Walker v. Astrue, No. 5:2007cv00088 - Document 24 (S.D. Ga. 2009)
Court Description: REPORT AND RECOMMENDATIONS Affirming the decision of the Commissioner re: 1 Complaint filed by Jackie Walker. Objections to R&R due by 3/2/2009. Signed by Magistrate Judge James E. Graham on 2/12/2009. (csr)
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IN THE UNITED STATES DISTRIC1OJU iT2 M L: 00 FOR THE SOUTHERN DISTRICT OF GEORryi^,4 WAYCROSS DIVISION.._`._,:: ^{ JACKIE WALKER, Plaintiff, V. CIVIL ACTION NO. -088 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. JU 'E'S REPORT A TION Plaintiff contests the decision of Administrative Law Judged Morton J. Gold, Jr. ("ALJ" or "ALJ Gold"), denying her claim for Disability Insurancel Benefits and Social Security Income ("SSI") benefits. Plaintiff urges the Court to revere the ALJ's decision and enter an award finding Plaintiff disabled, or, in the alternative, to remand this case for further consideration of the evidence. Defendant asserts the Commissioner's decision should be affirmed. Plaintiff protectively filed for Disability Insurance and SSI alleging that she became disabled on September 1, 2001, as the pain caused by fibromyalgia and blindness in her left eye. (Tr. at 1 denied initially and upon reconsideration, Plaintiff filed a timely on July 19, 2005, ult of limitations from After her claim was for a hearing. On May 22, 2007, the ALJ held a hearing in Waycross, Georgia, at which Plaintiff appeared and testified. G. Mark Leaptrot, a vocational expert, also testifies at the hearing. (Id.). AO 72A (Rev. 8182) The ALJ determined that Plaintiff was not disabled. Jr. at 23). The Appeals Council denied Plaintiff's request for review of the AL's denial of benefits, ALJ became the final decision of the Commissioner for judicial revi the decision of the (Tr. at 5-7). Plaintiff, born on October 23, 1953, was fifty-three (53) year old when the AU issued his decision. Jr. at 54). She has a tenth grade education. 4Tr. at 55). She has past relevant work experience as a retail sales clerk. Jr. at 22). AL'S FINDINGS Pursuant to the Act, the Commissioner has established a p process to determine whether a person is disabled. 20 C.F.R. § 404.15201 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The first step determines if the c1aimant is engaged in "substantial gainful activity." Yuckert, 482 U.S. at 140. if the cIimant is engaged in substantial gainful activity, then benefits are immediately denied. 4 If the plaintiff is not engaged in such activity, then the second inquiry asks whetherj the claimant has a medically severe impairment or combination of impairments. Yuclert, 482 U.S. at 14041. If the claimant's impairment or combination of impairments us not "severe," then disability benefits are denied. Yuckert, 482 U.S. at 141. If the claimant's impairment or combination of impairments is severe, then the evaluation proceeds to step three. The third step requires determination of whether the claimant's impairnent meets or equals one of the impairments listed in the Code of Federal Regulations Ond acknowledged by the Commissioner as sufficiently severe to preclude substantial gairful activity. 20 C.F.R. § 404.1520(d), 416.920(d); 20 C.F.R. Pt. 404, subpt. P. App. 1-1 Yuckert, 482 U.S. at 141. If the impairment meets or equals one of the listed impairmets, then the plaintiff is presumed disabled. j. If the impairment does not meet or eual one of the listed AO 72A (Rev. 8/82) 2 impairments, then the sequential evaluation proceeds to the fourth tep to determine if the impairment precludes the claimant from performing her past reIeant work. Id. If the claimant is unable to perform her past relevant work, then the final slep of the evaluation process determines whether she is able to perform other work in considering her age, education, and work experience. national economy, 482 U.S. at 142. Disability benefits will be awarded only if the claimant is unable to perform other work, ]4 In the instant case, the ALJ followed the sequential Plaintiff did not engage in substantial gainful employment after to determine that Step Two, the ALJ determined that Plaintiff had the severe impai mber 1, 2001. At of fibromyalgia and blindness in her left eye. Jr. at 17). However, the ALJ also Idetermined, at Step Three, that Plaintiff's medically determinable impairments did not met or medically equal a listed impairment. Jr. at 18). The ALJ found that Plaintiff has tile residual functional capacity to perform work at the medium exertional level, provided that her work activities do no require her to individually climb ladders, ropes, and scaffoldin, or crouch for more than two and one half hours per eight hour workday. Jr. at 