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

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

February 11, 2019

DIONNE JOHNSON
v.
U.S. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION

          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 REVERSED AND REMANDED.

         Administrative Proceedings

          The claimant, Dionne Johnson, fully exhausted her administrative remedies prior to filing this action in federal court. The claimant filed an application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”) on May 24, 2014 and supplemental security income benefits (“SSI”) under Title XVI of the Act on May 27, 2014. Under Title II, the claimant alleged disability from January 1, 2013 through December 31, 2015 (the last date she was last insured).[1]Under Title XVI, she alleged disability from January 1, 2013 through July 27, 2016, the date of the ALJ's decision.[2] The claimant's application for DIB and SSI was denied on October 8, 2014.[3] The claimant requested a hearing, which was held on May 19, 2016 before Administrative Law Judge Doug Gabbard, II.[4] The ALJ issued a decision on July 27, 2016, [5] concluding that although the claimant had the severe impairments of arthritis in the left knee and right ankle, COPD, morbid obesity, major depressive disorder, and generalized anxiety disorder, the claimant nevertheless retained the residual functional capacity to perform certain medium level work and was not, therefore, considered “disabled” under the Social Security Act at any time from the date her application was filed through the date of the ALJ's decision.

         The claimant asked for review of the decision, and the Appeals Council denied the claimants' request for a review on August 22, 2017.[6] Therefore, ALJ Gabbard's July 26, 2016 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.

         Because the two periods for which benefits are sought under Title II and Title XVI overlap, the undersigned will address the adjudicated period as one period, that is, from January 1, 2013 through July 26, 2016.

         Summary of Pertinent Facts

         The claimant was born on October 22, 1969 and is considered a “younger person” at all times throughout the proceedings.[7] The claimant has past work as a home health aide and a certified nurse's aid, both jobs that were medium in exertional level, but were deemed “heavy” as actually performed.[8] The claimant had a steady work record from 1990 to 2012, with the exception of 1999 and 2000 when she had virtually no earnings. The claimant alleges that she has been disabled since January 1, 2013 due to anxiety, depression, arthritis, COPD, high blood pressure, and inability to walk more than 20 steps without having to sit to breathe.[9]

         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.[10] “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.”[11] 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.'”[12]

         If the Commissioner's findings are supported by substantial evidence, then they are conclusive and must be affirmed.[13] 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.[14] Conflicts in the evidence and credibility assessments are for the Commissioner to resolve, not the courts.[15] 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.[16]

         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.[17] 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.[18]

         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.”[19] 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.[20]

         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.[21] 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.”[22]

         Before going from step three to step four, the Commissioner assesses the claimant's residual functional capacity[23] by determining the most the claimant can still do despite his physical and mental limitations based on all relevant evidence in the record.[24] 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.[25]

         The claimant bears the burden of proof on the first four steps.[26] At the fifth step, however, the Commissioner bears the burden of showing that the claimant can perform other substantial work in the national economy.[27] This burden may be satisfied by reference to the Medical-Vocational Guidelines of the regulations, by expert vocational testimony, or by other similar evidence.[28] If the Commissioner makes the necessary showing at step five, the burden shifts back to the claimant to rebut this finding.[29] If the Commissioner determines that the claimant is disabled or not disabled at any step, the analysis ends.[30]

         D. The ALJ's Findings and Conclusions

         The ALJ determined that despite the claimant's severe impairments, she retains the residual functional capacity to perform medium level jobs with certain restrictions, and that there are jobs in significant numbers in the national economy that the claimant can perform, including handpacker and small products assembler.[31]

         E. The Allegations of Error

         The claimant challenges the ALJ's failure to properly consider the combined effects of her impairments on her ability to perform medium work; the failure to assign hypertension and cardiovascular irregularities as severe impairments; the use of a “sit and squirm” test at the administrative hearing; the Appeals' Council's failure to consider the post-hearing evidence submitted by the claimant; and the use of a defective hypothetical at the claimant's hearing.

         Hypertension and cardiovascular irregularities

         The claimant alleges the ALJ erred in failing to assign the claimant's hypertension and cardiovascular irregularities as severe impairments.

