Filed: Jul. 20, 2015
Latest Update: Jul. 20, 2015
Summary: RECOMMENDED DISPOSITION BETH DEERE , Magistrate Judge . Instructions The following recommended disposition was prepared for U.S. District Judge D.P. Marshall 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
Summary: RECOMMENDED DISPOSITION BETH DEERE , Magistrate Judge . Instructions The following recommended disposition was prepared for U.S. District Judge D.P. Marshall 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 t..
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RECOMMENDED DISPOSITION
BETH DEERE, Magistrate Judge.
Instructions
The following recommended disposition was prepared for U.S. District Judge D.P. Marshall 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 Marshall may adopt the recommended disposition without independently reviewing all of the record evidence.
Reasoning for Recommended Disposition
David Wayne Shock seeks judicial review of the denial of his application for social security disability benefits.3 Mr. Shock last worked in October 2011, when he was 44 years old. He claims he is disabled because of back pain, scoliosis, heart problems, bipolar disorder, depression, and right-eye blindness.4
The Commissioner's decision. After considering the application, the Commissioner's ALJ identified blindness in one eye as a severe impairment,5 but determined that Mr. Shock could do work permitting a reduced field of vision and affected peripheral vision in one eye.6 Because a vocational expert testified that a person with Mr. Shock's ability to work could perform his past work,7 the ALJ concluded that Mr. Shock was not disabled and denied the application.8
After the Commissioner's Appeals Council denied a request for review,9 the ALJ's decision became a final decision for judicial review.10 Mr. Shock filed this case to challenge the ALJ's decision.11 In reviewing the decision, the court must determine whether substantial evidence supports the decision and whether the ALJ made a legal error.12 This recommendation explains why substantial evidence supports the decision and why the ALJ made no harmful legal error.
Mr. Shock's allegations. Mr. Shock challenges the determination that he could work within the limitations the ALJ identified. He says the ALJ omitted many of his symptoms, including functional illiteracy. He maintains that the ALJ failed to fully and fairly develop the record, because the record omits some of his primary care physician's (PCP) treatment records. According to Mr. Shock, the ALJ should have asked the PCP for remote treatment records. He argues that the ALJ improperly discredited the PCP's opinion about his ability to work. He maintains that the ALJ failed to consider evidence that detracts from the decision. He complains about the evaluation of his credibility; he says the ALJ identified no inconsistency that would justify discounting his credibility. For these reasons, he argues, substantial evidence does not support the ALJ's decision.13
Applicable legal principles. Substantial evidence exists if a reasonable mind would accept the evidence as adequate to support the decision.14 In reviewing for substantial evidence, the court must consider the record as a whole.15 Reviewing for substantial evidence requires more than searching for the existence of substantial evidence.16 The court must consider all of the evidence — including evidence detracting from the decision17 — but the court may not reverse simply because substantial evidence supports an opposite conclusion.18 Substantial evidence exists in this case for the following reasons:
1. Mr. Shock over-stated his allegations. "The ALJ may discredit a claimant based on inconsistencies in the evidence."19 Mr. Shock alleged disability beginning January 6, 1996, at age 28.20 That date also served as the onset date for an earlier application.21 Since then, Mr. Shock had a good work history. He worked at a substantial gainful activity level22 until October 2, 2011.23 This effort is probative of Mr. Shock's claim, because a person who engages in substantial gainful activity is not entitled to disability benefits.24 Claiming to be disabled when engaged in substantial gainful activity is an inconsistency that undermines Mr. Shock's credibility. Mr. Shock says the ALJ identified no inconsistency, but the ALJ cited Mr. Shock's daily activities, his reason for no longer working, and the lack of medical treatment.25
2. Mr. Shock stopped working for reasons unrelated to his claim. Mr. Shock last worked for Virco Manufacturing Corporation in Conway. He worked for Virco, assembling chairs, from October 1996 until October 2, 2011,26 when he accepted a severance offer.27 He accepted the offer in hopes of obtaining a job at Hackney Ladish's plant in his home town of Russellville.28 He moved to Russellville, but was not hired. When his unemployment benefits ceased, he applied for disability benefits.29 This sequence shows Mr. Shock stopped working for reasons unrelated to the allegations underlying his claim.
