CHARLES B. KORNMANN, District Judge.
Plaintiff brought this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of defendant's final decision denying plaintiffs claim for disability insurance benefits. I have conducted a de novo review of the record. I find that the Commissioner's decision is supported by substantial evidence on the record as a whole.
Plaintiff was born in 1957. She is a high school graduate and studied medical assisting in vocational school for one year. She worked part time from 1976 to 1986 and worked full time from 1987 to 2009. She has experience doing computer data entry for a sales and service business, doing claims work for an insurance company, being an administrative assistant/office manager for a parts and service company and working as a buyer/planner (also a computer job) for a manufacturer.
In September 2009, she accepted her employer's offer for a voluntary layoff with three months severance pay and she never went back to work. She applied for disability insurance benefits on February 19, 2010, alleging a disability onset date of September 19, 2009.
At the time of her disability claim plaintiff was taking medications for depression, interstitial cystitis (painful bladder syndrome), anxiety, fibromyalgia, rapid heart beat and high cholesterol. She explained in her claim:
Dr. Kevin Whittle issued a residual functional capacity assessment on March 26, 2010, wherein he listed plaintiff's primary diagnosis as fibromyalgia, secondary diagnosis as irritable bowel syndrome, and other alleged impairments as GERD and interstitial cystitis. Dr. Whittle determined that:
Whittle opined that plaintiff was limited to medium level work with no further limitations.
A psychiatric review and mental residual functional capacity assessment were completed by M. Dilger on April 20, 2010. It was determined that plaintiff had medically determinable depression and anxiety impairments that had improved. The degree of functional limitation was described as mild in plaintiff's daily living activities and social functioning and moderate in maintaining concentration and persistence of pace. The assessment states that the evidence does not establish that any of plaintiff's mental health conditions were chronic or were more than moderately limiting.
Plaintiff's claim was denied on April 27, 2010. Plaintiff filed a request for reconsideration on May 13, 2010. Jerry Buchkoski, Ph.D., conducted a case analysis of plaintiffs records on June 23, 2010, and concluded that plaintiff was "doing better with changes in medication . . . Major functional impairment appears to be secondary to her medical condition."
Plaintiffs claim was denied on reconsideration on June 28, 2010, after considering new medical reports from June 2010, on the following basis:
You state that you are disabled due to depression, anxiety, fibromyalgia, dysthymic disorder, interstitial cystitis, gastroesophageal reflux disease and irritable bowel syndrome. While the medical records document problems with [the foregoing medical problems] the records also show successful treatment. While you have pain due to your fibromyalgia it does not severely limit normal daily activities. Your ability to think, remember, understand and communicate is not severely restricted. The evidence does not show any other condition that would severely limit your ability to work.
On September 2, 2010, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), explaining that she disagreed with the denial of benefits
A hearing was held on July 1, 2011, before ALJ Marsha Stroup. Tom Audet, a vocational expert, was present. The Administrative Law Judge ("ALJ") issued a decision on August 9, 2011, denying plaintiff's claim for disability. The ALJ determined that plaintiff has severe impairments of depression and fibromyalgia and that the impairments more than minimally affected her then current ability to perform basic work activities. Her impairments were not "listed" impairments. The ALJ further found that plaintiff has the residual functional capacity to perform sedentary work as long as she avoided work environments that are stressful and as long as she had the ability to alternate between sitting and standing positions as needed.
Plaintiff filed a request to the Appeals Council for review of the ALJ's decision. She contended that the ALJ erred at items 3, 4, and 5:
The Appeals Council denied her request for review on November 28, 2012. Although the Appeals Council received medical records from October 2012, those records were not relied upon in determining whether plaintiff was disabled as of the date of the ALJ's decision. The ALJ's decision is deemed the final decision of the Commissioner.
An individual is considered to be disabled if, inter alia, she is unable "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). An individual shall be determined to be disabled "only if [her] physical or mental impairment or impairments are of such severity that [she] 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." 42 U.S.C. § 423(d)(2)(A).
"To be eligible for disability insurance benefits, a claimant has the burden of establishing the existence of a disability under the Act."
