THOMAS B. McCOUN, III, District Judge.
The Plaintiff seeks judicial review of the denial of his claim for Supplemental Security Income payments. Because the decision of the Commissioner of the United States Social Security Administration is in accordance with the correct legal standards and is otherwise supported by substantial evidence, I recommend that it be affirmed.
Plaintiff was forty-four (44) years old at the time of his administrative hearing. He stands 5 feet 11 inches and weighed approximately 205 pounds. Plaintiff has a high school education with some college, including certificates. Plaintiff reported past relevant work as an electrician's helper, a multi-trades worker, a warehouse stock clerk, a shoe salesman, a dock support person, an information specialist, and a retention specialist. Plaintiff applied for Supplemental Security Income payments in May 2009, alleging disability as of March 31, 2008, by reason of lupus with associated complications of numbness in the hands, left shoulder, and arms; tingling in both hands, arms, and shoulders; and neck problems. Plaintiff's application was denied originally and on reconsideration.
The Plaintiff next received a de novo hearing before an Administrative Law Judge ("ALJ"). The Plaintiff was not represented by counsel at the hearing. He testified on his own behalf. Plaintiff's pastor, Thomas Wilson, also testified on Plaintiff's behalf. Additionally, a vocational expert was called by the ALJ.
At the outset of the hearing, Plaintiff testified about his work history. Plaintiff testified he had worked as a manager at a sports store; a stock clerk at a warehouse; a multi-trades worker for the school board, building floors and walls in portable classrooms; an electrician's helper; a dock support specialist for FedEx, packing new boxes; a temp agency worker; a retention specialist for a bank; and had his own beauty supply business. Plaintiff stopped working in 2008, when he was selling beauty supplies. Thereafter, Plaintiff attempted to work in 2010. He worked for about three months, but was injured on the job on December 16, 2010. A ramp gave way and dropped Plaintiff to the ground. He injured his neck, back, and arms. According to Plaintiff, he has been told that he cannot work or drive because he has to see an orthopedic surgeon about having surgery on his neck and arms. He has been wearing a cervical collar since the accident.
Regarding his physical problems in 2008, Plaintiff testified to difficulty holding his bowels, joint pain, problems with walking and standing, and lupus. Plaintiff testified that prior to his accident, he was able to run a business, drive, care for his personal needs, and lift 90 to 100 pounds.
At present, Plaintiff testified to a lot of stiffness with the "rheumatoid from the lupus." Plaintiff stated that the pain is so bad at times that he is unable to walk much. Plaintiff is right-handed. He has problems writing because his hands shake and hurt, and his arms are sore. He still has tremors in both hands and wears braces on his hands. He has problems breathing and only walks a few steps at a time before sitting down or resting. His equilibrium may be off somewhat as well. He needs help dressing and bathing. He cannot push the nozzle to turn off the water in the tub. Although he was given a twenty-pound lifting restriction after his accident, now he has been told not to do anything given the results of MRI testing. Plaintiff does not have problems with his hearing or vision. Plaintiff is single and lives alone in a house. He does not receive any government assistance. The church has been helping him financially. (R. 32-54, 56-57).
Plaintiff's pastor testified next. He has known Plaintiff for about nine years and sees him maybe twice a week. The witness testified that Plaintiff was aggressive and trying to make a living despite his lupus, but his condition has deteriorated over the years. After the accident in 2010, Plaintiff's condition took a turn for the worse. Because he is not permitted to drive, the witness testified Plaintiff no longer comes to church. (R. 54-56).
Lastly, the ALJ took testimony via telephone from the vocational expert ("VE"), Dennis Duffin. In pertinent part, the VE testified on a hypothetical question which assumed a person of Plaintiff's age, education and work history capable of performing a limited range of light exertional work. On that hypothetical, the VE opined that an individual could perform Plaintiff's past work as a manager of a sports store, data entry clerk, retention specialist at a bank, order filler packer, and as a sales representative of beauty supplies. The VE also opined that other work would be available, including a fast food worker, cashier, and housekeeper and/or cleaner. A second hypothetical question assumed a person of Plaintiff's age, education and work history capable of performing a limited range of sedentary exertional work with no climbing ladders or scaffolding; avoidance of moving machinery, unprotected heights, and hazards; no commercial driving; no preparation of written reports due to an inability to hold a pen or pencil for too long; and fine and gross manipulation limited to a frequent basis bilaterally. On that hypothetical, the VE opined that an individual could perform Plaintiff's past work as a data entry clerk and retention specialist, as well as the jobs of a surveillance and alarm systems monitor, a callout operator, and telemarketer. (R. 58-66).
