MARK A. PIZZO, Magistrate Judge.
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Plaintiff seeks judicial review of the Commissioner's decision denying her claim for supplemental security income (SSI) and disability insurance benefits (DIB). She makes two arguments; one directed at the ALJ's decision at step five of the sequential analysis pertaining to her residual functional capacity (RFC), and the other aimed at the Appeals Council's refusal to review her case when she says she presented new, relevant evidence about her impairments. After considering the record, I find the Commissioner followed the regulatory scheme and supported the decision with substantial evidence. Accordingly, I recommend the Commissioner's decision be affirmed and the complaint be dismissed.
Plaintiff, who was 46 years old at the time of the administrative decision, has an eleventh grade education and has worked as a certified nurse assistant, a training instructor for mentally impaired individuals, and a daycare worker. She alleges she has been unable to work since July 2009 due to a host of impairments: chronic obstructive pulmonary disease (COPD), carpal tunnel syndrome, degenerative disc disease, degenerative joint disease, diabetes mellitus, headaches, hypertension, Meralgia Paresthetica, and obesity. The ALJ found all these impairments were severe and that they prohibited her from performing her past work. Nonetheless, the ALJ concluded with aid of a vocational expert (VE) that they did not prohibit her from doing other work in the national economy. Plaintiff administratively appealed, and the Appeals Council denied review despite her submission of evidence she claimed was new. With ALJ's decision being the Commissioner's final one, Plaintiff filed this action seeking judicial review.
The Social Security Administration, in order to regularize the adjudicative process, promulgated the detailed regulations that are currently in effect. These regulations establish a "sequential evaluation process" to determine whether a plaintiff is disabled. 20 C.F.R. §§ 404.1520; 416.920. If an individual is found disabled at any point in the sequential review, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a); 416.920(a). Under this process, the Secretary must determine, in sequence, the following: whether the plaintiff is currently engaged in substantial gainful activity; whether the plaintiff has a severe impairment, i.e., one that significantly limits the ability to perform work-related functions; whether the severe impairment meets or equals the medical criteria of Appendix 1, 20 C.F.R. Subpart P; and whether the plaintiff can perform her past relevant work. If the plaintiff cannot perform the tasks required of her prior work, step five of the evaluation requires the ALJ to decide if the plaintiff can do other work in the national economy in view of her age, education, and work experience. A plaintiff is entitled to benefits only if unable to perform other work. See Bowen v. Yuckert, 482 U.S. 137 (1987); 20 CFR §§ 404.1520(f), 416.920(f).
In reviewing the ALJ's findings, this Court must ask if substantial evidence supports them. Richardson v. Perales, 402 U.S. 389 (1971). The ALJ's factual findings are conclusive if "substantial evidence" consisting of "relevant evidence as a reasonable person would accept as adequate to support a conclusion" exists. See 42 U.S.C. § 405(g); Keeton v. Dep't of Health and Human Servs., 21 F.3d 1064 (11th Cir. 1994). A court may not reweigh the evidence nor substitute its own judgment for that of the ALJ even if it finds that the evidence preponderates against the ALJ's decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). The Commissioner's failure to apply the correct law, or to give the reviewing court sufficient reasoning for determining that he has conducted the proper legal analysis, mandates reversal. Keeton, 21 F. 3d at 1066; Jamison v. Bowen, 814 F.2d 585 (11th Cir. 1987) (remand for clarification).
Plaintiff's first issue — "[t]he ALJ's decision is not based on substantial evidence, when he found carpal tunnel syndrome and headaches to be severe impairments, yet failed to include resultant limitations in the RFC" — is capable of two interpretations. See doc. 10 at 10. The ALJ's RFC finding is not supported by substantial evidence; namely, the ALJ should have included the functional limitations associated with migraines (lost work days) and carpal tunnel syndrome (reduced dexterity, hand strength, inability to finger objects) because the substantial evidence supported their inclusion. Or, the ALJ's formulation of the RFC was erroneously incomplete even when considering his findings as to the limitations caused by her carpal tunnel syndrome and migraines because the ALJ is required to look at severe and non-severe impairments. Both versions, however, miss the more accurate question: Did the ALJ at step five satisfy his burden of proof that Plaintiff was not disabled? To meet that burden, the ALJ relied on the testimony of the VE. As a result, the real gravamen of Plaintiff's complaint, no matter how she states it, focuses on the ALJ's RFC findings at that step and his use of those findings in formulating his hypothetical to the VE. In sum, the ALJ's RFC findings served as predicate to the hypothetical.
