ELIZABETH M. TIMOTHY, Chief Magistrate Judge.
This case has been referred to the undersigned magistrate judge for disposition pursuant to the authority of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, based on the parties' consent to magistrate judge jurisdiction (see ECF Nos. 8, 9). It is now before the court pursuant to 42 U.S.C. § 405(g) of the Social Security Act ("the Act"), for review of a final decision of the Commissioner of the Social Security Administration ("Commissioner") denying Plaintiff's application for disability insurance benefits ("DIB") under Title II of the Act, 42 U.S.C. §§ 401-34.
Upon review of the record before this court, it is the opinion of the undersigned that the findings of fact and determinations of the Commissioner are supported by substantial evidence; thus, the decision of the Commissioner should be affirmed.
On October 4, 2013, Plaintiff filed an application for DIB, and in the application she alleged disability beginning November 10, 2012 (tr. 12).
In denying Plaintiff's claims, the ALJ made the following relevant findings (see tr. 12-21):
(1) Plaintiff met the insured status requirements of the Act through December 31, 2017
(2) Plaintiff did not engage in substantial gainful activity since November 10, 2012, the alleged onset date;
(3) Plaintiff had the following severe impairments during the relevant period: degenerative disc disease ("DDD") of the cervical spine and status-post right rotator cuff repair;
(4) Plaintiff had no impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part, 404, Subpart P, Appendix 1;
(5) Plaintiff had the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. § 404.1567(b), such that she could occasionally lift/carry twenty pounds, frequently lift/carry ten pounds, stand/walk six hours in an eight-hour workday, and sit six hours in an eight-hour workday. She could occasionally balance, stoop, crouch, kneel, crawl, and climb ramps and stairs. She could not climb ladders, ropes, or scaffolds. She could occasionally reach overhead with her right upper extremity, and she could occasionally handle and finger with her right hand;
(6) Plaintiff could not perform any past relevant work;
(7) Plaintiff was born on September 8, 1964, and was forty-eight years of age, which is defined as a younger individual aged between eighteen and forty-nine, on the alleged disability onset date. Plaintiff subsequently changed age category to closely approaching advanced age;
(8) Plaintiff has at least a high school education and can communicate in English;
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that Plaintiff is "not disabled," whether or not she has transferable job skills;
(10) Considering Plaintiff's age, education, work experience, and RFC, there were jobs existing in significant numbers in the national economy that Plaintiff could have performed during the relevant period;
(11) Plaintiff therefore was not under a disability, as defined in the Act, between November 10, 2012, and December 16, 2015.
Review of the Commissioner's final decision is limited to determining whether the decision is supported by substantial evidence from the record and was a result of the application of proper legal standards.
The Act defines a disability as 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). To qualify as a disability the physical or mental impairment must be so severe that the claimant is not only unable to do her previous work, "but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Id. § 423(d)(2)(A). Pursuant to 20 C.F.R. § 404.1520(a)-(g), the Commissioner analyzes a disability claim in five steps:
1. If the claimant is performing substantial gainful activity, she is not disabled.
2. If the claimant is not performing substantial gainful activity, her impairments must be severe before she can be found disabled.
3. If the claimant is not performing substantial gainful activity and she has severe impairments that have lasted or are expected to last for a continuous period of at least twelve months, and if her impairments meet or medically equal the criteria of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is presumed disabled without further inquiry.
4. If the claimant's impairments do not prevent her from doing her past relevant work, she is not disabled.
5. Even if the claimant's impairments prevent her from performing her past relevant work, if other work exists in significant numbers in the national economy that accommodates her RFC and vocational factors, she is not disabled.
The claimant bears the burden of establishing a severe impairment that keeps her from performing her past work. 20 C.F.R. § 404.1512. If the claimant establishes such an impairment, the burden shifts to the Commissioner at step five to show the existence of other jobs in the national economy which, given the claimant's impairments, the claimant can perform.