Also before the ALJ were medical records outlining the Plaintiff's medical history. These matters are addressed herein as necessary.
By his decision of March 4, 2011, the ALJ determined that while Plaintiff has severe impairments related to history of lupus; degenerative disc disease of the cervical spine at multiple levels; disc bulge at C5-6 with foraminal stenosis; tendinopathy of the supraspinatus tendons of the left shoulder; history of neck and low back pain; and status-post work-related accident with trauma, he nonetheless had the residual functional capacity to perform a restricted range of sedentary exertional work. Upon this finding and the testimony of a vocational expert, the ALJ concluded that Plaintiff could perform his past relevant as a data entry clerk or retention specialist, as well as other jobs available to him in the local and national economy. Upon this conclusion, the Plaintiff was determined to be not disabled. (R. 19-25). The Appeals Council considered additional evidence and denied Plaintiff's request for review on April 30, 2012. (R. 1-5). Thus, the ALJ's decision became the final decision of the Commissioner.
Entitlement to Supplemental Security Income payments requires the claimant establish that he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 423(d)(1)(A). A "physical or mental impairment," under the terms of the Act, is one that "results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. at § 423(d)(3).
A determination by the Commissioner that a claimant is not disabled must be upheld if it is supported by substantial evidence and comports with applicable legal standards. See id. at § 405(g). Substantial evidence is "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (quotations omitted). The Commissioner must apply the correct law and demonstrate that she has done so. While the court reviews the Commissioner's decision with deference to the factual findings, no such deference is given to the legal conclusions. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (citations omitted).
It is, moreover, the function of the Commissioner, and not the courts, to resolve conflicts in the evidence and to assess the credibility of the witnesses. Grant v. Richardson, 445 F.2d 656 (5th Cir. 1971). Similarly, it is the responsibility of the Commissioner to draw inferences from the evidence, and those inferences are not to be overturned if they are supported by substantial evidence. Celebrezze v. O'Brient, 323 F.2d 989, 990 (5th Cir. 1963). Therefore, in determining whether the Commissioner's decision is supported by substantial evidence, the court is not to re-weigh the evidence, but is limited to determining whether the record, as a whole, contains sufficient evidence to permit a reasonable mind to conclude that the claimant is not disabled. Dyer v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
In sum, the scope of review is limited to determining whether the findings of the Commissioner are supported by substantial evidence and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988).
The Plaintiff raises three claims on this appeal. As stated by the Plaintiff, they are as follows:
(Doc. 14).
Plaintiff's first two claims are addressed together. By these claims, Plaintiff argues that the ALJ's credibility finding was a "boilerplate" statement that did not include the proper analysis required by case law and the regulations, i.e., the ALJ failed to examine the intensity, persistence, or limiting effect of Plaintiff's pain and symptoms. To the extent that the ALJ's decision is read to include reasons for discounting Plaintiff's subjective complaints, Plaintiff argues that the reasons are insufficient because "all of the substantial evidence corroborates [Plaintiff's] allegations, . . . including the imaging evidence on file." Next, Plaintiff argues the ALJ erred in determining Plaintiff's residual functional capacity ("RFC") by "failing to include and consider [Plaintiff's] impairments and resulting limitations, as documented in the medical evidence and testimony of record." (Doc. 14 at 3-6).
The Commissioner counters that the ALJ properly considered Plaintiff's subjective complaints, but found them not entirely credible in light of the findings of an examining doctor, Plaintiff's work activity during the period of alleged disability, and the opinion of an nonexamining, state agency doctor. As for the ALJ's residual functional capacity determination, the Commissioner argues that Plaintiff fails to demonstrate error in this regard because he has not produced any credible evidence, medical or otherwise, that demonstrates he was more limited than that determined by the ALJ. (Doc. 15 at 6-13).
Residual functional capacity is an assessment based on all relevant evidence of a claimant's remaining ability to do work despite his impairments. 20 C.F.R. § 416.945(a)(1); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). The focus of this assessment is on the doctor's evaluation of the claimant's condition and the medical consequences thereof. Lewis, 125 F.3d at 1440. In evaluating a claimant's residual functional capacity, the ALJ is obliged to consider all of the claimant's impairments, including subjective symptoms such as pain.
