KIMBERLY E. WEST, Magistrate Judge.
Plaintiff Renita R. Ruark (the "Claimant") requests judicial review of the decision of the Commissioner of the Social Security Administration (the "Commissioner") denying Claimant's application for disability benefits under the Social Security Act. Claimant appeals the decision of the Administrative Law Judge ("ALJ") and asserts that the Commissioner erred because the ALJ incorrectly determined that Claimant was not disabled. For the reasons discussed below, it is the recommendation of the undersigned that the Commissioner's decision be AFFIRMED.
Disability under the Social Security Act is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . ." 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Social Security Act "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous 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). Social Security regulations implement a five-step sequential process to evaluate a disability claim. See, 20 C.F.R. §§ 404.1520, 416.920.
Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. § 405(g). This Court's review is limited to two inquiries: first, whether the decision was supported by substantial evidence; and, second, whether the correct legal standards were applied.
Claimant was born on November 4, 1962 and was 49 years old at the time of the ALJ's decision. Claimant completed her high school education and some college. Claimant has worked in the past as a town clerk, file clerk, and accounting clerk. Claimant alleges an inability to work beginning October 1, 2008 due to limitations resulting from back, shoulder, and neck pain, heel spurs, migraine headaches, depression, and high blood pressure.
On December 23, 2010, Claimant protectively filed for disability insurance benefits under Title II (42 U.S.C. § 401, et seq.) of the Social Security Act. Claimant's application was denied initially and upon reconsideration. On June 18, 2012, Claimant appeared by video before Administrative Law Judge Frederick Gatzke ("ALJ") for an administrative hearing. On June 29, 2012, the ALJ issued an unfavorable decision. The Appeals Council declined to review the decision on July 18, 2013. As a result, the decision of the ALJ represents the Commissioner's final decision for purposes of further appeal. 20 C.F.R. §§ 404.981, 416.1481.
The ALJ made his decision at step four of the sequential evaluation. He determined that while Claimant suffered from severe impairments, she retained the RFC to perform her past relevant work as an accounting clerk.
Claimant asserts the ALJ committed error in (1) failing to identify all of Claimant's impairments; (2) failing to find Claimant's impairments met a Listing; (3) reaching an improper RFC determination; and (4) finding Claimant can return to her past relevant work.
In his decision, the ALJ determined Claimant suffered from the severe impairments of mild right degenerative hypertrophic arthropathy in the AC joint, degenerative disc disease of the lumbar spine, and headaches. (Tr. 12). The ALJ concluded Claimant retained the RFC to perform a full range of sedentary work. (Tr. 21). In so doing, the ALJ found Claimant could lift/carry 10 pounds occasionally and 10 pounds frequently, stand/walk for 2 hours in an 8 hour workday, and sit for 6 hours in an 8 hour workday. (Tr. 16). The ALJ found Claimant could perform her past relevant work as an accounting clerk. (Tr. 21).
Claimant first contends the ALJ failed to properly identify all of her impairments at step two. Specifically, Claimant asserts her back condition involves a disc protrusion at L4-5 with neural foraminal stenosis and disc bulge at L5-S1 in addition to degenerative disc disease. (Tr. 429). She also states that she has been diagnosed with radicular symptoms into the buttock, hip, and leg. (Tr. 403, 449, 451). Claimant further states that she has a significant history of neck pain associated with an automobile accident but concedes the record is lacking in imaging studies. Claimant also contends she suffers from a blood clotting disorder which was diagnosed after the expiration of the insured period.
Where an ALJ finds at least one "severe" impairment, a failure to designate another impairment as "severe" at step two does not constitute reversible error because, under the regulations, the agency at later steps considers the combined effect of all of the claimant's impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity.
Moreover, the burden of showing a severe impairment is "de minimis," yet "the mere presence of a condition is not sufficient to make a step-two [severity] showing."
A claimant's testimony alone is insufficient to establish a severe impairment. The requirements clearly provide:
42 U.S.C.A. § 423(d)(5)(A).
The functional limitations must be marked and severe that can be expected to result in death or to last for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(1)(C)(i); 20 C.F.R. § 416.927(a)(1).
Claimant attempts to demonstrate functional limitations by attaching the Medical Source Statement of Dr. Michael Wolfe dated June 12, 2012 to his brief-in-chief. The record, however, does not indicate that Claimant submitted this document to the ALJ or the Appeals Council. She has not provided any explanation for the failure to do so. Additionally, nothing in Dr. Wolfe's statement demonstrates that the limitations he found were brought about by the additional impairments which Claimant identifies. As a result, Dr. Wolfe's statement will not be considered in this appeal.