3. The ALJ accounted for Mr. Shock's impairment. Mr. Shock alleged numerous impairments — back pain, scoliosis, heart problems, bipolar disorder, depression, and right-eye blindness30 — but the medical evidence establishes one impairment: weak vision in the left eye. According to his optometrist, Mr. Shock has long-standing refractive amblyopia of the left eye.31 "Amblyopia is a decrease in vision in a healthy eye that is caused by problems with the eye and the brain failing to work together in correctly processing information from the `bad' or amblyopic eye."32 Lay people refer to amblyopia as "lazy eye," because "the eye with poorer vision does not seem to be doing its job of seeing."33 Amblyopia usually surfaces during childhood. According to Mr. Shock, he has had the condition since birth.34 He says the condition reduced his peripheral vision during childhood. Glasses correct his vision to 20/25 vision.35 A reasonable mind would accept the onset of Mr. Shock's vision problem — since birth — as adequate to support the ALJ's determination because Mr. Shock had amblyopia since birth and did not stop working because of amblyopia.
4. Medical evidence establishes no other significant impairment. Mr. Shock alleged numerous impairments, but allegations are not enough to prove medical impairment; a claimant must establish medical impairment with medical evidence.36 Mr. Shock suggests the record omits medical evidence that might establish impairment, but a claimant who complains about record development faces a heavy burden.37 Mr. Shock relies on a PCP medical opinion indicating the PCP treated him for nine years. Because the record includes only 2011 treatment records, Mr. Shock maintains the ALJ failed to develop the record.
Earlier treatment records are not probative of Mr. Shock's claim because he was not eligible for disability benefits until October 2, 2011, when he stopped working at substantial gainful activity. The most probative evidence is evidence generated shortly before October 2011. That evidence is in the record. The 2011 treatment records establish no medical impairment.38
During Mr. Shock's last visit to the PCP — two weeks before he left Virco — the PCP found no neurological, motor, or sensory deficits.39 Heart rate and rhythm was normal; pulses were good. The PCP attributed increased stress and depression to the anticipated job loss, and adjusted Mr. Shock's psychotropic medications. Mr. Shock sought no further treatment until December 2012, when he presented to a new PCP for medication refills.40 The new PCP noted two negative medical findings — some low back and hip pain, and possible early glucose intolerance.41 Those findings establish no impairment. According to agency medical experts, Mr. Shock has no severe impairment.42 A reasonable mind would expect a person with disabling symptoms to seek medical treatment.
5. The ALJ properly discredited the PCP's medical opinions. In February 2013, the PCP completed two medical questionnaires addressing Mr. Shock's physical and mental abilities to work and reporting disabling symptoms.43 Mr. Shock complains about the weight given the opinions, but no basis exists for crediting them. First, the record does not establish the PCP as treating physician.44 The PCP did not see Mr. Shock after he stopped working; the last time was in September 2011. Without examining him, the PCP lacked a basis for completing the questionnaires. Second, the PCP's 2011 treatment notes do not support his opinion. The PCP documented a few complaints, but no medical findings supporting reported limitations.45 The opinion warranted no weight.46
6. No medical evidence establishes functional illiteracy. According to the mental diagnostic examiner, Mr. Shock "may have a limited fund of general information, or may function in the range of borderline intellectual functioning,"47 but he has an adequate capacity to cope with the mental demands of work.48 The examiner reported limited math skills, but reported no deficiencies with reading or writing implicating illiteracy. Mr. Shock now contends that he is functionally illiterate.
To the extent Mr. Shock has problems with reading or writing, the ALJ asked the vocational expert about how functional illiteracy impacts the ability to work.49 According to the vocational expert, a person who is functionally illiterate can do an unskilled job like Mr. Shock's past jobs. The vocational expert also identified other available jobs.50 Even if Mr. Shock was functionally illiterate, the ALJ met the Commissioner's burden to show work exists that Mr. Shock can do.
Conclusion and Recommendation
Medical evidence establishes one impairment — vision problems with the left eye. Vocational evidence shows Mr. Shock can do his past work despite vision problems. A person who can do his past work is not disabled under social security law, 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.51
Substantial evidence supports the ALJ's decision. The ALJ made no harmful legal error. For these reasons, the undersigned magistrate judge recommends DENYING Mr. Shock's request for relief (docket entry # 2) and AFFIRMING the Commissioner's decision.
