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Young v. U.S. Commissioner, Social Security Administration

United States District Court, W.D. Louisiana, Lafayette Division

August 29, 2018

TAMMY JENNINE YOUNG
v.
U.S. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION

          ROBERT G. JAMES JUDGE

          REPORT AND RECOMMENDATION

          CAROL B. WHITEHURST UNITED STATES MAGISTRATE JUDGE

         Before the Court is an appeal of the Commissioner's finding of non-disability. Considering the administrative record, the briefs of the parties, and the applicable law, it is recommended that the Commissioner's decision be AFFIRMED.

         Administrative Proceedings

         The claimant, Debbie James, fully exhausted her administrative remedies prior to filing this action in federal court. The claimant filed an application for disability insurance benefits (“DIB”) and supplemental security income benefits (“SSI”), alleging disability beginning on August 16, 2012 due to “spinocerebellor ataxin.”[1]Her application was denied initially on January 24, 2013.[2] The claimant requested a hearing, [3] which was held on October 7, 2013 before Administrative Law Judge Michael M. Wahlder.[4] ALJ Whalder issued a decision on November 25, 2013, [5]concluding that the claimant was not disabled within the meaning of the Social Security Act (“the Act”) from August 16, 2015 through the date of the decision. The claimant asked for review of the decision, and on January 30, 2015, the Appeals Council remanded the matter for another hearing with special instructions for the ALJ to evaluate, inter alia, non-medical sources such as the claimant's daughter and work supervisor with weight assessed pursuant to Social Security Ruling 06-03p, to consider third party statements and consider the weight given to non-medical sources, and to give further consideration to the claimant's maximum residual functional capacity.[6]

         The case was heard on remand by a second ALJ, Mary Gattuso, on April 23, 2015.[7] An unfavorable decision was rendered on September 9, 2015.[8] A timely request for review was directed to the Appeals Council, which denied the request for a review on March 28, 2017.[9] Therefore, the ALJ's September 9, 2015 decision became the final decision of the Commissioner for the purpose of the Court's review pursuant to 42 U.S.C. §405(g). The claimant then filed this action seeking review of the Commissioner's decision.

         Summary of Pertinent Facts

         The claimant was born on December 1, 1965.[10] At the time of the ALJ Gattuso's decision, she was 46 years old. She has a high school education, is 4'9" tall and weighs 170 lbs., and works in sheltered employment at the Basile Care Center where she works 16-20 hours per week. The claimant reports that at the time of her October 2013 hearing, she had been working at the Care Center as a dietary aide off and on for twenty-two years. She alleges that she has been disabled since August 16, 2012 due to “spinocerebellor ataxin.”[11] As her medical problems progressed, she alleges her work hours were reduced and she was allowed to stay employed but only with special treatment as described by her work supervisor, Jennifer Marcantel.

         Analysis

         A. Standard of Review

         Judicial review of the Commissioner's denial of disability benefits is limited to determining whether substantial evidence supports the decision and whether the proper legal standards were used in evaluating the evidence.[12] “Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”[13] Substantial evidence “must do more than create a suspicion of the existence of the fact to be established, but ‘no substantial evidence' will only be found when there is a ‘conspicuous absence of credible choices' or ‘no contrary medical evidence.'”[14]

         If the Commissioner's findings are supported by substantial evidence, then they are conclusive and must be affirmed.[15] In reviewing the Commissioner's findings, a court must carefully examine the entire record, but refrain from re-weighing the evidence or substituting its judgment for that of the Commissioner.[16] Conflicts in the evidence and credibility assessments are for the Commissioner to resolve, not the courts.[17] Four elements of proof are weighed by the courts in determining if substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience.[18]

         B. Entitlement to Benefits

         The Disability Insurance Benefit (“DIB”) program provides income to individuals who are forced into involuntary, premature retirement, provided they are both insured and disabled, regardless of indigence.[19] Every individual who meets certain income and resource requirements, has filed an application for benefits, and is determined to be disabled is eligible to receive Supplemental Security Income (“SSI”) benefits.[20]

