DOUGLAS F. McCORMICK, Magistrate Judge.
Plaintiff Jacqueline Mae Kennerson ("Plaintiff") appeals the Commissioner's final decision denying her application for Disability Insurance Benefits ("DIB"). Because the decision of the Administrative Law Judge ("ALJ") was supported by substantial evidence, the Commissioner's decision is affirmed and the matter is dismissed with prejudice.
Plaintiff filed her application for DIB on March 26, 2012, alleging disability beginning on July 6, 2010. Administrative Record ("AR") 10. Plaintiff's date last insured was December 31, 2011. AR 12. Plaintiff was not represented by counsel at her administrative hearing. AR 38-41. The ALJ issued an unfavorable decision finding that Plaintiff could make an adjustment to other work that exists in significant numbers in the national economy, based on the testimony of a vocational expert ("VE"). AR 21.
The parties dispute whether the ALJ erred by failing to properly: (1) consider Plaintiff's fibromyalgia and other impairments; (2) evaluate Plaintiff's credibility; and (3) develop the vocational record regarding Plaintiff's ability to perform other work.
Plaintiff contends that the ALJ erred at step three of the sequential analysis by failing to properly analyze her fibromyalgia under Listing 14.09D for inflammatory arthritis. JS at 6-9;
Social Security Ruling ("SSR") 12-2p, Evaluation of Fibromyalgia, states that once a claimant is determined to have a medically determinable impairment of fibromyalgia, the ALJ must then consider whether the claimant's impairments "meets or medically equals the criteria of any of the listings in the Listing of Impairments." SSR 12-2p. Because fibromyalgia is not a listed impairment, the ALJ must "determine whether [it] medically equals a listing (for example, listing 14.09D in the listing for inflammatory arthritis), or whether it medically equals a listing in combination with at least one other medically determinable impairment."
Plaintiff has not satisfied her burden of showing that the ALJ's alleged error in failing to consider Listing 14.09D affected her substantial rights or resulted in prejudice.
Plaintiff contends that the ALJ failed to properly consider Plaintiff's fibromyalgia, her right hip impairment, and the totality of the medical evidence in determining her RFC. JS at 9-10.
The ALJ found Plaintiff has the following severe impairments: osteoarthritis, degenerative disk disease of the lumbar spine, fibromyalgia, status post multiple bilateral knee surgeries, including right knee replacement, and depression. AR 12. After careful consideration of Plaintiff's impairments, as described in the voluminous medical record, the ALJ found that Plaintiff retains the RFC to perform a range of sedentary work, but is unable to climb ladders, ropes and scaffolds, is limited to occasional stooping, crouching, kneeling, crawling, and climbing of ramps and stairs, and would be off task for up to 10 percent of the workday in addition to regularly scheduled breaks. AR 14. In assessing Plaintiff's RFC, the ALJ explained that he gave weight to the opinions of the state agency medical consultants who opined that Plaintiff could perform a range of sedentary work. AR 19, 83, 85-86, 97, 99-100. The ALJ also gave consideration to some of Plaintiff's subjective complaints, and therefore, included additional postural and mental imitations in Plaintiff's RFC. AR 19.
The record supports the ALJ's RFC assessment. AR 15;
The ALJ also adequately accounted for Plaintiff's right hip complaints. AR 15-18. The ALJ noted that Plaintiff initially reported low back and hip pain after her injury at work. AR 15, 1306. In August 2010, Plaintiff's physician reported that Plaintiff exhibited no overt pain behavior, had level hips, moved from sitting to standing without difficulty, and walked with a normal gait, even though she had a markedly limited lumbar range of motion and positive straight-leg raise on the right. AR 16, 505. More than a year later, in October 2011, Plaintiff began complaining of acute pain in the right hip. AR 1779-80. However, x-rays revealed no acute osseous findings and only very mild arthritic changes of the right hip joint. AR 1785. Similarly, in February 2012, x-rays indicated only mild joint space narrowing and mild osteoarthritis of the right hip. AR 1961. Plaintiff does not point to any medical records establishing any significant limitations associated with Plaintiff's right hip impairment, prior to her date last insured.