Plaintiff was forty-eight years of age on the date she alleges she became disabled (tr. 170). At the time of her hearing she was 5'7" and stated she weighed 245 pounds (tr. 30). She previously worked as a cook and prep cook, housekeeper, and janitor (tr. 216). Plaintiff last worked in November 2012 as a housekeeper for the Gulf Coast Medical Center—a job that required her to lift fifty to sixty pounds—but she tore her right rotator cuff on the job and, according to Plaintiff, was ultimately terminated after her injuries failed to fully heal (see tr. 30-32). As a result of the on-the-job injury, Plaintiff filed a workers' compensation claim, which she settled (see, e.g., tr. 132-33
Plaintiff, who is right-handed, testified that she cannot use her right arm to lift overhead or to reach fully in all directions; that she cannot not use her right hand to pick up things; and that she drops things and has trouble gripping with her right hand (tr. 30, 33, 37). Plaintiff stated she has some "problems" in her neck, upper back, "thoracic discs," and lumbar spine, and she has DDD in her cervical spine but has not had any treatment, physical therapy, injections, or "anything like that" for these conditions (see tr. 33-35).
Plaintiff initially testified that no doctor had prescribed any medication for her conditions but then backtracked a bit and stated that her primary care physician with the Family Clinic had prescribed Tramadol for pain (tr. 34). She stated she also occasionally uses over-the-counter Tylenol for pain (tr. 35).
On a disability report Plaintiff alleged she is unable to work due to right shoulder and arm pain, lower and upper back "issues," pain in both hands, pain in her legs and right hip, left-sided hearing loss, "problems" with her feet, and pain in the back of her neck (tr. 215). On the same report she stated she had not seen a physician for her neck pain, hand pain, hip pain, or hearing loss, noting that she had no insurance (tr. 222).
Finally, the court notes that, at the outset of Plaintiff's hearing, her attorney asserted that Plaintiff was disabled due to "the dysfunction of a major joint or spinal disorder [and] peripheral neuropathy" (tr. 30). But at the conclusion of the hearing, her attorney stated, "I would just suggest that we have X-rays in [Exhibit] 9-F [tr. 444-50] that talk about degenerative changes in the lumbar and thoracic and then we have the MRI of the cervical, and I'll leave it at that, Your Honor. . . ." (tr. 38-39).
On or about July 7, 2015, Plaintiff presented to Maria U. Tedtaotao, M.D., with complaints of neck and back pain and was referred for x-rays of the lumbar, cervical, and thoracic spine (tr. 448-50). No acute bony injuries were present on any x-ray, and only mild degenerative changes were noted on the lumbar and thoracic spine x-rays (id.). The cervical x-ray revealed degenerative changes at C4-5 and C5-6 and mild to moderate foraminal stenosis in the mid-cervical spine, which was most significant at C5-6 (tr. 450). Plaintiff returned to Dr. Tedtaotao in August of 2015 to review the x-ray results (tr. 446-47). Plaintiff reported right shoulder pain with decreased range of motion, joint pain, back pain, and difficulty walking but denied muscle pain or neck pain (tr. 446). She also reported being in "a lot of" pain (id.). A physical examination revealed full range of motion in the neck and all extremities but decreased range of motion in the right shoulder, as well as paraspinal and cervical spine spasm and thoracic pain (id.). Plaintiff's gait was steady and her strength was intact (id.). Plaintiff's diagnoses included spinal stenosis of the cervical spine, degeneration of the thoracic and lumbar spine, shoulder joint pain, and obesity (tr. 447). Plaintiff was to try Ultram for pain and return for follow up in one month (id.).
On November 5, 2015, Plaintiff obtained magnetic resonance imaging ("MRI") of her cervical spine, which showed moderate to severe spinal canal stenosis secondary to disc degeneration/protrusion and extrusion at multiple levels extending from C3-4 to C6-7, with spondylotic changes at those levels (tr. 452).
