KIMBERLY E. WEST, Magistrate Judge.
Plaintiff Robert E. Bodell, II (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 finding of this Court that the Commissioner's decision should be and is 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 45 years old at the time of the ALJ's decision. Claimant obtained his GED. Claimant has worked in the past as a laborer, stocker, HVAC installer, and cab driver. Claimant alleges an inability to work beginning November 28, 2014 due to limitations resulting from diverticulitis, peritonitis, colon resection, bacterial cyst, and an open abdominal wound.
On February 17, 2015, Claimant protectively filed for protectively filed for disability insurance benefits under Title II (42 U.S.C. § 401, et seq.) and for supplemental security income pursuant to Title XVI (42 U.S.C. § 1381, et seq.) of the Social Security Act. Claimant's applications were denied initially and upon reconsideration. On July 19, 2016, Administrative Law Judge ("ALJ") Elizabeth Dunlap conducted an administrative hearing by video with Claimant appearing in Paris, Texas and the ALJ presiding from Dallas, Texas. On May 2, 2017, the ALJ entered an unfavorable decision. The Appeals Council denied review on September 14, 2017. 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 her decision at step five of the sequential evaluation. She determined that while Claimant suffered from severe impairments, he did not meet a listing and retained the residual functional capacity ("RFC") to perform sedentary work with limitations.
Claimant asserts the ALJ committed error in (1) failing to properly consider, evaluate, and weigh the medical evidence; (2) failing to adequately account for all of Claimant's impairments in the hypothetical questioning of the vocational expert and in the RFC; and (3) failing to properly consider and account for Claimant's obesity.
In her decision, the ALJ found Claimant suffered from the severe impairments of a history of peritonitis, inflammatory bowel disease, atrial fibrillation, diabetes mellitus type II, and obesity. (Tr. 37). The ALJ determined Claimant retained the RFC to perform sedentary work except he could not climb ladders, work at heights, operate vehicles or moving machinery, and work in a setting where a fall would risk serious injury. The ALJ found that Claimant must work in a clean, climate-controlled environment. (Tr. 39).
After consultation with a vocational expert, the ALJ determined Claimant could perform the representative jobs of eyeglass packager, semi-conductor loader, and film inspector, all of which the ALJ found existed in sufficient numbers in the regional and national economies. (Tr. 45). As a result, the ALJ concluded that Claimant was not under a disability from November 28, 2014 through the date of the decision. (Tr. 46).
Claimant contends the ALJ failed to consider a litany of medical conditions which she asserts constitute additional impairments — either severe or non-severe but all of which allegedly should have been considered by the ALJ in the RFC. These diagnosed conditions include depression, night terrors, insomnia, fatigue, "postoperative wound infection, NEC", non-healing surgical wound, "non-healing surgical wound which is healing", abdominal pain, hernia, hypertension, precordial chest pain, irregular cardiac rhythm, chest pain, cardiomegaly, chronic low back pain, suprapateller effusion of the right knee, neck pain, and shoulder pain. Cl. Brief at p. 5.
With regard to Claimant's depression, the ALJ found that he did not have a medically determinable mental impairment. She gave "great weight" to the opinion of the state agency psychological consultant, Dr. Joy Kelley. (Tr. 38). On October 13, 2015, Dr. Kelley concluded that Claimant had "[n]o mental medically determinable impairments established." (Tr. 121). She noted that Dr. Victoria Pardue found Claimant showed positive for anxiety and depression, negative for crying spells, appropriate affect and demeanor, and normal speech pattern. Under activities of daily living, Claimant prepared simple meals, did laundry without encouragement, could pay bills and count change, had no problems getting along with others, could follow directions, and handled stress well. Under "analysis of evidence," Dr. Kelley found Claimant "retains the capacity to perform work-related mental activities consistent with the PRT provided based on the MER and ADL findings." (Tr. 122). Indeed, the objective medical record as a whole repeatedly shows normal psychological findings. (Tr. 729, 731, 733, 738, 740, 742, 744-45, 747).
In order for a condition to constitute a "medically determinable impairment," it "must result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. § 404.1521. An impairment must be shown by objective medical evidence including "[p]sychiatric signs" which are "medically demonstrable phenomena that indicate specific psychological abnormalities, e.g., abnormalities of behavior, mood, thought, memory, orientation, development, or perception, and must also be shown by observable facts that can be medically described and evaluated." 20 C.F.R. § 404.1502(f). The ALJ was correct in finding that Claimant did not meet this criteria for a medically determinable mental impairment, given the objective medical findings on his mental condition.
As for the list of other conditions Claimant provides in the briefing, many are variations on the same condition which are simply stated differently in the medical record. As an initial matter, the focus of a disability determination is on the functional consequences of a condition, not the mere diagnosis. See e.g.
To the extent Claimant contends the listed conditions should have been included at step two, 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."
Claimant also asserts that the ALJ erred in her consideration of the opinion of Dr. Victoria Pardue, a treating physician. Dr. Pardue completed a medical source statement dated November 12, 2015. She found Claimant could occasionally lift/carry up to ten pounds; could sit for one hour at a time and for four hours in an eight hour workday; could stand for 30 minutes at a time and for two hours in an eight hour workday; could walk for ten minutes at a time and for one hour in an eight hour workday; did not require a cane; could occasionally reach, including overhead, bilaterally; could frequently handle, finger, and feel bilaterally; and could occasionally push/pull with the upper extremities. He could also operate foot controls bilaterally. (Tr. 1187-89). Dr. Pardue also estimated Claimant could occasionally climb stairs and ramps but never climb ladders and scaffolds, balance, stoop, kneel, crouch, or crawl. Claimant's hearing was normal but he required glasses for vision. (Tr. 1190). Claimant could never work in unprotected heights, around moving machinery parts, around dust, odors, fumes and pulmonary irritants, extreme cold or heat. He could occasionally work in humidity and wetness or vibrations and he could work around moderate noise, such as in an office. He could frequently operate a motor vehicle. (Tr. 1191). As far as activities, Dr. Pardue found Claimant could shop, travel without a companion, ambulate without an assistive device, use public transportation, climb a few steps at a reasonable pace, prepare a simple meal and feed himself, care for his personal hygiene, and sort, handle, and use paper/files. (Tr. 1192).
