Filed: Jan. 15, 2016
Latest Update: Jan. 15, 2016
Summary: Recommended Disposition BETH DEERE , Magistrate Judge . Instructions The following recommended disposition was prepared for Judge Susan Webber 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 da
Summary: Recommended Disposition BETH DEERE , Magistrate Judge . Instructions The following recommended disposition was prepared for Judge Susan Webber 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 day..
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Recommended Disposition
BETH DEERE, Magistrate Judge.
Instructions
The following recommended disposition was prepared for Judge Susan Webber 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
James Robert Martin seeks judicial review of the denial of his application for social security disability benefits.3 In the past, Mr. Martin worked for a shoe factory.4 He says he stopped working because his job required standing and standing caused his ankles to swell.5 He claims he has been disabled since he quit his job in February, 2011. He based disability on swelling in his feet, a knee problem, and a sleeping disorder.6
The Commissioner's decision. After considering the application, the Commissioner's ALJ identified back pain, chronic obstructive pulmonary disease (COPD), obesity, and bilateral leg pain, and pitting edema as severe impairments.7 The ALJ determined that Mr. Martin could do some sedentary work.8 Because a vocational expert identified available sedentary work, the ALJ determined that Mr. Martin was not disabled and denied the application.9
After the Commissioner's Appeals Council denied a request for review,10 the decision became a final decision for judicial review.11 Mr. Martin 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 the court should affirm the decision.
Mr. Martin's allegations. Mr. Martin challenges several aspects of the decision, arguing: (1) the ALJ should have further developed the record by ordering a consultative exam; (2) the ALJ improperly determined that his impairments were controlled with treatment; (3) the ALJ erred in relying on vocational evidence because the vocational expert's testimony conflicts with the Dictionary of Occupational Titles (DOT), and (4) the ALJ erred in his consideration of the transferability of skills. For these reasons, he maintains, substantial evidence does not support the ALJ's decision.14
Applicable legal principles. For substantial evidence to support the decision, a reasonable mind must accept the evidence as adequate to show Mr. Martin could do some sedentary work. Sedentary work "involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools."15 Sedentary work "represents a significantly restricted range of work. Individuals who are limited to no more than sedentary work by their medical impairments have very serious functional limitations."16
The ALJ placed the following limitations on sedentary work:
(1) occasional climbing, balancing, stooping, and bending,
(2) no crouching, kneeling, or crawling, and
(3) no excessive chemicals, noise, humidity, fumes, dust, temperature extremes, gases, vibrations, and other pulmonary irritants.17
For substantial evidence to exist, a reasonable mind must accept the evidence as adequate to show Mr. Martin could work within these limits. A reasonable mind will accept the evidence as adequate for the following reasons:
1. No basis exists for excluding work involving excessive pulmonary irritants. A claimant must prove disability with medical evidence; his allegations are not enough to prove he is disabled.18 The ALJ identified five severe impairments, but the record establishes one impairment: obesity. There is no evidence of COPD. The other conditions identified as severe impairments are symptoms, not impairments. "A `symptom' is not a `medically determinable physical or mental impairment' and no symptom by itself can establish the existence of such an impairment."19
The absence of evidence of COPD is significant because the ALJ excluded work involving excessive pulmonary irritants. In the absence of evidence of COPD, there is no basis for excluding pulmonary irritants. Mr. Martin did not allege symptoms flowing from pulmonary irritants. Instead, he complained about shortness of breath that medical experts attributed to obesity.20
Mr. Martin's argument about a conflict between the vocational evidence and the DOT fails because there is no evidence of COPD. Mr. Martin contends that a conflict exists because the ALJ excluded excessive noise as a pulmonary irritant, and because the DOT specifies "moderate noise" for working as a telephone solicitor.21 Mr. Martin characterizes the difference between excessive nosie and moderate noise as an apparent conflict requiring a remand, but a remand is not indicated because no basis exists for excluding noise.
2. Treatment history suggests no disabling symptoms. Because there is little medical evidence, Mr. Martin's claim depends on the credibility of his subjective complaints. "Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole."22 Mr. Martin complains about disabling symptoms, swelling in his calves and ankles, a knee problem, and trouble breathing when sleeping, but he sought treatment only twice during the time period for which benefits were denied.23 Two efforts in 31 months suggests no disabling symptoms. Mr. Martin knows about treatment at a free clinic, but he does not go.24 A reasonable mind would expect a person with disabling symptoms to seek medical treatment.
Mr. Martin's treatment history suggests no reason for a consultative exam. "The ALJ is required to order medical examinations . . . only if the medical records . . . do not give sufficient medical evidence to determine whether the claimant is disabled."25 Mr. Martin's medical records gave sufficient evidence to determine whether he was disabled. Medical providers instructed Mr. Martin on how to control his primary symptom26 — swelling in the legs and ankles — but Mr. Martin did not pursue medical recommendations.
Medical recommendations included avoiding prolonged standing. A reasonable mind will accept the evidence as adequate to support the decision because the ALJ did not require standing.
3. Transferability of skills was not an issue. "Transferability means applying work skills which a person has demonstrated in vocationally relevant past jobs to meet the requirements of other skilled or semiskilled jobs."27 The ALJ considers transferability when applying the Medical-Vocational Guidelines.28 Mr. Martin claims that the ALJ failed to properly follow agency guidance about transferability. But, the ALJ didn't rely on the Guidelines; instead, the ALJ consulted a vocational expert to determine whether work existed that Mr. Martin could do.29
According to the vocational expert, and the DOT, Mr. Martin's past work as a materials handler, and the jobs identified as representative work, are classified at skill level 3 (jobs requiring over one month and up to and including three months to become proficient).30 A reasonable mind will accept the evidence as adequate to support the decision because a vocational expert identified available sedentary work: telephone solicitor and food checker. The availability of these jobs shows that work exists that Mr. Martin could 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.31
Conclusion and Recommended Disposition
Substantial evidence supports the ALJ's decision because a reasonable mind will accept the evidence as adequate to support the decision. The ALJ made no harmful legal error. For these reasons, the undersigned magistrate judge recommends DENYING Mr. Martin's request for relief (docket entry # 2) and AFFIRMING the Commissioner's decision.
