CHARLES A. STAMPELOS, Magistrate Judge.
This is a Social Security case referred to the undersigned magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.2(D). It is now before the Court pursuant to 42 U.S.C. § 405(g) for review of the final determination of the Commissioner of the Social Security Administration (SSA) denying Plaintiff's applications for a period of disability and Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). After careful consideration of the entire Record, it is recommended that the decision of the Commissioner be affirmed.
On or about June 11, 2009, Plaintiff, Carrie A. Lacy, filed a Title II application for a period of disability and DIB and a Title XVI application for SSI alleging disability beginning October 15, 2004. R. 13, 166-175. (Citations to the Record shall be by the symbol "R." followed by a page number that appears in the lower right corner.) Plaintiff's date last insured, or the date by which his disability must have commenced in order to receive DIB under Title II, is December 31, 2008. R. 13.
Plaintiff's applications were denied initially on July 30, 2009, and upon reconsideration on March 23, 2010. R. 98-103, 105-08. On April 26, 2010, Plaintiff requested a hearing. R. 109. On May 5, 2011, Plaintiff appeared and testified at a hearing conducted in Tallahassee, Florida, by Administrative Law Judge (ALJ) Amy Uren. R. 13, 24, 37-64. Vicky H. Pratton, an impartial vocational expert, testified during the hearing. R. 13, 65-70, 159-60 (Resume). Plaintiff was represented by David E. Evans, an attorney. R. 13, 30, 32, 97.
On May 26, 2011, the ALJ issued a decision and denied Plaintiff's applications for benefits concluding that Plaintiff was not disabled from October 15, 2004, through the date of the ALJ's decision. R. 24. On July 5, 2011, Plaintiff requested review of this decision, which included a one-page permanent impairment determination. R. 7-9, 389. The Appeals Council denied review on August 10, 2012. R. 1-5.
On October 10, 2012, Plaintiff filed a Complaint with the United States District Court seeking review of the ALJ's decision. Doc. 1. The parties filed memoranda of law, docs. 18 and 19, which have been considered.
The ALJ made several findings relative to the issues raised in this appeal:
This Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and premised upon correct legal principles. 42 U.S.C. § 405(g);
"In making an initial determination of disability, the examiner must consider four factors: `(1) objective medical facts or clinical findings; (2) diagnosis of examining physicians; (3) subjective evidence of pain and disability as testified to by the claimant and corroborated by [other observers, including family members], and (4) the claimant's age, education, and work history.'"
A disability is defined as a physical or mental impairment of such severity that the claimant is not only unable to do past relevant work, "but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). A disability is an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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); see 20 C.F.R. §§ 404.1509, 416.909 (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than 12 months.
The Commissioner analyzes a claim in five steps. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
A positive finding at step one or a negative finding at step two results in disapproval of the application for benefits. A positive finding at step three results in approval of the application for benefits. At step four, the claimant bears the burden of establishing a severe impairment that precludes the performance of past relevant work. Consideration is given to the assessment of the claimant's RFC and the claimant's past relevant work. If the claimant can still do past relevant work, there will be a finding that the claimant is not disabled. If the claimant carries this burden, however, the burden shifts to the Commissioner at step five to establish that despite the claimant's impairments, the claimant is able to perform other work in the national economy in light of the claimant's RFC, age, education, and work experience.
Plaintiff argues that the ALJ erred when she found that Plaintiff had the RFC to perform sedentary work when, according to Plaintiff, there was confusion regarding whether the ALJ's finding actually meant that Plaintiff could perform less than sedentary work in light of the lift and carry weight restrictions. Doc. 18 at 5-8. The Commissioner responds that Plaintiff is mistaken in that the ALJ's finding that Plaintiff lacked the RFC to perform a full range of sedentary work referred to Plaintiff's nonexertional limitations that were accounted for in the hypothetical questions posed to the vocational expert and in the ALJ's ultimate RFC assessment. Doc. 19 at 11-12.
The ALJ found that Plaintiff had the RFC to perform sedentary work "such that she can lift/carry less than 10 pounds frequently and 10 pounds occasionally; and must have work which is simple, repetitive work, consistent with a [SVP] of one or two." R. 18. In order to make this finding, the ALJ considered the relevant medical evidence. R. 18-22. Plaintiff does not quarrel with the ALJ's summary of the evidence and, as a result, the ALJ's findings are incorporated herein. Id.