On the same day, Dr. Pardue authored a Cardiac Medical Source Statement. She diagnosed Claimant with atrial fibrillation and unstable angina. Dr. Pardue found the angina episodes occurred daily and required Claimant to rest for one hour after the episode. (Tr. 1182). She determined Claimant was capable of low stress work. She found Claimant's condition contributed to emotional difficulties which contribute to the severity of Claimant's functional limitations. Dr. Pardue found Claimant could walk without rest for less than one block and he could sit and stand/walk for less than two hours in an eight hour workday. She also determined Claimant would be required to shift positions at will from sitting, standing, and walking and he would need to take unscheduled breaks every hour for 15-20 minutes. (Tr. 1182-83). She also found Claimant would have to spend 90% of an eight hour workday with his legs elevated above his heart. He also could "rarely" lift/carry up to ten pounds and could never twist, stoop, crouch/squat, or climb ladders. He could rarely climb stairs. (Tr. 1184). Claimant would also be "off task" for 25% of the day or more and would require to be absent from work for more than four days per month. She also noted Claimant must wear glasses. (Tr. 1185).
The ALJ gave Dr. Pardue's first opinion "great weight" due to her extended treatment record of Claimant. (Tr. 43). The second opinion, however, was given "no weight" as conflicting with the first and because Dr. Pardue "provided no cogent rationale for such extreme limitations, leaving her stated opinion unsupported." (Tr. 43-44). The cited conflicts included the ability to sit restrictions and the elevation requirement, stoop restriction, and the absence from work estimation.
A treating physician's opinion must still be supported by objective evidence. "It is an error to give an opinion controlling weight simply because it is the opinion of a treating source if it is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence in the case record."
Claimant again identifies a number of conditions which appear in Dr. Pardue's treatment notes and asserts they should be considered impairments. The same analysis of these conditions previously set forth in this Opinion and Order applies to these conditions. Claimant has failed to demonstrate that they constitute a medically determinable impairment under the regulations.
Claimant contends the additional impairments should have been included as restrictions in the RFC and the hypothetical questioning of the vocational expert. As discussed, the RFC is supported by the objective medical record.
Claimant next asserts that the ALJ's finding that he could perform the job of semi-conductor loader is contradicted by the fact that the job requires occasional exposure to toxic or caustic chemicals and the ALJ limited Claimant to a "clean climate-controlled environment." DOT #726.687-030; (Tr. 39). In the hypothetical questioning of the vocational expert, the ALJ limited Claimant to working "in a clean environment free of fumes, dust, odors and pulmonary irritants and a climate controlled environment free of extremes of heat and cold." (Tr. 78). While this Court understands the Commissioner's argument regarding the definition of environmental factors under the Selected Characteristics of Occupations ("SCO"), the ALJ's restrictions do appear to encompass the exposure potential of the semi-conductor loader job. However, even if this job is eliminated, the jobs of eyeglass packager and film inspector remain. Identification of any jobs which Claimant could perform under the RFC satisfies the step five requirements. See
On the remaining jobs, Claimant attempts to argue that they exist in insufficient numbers at 132,000 nationally. The Tenth Circuit has established that "[t]his Circuit has never drawn a bright line establishing the number of jobs necessary to constitute a `significant number' and rejects the opportunity to do so here."
Claimant contends the ALJ failed to properly consider and account for her obesity, which was determined to be a severe impairment. An ALJ is required to consider "any additional and cumulative effects" obesity may have upon other conditions from which a claimant suffers, recognizing that obesity combined with other impairments may increase the severity of the condition. Soc. Sec. R. 02-1p; 20 C.F.R. Pt. 405, Subpt. P, App. 1 § 1.00(Q) (combined effect with musculoskeletal impairments).
At step three, "a listing is met if there is an impairment that, in combination with obesity, meets the requirements of a listing." Soc. Sec. R. 02-1p. "[O]besity may increase the severity of coexisting or related impairments to the extent that the combination of impairments meets the requirements of a listing. This is especially true of musculoskeletal, respiratory, and cardiovascular impairments."
The ALJ specifically set forth that she considered the effects of obesity, including the combined effects of obesity upon her other impairments at all steps of the evaluation pursuant to Soc. Sec. R. 02-1p. (Tr. 38). Moreover, Claimant does not present evidence of any functional limitations which would stem from Claimant's obesity. He did not testify as to any limitations which he experiences as a result of his obesity. The diagnosis of the condition does not automatically translate into functional limitations. Therefore, "the factual record does not support [Claimant's] position that [his] obesity, either alone or in combination with other conditions, precludes [him] from performing [sedentary] work."
The decision of the Commissioner is supported by substantial evidence and the correct legal standards were applied. Therefore, this Court finds, in accordance with the fourth sentence of 42 U.S.C. § 405(g), the ruling of the Commissioner of Social Security Administration should be and is
IT IS SO ORDERED.