Accordingly, Plaintiff is not entitled to reversal or remand on this claim.
Plaintiff asserts that the ALJ improperly rejected her allegations regarding the severity of her symptoms. JS at 14-17.
If there is "objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged," and "there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so."
Plaintiff claims that she is unable to work because of the pain and limitations caused by severe arthritis and other impairments. AR 15, 51-63. The ALJ determined that although Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, Plaintiff's claims concerning the intensity, persistence, and limiting effects of these symptoms were not credible to the extent they were inconsistent with Plaintiff's RFC for a range of sedentary work. AR 15.
In support of this adverse credibility determination, the ALJ gave legally sufficient reasons for discounting Plaintiff's credibility. First, the ALJ found that Plaintiff's allegations of disabling limitations were contradicted by the medical evidence. AR 17-18;
Second, the ALJ properly discounted Plaintiff's credibility to the extent her complaints of being unable to work were inconsistent with her reported activities of daily living, which included caring for her 7-year-old grandson and riding a bicycle several times a week. AR 13, 17. The ALJ found that Plaintiff's admitted activities conflicted with her claims that her osteoarthritis and other impairments prevent her from being able to work or take care of herself. AR 13, 15, 17-18, 51-63, 203-06, 1572. While Plaintiff claims that her grandson actually helped with her work and she is no longer able to ride a bicycle, the ALJ reasonably found Plaintiff's activities suggested greater physical capacity than alleged by Plaintiff. AR 15, 51-63, 203;
Because the ALJ identified sufficiently specific, clear, and convincing reasons for discounting Plaintiff's subjective complaints about the intensity, persistence, and limiting effects caused by her impairments, reversal is not warranted on this basis.
Plaintiff contends that the ALJ erred in finding that Plaintiff was not disabled at step five of the sequential analysis because the VE did not provide the Dictionary of Occupational Titles ("DOT") numbers for the sedentary jobs Plaintiff was found capable of performing, i.e., assembly, packaging, office helper/clerk, and order clerk. AR 68. In particular, Plaintiff argues that remand is necessary for further development of the record to resolve whether "there are any inconsistencies or conflicts either actual or apparent in the occupational information provided by the [VE]." JS at 25. Plaintiff asserts that because she was unrepresented at the hearing, further development of the record is required to specify the DOT numbers of the identified occupations, pursuant to SSR 00-4p, HALLEX rules I-2-5-55 and I-2-6-74, and Program Operations Manual System ("POMS") rule DI 25015.030. JS at 26-28. Plaintiff's argument is not persuasive.
An ALJ may rely on a VE's testimony that identifies general occupational categories rather than specific jobs within that category.
At the hearing, the VE testified that a person with Plaintiff's abilities is capable of performing sedentary level assembly jobs with 5,000 of those jobs available in the state, packaging jobs with 10,000 jobs available, officer helper/clerk jobs with 10,000 jobs available, and order clerk jobs with 9,000 jobs available. AR 68. The ALJ asked the VE if the testimony was consistent with the job descriptions in the DOT, to which the VE responded in the affirmative, with the exception of the office helper/clerk job, which is designated as light work, but often performed at the sedentary level. AR 68-69. The ALJ then found in his decision that "the [VE's] testimony is consistent with the information contained in the [DOT]." AR 21. Thus, it is clear from the record that the ALJ fully complied with SSR 00-4p. Further, even if the cited POMS and HALLEX rules were construed to suggest that further development of the record is required in this case, they would not be judicially enforceable.
The Court therefore finds that the ALJ's decision at step five is supported by substantial evidence and the ALJ's reliance on the VE's testimony does not constitute reversible error.
For the reasons stated above, the decision of the Social Security Commissioner is affirmed and the matter is dismissed with prejudice.