G. WIX UNTHANK, Senior Judge.
The plaintiff brought this action to obtain judicial review of an administrative denial of his applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). The appeal is currently before the court on cross-motions for summary judgment.
The Commissioner is required to follow a five-step sequential evaluation process in assessing whether a claimant is disabled.
20 C.F.R. §§ 404.1520; 416.920;
Review of the Commissioner's decision is limited in scope to determining whether the findings of fact made are supported by substantial evidence.
In reviewing the record, the court must work with the medical evidence before it, despite the plaintiff's claims that he was unable to afford extensive medical work-ups.
Additional information concerning the specific steps in the test is in order. Step four refers to the ability to return to one's past relevant category of work.
Once the case is made, however, if the Commissioner has failed to properly prove that there is work in the national economy which the plaintiff can perform, then an award of benefits may, under certain circumstances, be had.
One of the residual functional capacity levels used in the guidelines, called "light" level work, involves lifting no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds; a job is listed in this category if it encompasses a great deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls; by definition, a person capable of this level of activity must have the ability to do substantially all these activities. 20 C.F.R. § 404.1567(b). "Sedentary work" is defined as having the capacity to lift no more than ten pounds at a time and occasionally lift or carry small articles and an occasional amount of walking and standing. 20 C.F.R. § 404.1567(a), 416.967(a).
However, when a claimant suffers from an impairment "that significantly diminishes his capacity to work, but does not manifest itself as a limitation on strength, for example, where a claimant suffers from a mental illness . . . manipulative restrictions . . . or heightened sensitivity to environmental contaminants . . . rote application of the grid [guidelines] is inappropriate. . . ."
The plaintiff, David L. Russell, was found by an Administrative Law Judge (ALJ) to have a "severe" impairment consisting of chronic low back pain secondary to degenerative disc disease of the lumbosacral spine, status post L4-L5 laminectomy and discectomy. (Tr. 14). Nevertheless, based in part on the testimony of a Vocational Expert (VE), the ALJ determined that Mr. Russell retained the residual functional capacity to perform his past relevant work as a salesman and pizza deliverer, and therefore was not entitled to benefits. (Tr. 16-20). The Appeals Council declined to review, and this action followed.
At the administrative hearing, the ALJ asked the VE whether a person of the plaintiff's age of 34, high school education, and work experience could perform any jobs if he were capable of lifting 20 pounds occasionally and 10 pounds frequently, along with the ability to stand, walk, and sit six hours each in an eight-hour day, and also had the following non-exertional limitations. He: (1) could never climb ladders, ropes, or scaffolds; (2) could occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs; and (3) could not have any exposure to concentrated vibration, temperature extremes, or hazards. (Appendix 38-39).
On appeal, this court must determine whether the administrative decision is supported by substantial evidence, or if there was an error of law. There is an additional issue in that the plaintiff's Date Last Insured (DLI) was December 31, 2009 (Tr. 221), meaning that he would have to demonstrate disability prior to that date in order to be entitled to benefits. His SSI application is not affected.
Mr. Russell alleged disability beginning September 2, 2006 as a result of a motor vehicle accident on December 30, 2005 which had caused herniated discs and nerve damage and had required back surgery. (Tr. 225). In May, 2007, he underwent an L4-L5 lumbar laminectomy with microdiscectomy after an MRI showed a herniation at that level with moderate to severe central canal and neural foraminal narrowing. (Tr. 344, 352). His attending surgeon, Dr. Robert Owen, noted that he recovered well after surgery and by October, 2007 he had normal strength and reflexes in the lower extremities except for a slightly diminished right Achilles reflex. (Tr. 359-60, 394-95). Because he still appeared to have some back pain, Dr. Owen recommended treatment by a pain specialist and provided a work excuse, although no duration was given. (Tr. 359, 394). However, Mr. Russell apparently was not able to get Worker's Compensation approval to go to the pain clinic. (Tr. 349). An MRI of the lumbosacral in spine in October, 2007 showed postoperative changes at L4-L5 with no residual or recurrent disc herniations. (Tr. 368, 403).
State agency physicians P. Saranga and James Ramsey reviewed the evidence on November 1, 2007 and January 16, 2008, respectively. They agreed that Mr. Russell should be able to lift 20 pounds occasionally and 10 pounds frequently, stand, walk and sit six hours each in an eight-hour day, could occasionally stoop, crouch, crawl, and climb ladders, ropes, and scaffolds, and needed to avoid concentrated exposure to vibration. (Tr. 405-11, 427-33). These restrictions are consistent with the ALJ's functional capacity finding.
The plaintiff, who is proceeding pro se before the court, essentially raises three issues.
First, he describes treatment he has received since the ALJ's decision, and provides phone numbers of medical providers, appearing to invite further investigation of his current condition. However, this court's substantial evidence review concerns only evidence that was available to the ALJ. Evidence of a subsequent deterioration or change in condition after the administrative decision is immaterial.
Second, Mr. Russell alleges that it was discriminatory for the ALJ to ask questions at his hearing regarding his incarceration for selling pain medication. The plaintiff bears the burden of overcoming the presumption that policymakers exercising decisionmaking power exercise it with honesty and integrity.
Mr. Russell's third argument is that he felt the ALJ did not ask him enough questions about his condition, "well being," and doctors. However, he was represented by an attorney at the administrative level and a review of the hearing testimony shows that the attorney spent a large part of the hearing questioning him about how he felt and what he believed he could do. (Appendix 23-31). There was no heightened duty by the ALJ to develop the case as there would have been with an unrepresented plaintiff.
The decision will be affirmed.