On November 21, 2013, Plaintiff underwent a consultative examination by Osama Elshazly, M.D. (tr. 440). On examination, Plaintiff had tenderness over the cervical spine area with slightly limited mobility on extension (tr. 441). Plaintiff had tenderness over the right acromioclavicular joint with decreased mobility and a severe muscle spasm noted at the right shoulder muscle area (id.). Dr. Elshazly also noted tenderness over the thoracic spine area with moderate to severe muscle spasm on both sides of the spine (id.). Straight leg raising was slightly positive at 45 degrees sitting and lying down (id.). Plaintiff had decreased sensation in the right leg on the lateral side, but her reflexes were normal and she had 4 out of 5 ("4/5") motor power in her leg muscles (id.). She could squat half way and displayed decreased grip strength of 2/5 in the right hand and 4/5 in the left hand with 3/5 motor strength in the right arm (id.). Plaintiff's gait was normal, and she had full range of motion in every area tested, except with right shoulder flexion, which was reduced by 50 degrees (tr. 437-39, 229).
Dr. Elshazly's impressions were chronic neck pain with radicular symptoms, status-post rotator cuff surgery of the right shoulder, peripheral neuropathy in the right upper extremity, chronic back pain, and thoracic disc disease (tr. 441-42).
At Plaintiff's hearing held November 10, 2015, a vocational expert ("VE") testified that a hypothetical person with Plaintiff's RFC could not perform her past relevant work (tr. 39-40). The person could, however, perform other available work such as gate guard, a job performed at the light level of exertion (tr. 40); "[m]aybe an usher," also performed at the light level of exertion (see id.); and surveillance system monitor, performed at the sedentary level of exertion (tr. 40). If the same person was absent from work more than two days per month and needed to take more than two unscheduled breaks per day, however, the person would be unemployable in any occupation (tr. 40-41).
Plaintiff contends the ALJ erred: (1) in failing to conclude that her thoracic DDD, peripheral neuropathy, and obesity were "medically determinable severe impairment[s]"; (2) by failing to pose a proper hypothetical question to the vocational expert; (3) in failing to properly evaluate her obesity; and (4) in evaluating Plaintiff's complaints of pain and other symptoms.
As previously noted, Plaintiff contends the ALJ erred in failing to find that her thoracic DDD and peripheral neuropathy were medically determinable severe impairments.
The Commissioner's regulations provide that, once it is determined that a claimant is not working, the Commissioner will then determine whether the claimant has:
20 C.F.R. § 404.1521. An impairment or combination of impairments is not severe if it does not significantly limit a claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1522. In other words, to be disabled, the medically determinable impairment must render the claimant unable to engage in her past relevant work or any other substantial gainful activity. 20 C.F.R. § 404.1505(a).
With respect to the thoracic DDD, x-rays of Plaintiff's thoracic spine showed only mild degenerative changes, as the ALJ noted (tr. 14). And Plaintiff has shown nothing in the record indicating that this condition had any effect on her ability to work. Therefore, she has not shown the ALJ erred in failing to find it was a severe impairment. See
As to the peripheral neuropathy, the only medical evidence of this during the relevant period is Dr. Elshazly's impression of peripheral neuropathy in the right upper extremity, made in connection with his consultative examination of Plaintiff in November 2013 (tr. 441-42). His impression appears to be based in large part on Plaintiff's report that her shoulder pain radiated into her right arm and was "accompanied with numbness and tingling," which she indicated began following her rotator cuff surgery in August of 2010 (see tr. 440).
The record appears to be inconsistent with Plaintiff's report to Dr. Elshazly. For example, a board-certified orthopedic surgeon released Plaintiff to full-time, full-duty work on June 7, 2012, with no restrictions (tr. 420), and at that time Plaintiff was working as a housekeeper at the medium level of exertion (see tr. 266). Then, on July 11, 2012, Plaintiff was in a minor automobile accident, having been rear-ended by a vehicle traveling at less than ten miles per hour (tr. 423). She went to a hospital and advised the attending physician that she had no history of weakness in the upper extremities, and sensory and motor examinations yielded no abnormal results (tr. 423-24). Likewise, Plaintiff specifically denied weakness, numbness, and tingling in her extremities to her treating physician Dr. Tedtaotao in August of 2015; she displayed full strength upon Dr. Tedtaotao's examination; and Dr. Tedtaotao did not diagnose peripheral neuropathy (see tr. 446-47). What is more, Dr. Elshazly's own examination revealed full range of motion in Plaintiff's wrists, hands, thumbs, and fingers; the finger-to-nose test he conducted was normal; Plaintiff could button her shirt; and motor power was 3/5 in her right upper extremity, although grip strength was reduced to 2/5 (tr. 438, 441).