19) the Fourth Step, the ALJ found that Plaintiff is not disabled because she is capable of performing her past relevant work as a retail sales clerk. Jr. at 22). ISSUES PRESENTED The issues presented in this review are whether the AU: properly discounted the opinion of the Plaintiff's treatino physician; and II properly considered Plaintiff's subjective complaints ofain. STANDARD OF REVIEW AO 72A (Rev. 8/82) -, j It is well-established that judicial review of social security cases is limited to questions of whether the Commissioners factual findings are supp4rted by "substantial evidence," and whether the Commissioner has applied approp legal standards. Cornelius v. Sullivan, 936 F. 2d 1143, 1145 (11th Cir. 1991); Marti ullivan, 894 F. 2d 1520, 1529 (11th Cir. 1990). A reviewing court does not "decide f anew, reweigh the evidence or substitute" its judgment for that of the Commissioner. 395 F. 3d 1206, 1210 (11th Cir. 2005). Even if the evidence pre Commissioner's factual findings, the court must affirm a decision derates against the by substantial evidence. Id. However, substantial evidence must do more than create a suspicion of the existence of the fact to be proved. The evidence relied upon must Pe relevant evidence which a reasonable mind would find adequate to support a clusion. Walden v. Schweiker, 672 F. 2d 835, 838-39 (11th Cir. 1982). The evidence standard requires more than a scintilla but less than a preponderance of evid1nce. Dyer, 395 F. 3d at 1210. in its review, the court must also determine whether the 4¼LJ or Commissioner applied appropriate legal standards. Failure to delineate andppIy the appropriate standards mandates that the findings be vacated and remanded for clarification. Cornelius, 936 F. 2d at 1146. . viu r.ii i I. Substantial evidence supports AU Gold's decision to discount the opinion of Plaintiff's treating physician. Plaintiff contends that the ALJ erred by disregarding the cpinion of her treating physician, Dr. Jill Goggans. (Doc. No. 20, p. 7). Plaintiff further conILends that the ALJ did not consider all of the evidence when he evaluated Dr. Goggans' AO 72A (Rev./82) 4 ent. (Id. at 8). Plaintiff asserts that the ALJ did not properly credit Dr. Goggans' fir dings regarding the effects of her impairments. Plaintiff further asserts that the activities of daily living noted by the AU do not render Dr. Goggans' physical capacities assessm ntinvalid. ( at 9). Defendant contends that AU Gold provided sufficient grounds for discounting Dr. Goggans' opinion regarding Plaintiffs ability to work. (Doc. No. 23, p. 4-6). A treating physician's opinion is entitled to substantial weigh unless good cause not to do so exists. Edwards v. Sullivan, 937 F. 2d 580, 583 (11thCir. 1991); Jones v. Bowen, 810 F. 2d 1001, 1005 (11th Cir. 1986). There is good cau$ when the medical opinion is conclusory, unsupported by objective medical findings, icr not supported by evidence from the record. Lewis v. Callahan, 125 F. 3d 1436, 1440 (11th Cir. 1997); Edwards, 580 F. 2d at 583. When the Commissioner rejects the opinion of the treating physician, he must give 'explicit and adequate" reasons for tho rejection. Elam v. Railroad Retirement Board, 921 F. 2d 1210, 1215 (11th Cir. 1991).1 The ALJ is required to "state with particularity the weight he gave different medical opinons and the reasons therefore." Sharfarzv. Bowen, 825 F. 2d 278, 279 (11th Cir. 1987). ALJ Gold found that Plaintiff has the severe impai of fibromyalgia and blindness in her left eye. Jr. at 17). The ALJ observed that the that Plaintiff continue her progressive conditioning program fibromyalgia-like musculoskeletal tenderness and pain. The M Plaintiff with tension mylalgias. ALJ Gold noted that Plaintiff was Clinic suggested she was seen for Clinic diagnosed n at the Mayo Clinic several years later, after she reported back problems and increaseJ pain in the hip area. Plaintiff was diagnosed with bilateral hip and lower back pain and romyalgia symptoms. The ALJ further noted that x-rays of the cervical spine and hips AG 72A (Res. 8/82) normal; x-rays of the lumbar spine showed some minor changes at the L5-S1 facet joints; and laboratory results, including CBC, electrolytes, C-reactive protein, ANA, and rhejmatoid factor, were all normal. Jr. at 17). The AU observed that Dr. Goggans saw Plaintiff for a fol p concerning her fibromyalgia. The ALJ noted that the treatment records show that ing had changed; neurological examinations showed no difficulties in motor strength, git, or sensation; and musculoskeletal examinations of upper and lower extremities 4howed no edema, clubbing, or cyanosis. AU Gold observed that Dr. ns' diagnosis was fibromyalgia/myalgia, condition