Recommended Disposition
J. THOMAS RAY, Magistrate Judge.
Instructions
The following recommended disposition was prepared for U.S. District Judge James M. Moody, Jr. 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 Moody may adopt the recommended disposition without independently reviewing all of the record evidence.
Reasoning for Recommended Disposition
Earl Gene Neeley seeks judicial review of the denial of his second application for social security disability benefits.3 Neeley has worked primarily as a truck driver.4 He hasn't worked since contracting a rare gangrene of the external genitalia. Shortly after being diagnosed and treated, Neeley applied for disability benefits. He based disability on diabetes, sleep apnea, and gangrene in the scrotum.5
The Commissioner's decision. After considering the application, the Commissioner's ALJ determined Neeley has severe impairments — degenerative joint disease in the left knee; chronic neck, shoulder, and back pain; history of Fournier's gangrene, status post surgery; obstructive sleep apnea; and obesity6 — but he can do some light work.7 Because a vocational expert identified available light work,8 the ALJ determined Neeley is not disabled and denied the application.9
After the Appeals Council denied review,10 the ALJ's decision became the Commissioner's final decision for the purpose of judicial review.11 Neeley filed this case to challenge the decision.12 In reviewing the decision, the court must determine whether substantial evidence supports the decision and whether the ALJ made a legal error.13 This recommendation explains why substantial evidence supports the decision and why the ALJ made no legal error.
Neeley's allegations. Neeley challenges the determination that he could work during the time period for which benefits were denied. This point is relative to Neeley's argument because the Commissioner granted Neeley's third application and awarded benefits beginning the day after the date of the challenged decision.14 Neeley claims he was unable to walk enough to do light work. According to Neeley, the ALJ determined he could do light work to avoid finding he was disabled under the Medical-Vocational Guidelines.15 Neeley contends the ALJ should have asked his treating physicians about his ability to work. He maintains the medical examiner's medical statement deserved more weight. He says the ALJ failed to consider the combination of his impairments in determining whether he met a listed impairment. He maintains the ALJ failed to resolve a conflict between the vocational evidence and the Dictionary of Occupational Titles (DOT). For these reasons, he argues, substantial evidence does not support the ALJ's decision.16
Applicable legal principles. For substantial evidence to support the decision, a reasonable mind must accept the evidence as adequate to show Neeley could do some light work17 for a continuous period of not less than 12 months.18 "Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds."19 The ALJ limited light work by requiring no more than occasional climbing, balancing, stooping, kneeling, crouching, or working/reaching overhead.20 The court must determine whether a reasonable mind would accept the evidence as adequate to show Neeley could work within these limitations.
A reasonable mind would accept the evidence as adequate because Neeley's impairment did not prevent light work for 12 continuous months. An ALJ's determination about a claimant's ability to work must be supported by medical evidence; a claimant's subjective allegations are not enough to prove he is disabled.21 The medical evidence shows Neeley was treated for Fournier's gangrene22 — "a `flesh-eating' disease in which the infection encompasses the external genitalia."23 Unless aggressively treated, the infection can spread and cause multiple organ failure, a common cause of death in patients with Fournier's gangrene.24 People with diabetes face an increased risk of Fournier's gangrene.25
Neeley has diabetes. When he contracted Fournier's gangrene, he was not taking his diabetes medication.26 His blood sugar was elevated.27 Neeley's infection spread quickly,28 so quickly that he lost his scrotum. Surgeons administered antibiotics and removed infected tissue.29 The testicles were relocated from the scrotum to pouches in the thighs.30 Blood sugar stabilized. Neeley's wounds healed without complication.31
A few months later, Neeley underwent reconstructive surgery.32 The right testicle was relocated using right-side scrotal tissue; the left testicle, using skin from the buttocks.33 Neeley's surgical wounds healed without complication; pain resolved. Neeley and his wife were happy with the results.34 This progress occurred in less than 12 months.