         The term “disabled” or “disability” means the inability 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 twelve months.”[21] A claimant shall be determined to be disabled only if his physical or mental impairment or impairments are so severe that he is unable to not only do his previous work, but cannot, considering his age, education, and work experience, participate in any other kind of substantial gainful work which exists in significant numbers in the national economy, regardless of whether such work exists in the area in which the claimant lives, whether a specific job vacancy exists, or whether the claimant would be hired if he applied for work.[22]

         C. Evaluation Process and Burden of Proof

         The Commissioner uses a sequential five-step inquiry to determine whether a claimant is disabled. This process required the ALJ to determine whether the claimant (1) is currently working; (2) has a severe impairment; (3) has an impairment listed in or medically equivalent to those in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) is able to do the kind of work he did in the past; and (5) can perform any other work at step five.[23] If it is determined at any step of that process that a claimant is or is not disabled, the sequential process ends. “A finding that a claimant is disabled or is not disabled at any point in the five-step review is conclusive and terminates the analysis.”[24]

         Before going from step three to step four, the Commissioner assesses the claimant's residual functional capacity[25] by determining the most the claimant can still do despite his physical and mental limitations based on all relevant evidence in the record.[26] The claimant's residual functional capacity is used at the fourth step to determine if he can still do his past relevant work and at the fifth step to determine whether he can adjust to any other type of work.[27]

         The claimant bears the burden of proof on the first four steps.[28] At the fifth step, however, the Commissioner bears the burden of showing that the claimant can perform other substantial work in the national economy.[29] This burden may be satisfied by reference to the Medical-Vocational Guidelines of the regulations, by expert vocational testimony, or by other similar evidence.[30] If the Commissioner makes the necessary showing at step five, the burden shifts back to the claimant to rebut this finding.[31] If the Commissioner determines that the claimant is disabled or not disabled at any step, the analysis ends.[32]

         D. The ALJ's Findings and Conclusions

         In this case, the ALJ noted that the claimant was working at the time of her applications, which her earnings records confirmed, and found that the claimant's work activity did not rise to substantial gainful activity.[33] The ALJ determined that the claimant had severe impairments of “cerebellar degeneration disorder of unknown etiology; obesity; and hypertension.”[34] The ALJ assessed her with a residual functional capacity (RFC) for light work except the claimant can never climb ladders, ropes, and scaffolds; work with moving and/or dangerous machinery or equipment; work around unprotected heights; work exposed to temperature extremes, or drive commercially. The ALJ determined she can occasionally climb ramps and stairs, balance, crouch, crawl, kneel, and stoop. Furthermore, the ALJ found the claimant retains the ability to do unskilled work involving simple, repetitive tasks, no strict productions quotas or fast-paced work, and no direct contact with the public.[35] Based on the VE's testimony, the ALJ concluded the claimant was not disabled because she could perform other work available in significant numbers in the national economy.[36]

         Thus at step one, the ALJ found that the claimants meets the insured status requirements of the Social Security Act through December 31, 2019, but that she has not engaged in substantial gainful activity since August 16, 2012. This finding is supported by the evidence in the record. At step two, the ALJ found that the claimant has the following severe impairments: cerebellar degeneration disorder of unknown etiology; obesity; and hypertension. This finding is supported by evidence in the record. At step three, the ALJ found that the claimant has no impairment or combination of impairments that meets or medically equals the severity of a listed impairment. The claimant challenges this finding. The ALJ found that the claimant has the residual functional capacity to perform work at the light level except that except the claimant can never climb ladders, ropes, and scaffolds; work with moving and/or dangerous machinery or equipment; work around unprotected heights; work exposed to temperature extremes, or drive commercially. The ALJ determined she can occasionally climb ramps and stairs, balance, crouch, crawl, kneel, and stoop. Furthermore, the ALJ found the claimant retains the ability to do unskilled work involving simple, repetitive tasks, no strict productions quotas or fast-paced work, and no direct contact with the public. The claimant challenges this finding. At step four, the ALJ found that the claimant is not capable of performing her past relevant work. At step five, the ALJ found that the claimant was not disabled from August 16, 2012 through September 9, 2015 (the date of the decision) because there are jobs in the national economy that she can perform. The claimant challenges this finding.

         E. The Allegations of Error

         The claimant argues the ALJ erred in failing to find that the claimant meets a listed impairment and in denying benefits overall.