Consideration of a claimant's subjective complaints such as pain is governed by a three-part "pain standard" that applies when a claimant attempts to establish disability through subjective symptoms. Dyer, 395 F.3d at 1210. Under this standard, the claimant must show evidence of an underlying medical condition and either objective medical evidence that confirms the severity of the alleged symptom arising from the condition or evidence that the objectively determined medical condition is of such severity that it can be reasonably expected to give rise to the alleged pain.
Here, the ALJ accurately recounted Plaintiff's testimony, and cited and applied the correct legal authority when addressing Plaintiff's subjective complaints. (R. 20). He found, however, that Plaintiff's testimony was not fully credible. In particular, the ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the symptoms alleged, but his statements about the intensity, persistence and limiting effects of the same were not credible to the extent they were inconsistent with a functional capacity for a limited range of sedentary work. (R. 21). In support of this determination, the ALJ accurately recounted the limited medical record and provided the following reasons: (1) there was no clinical or treating source support for Plaintiff's complaints; (2) clinical findings were essentially benign; (3) Plaintiff has not received the type of medical treatment one would expect if disabled; (4) while Plaintiff's work in December 2010 was not disqualifying substantial gainful activity, it indicated that his abilities have at times been greater than reported; and (5) the consulting examiner reported that Plaintiff's efforts were questionable and opined there was no significant impairment related to Plaintiff's problems. (R. 20-23).
As for the Plaintiff's functional capacity, the ALJ discussed the following evidence in determining the same: (1) the report of the consulting examiner, Allison Hull, D.O., who examined Plaintiff on August 22, 2009; (2) the January 2011 MRI results of Plaintiff's left shoulder, right shoulder, and cervical spine; (3) a work status report from January 2011, indicating that Plaintiff was unable to drive and had limited use of both hands; (4) the opinion of a nonexamining, state agency doctor who opined Plaintiff was not disabled; and (5) Plaintiff's testimony, particularly to his abilities after the December 2010 accident. (R. 20-23). Relying on that evidence and giving Plaintiff the benefit of the doubt to some extent, the ALJ determined that Plaintiff retained the RFC for a limited range of sedentary exertional work with no climbing of ladders, ropes, or scaffolds; only frequent (2/3 of a day) fine and gross manipulation bilaterally; no work requiring preparation of written reports secondary to hand tremors, no operating dangerous machinery; no commercial driving; and avoidance of hazards. (R. 19).
Upon careful review of the record, I conclude that Plaintiff has not demonstrated that he is entitled to relief on these claims. Initially, I note that Plaintiff fails to point to any particular testimony or medical evidence which is inconsistent with the challenged findings of the ALJ.
With regard to the credibility of Plaintiff's subjective allegations, the ALJ clearly recognized his obligation to address the same in accordance with the governing case law, regulations, and rulings and he cited to the same. (R. 20). Contrary to Plaintiff's contentions, the decision reveals that the ALJ thoroughly discussed Plaintiff's subjective complaints and articulated specific and adequate reasons for finding the same not entirely credible. Further, substantial evidence supports the ALJ's stated reasons for discounting Plaintiff's testimony to the extent it was inconsistent with an ability to engage in a limited range of sedentary work. First, the medical evidence in this case is slight and does not demonstrate support for disabling subjective symptoms.
Essentially for the same reasons, substantial evidence also supports the ALJ's RFC determination. Notably, the ALJ assessed a more limited RFC than that found in the medical record. The only RFC opinions of record were those provided by nonexamining sources and both of them opined Plaintiff could perform light work. Contrary to Plaintiff's suggestion, the MRI reports and Dr. Hull's report do not demonstrate greater limitations than those found by the ALJ. As for the one report indicating Plaintiff could not drive and should limit the use of both arms, the report also indicates that such a "modified duty work status" was recommended for one day only, namely, January 20, 2011. (R. 123). In any event, the ALJ accepted the driving limitation. The ALJ credited Plaintiff's hand problems by limiting the amount of time Plaintiff was able to perform activities requiring fine and gross manipulation. He also credited Plaintiff's complaints of back and neck pain to the extent he limited Plaintiff to sedentary work. On this record, the record evidence demonstrates that the ALJ fairly assessed Plaintiff's RFC and Plaintiff fails to demonstrate otherwise.