This is not instance where an ALJ failed to make well-articulated findings as to Plaintiff's impairments. See Walker v. Bowen, 826 F.2d 996, 1001 (11th Cir. 1987) (ALJ failed to make any reference to certain impairments evident from the medical record). Here, the ALJ discussed her migraines and carpal tunnel syndrome in detail. For example, Plaintiff has a history of migraines dating back to her childhood, which is a common feature among migraineurs. And while Plaintiff's medical records report that she is a migraineur, the medical records do not support the proposition that she continued to complain about "chronic migraines" after her physician prescribed a migraine prophylaxis (propanol) and a migraine abortive medication (imitrex) on October 18, 2011. See R. 482-488. At most, the medical records after this date repeat Plaintiff's history of headaches (and her history of other conditions), but these records are noticeably silent for complaints about continuing migraines. I read Plaintiff's medical records to suggest that the physician's prescribed anti-migraine intervention improved and controlled Plaintiff's migraine activity.
Although the ALJ found these impairments severe for step two purposes, that only means that these impairments were not so slight and their effects not so minimal on her ability to work. McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986); Brady v. Heckler, 724 F.2d 914 (11th Cir.1984). "Severity" in step two's vernacular means a medically ascertained impairment that impacts one's ability to work as opposed to some deviation from purely medical standards of bodily perfection or normality. McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986). Plaintiff's evidentiary threshold at step two only required she make a modest, threshold showing; something severe enough (in contrast to a minor medical condition) to justify proceeding to the next sequential step. Bowen, 482 U.S. at 153-154. Plaintiff seems to take this regulatory definition of "severe" and then elevate the term to its dictionary equivalent — "marked" or "serious." Webster's New Collegiate Dictionary (1979). Instead, the ALJ's task was to evaluate Plaintiff's pain testimony for credibility against the objective medical evidence, using the regulatory measuring stick. Namely, the ALJ was required to consider all Plaintiff's symptoms, including pain, and the extent to which these symptoms could reasonably be accepted as consistent with the objective evidence and other evidence. See 20 C.F.R. §§ 404.1529 and 416.929.
While it would have been preferable for the ALJ, when questioning the VE, to have accounted for these two impairments (by noting their minimal impact), the ALJ's failure to add them to his predicate was not error. The ALJ hewed to the correct standard, decided that the medical evidence failed to support her testimony about the limitations posed by her carpal tunnel syndrome and her migraines, and justifiably omitted those limitations from the hypothetical.
Finally, Plaintiff asserts that the Appeals Council (AC) erred when it found that allegedly new evidence — a November 18, 2013 RFC questionnaire from Dr. Latt — did not provide a basis for changing the ALJ's decision (doc. 17 at 13). The Commissioner argues there was no error because Dr. Latt's RFC questionnaire does not undermine the substantial evidence on which the ALJ's decision was based (doc. 20 at 8).
Smith v. Social Security Admin., 272 F. App'x 789, 800-01 (11th Cir. 2008) (per curiam).
Here, the AC looked at the RFC questionnaire but concluded that because it was dated November 18, 2013, it could not affect the decisions about whether Plaintiff was disabled through the date of the ALJ decision — May 1, 2013 (R. 2). As in Smith, the AC properly declined to review the ALJ's decision in light of the evidence submitted because the evidence was not new or material. Smith, 272 F. App'x at 801 (citation omitted). Rather, the RFC questionnaire relates to Plaintiff's RFC as of November 18, 2013 — after the ALJ's decision. Moreover, Dr. Latt, who completed the questionnaire, never treated Plaintiff during the relevant time period (R. 19). Dr. Latt's physician group (Jay Care Medical Center) saw Plaintiff during the relevant time period, and Dr. Latt admittedly relied on his group's records in forming his opinion on Plaintiff's RFC (R. 19). However, the ALJ already considered the medical records from Jay Care Medical Center in determining Plaintiff's RFC (e.g., R. 453-92).
Finally, there is no reasonable possibility that the "new evidence" would have changed the administrative result. As the Commissioner points out, Dr. Latt merely checked boxes on a form and failed explain how his findings were supported by the medical records. "A treating physician's report may be discounted when it is not accompanied by objective medical evidence or is wholly conclusory." Kalishek v. Comm'r of Soc. Sec., 470 F. App'x 868, 871 (11th Cir. 2012). Moreover, Dr. Latt's findings are wholly inconsistent — both internally and with the record evidence. For example, Dr. Latt says that Plaintiff does not need a job that permits shifting positions (e.g., from sitting to standing to walking) at will, but also says that Plaintiff can only sit or stand for 5 minutes at a time, and that Plaintiff does not need to sit in a recliner or lie down each day (R. 17-18). For all these reasons, I find that the AC did not err by finding Dr. Latt's RFC questionnaire did not provide a basis for changing the ALJ's decision and denying review.
For the reasons stated, I recommend
1. That Plaintiff's complaint be dismissed and the Commissioner's decision be affirmed.
2. That the Clerk be directed to enter judgment for the Commissioner.
IT IS SO REPORTED.
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1.