Nevertheless, to the extent peripheral neuropathy exists, it is related to Plaintiff's status-post right rotator cuff repair, a condition the ALJ thoroughly considered, accounted for in his findings, and in fact found severe. For example, the ALJ considered whether the right shoulder condition met the criteria of Listing 1.02(B), which required the ALJ to consider Plaintiff's fine and gross manipulative abilities (tr. 15). Although the ALJ determined that the condition did not meet the criteria of the Listing, he did include restrictions related to the right upper extremity in Plaintiff's RFC. Specifically, he limited Plaintiff to only occasionally reaching overhead with her right arm and only occasional handling and fingering with her right hand (tr. 14, 15). These restrictions adequately account for the right upper extremity limitations deemed credible by the ALJ. Thus, any error by the ALJ in failing to specifically recite peripheral neuropathy in the listing of impairments found severe is harmless. See, e.g.,
For the same reasons, Plaintiff's argument that the ALJ should have included a limitation in grip strength in the hypothetical questions he posed to the VE (and in the RFC), as a result of the peripheral neuropathy, fails. As before, the ALJ's findings related to the rotator cuff condition adequately account for any limitations in Plaintiff's right upper extremity.
Plaintiff contends the ALJ erred in evaluating her obesity, including by failing to conclude that it was a severe, medically determinable impairment.
The court has found a diagnosis of obesity in Dr. Tedtaotao's treatment record of August 10, 2015 (tr. 447) (it is not listed in the diagnoses provided by Dr. Elshazly (see tr. 441-42)). But a diagnosis alone is insufficient to establish the severity of an impairment.
Moreover, although an ALJ must consider obesity as an impairment when evaluating disability, see SSR 02-1P, 2000 WL 628049, at *1 (Sept. 12, 2000) ("we consider obesity to be a medically determinable impairment and remind adjudicators to consider its effects when evaluating disability"), it is Plaintiff who bears the burden of proving that her obesity results in functional limitations and that she was "disabled" under the Social Security Act. See 20 C.F.R. § 404.1512(a) (instructing claimant that "you have to prove to us that you are blind or disabled [and you must] . . . submit all evidence known to you that relates to whether or not you are blind or disabled");
The Eleventh Circuit and other district courts within this circuit have found that an ALJ did not commit reversible error in circumstances similar to this case. See, e.g.,
As with the cases cited above, here Plaintiff has failed to explain how her obesity causes further limitations than those found by the ALJ, and she has not identified any reliable medical opinions supporting any limitations beyond those stated in her RFC that result from her obesity. Consequently, she is entitled to no relief on this basis.
In
Here, the ALJ concluded that Plaintiff has medically determinable impairments that reasonably could be expected to cause some of her symptoms (tr. 16). Then, as the pain standard requires, the ALJ proceeded to address the extent to which the intensity and persistence of Plaintiff's pain limits her ability to work, citing the record to support his conclusion that Plaintiff's statements are not credible to the extent they are inconsistent with the assessed RFC (id.).
More particularly, in finding Plaintiff less than fully credible, the ALJ identified the following reasons, among others (see tr. 16-19):
With regard to the pain issue, the undersigned, of course, is not charged with making independent fact conclusions, but only with reviewing the substantiality of the evidence underlying the conclusions reached by the ALJ. See
For the foregoing reasons, the Commissioner's decision is supported by substantial evidence and should not be disturbed. 42 U.S.C. § 405(g);
Accordingly, it is hereby
1. That the decision of the Commissioner is
2. That
3. That the Clerk is directed to close the file.