Summary
holding that plaintiff, who worked as a telephone operator for two consecutive summers, could return to her past relevant work since she did not indicate that she had any difficulties performing her duties
Summary of this case from Thomas v. Commissioner of Social Security AdministrationOpinion
Civ. NO. 99-2215 SECTION "LLM" (2)
March 28, 2000
ORDER AND REASONS
Plaintiff Serena A. Alexander seeks judicial review pursuant to Section 405(g) of the Social Security Act (the "Act") of the final decision of the Commissioner of Social Security Administration (the "Commissioner"), which denied her claim for supplemental security income benefits ("SSI") under Title XVI, §§ 1602 and 1614(a)(3)(A) of the Act, 42 U.S.C. § 1381 (a). Plaintiff and defendant filed memoranda of facts and law in response to the Court's minute entry of January 5, 2000. Record Doc. Nos. 9, 10.
Plaintiff actually filed a Motion to Remand in response to the Court's minute entry of January, 5, 2000, but the Court is treating the motion and memorandum in support as the memorandum of facts and law ordered by the Court. For record purposes, plaintiff's Motion for Remand is hereby DENIED.
1. PROCEDURAL HISTORY
Alexander protectively applied for SSI on March 5, 1996, alleging disability since October 10, 1995, alleging an inability to work due to sharp pains in her foot due to the loss of her fourth and fifth toes of her right foot. (Tr. 84089). The Commissioner denied her application initially and on reconsideration. (Tr. 55-58, 61-62). Plaintiff requested a hearing before an administrative law judge ("ALJ"), which was held on September 23, 1997. (Tr. 19-36). The ALJ denied Alexander's application on June 22, 1998. (Tr. 8-15). After the Appeals Council denied review on May 13, 1999 (Tr. 3-4), the ALJ's decision became the final decision of the Commissioner for purposes of this Court's review.
2. STATEMENT OF ISSUES ON APPEAL
Plaintiffs request for judicial review raises the following issues:
A. Whether or not the commissioner erred in finding plaintiff was able to perform her past relevant work, and whether her past work was performed over a sufficient period of time to be considered "past relevant work" for purposes of the commissioner's regulations.
B. Whether or not the ALJ properly assessed plaintiffs complaint of disabling pain.
C. Whether or not plaintiff suffers from severe nonexertional impairments which have more than a minimal effect on her capacity for work, thereby materially reducing her potential occupational base, and whether the ALJ failed to have the testimony of a vocational expert because of plaintiffs alleged impairment.
D. Whether or not the ALJ erred in finding that she had a severe impairment, and in failing to call a vocational expert: it is plaintiffs contention that the burden of proof should fall on the commissioner to prove her employability once the ALJ found that she had a severe impairment.
3. ALJ' S FINDINGS RELEVANT TO ISSUES ON APPEAL
The Commissioner made the following findings relevant to the issues on appeal:
A. Claimant has a "medically determinable severe impairment" within the meaning of Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985) and SSR 96-3p.
B. Claimant assertions as to functional limitation and the complete inability to do work or not substantiated by record evidence and or not credible.
C. Claimant has the residual functional capacity to perform light, exertional level work with a sit/stand option.
D. Claimant's impairment and residual functional capacity do no preclude her from doing her past relevant work as a telephone operator.
E. Claimant has not been under a "disability as to find in the Social Security Act at any time from the date of this decision."
(Tr. 14).
4. ANALYSIS
A. Standards of Review
The function of this Court on judicial review is limited to determining whether there is substantial evidence in the record to support the final decision of the Commissioner as trier of fact and whether the Commissioner applied the appropriate legal standards in evaluating the evidence. Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence is more than a scintilla but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);Spellman, 1 F.3d at 360. This Court may not reweigh the evidence, try the issues de novo or substitute its judgment for the Commissioner's Id.; Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
The Commissioner is entitled to make any finding that is supported by substantial evidence, regardless whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91 (1992). Despite this Court's limited function, it must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists to support it. Villa, 895 F.2d at 1022; Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). Any findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
To be considered disabled and eligible for DIB, plaintiff must show that 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 twelve months." 42 U.S.C. § 423 (d)(1)(A), 1382c(a)(3)(A). The Commissioner has promulgated regulations that provide procedures for evaluating a claim and determining disability. 20 C.F.R. § 404.1501 to 404.1599 Appendices, §§ 41 6.901 to 416.998 (1995). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity. Id. §§ 404.1520, 416.920; Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); Moore v. Sullivan, 895 F.2d 1065, 1068 (5th Cir. 1990). The five-step inquiry terminates if the Commissioner finds at any step that the claimant is or is not disabled. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The five-step analysis requires consideration of the following:
First, if the claimant is currently engaged in substantial gainful employment, he or she is found not disabled. 20 C.F.R. § 404.1520 (b), 416.920(b).