         The ALJ found that the claimant's arthritis in the left knee and right ankle, chronic obstructive pulmonary disease (“COPD”), morbid obesity, major depressive disorder, and generalized anxiety disorder were severe impairments under the Act, but that her hypertension, allergic rhinitis, gastroesophageal reflux disease, and tobacco abuse were not severe. Tr. 12-13. The claimant argues the ALJ committed reversible error by not finding her hypertension and cardiac issues to be severe impairments.

         As an initial matter, the undersigned notes that disability determinations are based on functional limitations rather than the mere existence of a condition. Milam v. Bowen, 782 F.2d 1284, 1286 (5th Cir. 1986) (“The fact Milam suffered some impairment does not establish disability. Milam was disabled only if he was incapable of engaging in any substantial gainful activity.”). Here, the ALJ recognized that the claimant had been diagnosed with hypertension but also noted that her medical records showed no associated functional limitations (Tr. 13). Reviewing medical notes from an April 21, 2016 visit to a cardiologist, the ALJ specifically noted:

She was assessed with malignant hypertension, but without complications. She may not have achieved perfect control of her hypertension longitudinally, but there is no indication she required hospitalization for hypertensive crisis and no indication of end organ damages of other effects of hypertension, including, but not limited to, retinopathy. On examination, her heart rate was normal and her rhythm was regular with no gallup.[32]

         Chronic conditions such as diabetes, hypertension, or high cholesterol do not directly impair a claimant's functional abilities, but rather cause complications that can result in functional limitations. As such, a finding of disability due to these conditions is dependent on a showing of secondary symptoms that would interfere with the performance of work activities, such as end-organ damage or observable clinical symptoms such as loss of sensation or ataxia. See Jones v. Bowen, 829 F.2d 524, 526-27 (5th Cir. 1987); Epps v. Harris, 624 F.2d 1267, 1270 (5th Cir. 1980).

         There is no evidence in the record that the claimant's hypertension resulted in functional limitations. Additionally, the record is replete with medical notations that the claimant was noncompliant with her blood pressure medications.[33] It is well-established that noncompliance with treatment for a condition weighs against a finding that the condition is disabling. Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990). Although the record does show that on May 28, 2015, the claimant stated she had not been able to afford her medications, including her blood pressure medication, the notation also indicates the claimant was advised to make an appointment for medical assistance. The claimant, however, stated she did not have time to do that, and there is no indication in the record that she attempted to schedule such a meeting.[34]

         The jurisprudence is clear that although a condition that can be remedied by treatment is not disabling, a person unable to afford such treatment is considered disabled. Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990), citing Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir.1987); Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986). As the court noted in Villa, however, cases that so hold are not controlling where there is no record evidence, besides the testimony of the claimant herself, that she would be disabled with or without regular medical treatment. Accordingly, the fact that the claimant indicated in the record that she cannot afford her medication - where the evidence of record also shows the claimant was counseled on obtaining financial assistance to obtain her medications but declined to investigate her options - does not preclude the ALJ from noting that the claimant was noncompliant with her medication regime. Villa, 895 F.2d at 1024.

         Considering the foregoing, the undersigned concludes that the ALJ properly determined that the claimant's hypertension did not cause functional limitations impacting her ability to perform basic work activities and was not, therefore, a severe impairment.

         With respect to the claimant's alleged cardiac issues, the ALJ noted the record contained electrocardiograms showing “probable” abnormalities but a subsequent June 2014 chest x-ray showed no evidence of acute cardiopulmonary process.[35] Moreover, when the claimant went to the emergency room for chest pain in July 2014, she had not taken her blood pressure medications in “three to four weeks.”[36] Thus, the assumption was made that the chest pain was a symptom of her noncompliance with her blood pressure medications.[37] On July 12, 2014, the claimant was referred to a cardiologist, but there is no indication in the record that she followed through on the referral.[38]

         A review of the record supports the ALJ's finding that the claimant failed to introduce any evidence showing a functionally limiting cardiac impairment. Accordingly, the undersigned finds the ALJ's non-inclusion of any cardiac issues in his step two determination was not error.

         Finally, the undersigned notes the ALJ proceeded through the remaining steps of the sequential evaluation process and considered all of the claimant's impairments - both severe and non-severe - in formulating her RFC. Thus, the claimant's hypertension and cardiac issues were considered in assessing her RFC. Consequently, any failure of the ALJ to deem the claimant's hypertension and cardiac issues severe - a finding the undersigned does not make - would be harmless error. See Adams v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987) (holding that alleged error at step two was irrelevant where case did not turn on step two determination).