By his last claim, Plaintiff argues that the Appeals Council erred by failing to reverse the ALJ's decision in light of new and material evidence, namely: (1) CT myelogram discharge instructions; (2) records from Florida Orthopaedic Institute ("FOI") dated February 10, 2010; and (3) worker's compensation forms completed by FOI dated February 10, 2011, and March 31, 2011.
The Commissioner counters that Plaintiff fails to explain why that evidence would justify a different result than that reached by the ALJ and his failure to do so amounts to a de facto admission that the evidence does not alter the substantial weight of evidence relied upon by the ALJ. In any event, the Commissioner contends that the Appeals Council expressly considered this evidence and correctly determined that it did not provide a basis for changing the ALJ's decision. The Commissioner contends further that the evidence tends to reinforce the ALJ's credibility determination and documents only one specific functional limitation, which the ALJ included in his RFC determination. (Doc. 15 at 13-15).
When a claimant challenges the Appeals Council's consideration of new evidence, the controlling case in this Circuit is Ingram v. Commissioner of Social Security Administration, 496 F.3d 1253 (11th Cir. 2007). As recognized in that case, aside from a few exceptions, a claimant may submit new evidence at each stage of the administrative proceedings. Ingram, 496 F.3d at 1261 (citing 20 C.F.R. § 404.900(b)). Where as here, additional evidence is submitted for the first time to the Appeals Council, the Appeals Council "must consider new, material, and chronologically relevant evidence and must review the case if `the [ALJ's] action, findings, or conclusion is contrary to the weight of the evidence currently of record.'"
A summary of the evidence submitted to the Appeals Council is useful. It pertains to injuries Plaintiff suffered in his December 2010 work-related accident and examination he underwent one day after the ALJ issued his decision. To this end, Donna Du Mee, a certified physician's assistant (PA) at Florida Orthopedic Institute, examined Plaintiff on February 10, 2011.
The PA completed a form captioned "Florida Workers' Compensation Uniform Medical Treatment/Status Reporting Form" on the date of the examination. Therein, she opined that, due to a work-related cervical herniated nucleus pulposus, Plaintiff's functional limitations as of February 9, 2011, were of such a severity that he could not perform activities even at a sedentary level. No specific functional limitations were noted aside from "no driving." The PA also checkmarked a box indicating that a residual functional loss was not anticipated. (R. 247-48).
On March 31, 2011, Dr. Weinstein completed the same form. He also opined that Plaintiff was unable to perform even sedentary activities due to a work-related herniated nucleus pulposus. Contrary to the PA, however, Dr. Weinstein indicated that a residual functional loss was anticipated, but he did not opine as to the nature or severity of the same. (R. 250). Neither the doctor nor the PA provided an impairment rating or addressed the anticipated duration of Plaintiff's inability to perform even sedentary level activities.
In light of this evidence and the arguments made by Plaintiff, I am unable to find that a remand on this basis is warranted. Initially, insofar as Plaintiff suggests that the new evidence was not considered by the Appeals Council, the record indicates otherwise. Here, Plaintiff submitted the records after the ALJ's decision, and these submissions were received by the Appeals Council and made a part of the record. (R. 4). In denying Plaintiff's request for review of the ALJ's decision, the Appeals Council stated that it had considered the additional evidence, but concluded that it did not provide basis for changing the ALJ's decision, and it identified the particular records in its exhibit list. (R. 1-4). In light of this, there appears no merit to the claim that the new evidence was not even considered.
As for whether this new evidence undermines the ALJ's decision to deny disability in this case, Plaintiff makes no showing that it does. While it reveals that Plaintiff sustained work-related neck and shoulder injuries (during a time in which he contends he was disabled), the evidence does not speak to further functional limitations aside from the driving restriction credited by the ALJ. As for the findings on the workers' compensation forms that Plaintiff was unable to perform even sedentary activities, such statements without more simply do not establish that Plaintiff's functional ability was limited to the extent that he was disabled under the SSA's requirements and that he met the SSA's durational requirements. Accordingly, I cannot agree that the whole of the evidence supports a conclusion that the ALJ's decision was wrong or that the case should be remanded for further review.
For the foregoing reasons, the decision of the Commissioner of the United States Social Security Administration is in accordance with the correct legal standards and is otherwise supported by substantial evidence, and I recommend that it be affirmed. I further recommend that the Clerk be directed to enter Judgment in favor of the Plaintiff and to close the case, and the matter of fees and costs shall be addressed upon further pleadings.
