DOUGLAS N. FRAZIER, United States Magistrate Judge.
Plaintiff filed an application for a period of disability and disability insurance benefits [DIB] and Supplemental Security Income [SSI] on February 15, 2006, alleging an onset of disability of January 1, 2002 (Tr. 20, 798). Plaintiff has acquired sufficient quarters of coverage to remain insured through June 30, 2004. The Agency denied this application in initial and reconsideration determinations (Tr. 22-24, 42-44, 50-52-, 736-43). Plaintiff timely requested and appeared at a hearing on October 16, 2007 before Administrative Law Judge (ALJ) Steven D. Slahta (Tr. 21). In a hearing decision dated February 23, 2008, the ALJ found Plaintiff not disabled (Tr. 16). The ALJ's hearing decision rested as the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review, on April 24, 2009. [Tr. 3-5]. The ALJ's final hearing decision is now ripe for review under sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3).
The Commissioner has filed two transcripts of the proceedings (hereinafter referred to as "Tr." followed by the appropriate page number), and the parties have filed legal their memoranda. For the reasons set forth below, the Court finds that the Commissioner's decision is due to be
Plaintiff is entitled to disability benefits when she is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to either result in death or last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). The Commissioner has established a five-step sequential evaluation process for determining whether Plaintiff is disabled and therefore entitled to benefits. See 20 C.F.R. § 416.920(a)-(f); Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir.1997). Plaintiff bears the burden of persuasion through Step 4, while at Step 5 the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987).
The decision of Administrative Law Judge Steven D. Slahta, dated December 10, 2007, found Plaintiff was not under a
At Step 1 the ALJ found Plaintiff had not engaged in substantial gainful activity since her alleged onset date of January 1, 2002, through her date last insured of June 30, 2004. (Tr. 13). At Step 2 the ALJ found Plaintiff suffered from severe impairments of fibromyalgia, colitis, irritable bowel syndrome, obesity, and depressive disorder (Tr. 13). At Step 3 the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926) (Tr. 15). At Step 4 the ALJ determined Plaintiff has the residual functional capacity to perform a wide range of sedentary work with a sit/stand option (Tr. 166). At Step 5 the ALJ found Plaintiff (through June 30, 2004), was unable to perform any of her past relevant work as a cook, culinary manager, teacher, and retail salesperson (Tr. 20).
In reviewing a decision by the Commissioner, the District Court is bound to uphold the Commissioner's findings if they are supported by substantial evidence and based upon proper legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997). Factual findings are conclusive if supported by "substantial evidence," which is more than a scintilla and consists of such relevant evidence as a reasonable person would accept as adequate to support a conclusion. Lewis v. Callahan, 125 F.3d at 1440. The Court does not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.2002). If the Commissioner's decision is supported by substantial evidence, the Court must affirm even if the evidence predominates against the decision. Wilson v. Barnhart, 284 F.3d at 1219. However, the Court must conduct an exacting examination of whether the Commissioner followed the appropriate legal standards in deciding the claim and reached the correct legal conclusions. Wilson v. Barnhart, 284 F.3d at 1219. The failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted will mandate reversal. Keeton v. Department of Health and Human Servs., 21 F.3d at 1066.
Plaintiff was born on July 18, 1968 (Tr. 24), and was thirty-nine years old at the time of the February 28, 2008, hearing decision (Pl. Br. Pg. 2). Plaintiff reported she has a high school education, two years of college (Tr. 20, 798) and has worked in the past as a cook, culinary manager, teacher, and retail salesperson (Tr. 120, 176-82, 798-801). Plaintiff reports her disability began January 1, 2002, due to fibromyalgia, colitis, irritable bowel syndrome, obesity, and depressive disorder (Tr. 119, 804-07). After review of the medical evidence and testimony at the hearing from Plaintiff, the ALJ found Plaintiff not disabled. (Tr. 11-21).