Second, if it is determined that, although the claimant is not engaged in substantial employment, he or she has no severe mental or physical impairment which would limit the ability to perform basic work-related functions, the claimant is found not disabled.Id. §§ 404.1520(c), 416.920(c).
Third, if an individual's impairment has lasted or can be expected to last for a continuous period of twelve months and is either included in a list of serious impairments in the regulations or is medically equivalent to a listed impairment, he or she is considered disabled without consideration of vocational evidence. Id. §§ 404.1520(d), 416.920(d).
Fourth, if a determination of disabled or not disabled cannot be made by these steps and the claimant has a severe impairment, the claimant's residual functional capacity and its effect on the claimant's past relevant work are evaluated. If the impairment does not prohibit the claimant from returning to his or her former employment, the claimant is not disabled. Id. §§ 404.1520(e), 416.920(e).
Fifth, if it is determined that the claimant cannot return to his or her former employment, then the claimant's age, education and work experience are considered to see whether he or she can meet the physical and mental demands of a significant number of jobs in the national economy. If the claimant cannot meet the demands, he or she will be found disabled. Id. §§ 404.1520(f)(1), 416.920 (f)(1). To assist the Commissioner at this stage, the regulations provide certain tables that reflect major functional and vocational patterns. When the findings made with respect to claimant's vocational factors and residual functional capacity coincide, the rules direct a determination of disabled or not disabled. Id. § 404, Subpt. P, App. 2, §§ 200.00-204.00, 416.969 (1994) ("Medical-Vocational Guidelines").
The claimant has the burden of proof under the first four parts of the inquiry. Id. If she successfully carries this burden, the burden shifts to the Commissioner to show that other substantial gainful employment is available in the national economy, which the claimant is capable of performing. Greenspan, 38 F.3d at 236;Kraemer v. Sullivan, 885 F.2d 206, 208 (5th Cir. 1989). When the Commissioner shows that the claimant is capable of engaging in alternative employment, "the ultimate burden of persuasion shifts back to the claimant." Id.; accord Selders, 914 F.2d at 618.
The Court "weigh[s] four elements of proof when determining whether there is substantial evidence of disability: (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) [her] age, education, and work history." Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). "The Commissioner, rather than the courts, must resolve conflicts in the evidence." Id.
B. Factual Background
Plaintiff was the only person who testified at her hearing on September 23, 1997. He attorney explained at the outset that there were not a lot of medicals "because they wouldn't give her a card. But whenever she had a card, she was being treated . . . at [Lillie] Kemp [Charity Hospital] when she was hurting back in '93, 94 . . . and that she more or less manages on her own . . . by staying off her foot and elevating it." (Tr. 21).
Plaintiff testified that she was fifteen in 1987 and was cutting grass when she pushed her foot under the lawnmower and cut it severely. She was taken to the hospital and surgery was performed immediately. Her fifth toe was already off and he amputated the fourth toe. Two days later, the surgeon went back and put two pins in her second and third toe. (Tr. 23-24). She now has traumatic arthritis in two joints, and she claims the doctor wants to do surgery again on her third toe. (Tr. 26).
Plaintiff completed four years of high school but never received a diploma because she never could pass the math part of the exit test. She now lives with her mother and daughter and she receives food stamps in the amount of $212 and AFDC in the amount of $123. (Tr. 27-28). Her mother does not work because she is disabled because she has Lupus.
She said she is unable to do any prolonged standing, and can sit for a certain length of time, but then must stand and stretch her legs or her foot will cramp up on her. She can not sit all day and do bench work unless her foot is elevated. (Tr. 30).
The attorney informed the judge at the hearing that plaintiff had recently obtained a medicaid card, that she had been to Lila Kemp Hospital recently, and that he would obtain the records for the ALJ, who agree to leave the record open for 30 days. There are no such records in file, however.