         1. Listed impairment

         The ALJ found the claimant does not satisfy any Listing, including Listing §§11.17 (degenerative disease not listed elsewhere), which the claimant argues is error. The claimant bears the burden of establishing that her impairments meet a listing. A claimant must provide findings that support each of the criteria for any Listing that she allegedly meets. See Selders v. Sullivan, 914 F.2d 614, 619 (5th Cir. 1990), citing Sullivan v. Zebley, 493 U.S. 521, 530 (1990). A claimant's argument that she closely meets a Listing's criteria does not warrant relief. See Selders, 914 F.2d at 619.

         The record shows that the ALJ specifically considered Listing §11.17 and concluded the claimant did not meet the requirements of the listing, as follows:

In reaching this conclusion, the undersigned has reviewed the claimant['s] impairments using Section 11.17 (degenerative disease not listed elsewhere), of the Listing of Impairments contained in 20 CFR part 404, Appendix 1 to Subpart P. The current evidence, however, fails to establish an impairment that is accompanied by signs that are reflective of listing-level severity. Also, none of the claimant's treating or examining physicians of record has reported any of the necessary clinical, laboratory, or radiographic findings specific therein, nor has the claimant's condition resulted in the inability to ambulate effectively.
An MRI in 2011 was normal . . .Treatment notes also indicate that an MRI in 2012 was normal . . .
The claimant's hypertension fails to meet or medically equal any section of the Listing of Impairments including sections 4.02 or 4.04 because the record fails to demonstrate evidence of systolic or diastolic failure (4.02A), persistent symptoms of heart failure limiting the ability to independently initiate, sustain, or complete activities of daily living, three or more separate episodes of acute congestive heart failure within a 12-month period, or an inability to perform on an exercise tolerance test (4.02B). The record evidence further fails to demonstrate ischemic heart disease with sign- or symptom-limited exercise tolerance test (4.04B), or coronary artery disease demonstrated by angiography or other appropriate medically acceptable imaging (4.04C).[37]
The ALJ further went on to explain:
. . . Testing has been negative. The claimant does have high blood pressure at time, which can cause some dizziness, etc. Due to the lack of objective findings, and because the claimant has alleged symptoms that she has sought intermittent care for over the last 4 years, but her doctors appear to have given a diagnosis of cerebellar degeneration disorder of unknown etiology. This was found to be a severe impairment by Judge Whalder. He further found that it prevented the claims from doing more than light work.
The undersigned finds similarly but has added additional impairments. The undersigned has fully assessed all possible limitations that the evidence reasonably allows. The residual functional capacity set out below is very generous given the minimal evidence presented in this case other than symptoms.[38]

         The claimant argues she has “presented proof” that she has lost function in both upper extremities which “seriously limit her ability to independently initiate, sustain, and complete work-related activities involving fine and gross movements.” However, the “proof” offered by the claimant are the statements and testimony of her work supervisor, Jennifer Marcantel, and her own reports of her symptoms.

         The claimant fails to cite to any objective medical criteria showing that she meets the Listing. No treating or examining physician has reported any of the clinical, laboratory, or radioagraphic findings that would support a finding that the claimant satisfies the requirements of any listed impairment. See, e.g., Hames v. Heckler, 707 F.2d 162, 166 (5th Cir. 1983) (“In the absence of objective medical evidence indicating that Plaintiff suffered disabling back pain, Plaintiff failed to meet her burden of proving disability”). As the respondent argues, “[i]t is the functional consequences of a claimant's impairments, not the diagnosis of an impairment, that the ALJ considers in making a determination as to disability. See Hames, 707 F.2d at 165 (“The mere presence of some impairment is not disabling per se. A claimant must show that she was so functionally impaired by her back trouble that she was precluded from engaging in any substantial gainful activity.”), citing Demandre v. Califano, 591 F.2d 1088 (5th Cir.1979). As the court stated in Hames:

The Secretary did not find that Plaintiff did not have a back problem. Rather he found that the degree of impairment evidenced by the objective medical finding did not impose functional restrictions of disabling severity on Plaintiff's activities. It should also be noted that individuals capable of performing even ...

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