The ALJ found Plaintiff had the residual functional capacity (RFC) for a wide range of sedentary work with a sit/stand option (Tr. 16 Finding 5). The ALJ found that Plaintiff could occasionally climb, balance, kneel, stoop, crouch, and crawl and precluded exposure to hazards (Tr. 16 Finding 5). The ALJ limited Plaintiff to unskilled, low stress work defined as one to two step
Plaintiff has an extensive history of gastric conditions, including irritable bowel syndrome, and reflux disease. On March 9, 2003, Plaintiff was diagnosed with probable acute cholecystitis, reflux disease, and irritable bowel syndrome ("IBS"). (Tr. 451-457). Plaintiff underwent surgery several days later and was diagnosed with acute calculous cholecystitis (Tr. 524). Plaintiff continued to receive treatment through October 2004 with Dr. Andrew Conn. (Tr. 448-450, 525-530). On October 19, 2004, Plaintiff presented with abdominal cramping and frequent diarrhea (Tr. 449). On October 27, 2004, Dr. Conn performed a colonoscopy (Tr. 525-530). Dr. Conn's notes post-op reveal "colon polyp, normal colon, probable irritable bowel syndrome ("IBS"). (Tr. 530).
Plaintiff's abdominal pain continued to be problematic, resulting in an additional emergency room visit on August 18, 2005, (past "DLI" of June 30, 2004) where Plaintiff was treated by Dr. A. Lafferty. (Tr. 474-476). Plaintiff was diagnosed with abdominal pain, vomiting and diarrhea with possible colitis. Plaintiff received normal saline, Levaquin, Flagyl, Phenergan and Dilaudid and was given an out-patient prescription of Flagyl, Levaquin, Phenergan and Vicodin. Dr. Lafferty's report further stated that Plaintiff's "[c]omplete blood count is within normal limits. Serum electrolytes were within normal limits with the exception of the glucose being 100. Liver function tests and lipase within normal limits. Urine pregnancy test negative: Urinalysis is normal". (Tr. 474-476)
Through September 2005, Plaintiff was treated by Dr. Asif H. Choudhury (Tr. 720-727). Plaintiff was diagnosed with abdominal pain and referred for further testing. On September 6, 2005, Dr. Choudhury performed an esophagogastroduodenoscopy with biopsy and colonoscopy (Tr. 724-727). Plaintiff's post-operative diagnosis was gastritis.
As of September 19, 2005, Plaintiff reported biliary type diarrhea. On September 21, 2005, Dr. Choudhury performed the following procedures: endoscopic retrograde, cholangiopancreatography with sphincterotomy. Dr. Choudhury post-operative diagnoses reflects: "[B]iliary dysfunction with Sphincter of Oddi Dysfunction, status post sphincterotomy was done and balloon sweeping was done without any evidence of any stone." (Tr. 722). "[A]SSESSMENT: Most likely biliary Dysfunction with Sphincter of Oddi Dysfunction causing the problem, status post sphincterotomy was done" (Tr. 722-723).