The ALJ begins her discussion of the medical evidence with Plaintiff's examination by M. Hytham I. Beck, M.D., in January 2003 for abdominal bulges. Dr. Beck assessed multiple incisional ventral hernias and scheduled Plaintiff for laparoscopic repair and lysis of adhesions. R. 19, 267-68. Plaintiff underwent surgical repair. Plaintiff returned to Dr. Beck in May 2003 and was diagnosed with another abdominal wall hernia. It appears laparoscopic surgery was performed and Dr. Beck informed Plaintiff that she had no recurrent hernia. R. 19, 270-71. Plaintiff returned in August 2003 complaining of a recurrent abdominal bulge and Dr. Beck saw no hernias. He opined she could return to work and he recommended that Plaintiff seek another opinion which she did in and around September 2003, when she returned to Dr. Beck stating that an unnamed doctor observed a hernia. Dr. Beck did not feel any hernia upon examination. He released Plaintiff to full time duty. R. 19, 271, 273. The ALJ gave Dr. Beck's opinion great weight that Plaintiff could return to work without restriction, other than the use of an abdominal binder, and because Dr. Beck was Plaintiff's treating physician with a specialty in general surgery. R. 19.
The ALJ notes that "[t]here is a considerable gap in treatment after 2003. The medical record shows no complaint of or treatment for abdominal pain until years later, in January of 2008 (2F1). Moreover, the objective findings do not fully support the claimant's allegations regarding abdominal issues." R. 19, 274. The ALJ mentions a CT scan performed in January 2008 that "confirmed the abdominal wall hernia repair, but yielded negative results for soft tissue hernia, focal mass, or adenopathy, and was otherwise an unremarkable study. Further, the claimant's CT scan of the pelvis yielded negative results aside from the incidental finding of the possibility of an adnexal cyst (2F)." R. 20, 274-76.
The ALJ's consideration of the medical evidence then picks up with Plaintiff's visit to the Gulf Coast Clinic in early 2009. "Treatment notes from Gulf, dated February 11, 2009, after her date last insured, indicate that the claimant reported to the provider that Dr. Beck repaired her hernias, and that she returned to `the same job.' This statement is inconsistent with her later testimony that she last worked in 2003." R. 20, 284. (emphasis added).
In May 2009, Plaintiff presented to the emergency department with the chief complaint of left upper abdominal pain, reportedly triggered by sneezing, which she felt caused another hernia. R. 20, 289. Frank Fannin, M.D., found no hernias. A CT scan was recommended, but it appears that Plaintiff did not undergo a CT scan. Dr. Fannin did not authorize any work absences and stated Plaintiff is "`able to return to work' (4F13)." R. 20, 297. The ALJ assigned Dr. Fannin's opinion great weight. According to the ALJ no further abdominal complaints are noted through the remainder of 2009. R. 20.
The ALJ summarizes statements (in 2009) from Plaintiff's mother regarding Plaintiff's activities of daily living and further notes that Plaintiff told Dr. Horvat during a consultative examination "that she enjoyed painting, fishing, working outdoors, crafts, swimming, and being with her family (10F)." R. 20, 215-18, 234-41, 320-21. The ALJ found this statement consistent with the medical record "and indicates the claimant had a good level of functioning, one that is inconsistent with disability, after her hernia repair and through her date last insured. Further, the claimant did not complain of or seek treatment for her abdominal condition after May 2009, according to the record." Id. (emphasis added).
In November 2009, Plaintiff presented to the emergency department complaining of chest pain accompanied by shortness of breath. Hari Baddigam, M.D., a cardiologist, admitted Plaintiff to cardiology for further evaluation. R. 21, 331-32. Plaintiff underwent a "same-day heart catheterization, ventriculography, and aspiration thrombectomy, with temporary pacemaker placement and two bare metal state [sic] placements" performed by Joey Trantham, M.D., "to treat an acute inferior infarction (11F; 14F5)." R. 21, 327-31, 358-59, 364-69. Plaintiff's ejection fraction at surgery and improvement the following day were noted. Id. Plaintiff returned for a follow-up office examination with Carla Dorsch, ARNP-C (associated with Dr. Baddigam) in December 2009, but denied chest pain, angina, or palpitations. R. 21, 362. Self-reported improvement was noted by the ALJ. R. 21.
