so.
Whether considering the opinions of treating, examining, or non-examining physicians, good cause exists to discredit the testimony of any medical source when it is contrary to or unsupported by the evidence of record.
As discussed, the ALJ found that while Plaintiff has the severe impairment of arthritis of the knees, he still has the RFC to perform a range of light work with the following restrictions: Plaintiff can occasionally climb ramps and stairs, but should never climb ladders, ropes, and scaffolding. He can occasionally stoop, kneel, crouch, and crawl. He should avoid working at unprotected heights. He would have residual academic deficits or residual psychiatric deficits, which would restrict him to simple, routine, and repetitive type tasks. (Doc. 12 at 31, 34).
Based upon the testimony of the vocational expert, the ALJ concluded that Plaintiff is not able to perform his past relevant work as a groundskeeper, deck hand, or industrial cleaner, but he can perform other work such as garment folder, bench assembler, and garment bagger (all light and unskilled). (
First, with respect to Plaintiff's treating physician, Dr. Wilsania Rodriguez, M.D., the record shows, as the ALJ found, that Dr. Rodriguez's opinions were inconsistent with her own treatment records. According to her records, Dr. Rodriguez began treating Plaintiff on April 24, 2013, at which time she diagnosed him with right knee pain, for which she prescribed Celebrex and Tramadol. (Doc. 12 at 262). An x-ray of Plaintiff's right knee on that date showed tricompartmental narrowing of the tibial spines, subchondral sclerosis, and osteophyte formation. Dr. Rodriguez's impression was "degenerative changes of the right knee." (
The following month, on October 9, 2014, Dr. Rodriguez opined in a treating source statement that Plaintiff cannot work due to "advanced osteoarthritis of the right knee which causes him to have significant pain, stiffness, decreased mobility, and intermittent swelling of this joint." (Doc. 12 at 282). In addition, in a Clinical Assessment of Pain form dated February 12, 2015, Dr. Rodriguez further opined that Plaintiff cannot work due to pain from "osteoarthritis of the knee," which would distract him from performing work and would greatly increase with physical activity. (Doc. 12 at 283). While there is no question that Plaintiff has "degenerative changes" of the right knee, as the ALJ found, Dr. Rodriguez's treatment records reflect infrequent, conservative treatment with largely normal examination findings, which are inconsistent with the debilitating limitations opined in her treating source statement and Clinical Assessment of Pain form.
In addition to being inconsistent with her own records, Dr. Rodriguez's opinions are inconsistent with the treatment notes of orthopedic surgeon, Dr. Herbert Allen, who saw Plaintiff on April 27, 2015, for complaints of "moderate" knee pain. Dr. Allen noted that Plaintiff walked with a "waddling gait" and that he had swelling and tenderness in the knees. (Doc. 12 at 292-93). An x-ray of Plaintiff's knees taken on that date showed narrowing of the medial joint space. (
The record also confirms the ALJ's findings related to Plaintiff's activities of daily living, which include taking care of his own personal needs, cooking, cleaning, washing dishes, doing laundry, mopping, vacuuming, walking the dog, and going to church. (Doc. 12 at 58, 220-22). Again, while there is no question that Plaintiff has the severe impairment of arthritis of the knees, the record supports the ALJ's determination that the severity of limitations expressed in Dr. Rodriguez's opinions is inconsistent with the substantial evidence in this case, as detailed above. Therefore, the ALJ had good cause to discredit those opinions.
The Court further finds, based on the evidence detailed above, that substantial evidence supports the ALJ's finding that Plaintiff has the RFC to perform a range of light work, with the stated restrictions.
Plaintiff also argues that the ALJ erred in failing to fulfill her duty to develop the record by ordering a consultative psychological and/or orthopedic examination. (Doc. 14 at 9-10). The Government counters that the medical evidence in the record was sufficient for the ALJ to make an informed decision regarding the RFC, and, thus, the ALJ was not required to order any consultative examinations. (Doc. 15 at 9-10). Having reviewed the record at length, the Court finds that Plaintiff's claim is without merit.
It is well established that a hearing before an ALJ in social security cases is inquisitorial and not adversarial. A claimant bears the burden of proving disability and of producing evidence in support of his claim, while the ALJ has "a basic duty to develop a full and fair record."
In fulfilling the duty to conduct a full and fair inquiry, the ALJ has the discretion to order a consultative examination where the record establishes that such is necessary to enable the ALJ to render a decision.
Having reviewed the record in this case, the Court finds that the ALJ fulfilled her duty to develop a full and fair record. First, the record before the ALJ contained the medical records from the doctors who treated Plaintiff for his severe physical impairment of arthritis of the knees, and the record contains no discernible evidentiary gaps related to that impairment.
Second, Plaintiff's argument that the ALJ should have ordered a consultative psychological evaluation to determine if his mental deficits and inability to read and write would impair his ability to perform basic work activities is misplaced. (Doc. 14 at 11). The record shows that the ALJ did order a consultative mental examination, which was performed by Dr. Kimberly Zlomke Rodriguez, Ph.D., on April 2, 2015. (Doc. 12 at 285). Plaintiff reported to Dr. Rodriguez that he and most of his nine siblings could neither read nor write, that they moved around a lot as children, that they frequently missed school, and that he ultimately stopped attending school. (
Dr. Rodriguez's opinions related to Plaintiff's cognitive functioning are consistent with Plaintiff's long work history and with the evidence related to his wide-ranging activities of daily living. (Doc. 12 at 58, 209, 220-22, 243). Moreover, at the administrative hearing, the vocational expert was instructed by the ALJ to assume that Plaintiff had residual academic deficits or residual psychiatric deficits, which required him to be restricted to simple, routine, repetitive type tasks. (Doc. 12 at 67-68). The vocational expert opined that there were multiple jobs that he could perform. (
Based on the foregoing, the Court is satisfied that the record was sufficient to enable the ALJ to determine Plaintiff's RFC and that substantial supports the ALJ's RFC determination that Plaintiff can perform a range of light work with the stated restrictions, which fully accommodate any physical and mental limitations. Indeed, there is nothing in the record which indicates that Plaintiff's limitations exceed those in the RFC. Therefore, Plaintiff's claim is without merit.
For the reasons set forth herein, and upon careful consideration of the administrative record and memoranda of the parties, it is hereby