Plaintiff was examined and treated by Jack Clark, DO, on March 8, 2006 for abdominal pain (Tr. 420-426). Plaintiff reported that "everything hurts" (Tr. 420-422). Plaintiff also reported being in pain for the past five years and having ongoing digestive symptoms with abdominal distress. She reported migraine headaches, anxiety, colitis, "IBS", muscle and bone pain and numbness in her legs and the corners of her mouth. Dr. Clark's examination also revealed Plaintiff was morbidly obese and looked depressed. Plaintiff had trigger points in the trapezius area, gluteal locations, trochanteric bursa, left elbow and low cervical area. Dr. Clark diagnosed "[f]ibromyalgia as part of effective spectrum disorder with migraine headache,
State Agency Physician Ronald Kline reviewed Plaintiff's medical records in May 2006, and found that she could occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds (Tr. 317). Dr. Kline found that Plaintiff could sit, stand and/or walk for six of eight hours (Tr. 317). Dr. Kline found that Plaintiff could occasionally climb, balance, stoop, kneel, crouch, and crawl. Specifically, Dr. Kline found Plaintiff to be:
State Agency Physician, Timothy Foster, Ph.D. psychologist, reviewed Plaintiff's medical records on May 16, 2006, and determined Plaintiff to be mildly restricted in activities of daily living; mildly restricted in maintaining social functioning, moderately restricted in maintaining concentration, persistence or pace, with no episodes of decompensation (Tr. 572). Dr. Foster's notes state:
State Agency Physician, Dr. Laura Browning reviewed Plaintiff's medical records in November 2006 and also found that she could occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds. Dr. Browning found Plaintiff could sit, stand and/or walk for six of eight hours (Tr. 555) and found no postural limitations (Tr. 556). Dr. Browning's notes state:
Dr. Nancy Dinwoodie, reviewed Plaintiff's medical records on November 16, 2006 and completed the Psychiatric Review Technique Forms ("PRTF"). Plaintiff was noted to be mildly restricted in activities of daily living; mildly restricted in maintaining social functioning, moderately restricted in maintaining concentration, persistence or pace, with no episodes of decompensation (Tr. 294). Dr. Dinwoodie notes state:
On January 3, 2008, Plaintiff was examined by Claudia Zsigmond, Psy.D. (Dr. Zsigmond completed a General Clinical Evaluation with Mental Status, Memory Test Assessment and Completion of Mental Functional Capacity Form provided by the Office of Disability Determinations) (Tr. 225-228). Plaintiff reported to Dr. Zsigmond that in August of 2006 she was psychiatrically hospitalized following an overdose on prescription medications and Cocaine. Plaintiff was placed under the Baker Act for approximately one week until she mentally stabilized. Since then Plaintiff has been treated on an out-patient basis and receives pastoral counseling. Dr. Zsigmond noted:
Plaintiff was seen by Stanley Rabinowitz, M.D., S.C. on December 22, 2007 at the request of the Office of Disability Determinations. Plaintiff's chief complaint was that she was suffering from fibromyalgia. Dr. Rabinowitz found Plaintiff to be morbidly obese and noted she complained of "[p]ain with any range of motion testing or orthopedic maneuver." "[I] indicated to her how difficult it would be to do an adequate examination if she couldn't try to do things on her own. She had great difficulty doing this, and finally consented to trying to do an appropriate examination. Significant symptom magnification and embellishment were evident." IMPRESSIONS: "Chronic fibromyalgia with multiple somatic complaints; history of chronic depression, history of irritable bowel syndrome and right upper extremity pain, etiology undermined." (Tr. 325-236).
Plaintiff contends the ALJ failed to adequately explain the basis for selectively crediting or discrediting multiple opinions from multiple medical sources. Plaintiff also contends that the rationale for discrediting these opinions centers mostly on the alleged lack of "objective" evidence, despite the continuous findings of trigger points and Plaintiff's diagnosis of severe fibromyalgia.
In June 2006, Dr. Asif Choudhury's opinion was Plaintiff was unable to work due to a fibromyalgia attack. The ALJ gave little weight to this opinion as the examination showed only diffuse abdominal tenderness. Dr. Choudhury noted that Plaintiff's gastro-intestinal symptoms worsened when her fibromyalgia worsened. However, the record shows that gastrointestinal work-ups were repeatedly within normal limits with little objective evidence to explain Plaintiff's symptoms.
Dr. Clark notes show that April 2006 through August 2006, Plaintiff showed positive fibomyalgia trigger points. However, he also noted that there were no deformities or synovitis over the joints, Plaintiff joints had full range of motion. Further, he noted that Plaintiff's motor strength was intact throughout and there was equal and symmetric deep tendon reflexes. (Tr. 19, 421, 423, 682). The ALJ properly found that Dr. Clark's limitations were inconsistent with the evidence of record. (Tr. 19).
