Recommended Disposition

JEROME T. KEARNEY, Magistrate Judge.

Instructions

The following recommended disposition was prepared for U.S. District Judge Susan W. Wright. A party to this dispute may file written objections to this recommendation. An objection must be specific and state the factual and/or legal basis for the objection. An objection to a factual finding must identify the finding and the evidence supporting the objection. Objections must be filed with the clerk of the court no later than 14 days from the date of this recommendation.1 The objecting party must serve the opposing party with a copy of an objection. Failing to object within 14 days waives the right to appeal questions of fact.2 If no objections are filed, Judge Wright may adopt the recommended disposition without independently reviewing all of the record evidence.

Reasoning for Recommended Disposition

Ronnie Euegene Cates seeks judicial review of the denial of his application for social security disability benefits.3 Cates was last employed in May 2010.4 Since then, he hasn't had any success finding employment;5 he's earned money scraping metal and watching over a motorcycle shop.6 In May 2011, he applied for disability benefits and alleged disability beginning June 2010. He based disability on learning disorder.7

The Commissioner's decision. After considering the application, the ALJ identified borderline intellectual functioning and depression as severe impairments,8 and determined Cates can do unskilled work, to include his former work as a chicken catcher and a lumberjack.9 Because a person who can do his past work is not disabled under social security law, the ALJ determined Cates is not disabled and denied the application.10

After the Appeals Council denied review,11 the ALJ's decision became the Commissioner's final decision for the purpose of judicial review.12 Cates filed this case to challenge the decision.13 In reviewing the decision, the court must determine whether substantial evidence supports the decision and whether the ALJ made a legal error.14 This recommendation explains why substantial evidence supports the decision and why the ALJ made no legal error.

Cates's allegations. Cates challenges the determination that he can work at all exertional levels. He contends the ALJ erred at step two by failing to identify his primary physical problem — foot pain — as a severe impairment. He suggests the ALJ failed to fully and fairly develop the record by not ordering a consultative physical exam. He complains because the ALJ did not obtain a medical opinion from an examining or treating physician. For these reasons, he maintains substantial evidence does not support the ALJ's decision.15

Applicable legal principles. At step two of the disability-determination process, the ALJ considers the medical severity of the claimant's impairment(s).16 Step two requires the claimant to show he has a severe impairment.17 If the claimant meets his burden, the regulations permit the claimant to proceed to the next step of the process.

If the claimant meets his step-two burden, there can be no reversible error where the record shows the ALJ considered all of the medical evidence and all of the claimant's impairments. The record shows the ALJ considered all of the medical evidence and all of Cates's impairments. Thus, the question before the court is whether a reasonable mind would accept the evidence as adequate to show Cates can do unskilled work, to include his former work as a chicken catcher and a lumberjack.18

A reasonable mind would accept the evidence as adequate because there's no medical evidence of physical impairment. Although Cates now contends foot pain limits his ability to work, he did not base his claim on foot pain or any other physical impairment. When he applied for disability benefits, he relied on learning disorder.19 At that point, Cates had not seen a medical provider in several years.20 This point is probative of Cates's claim because a claimant must have medical evidence to prove disability.21

Cates sought no medical treatment until after he applied for disability benefits and obtained legal counsel.22 Failing to seek earlier treatment weighs against Cates's claim because it suggests Cates has no physical impairment — or he would have sought treatment — and that Cates sought treatment for the sole purpose of obtaining disability benefits. No need existed for a consultative physical exam because Cates did not base his claim on physical impairment.23

When Cates sought treatment, he complained about foot pain and back pain,24 but treatment records indicate excessive body weight causes pain. Medical providers prescribed a nonsteroidal anti-inflammatory drug for pain and a loop diuretic (or water pill) for weight loss.25 Cates's weight fluctuated, but longitudinally, his weight increased.26 Treatment records contain no "medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment...which could reasonably be expected to produce [disabling] pain...."27 Without medical evidence, Cates's complaint of foot pain fails to establish a medically determinable physical impairment. Treatment notes implicate no reason to question a medical provider about foot pain.28

A reasonable mind would accept the evidence as adequate because the ALJ accounted for mental impairment. Treatment records reflect no physical impairment, but Cates experiences depression.29 Intellectually, he functions in the borderline range.30 Despite that limitation, the psychological examiners identified no significant limitation in adaptive functioning.31

Cates's depression responded to treatment,32 but his intellectual functioning limits him to unskilled work.33 The ALJ required unskilled work. Nothing shows intellectual functioning prevents Cates from working. Cates had a steady work history for many years.34 He lost his last job because he was smoking instead of working.35 He has applied for other work, but explained that there aren't many jobs where he lives.36 Cates is on probation, owes fines, and pays when he can.37 Cates lamented, "It doesn't seem like I can get a break."38

A reasonable mind would accept the vocational evidence as adequate to support the ALJ's decision. The ALJ asked a vocational expert to classify Cates's past work.39 The vocational expert classified Cates's past jobs as a chicken catcher and a lumberjack as unskilled work.40 The ALJ then asked the vocational expert whether a person who can do unskilled work can do any of Cates's past jobs.41 According to the expert, such a person can work as a chicken catcher or a lumberjack.42 The expert's response supports the ALJ's decision because it shows Cates can do his past work and because a person who can do his past work is not disabled under social security law.43

The ALJ also asked about other available unskilled work.44 The vocational expert identified hand packager and production assembler as representative jobs.45 Thus, even if Cates cannot work as a chicken catcher or a lumberjack, there is work he can do. The vocational evidence shows work exists that Cates can do, regardless of whether such work exists where he lives, whether a job vacancy exists, or whether he would be hired if he applied for work.46

Conclusion and Recommended Disposition

Substantial evidence supports the ALJ's decision because a reasonable mind would accept the evidence as adequate to support the decision. The ALJ made no legal error. For these reasons, the undersigned magistrate judge recommends DENYING Cates's request for relief (docket entry # 2) and AFFIRMING the Commissioner's decision.