The ALJ used the familiar five-step sequential evaluation to determine disability:
Plaintiff contends the ALJ erred in her identification of plaintiff's medically determinable impairments. The ALJ determined that plaintiff has severe impairments of depression and fibromyalgia. The ALJ did address her other claimed conditions but held that, since those conditions are not listed impairments, they would be considered instead as part of her residual functional capacity.
Plaintiff contends the ALJ erred by failing to properly evaluate plaintiff's subjective complaints of pain. The ALJ did not find the plaintiff's claims regarding the extent of her limitations to be credible.
Id. "The All [is] not required to discuss methodically each Polaski consideration, so long as he acknowledge[s] and examine[s] those considerations before discounting [the claimant's] subjective complaints."
The ALJ did consider the foregoing, although not by specifically naming the
The ALJ stated that plaintiff's medically determinable impairments could reasonably cause the symptoms she testified to but "the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual capacity assessment." Under
Plaintiff complains that the ALJ wrongly relied upon the fact that she worked for many years despite suffering from fibromyalsia and failed to consider that her condition had gotten more disabling over the years. The record shows that plaintiff did not stop working because her condition had worsened but instead because she was laid off. Further, plaintiff's medical records did not reflect an increasing level of disabling pain. In fact, her medical records repeatedly showed that her fibromyalgia was well-managed with pain medications. Plaintiff's condition was certainly more manageable to her when she was not working. The ALJ incorporated this fact into her finding that plaintiff cannot return to her past relevant work as the demands of such work exceed her functional capacity.
Plaintiff contends the ALJ erred in determining her residual functional capacity. She contends the ALJ failed to consider her claimed disabling effects of fibromyalgia and wrongly relied upon the lack of medical evidence to support the existence of a greater limitation on her functional capacity. However, the ALJ specifically noted that the determination of plaintiff's functional capacity was based upon plaintiff's own testimony. Further, the ALJ's determination was consistent with the independent medical examiners' determination of plaintiff's functional capacity.
Plaintiff testified before the ALJ that her depression went "hand in hand" with the severity of her fibromyalgia symptoms. She claimed she saw a psychologist once a month, although she admitted there were times she did not see her psychologist for six months. She saw a psychiatrist every three months to check on her psychiatric medications. At the time of the hearing, the medications were helping her symptoms but her anti-anxiety medication made her sleepy so she was taking only half the recommended dose twice daily. Plaintiff testified that sometimes her medications make her feel like a "zombie." She testified that she is limited to walking four blocks at a time and that she naps for several hours every day. She stated that she is doing better since she left her job because she does not have "the extra stress, anxiety of the people and their dramas."
Plaintiff claims the ALJ failed to properly consider the limitations caused by her mental health conditions. The ALJ devoted a great portion of her decision evaluating the effect that plaintiff's depression and anxiety had upon her residual functional capacity. The ALJ relied upon an independent functional capacity assessment which concluded that, at most, her mental health conditions had a moderate effect upon her ability to perform job functions.
"It is the claimant's burden, and not the Social Security Commissioner's burden, to prove the claimant's" functional capacity.
Plaintiff contends the All erred in failing to meet her burden to identify occupations that exist in significant numbers that plaintiff could perform. The ALJ described plaintiff's claimed limitations as well as the limitations the ALJ .1 found to be credible. Included in the questions posed to the vocational expert were inquiries about not only about the effects of fibromyalsia and depression, but also the effects that her claimed anxiety would have on plaintiff's ability to work an eight hour day. The vocational expert testified that plaintiff had clerical, receptionist, and data entry skills which were transferrable to less stressful jobs that were abundant in the regional economy. Plaintiff testified that she would be unable to sit for eight hours a day or for even four hours. She claimed she could only tolerate a part-time job. The ALJ specifically inquired of the vocational expert whether there existed jobs abundant in the economy where plaintiff could alternate sitting and standing and which would cause less anxiety than her former occupation and the vocational expert identified jobs meeting the criteria.
Ultimately, plaintiff "bears the burden of proving disability and providing medical evidence as to the existence and severity of an impairment."
I find that the Commissioner's decision is supported by substantial evidence on the record as a whole. Accordingly,
IT IS ORDERED:
1) The plaintiff's motion (Doc. 10) for summary judgment is denied.
2) The final administrative decision to the effect that the claimant is not eligible for benefits under the Social Security Act is affirmed.