unchanged. AU Gold remarked that plaintiff stated at her Go" next follow-up that her fibromyalgia was a problem, that she would sometimes hurt like she had the flu, and that she would occasionally have sharp stabbing pains that would send her to bed. AU Gold further remarked that Plaintiff reporfrd taking two pain medications per day. The AU observed that an examination I of Plaintiff showed tenderness with palpation along the left trapezius area and no gross r focal deficits were noted. Jr. at 17). AU Gold noted that Plaintiff was born with a significant i that is attributed to congenital cataracts. Jr. at rment in the left eye 17). The AU r noted that Plaintiff has been diagnosed in the past with hiatal hernia, thyroid cyst, I kidney stones, and osteopenia, but remarked that there is no evidence that these impirments are severe. The AU observed that Plaintiffs gastroesophageal reflux disease is treated and wellcontrolled with medication. The ALJ further observed that there is no evidence that Plaintiff's minor L5-S1 facet degenerative changes cause any nificant functional limitations. ALJ Gold remarked that Plaintiff was diagnosed with Onxiety disorder and AO 72A (Rev. 8/82) 6 histrionic personality disorder, but that no evidence indicates these impairments cause any significant functional limitations. AU Gold further rem that Dr. Marc Eaton consultatively examined Plaintiff and noted evidence exaggeration and malingering of cognitive deficits and her subjective experiences of pai. The ALJ adopted irments are non- the State Agency psychologist's opinion that Plaintiff's mental i severe. Jr. at 18). AU Gold found that Plaintiff did not have an impairm or combination of impairments, that meets or medically equals a listed impairment. at 18). ALJ Gold further found that Plaintiff has the residual functional capacity perform medium exertional work that does not require her to individually climb ders, ropes, and scaffolding, or crouch for more than two and one half hours per eighl hour workday. The AU noted that Plaintiffs left eye blindness precludes her from pe1orming jobs where depth perception and binocular vision are crucial. The AU further ioted that Plaintiff is able to drive, cook, and perform other dangerous occupations I despite her partial blindness. ALJ Gold observed that he considered all symptoms a the extent to which they could reasonably be accepted as consistent with the ob medical evidence. The AU noted that he considered other evidence pursuant to 20 C.F.R. § 404.1529 because a claimant's symptoms can sometimes suggest a greatet level of severity of impairment than can be shown by the objective medical evidence The ALJ observed that Plaintiff testified that she started 1999 after her health started declining. Plaintiff reported alo h e. ng fewer hours in compensation or unemployment benefits. The AU noted that Plai Jr. at 19). ving no worker's alleged that she was unable to work due to fibromyalgia, for which she had received continuing treatment AO 72A (Rev. 8/82) since it was diagnosed in the 1990's. Plaintiff further alleges that pain medication is the only treatment for her condition. The AU told her that that Plaintiff reported that the pain medication makes her sleepy. ALJ Gold fi.rther observed that Plaintiff rated her pain as a 7/10. The AU remarked that Plaintiff al of her impairments, she can sit no more than 45 minutes, stand no that, as a result re than 20 minutes, walk no more than 30 minutes, and lift/carry no more than 10 pou Plaintiff further alleges that she has to lie down at least 4 to 5 times daily for aproximately 20 to 30 minutes. AU Gold noted that despite these significant functional limitations, Plaintiff testified that she cooks, washes dishes, washes clothes, s occasionally, watches television, waters the flowers, drives around attends church and reads the Bible. ALJ Gold further noted that Plaintiff reported taking a trip to .apan in 2003, taking a trip to California in 2007, and visiting her grandchildren once or a year. jr. at 20). AU Gold considered the evidence of record, and found Plaintiffs medically determinable impairments could reasonably be expected to produco some of the alleged symptoms, but that her statements concerning the intensity, peristence, and limiting effects of these symptoms were not entirely credible. The AU been diagnosed with fibromyalgia, which might preclude her that Plaintiff has performing some activities. However, the ALJ opined that there is no evidence to dude that Plaintiffs condition is of such severity that it would cause her alleged level Of pain and functional limitations. AU Gold noted that Plaintiffs treatment records for 2q02, 2005, 2006, and 2007 showed no