C. Medical Evidence
This Court has reviewed the medical records in evidence and the ALJ's summary of the medical evidence (Tr. 12-14), and finds the ALJ's summary of the evidence was substantially correct and incorporates it herein by reference, with the following findings:
Plaintiff was fifteen (15) years old when she was struck in the right foot by a lawnmower on July 29, 1987. Plaintiff had extensive injury to her right foot. She had complete amputation of the fourth and fifth toes, at the base of the proximal phalanx. She also had a deep cut on the dorsum of the foot which extended into the base of the proximal phalanges of the second and third toes. On the date of the accident, she was taken to Seventh Ward General Hospital in Hammond, Louisiana, where she underwent an operation which involved completion of the amputation of the fourth toe. It also involved irrigation and debridement of the right foot. At that time, prognosis for recovery of the foot was guarded. It was noted that the patient had severe trauma to the foot, and could possibly lose both the second and third toes. (Tr. 126-128).
On August 3, 1987, another operation was performed at the same hospital which involved pinning of the second and third toes and closure of wounds to the right foot. (Tr. 103). Plaintiff was discharged on August 7, 1987, with the final diagnosis being complete amputation of the fourth and fifth toes with intra articular laceration into the MP joint of the second and third toes. (Tr. 126).
From August 10, 1987 to July 29, 1988, plaintiff had follow-up visits with Dr. McAfee. At her last visit, the doctor found her to be doing well and discharged her with orders to return as needed. (Tr. 124-125).
Plaintiff returned on June 27, 1989, to see Dr. McAfee and reported that her foot had done well until approximately the month before. At that time, she began having pain over the lateral border of the foot, and also over the plantar aspect near the third toe. She was found to have tenderness near the metatarsal heads on the lateral aspect of the foot. The doctor stated that this was directly over the incision and laceration site. She was, also, found to have tenderness over the MP joint of the third toe. X-rays showed degenerative changes of the MP joints of the second and third toes, secondary to the injury. Dr. McAfee felt that her symptoms should subside if she begins warm soaks. He also stated that he was going to start her on some anti-inflammatories, and that if her symptoms had not subsided in four to six weeks she would return to see him. (Tr. 129).
On April 1, 1992, plaintiff was examined by Dr. Fambrough, an orthopedic surgeon, who was an associate of Dr. McAfee. He examined plaintiff at the request of the DDS. He stated that she is still complaining of discomfort under the ball of the foot underlying the fourth and fifth metatarsal heads. She also has numbness involving the third toe. She says she is not able to walk more than about fifty feet before it starts hurting and usually, if she is able to do so, will sit down and rest. She stated that she is, however, able to walk limp free. Dr. Fambrough also found that plaintiff did have numbness to light touch over the lateral border of the third toe. He said the PIP joint of the third toe is fused. He, also, found the MP joints of the second and third toe had a limitation of motion by about 50%. The MP joint of the first toe is full.
Dr. Fambrough stated that he had pulled her X-rays that were taken when she was last here in the office and that she is developing rather significant traumatic arthritis in the MP joints of the second and third toes and may some day in the future require excision of those MP joints. He noted that from a functional standpoint at this time, that she could intermix sitting and standing for 15 minutes at a time. He noted that her sitting, of course, would be unlimited but the time frame should be basically on her weight bearing. He also noted that she should not carry any weight more than 20 to 30 lbs. because of the increase stress it would put on her foot with walking. He said she had no restrictions of the use of her upper extremities, and as far as the lower extremities were concerned, she could use her feet for foot controls in a normal manner. (Tr. 122-123).
Plaintiff was seen again at the request of the DDS on March 3, 1994, by Dr. Gerald Foret. He noted that she had ankylosed second and third digit plantar deviation and early callous formation of the tips. He said these are hammer toes, so to speak. The left great toe was normal. He found she had a scar across the distal right foot with some soft tissue edema behind it. (Tr. 117-118).
ankylosis: stiffness or fixation of a joint by disease or surgery.
Dr. Foret assessment of plaintiff was that she had suffered a rather severe foot injury, but that she could walk, that she had a normal gate and a normal stance. He noted that obviously the foot will hurt if she stands all day, if she works standing up, or if she walks for prolonged distances. He found that she also will have problems with the hammer toes because they will have callous formation and they will probably ache because they are essentially immobile. He said the foot could swell although it was not at the moment he examined her. He reported that the patient had stated she was depressed because she can't run and can't play basketball as she used to. He found that she was probably depressed because of this disability but he did not find it to be a major factor. He said the foot was indeed a problem but that it was an isolated disability to that area. (Tr. 117-118).
Plaintiff returned to see Dr. McAFee on April 19, 1996. She had stated to him that she had problems with pain in her right foot ever since her injury. The pain is now primarily located around the second and third metatarsal head, and she also has numbness in the third toe. The doctor found she had a fixed flexion contracture of the PIP joint of the third toe. He found her to have decreased, but present, sensation of the third toe. He felt that the pain was due to the traumatic arthritis that was revealed by x-ray examination. He discussed with her the options of treatment and recommended treating her conservatively at this point. He started her on Voltaren and warm soaks. He stated he would see her back at the clinic in about three to four weeks. (Tr. 120).