A repeat Doppler echocardiogram performed in February 2010, "yielded generally mild or negative results." R. 21, 370. The ALJ noted that Nurse Dorsch evaluated Plaintiff in March 2010 "and noted improvement of the claimant's left ventricular function, despite the claimant's report that she continued to smoke ½ a pack of cigarettes a day." R. 21, 360-61. Plaintiff reported being out of Coreg and Nurse Dorsch instructed Plaintiff to restart Coreg, the dosage was increased, and Plaintiff was told to follow-up with Dr. Baddigam in six months or sooner if necessary. Id. The ALJ noted that the record did not contain evidence that she followed-up with Dr. Baddigam or any other providers. R. 21.
The ALJ mentions a telephone call with the agency in March 2010 when Plaintiff reported being "`a bit stronger,' `able to sustain ADLs [activities of daily living] for longer periods,' and `no longer experiencing chest pains,' although she stated that her hernia condition remained the same." R. 21, 251. The ALJ also considered the March 23, 2010, Physical RFC Assessment performed by John A. Dawson, M.D. R. 21-22, 374-81. The ALJ noted that Dr. Dawson
R. 21-22, 374-81.
20 C.F.R. §§ 404.1567(a), 416.967(a); Social Security Ruling (SSR) 96-9p, 1996 SSR LEXIS 6, at *8-9 (July 2, 1996). SSR 96-9p provides guidance for determining the capacity to do other work and the implications of an RFC for less than a full range of sedentary work. 1996 SSR LEXIS 6, *1.
Id. at *16-17 (emphasis added). This SSR is the only authority Plaintiff cites in support of her argument. See Doc. 18 at 6.
During the hearing, the ALJ inquired of Ms. Pratton, the vocational expert. R. 64-70. Ms. Pratton reviewed Plaintiff's past relevant work. R. 65-68. Relevant here, the ALJ and Ms. Pratton had the following colloquy:
R. 68 (emphasis added).
The ALJ determined that Plaintiff can occasionally lift/carry 10 pounds and frequently lift/carry less than 10 pounds. R. 18. The ALJ did not determine that Plaintiff was unable to lift 10 pounds. Thus, the ALJ's lift/carry weight limitations did not meet the threshold inquiry requirements of SSR 96-9p. This case does not involve a person who is restricted to lifting and carrying less than 10 pounds and no more than a pound or two. In light of the ALJ's RFC lift/carry restrictions, it was not necessary for the ALJ to further determine whether Plaintiff can also lift and carry docket files, ledgers, and small tools or whether Plaintiff was unable to lift and carry more than 1 or 2 pounds.
The ALJ, after consulting with Ms. Pratton, determined that Plaintiff could perform jobs as a surveillance systems monitor and addresser or addresser clerk, with a SVP of 2 consistent with the ALJ's RFC determination. R. 18, 24, 68; see supra n.9. The
See www.oalj.dol/PUBLIC/DOT/REFERENCES/DOT038B.HTM (379.367-010) and www.oalj.dol/PUBLIC/DOT/REFERENCES/DOT02A.HTM (209.587-010). These are unskilled, sedentary jobs. R. 22; See supra nn.8 & 9.
The ALJ considered Plaintiff's impairments and the severity of those impairments in light of her testimony, the medical evidence, and other evidence. The ALJ explained the bases for her decision. The Commissioner met her burden at step five of the sequential evaluation process by demonstrating that Plaintiff has the RFC to perform work (two jobs) in the national economy at the sedentary level. Based on the foregoing, substantial evidence supports the ALJ's RFC determination.
Considering the Record as a whole, the findings of the ALJ are based upon substantial evidence in the record and the ALJ correctly applied the law. Accordingly, it is respectfully recommended that the decision of the Commissioner to deny Plaintiff's applications for Social Security benefits be