Dr. Rabinowitz's notes show that he was unable to test the Plaintiff's gait because of her dependence on assistance (holding on to objects in the room) and a quad cane when ambulating. Further, that "her range of motion testing was impossible to adequately perform because Plaintiff complained of significant pain with even minimal range of motion testing of the ankles, knees, hip, and shoulders." Significantly, there was no evidence of active joint inflammation, deformity, instability, or contracture. There was no evidence of paravertebral muscle spasm. Straight leg raising was negative bilaterally in the sitting position and positive bilaterally in the supine position. Grip strength was 4/5 in the left hand and could not be assessed in the right hand. Additionally, as noted above Dr. Rabinowitz found that Plaintiff was embellishing and magnifying her symptoms. (Tr., 19, 235, 236).
The ALJ also properly found that Dr. Rabinowitz's findings were based upon Plaintiff's subjective complaints instead of valid objective findings. (Tr. 19). The ALJ reviewed the medical evidence of record and found the opinions of Dr. Clark and Dr. Rabinowitz's were not supported by the medical evidence of record. (Tr. 19). Substantial evidence supports the ALJ's conclusion that Plaintiff is capable of a wide range of sedentary work.
Plaintiff argues that the ALJ erred in relying on the vocational expert's ("VE") testimony that conflicted with the Dictionary of Occupational Titles because the only occupations listed require more than the ability to perform one to two step tasks.
Plaintiff's "RFC" was for a wide range of sedentary work with a sit/stand option; "[s]he can occasionally climb, balance, kneel, stoop, crouch, and crawl" and was precluded from exposure to hazards (Tr.
To meet this burden, the Commissioner must show the existence of a significant number of other jobs in the national economy that the claimant is capable of performing, given her vocational profile and "RFC" Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.1987); Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir.1983). If an ALJ finds that a claimant cannot perform a full range of work within a given exceptional level, "VE" testimony is the preferred method to determine whether the claimant's non-exceptional impairments further diminish her ability to work at that level 20 C.F.R. §§ 404.1561, 416.961; Social Security Ruling (SSR) 83-12; see also Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
To determine the extent to which these limitations erode the unskilled sedentary occupational base, the ALJ asked the "VE" whether jobs exist in the national economy for an individual with Plaintiff's age, education, work experience, and residual functional capacity. The "VE" testified that given all the factors the individual would be able to perform the requirements of representative occupations such as: surveillance systems monitor (DOT code 379.367-010: sedentary; SVP 2; 200 local jobs; 1,000 state jobs: 100,000 national jobs) and semi-conductor bonder (DOT code 726.685-0) and determined that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform (20 C.F.R. 404.1560(c), 404.1566, 416.96(c), and 416.966) (Tr. 20).
The ALJ asked the "VE" whether an individual with Plaintiff's "RFC" and other vocational characteristics could perform her past relevant work or other work (Tr. 828-30). The "VE" testified that such an individual could not perform Plaintiff's past relevant work, but could perform other work, including the jobs of surveillance system monitor and semi-conductor bonder as listed above (Tr. 829). The "VE's" testimony was based upon a hypothetical question that fairly set out all of Plaintiff's limitations. The ALJ, therefore properly relied on the "VE's" testimony to find that Plaintiff could perform other work and was not disabled (Tr. 24). Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.1999). The documentary evidence and an analysis of Plaintiff's testimony supports the ALJ's "RFC" determination and his hypothetical question to the "VE" (Tr. 20 Finding 10, 828-30). Therefore, pursuant to SSR 00-4p, the vocational expert's testimony is consistent with the information contained in the Dictionary of Occupational Titles. Thus, Plaintiff failed to prove that a material inconsistency actually existed between the "VE's" testimony and the "DOT".
The ALJ applied the correct legal standards in evaluating Plaintiff's case, and substantial evidence supports the ALJ's finding that Plaintiff was not disabled.
For the foregoing reasons, the ALJ's decision is consistent with the requirements of law and supported by substantial evidence. Therefore, based on the application for a period of disability and disability insurance benefits protectively filed on February 15, 2006, Plaintiff is not disabled under sections 216(I) and 223(d) of the Social Security Act.
Based on the application for Supplemental Security Income protectively filed on February 15, 2006, Plaintiff is not disabled
Accordingly, the decision of the Commissioner is