Neeley's argument for judicial review focuses on testicular pain he claims prevented him from walking enough to do light work. Being able to walk is important to Neeley's claim because many light work jobs require a good deal of walking, although in others the ability to stand is more critical than the ability to walk.35 "[T]he full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday."36
As proof, Neeley relies on the following treatment note: "He is having some irritation from the left testicle, particularly when he is [] walking for some distance because of pain that sometimes happens when the testis hits the other leg."37 "Pain that sometimes happens" doesn't equate to pain preventing walking. Earlier treatment notes report no problems with pain or walking.38 Moreover, the testicles were relocated the following month.39 One month after reconstructive surgery, Neeley had no testicular pain; he walked without difficulty.40 To the extent Neeley had problems walking, he attributed those problems to shortness of breath, not testicular pain.41 Treatment records contradict Neeley's claim.
Neeley says the ALJ should have asked his doctors about his physical abilities using written interrogatories — because his University of Arkansas Medical Sciences (UAMS) doctors don't complete medical source statements for patients — but the ALJ had sufficient information to determine whether Neeley was disabled.42 UAMS treatment notes are detailed, descriptive, and legible. Treatment notes include reported symptoms, progress reports, examination findings, laboratory results, treatment recommendations, and operative reports. The critical issue — the effect of Fournier's gangrene, Neeley's primary impairment — was fully developed.43
To the extent the record was lacking, the ALJ ordered a consultative physical exam. The examiner had two negative medical findings: mild range of motion stiffness of flexion in the low back44 and diminished range of motion in rotation in the neck.45 According to the examiner, the scrotum "appears well healed."46 The examiner completed a medical source statement, but indicated he had little confidence in validity of reported limitations,47 as the limitations were based in significant part on Neeley's statements. Under these circumstances, the examiner's statement justified no additional weight.
Moreover, the examiner's findings did not support the reported limitations. Diagnostic imaging of the spine was negative except for some "minuscule" bone spurs.48 Diagnostic imaging of the left knee showed moderate degenerative joint disease.49 These findings represent degenerative changes that did not prevent Neeley from working before Frounier's gangrene; before his illness, he worked every day with no big problems.50 He worked 60 hours/week.51 Neeley's report before his illness contradicts his claim of disabling symptoms from other impairment. By requiring occasional climbing, balancing, stooping, kneeling, crouching, and working/reaching overhead, the ALJ gave Neeley the benefit of more impairment than the medical evidence shows.
The benefit leads to Neeley's argument about a conflict between the vocational evidence and the DOT. The ALJ asked the vocational expert about work involving occasional overhead working/reaching. According to Neeley, the vocational expert identified jobs requiring frequent reaching.52 This testimony, he says, created an unresolved conflict because the DOT identifies frequent reaching as a job requirement, without distinguishing whether the jobs require frequent "overhead reaching and front or side reaching." He faults the ALJ for failing to question the vocational expert about the conflict.
An ALJ's failure to question the vocational expert about a conflict is harmless if no conflict exists.53 No conflict exists because the DOT doesn't address reaching in describing the representative jobs. Neeley's argument is based on Skilltran's Job Browser Pro, not the DOT.54 Skilltran identifies frequent reaching as a physical demand for both identified jobs, but its job descriptions implicate no overhead reaching.55 No conflict exists if a job requires no overhead reaching.
Even if some jobs require overhead reaching, the vocational expert confirmed that a person who is limited to occasional overhead working/reaching can do the identified jobs. There's no doubt the vocational expert understood the ALJ's parameters because occasional overhead working/reaching was the ALJ's initial limitation. To the extent there was an error, the limitation was the error. Neeley reported no limitations in reaching.56 Treatment records reflect no limitations in reaching. The physical examiner reported no limitations in reaching.57 Diagnostic imaging of the neck was negative.58
Conclusion and Recommended Disposition
A reasonable mind would accept the evidence as adequate to support the decision because nothing shows Neeley's impairments prevented him from working for 12 continuous months. Treatment notes show Neeley recovered from Fournier's gangrene in less than 12 months. That recovery undermines any argument that Neeley met a listed impairment based on a combination of impairments. Neeley may have developed other impairment that served as the basis for a subsequent award, but that evidence is not before the court. Substantial evidence supports the ALJ's decision. The ALJ made no legal error. For these reasons, the undersigned magistrate judge recommends DENYING Neeley's request for relief (docket entry # 2) and AFFIRMING the Commissioner's decision.