         The ALJ's analysis of claimant's subjective complaints and RFC analysis

         The claimant argues the ALJ erred in failing to properly consider the combined effects of her impairments on her ability to perform medium work. Specifically, the claimant argues she cannot perform work at a medium capacity, because she cannot stand and walk for six hours in an 8- hour workday, frequently lift and carry 25 pound items, and occasionally lift and carry 50 pound items. The claimant argues her multiple impairments -- including arthritis, COPD, and obesity - work in concert to limit her functional capacity.

         Symptom evaluation is reserved to the ALJ, who has the sole responsibility of resolving conflicts in the evidence and evaluating a claimant's subjective complaints. Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002). In evaluating the intensity, persistence, and limiting effects of a claimant's symptoms, the ALJ considers all of the evidence of record, medical and non-medical. 20 C.F.R. §§404.1529(c), 416.929(c); SSR 16-3p, 2016 WL 1119029, at *2.

         Subjective complaints must be corroborated by objective medical findings. Harrell v. Bowen, 862 F.2d 471, 481 (5th Cir. 1988), citing 42 U.S.C. §423(d)(5)(A); 20 C.F.R. 404.1529. Indeed, in Social Security Ruling 16-3p, 2016 WL 1119029, the Social Security Administration noted:

We will not find an individual disabled based on alleged symptoms alone. If there is no medically determinable impairment, or if there is a medically determinable impairment, but the impairment(s) could not reasonably be expected to produce the individual's symptoms, we will not find those symptoms affect the ability to perform work-related activities for an adult or ability to function independently, appropriately, and effectively in an age-appropriate manner for a child with a title XVI disability claim.

Soc. Sec. Ruling 16-3p; Titles II & Xvi: Evaluation of Symptoms in Disability Claims, SSR 16-3P (S.S.A. Mar. 16, 2016). In making such determinations, “the adjudicator will consider any personal observations of the individual in terms of how consistent those observations are with the individual's statements about his or her symptoms as well as with all of the evidence in the file.” Id. at *6.

         The undersigned first addresses the claimant's argument that her COPD - in combination with her other impairments - limits her ability to do medium work. While the ALJ accepted the claimant's testimony that she requires oxygen and rescue inhalers (Tr. 16, 36) as credible, he nevertheless found her COPD not disabling, pointing out that despite a COPD diagnosis, an April 2016 chest computerized topography demonstrated clear lungs, no pulmonary thromboembolus, and 100% oxygen saturation, all of which indicate that the claimant's pulmonary functioning is unimpaired (Tr. 18, 568-69). Further, the claimant's respiratory examinations have been consistently normal, with normal breath sounds with no wheezing, rales, or rhonchi (Tr. 18, 424, 427, 430, 433, 448, 451, 457, 460, 466, 471, 568). Nevertheless, the ALJ determined the claimant's COPD was a severe impairment and included in his RFC the need to avoid pulmonary irritants (Tr. 15, 18). Considering the foregoing, the undersigned concludes there is substantial evidence in the record to support the ALJ's findings with respect to the claimant's COPD.

         The combination of the claimant's other impairments - particularly in light of her arthritis in her left knee and ankle - presents a more complicated question for the Court because it appears the record that was reviewed by the ALJ was not complete, as certain medical documentation was presented to the Appeals Council after the ALJ issued his unfavorable decision. It is unclear to the undersigned whether - and to what extent - that evidence was considered by the Appeals Council, and whether there is substantial evidence to support the ALJ's finding of non-disability in light of that new evidence.

         First, the undersigned addresses the record before the ALJ. In finding that the evidence as a whole did not support the intensity, persistence, and limiting effects that the clamant alleges, the ALJ considered the inconsistencies between the claimant's testimony, the objective medical evidence, and the claimant's demeanor at the hearing, which was proper.[39] For example, the claimant testified at the administrative hearing that the severity of her pain caused her to go to the hospital more than ten times in the last year, yet the ALJ noted the record does not contain any documentation of such visits.[40] The claimant testified that she had disabling pain in the left knee and right ankle, that she was prescribed a cane and a walker, and that she could not kneel, crouch, or crawl.[41] However, the record before the ALJ contained no musculoskeletal diagnostic imaging, and the claimant's physical examinations ...


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