significant changes in her condition. jr. at 20). AL1.J Gold observed that other factors were used in assessing Plaintiff's credibility. ALJJ Gold remarked that Plaintiff described activities of daily living that are inconsistent AU 72A (Rev. 8/82) 8 her complaints of disabling pain and functional limitations. ALJ Gold further remarked psychological examiner noted that there was evidence that Plaintiff the consultative exaggerating her subjective experiences of pain. Jr. at 21). The ALJ considered the opinion of the State Agency Co as well as other treating, examining, and non-examining medical sources. AU Golld observed that the State Agency Consultants determined that Plaintiff could do medium rtional work, with occasional crouching and climbing of ladders, ropes, and scaffolds. The AU remarked that in determining Plaintiffs residual functional capacity, he gave great weight to the opinions of the State Agency Consultants because they were fully jutified and consistent with other substantial objective medical evidence in the case record. (Tr. at 21). AU Gold observed that the treating physician, Dr. Goggans, ompleted a medical opinion to do work-related activities. AU Gold noted that Dr. qoggans opined that Plaintiff could lift/carry less than 10 pounds; sit, stand, and/or walk lss than 2 hours total in an 8 hour workday; and that she had other significant limitations. I Dr. Goggans further opined that Plaintiff was totally disabled. The AU observed that Dt. Goggans indicated that the functional limitations were secondary to Plaintiffs fibr4myalgia. The AU discounted Dr. Goggans' medical opinion because he opined that course of treatment pursued by the doctor was not consistent with that which would expected if Plaintiff were as disabled as the doctor reported. The AU observed that here were no noted significant changes in Plaintiff's condition when she was last seen fr a follow-up for her fibromyalgia in 2007. The ALJ further observed that neurological no gross or focal deficits and that examinations of the upper lower extremities showed no edema, clubbing or cyanosis. AU Gold noted that AO 72A (Rev. 8/82) inations showed re were no trigger 9 points indicated in any of the examinations. AU Gold opined that tlje objective findings of these examinations do not justify the level of pain or functional lirriltations indicated by Dr. Groggans' assessment. The AU observed that Plaintiff reportd activities of daily living that are inconsistent with Dr. Groggans' functional assessment. (Ti. at 21). AU Gold determined that Plaintiff was able to return to her pat relevant work as a retail sales clerk because it does not require the performance of ork-related activities precluded by her residual functional capacity. The ALJ noted that the vocational expert testified at the hearing that Plaintiff's past relevant work included retil sales clerk, which is a semi-skilled, light exertional level job. The ALJ further n that the vocational expert testified that a hypothetical person with Plaintiffs residual fu return to work as a retail sales clerk AW Gold concurred with the I capacity could onal expert and found that Plaintiff was able to perform her past relevant work. ALJ Gold had "good cause" to discount Dr. Goggans' opinion that Plaintiff was unable to work. See Edwards, 937 F. 2d at 583. ALJ Gold stated '\iith particularity" "the reasons" he did not give Dr. Goggans' conclusions controlling weiglt. See Sharfarz, 825 F. 2d at 279. The ALJ discounted Dr. Goggans' opinion because she pursued was inconsistent with what would be expected if Plai course of treatment were as disabled as Dr. Goggans indicated. AU Gold stated that the objective finding do not support the level of functional limitations indicated by Dr. Goggans' The AW remarked that Plaintiff's reported activities of daily living are inconsis with Dr. Goggans' assessment. Jr. at 21). Furthermore, the ALJ noted that he did not find Plaintiffs alleged symptoms entirely credible Jr. at 20) and that great weight was Igiven to the medical opinions of the State Agency Consultants because they were fully AO 72A (Rev. 8/82) 10 and consistent with other substantial objective medical evidence in the record. Jr. at 21). While the AU did not specifically discuss the findings of Dr. Tidmore and Dr. Gale, their findings only support the conclusion that Plaintiff suffered from fibromyalgia, not that Plaintiff was limited to the extent found by Dr. Goggans. Accordingly, AU Gold'sl decision to not give Dr. Goggans' opinion substantial weight is supported by al evidence and is based on the appropriate legal standards. See Cornelius, 936 F. 3d 1145. II. Substantial evidence supports the ALJs findings allegations. Plaintiff