Claimant essentially requests that this Court glean a functional limitation merely because she has been diagnosed with various conditions. No evidentiary support is provided for such a finding. Therefore, this Court finds no basis for Claimant's contention of error at step two.
Claimant next asserts the ALJ considered the application of Listing 1.04 "in a very perfunctory and cursory fashion with no explanation or evaluation in the text of his decision." In his decision, the ALJ stated that he agreed with the State Agency physicians that Claimant does not meet or equal any relevant listing. He then specifically stated that he reviewed Claimant's severe impairments under the relevant listings including Listing 1.04 and independently concluded that she had no impairment or combination of impairments that meet or medically equals the requirements of any listed impairment. (Tr. 16).
The portion of Listing 1.04 which is applicable in this case states:
At step three, Claimant bears the burden of demonstrating that her condition meets or equals all of the specified criteria of the particular listing.
Claimant, through a litany of sub-categories of issues, contends the ALJ failed to reach an appropriate and supported RFC. He first states that the ALJ "failed to develop the evidence properly." Claimant in a summary fashion argues that the ALJ should have ordered consultative examinations and re-contacted Claimant's physicians in order to obtain opinions on Claimant's functional limitations brought about by her impairments and conditions.
Generally, the burden to prove disability in a social security case is on the claimant, and to meet this burden, the claimant must furnish medical and other evidence of the existence of the disability.
The duty to develop the record extends to ordering consultative examinations and testing where required. Consultative examinations are used to "secure needed medical evidence the file does not contain such as clinical findings, laboratory tests, a diagnosis or prognosis necessary for decision." 20 C.F.R. § 416.919a(2). Normally, a consultative examination is required if
20 C.F.R. § 416.909a(2)(b).
None of these bases for ordering a consultative examination. Moreover, the regulations generally require that the adjudicators request medical source statements from acceptable medical sources with their reports. Soc. Sec. R. 96-5p. However, nothing in the regulations require the reversal and remand of a case because such statements were not obtained. Indeed, the regulations expressly state that "the absence of such a statement in a consultative examination report will not make the report incomplete." 20 C.F.R. § 404.1519n(c)(6). Therefore, the failure of the ALJ to obtain a statement from any treating physician does not constitute reversible error.
Claimant also asserts the ALJ failed to consider her back, neck, and shoulder conditions. The ALJ adequately discussed Claimant's MRI results, subjective complaints of pain in these areas, and the functional limitations that resulted. (Tr. 12-19). The ALJ's RFC considered these conditions in restricting Claimant to sedentary work. (Tr. 16). The ALJ adequately considered the totality of Claimant's identified conditions and the effect the conditions had upon her ability to engage in basic work activity.
Claimant also included the ALJ's assessment of her credibility as a subset of the ALJ's RFC determination. It is well-established that "findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings."
Factors to be considered in assessing a claimant's credibility include (1) the individual's daily activities; (2) the location, duration, frequency, and intensity of the individual's pain or other symptoms; (3) factors that precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; (6) any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and (7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. Soc. Sec. R. 96-7p; 1996 WL 374186, 3.
An ALJ cannot satisfy his obligation to gauge a claimant's credibility by merely making conclusory findings and must give reasons for the determination based upon specific evidence.
The ALJ evaluated Claimant's activities of daily living and her subjective complaints. (Tr. 16-21). Claimant, however, seeks to have the ALJ consider activities outside of the relevant time period some months after the expiration of the date of last insured. (Tr. 40). The ALJ noted Claimant took vacations and trips since the onset date which suggested her limitations were overstated. (Tr. 19). This Court finds no error in the ALJ's credibility analysis.
Claimant contends she was not capable of performing her past relevant work as an accounting clerk. In analyzing Claimant's ability to engage in his past work, the ALJ must assess three phases. In the first phase, the ALJ must first determine the claimant's RFC.
In the second phase, the ALJ must determine the demands of the claimant's past relevant work.
The third and final phase requires an analysis as to whether the claimant has the ability to meet the job demands found in phase two despite the limitations found in phase one.
The decision of the Commissioner is supported by substantial evidence and the correct legal standards were applied. Therefore, the Magistrate Judge recommends for the above and foregoing reasons, the ruling of the Commissioner of Social Security Administration should be