asserts that the AU erred by finding that her su were not credible. (Doc. No. 20, p. 7). Plaintiff contends that the ing Plaintiff's pain complaints of pain failed to adequately develop the record by not ordering a consultative examination that uld have assisted him in making a proper credibility determination. Plaintiff further con that substantial evidence does not support the ALJs credibility determination beca he did not discuss the records of the treating psychiatrist, counselor, and the treatingl physician regarding her continued complaints of pain. Plaintiff asserts that the AU failec to consider that her persistent efforts to obtain pain relief enhanced her credibility. (Id. al 10). Plaintiff further asserts that AU Gold failed to consider the side effects of her melications. (Id. at 11). Defendant contends that the AU had a sufficient basis for ciscounting Plaintiff's allegations. (Doc. No. 23, pp. 6-7). In order to award benefits based on subjective complaints of pain, the following is required: (1) evidence of an underlying medical condition and eitherj(2) objective medical evidence which confirms the severity of the alleged pain arising fron that condition or (3) that the objectively determined medical condition is of such a I severity that it can reasonably be expected to give rise to the alleged pain. AU 72A (Rev. 8/82) 11 921 F.2d 1221, 1223 (11th Cir. 1991); Sewell v. Bowen, 792 F.2d 1065, 1068 (11th Cir. 1986). The Commissioner must consider a plaintiff's subjective allegations of pain if the above standard is met. McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir.^ 1987). If a plaintiff "testifies as to his subjective complaints of disabling pain and other must clearly `articulate explicit and adequate reasons' for allegations of completely disabling symptoms." Dyer v. Barnhart, ptoms ... the AUJ iting the claimant's F.3d 1206, 1210 (11th Cir. 2005) (quoting Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir.1995)). "Although this circuit does not require an explicit finding as to credibility, the implication must be obvious to the reviewing court." Id. (internal citation omitted)] An ALJ's credibility determination need not "cite 'particular phrases or formulations'[,] but it cannot merely be a broad rejection which is 'not enough to enable [a reviewing court] o conclude that [the AU] considered [a plaintiff's] medical condition as a whole." Id. 1210-11 (quoting Foote, 67 F.3d at 1561). The AU considered Plaintiff's subjective complaints of pain and provided adequate and express reasons for discounting her complaints. S nt evidence exists to support the ALJ's decision that Plaintiff retained the residual onal capacity to perform her past relevant work. See Dyer, 395 F. 3d at 1210 Gold noted that medical records show that Plaintiff's condition was largely unch (Tr. at 20). AUJ Gold observed that Plaintiff's descriptions of her activities of daily living are inconsistent with her complaints of disabling pain and functional limitations. The further observed that the consultative psychological examiner noted that there was nce that Plaintiff exaggerated her subjective experiences of pain. (Tr. at 21). The is not required to order a consultative examination unless the record establishes that AQ72A (Rev. 8/82) h 12 an examination is necessary for the AW to render a decision. Sellers v. Barnhart, F. Supp. 2d 1201, 1210 (M.D. Ala. 2002) (citations omitted). A consultative exami n was not needed because there was sufficient evidence in the record for the AU render a decision. Plaintiff's assertions that the AU did not properly consider the impactthat the side effects of her medications had on her ability to work or that her persistent to obtain pain relief enhanced her credibility are without merit. Contrary to Plai assertions, Social Security Ruling 96-7p does not require the ALJ to discuss either her hngitudinal efforts to seek medical treatment or the side effects of her medication. Sociall Security Ruling 967p merely lists them among the factors an AU is to consider n evaluating the credibility of a claimant's statements regarding symptoms. Social urity Ruling 96-7p requires the AL's decision to contain specific reasons for his cred$bility finding, which AU Gold has done here. Thus, Plaintiffs assertions are wiffJout merit because substantial evidence supports ALJ Gold's findings regarding her s ctive allegations of pain. CONCLUSION Based on the foregoing reasons, it is my RECOMMENDATION1 that the decision of the Commissioner be AFFIRMED. So REPORTED and RECOMMENDED, this /Z ray of Feb4iary, 2009. ES E. GRAHAM ITED STATES MAGI AO 72A (Rev. 8/82) 13 TE JUDGE
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