There is a note dated May 2, 1996, by DDS personnel that they had received the following information from a telephone conversation with Dr. McAfee: he found the patient is able to move around, stand, and walk on her foot. She has no need for an assisted device. This information was verified by Dr. McAfee on May 6, 1996. He had been contacted because there was no indication in his report regarding the claimant range of motion, gate, and station. (Tr. 119).
Plaintiff contends that the commissioner erred in finding plaintiff was able to perform her past relevant work as a telephone operator, and that her past work was not performed over a sufficient period of time to be considered "past relevant work" for purposes of the SSA's regulations. However, plaintiff cites no particular regulation or law that would support her contention. Under 20 C.F.R. § 416.965 (a), work experience applies when it was done within the last 15 years, lasted long enough for claimant to learn to do it, and was substantial gainful activity. The evidence shows that the plaintiff performed telephone answering/receptionist duties during two summer jobs in 1991 and 1992. (Tr. 3 1-33). She did not indicate at the hearing that she had any difficulties performing her duties. Therefore, the ALJ did not err in concluding that her operator/reception jobs were past relevant work, and he did not err in concluding that plaintiff could perform her past relevant work as a telephone operator.
Plaintiff next asserts that the ALJ did not properly assess her complaints of disabling pain under the requirements of Social Security Ruling (SSR) 88-13. Plaintiff contends that there is not substantial evidence in the record to support the Commissioner's finding that the claimant's pain is not disabling. Pain may constitute a non-exertional impairment that can limit the jobs a claimant would otherwise be able to perform. Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990); Carter v. Heckler, 712 F.2d 137, 141-42 (5th Cir. 1983). "Pain constitutes a disabling condition when it is "constant, unremitting, and wholly unresponsive to therapeutic treatment."' Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994), quoting Selders v. Sullivan, 914 F.2d 614, 618-19 (5th Cir. 1990).
However, SSR 88-13 was superceded by SSR 95-5p, which became effective on October 31, 1995. "In instances in which the adjudicator has observed the individual, the adjudicator is not free to accept or reject that individual's complaints solely on the basis of such personal observations. Rather, in all cases in which pain or other symptoms are alleged, the determination or decision rationale must contain a thorough discussion and analysis of the objective medical and the other evidence, including the individual's complaints of pain or other symptoms and the adjudicator's personal observations. The rationale must include a resolution of any inconsistencies in the evidence as a whole and set forth a logical explanation of the individual's ability to work. . . ." SSR 95-5p.
It is within the ALJ's discretion to determine the disabling nature of a claimant's pain, and the ALJ's determination is entitled to considerable deference. Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir. 1991); James v. Bowen, 793 F.2d 702 (5th Cir. 1986). Whether an applicant is able to work despite some pain is within the province of the administrative agency, and the agency's determination should be upheld if supported by substantial evidence. Jones v. Heckler, 702 F.2d 616 (5th Cir. 1983); Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980).
The Court finds there is substantial evidence to support the ALJ's finding that plaintiff can perform at least her past relevant work as a telephone operator.
Plaintiff also maintains that she suffers from severe nonexertional impairments which have more than a minimal effect on her capacity for work, thereby materially reducing her potential occupational base, and that the ALJ therefore erred in failing to have the testimony of a vocational expert because of plaintiffs alleged impairment. She did not, however, identify for the Court any particular non-exertional impairments, other than pain already discussed. In addition, the ALJ did not err in failing to call a vocational expert, because he found plaintiff capable of performing some of her past relevant work at step four of the sequential analysis. See Harper v. Sullivan, 887 F.2d 92, 97 (5th Cir. 1989).
Finally, plaintiff argues the ALJ erred in finding that she had a severe impairment, and in failing to call a vocational expert; it is plaintiffs contention that the burden of proof should fall on the commissioner to prove her employability once the ALJ found that she had a severe impairment. This, however, is a mis-statement of the law; the claimant bears the burden of proof under the first four steps of the sequential evaluation. Since the ALJ found her capable of performing some of her past relevant work at step four, the burden of proof did not shift to the Commissioner to prove her employability. Greenspan, 38 F.3d at 236; 20 C.F.R. § 416.920 (e).
CONCLUSION
Substantial evidence in the record supports the ALJ's decision that the limitations resulting from Alexander's impairment was not so severe as to be debilitating and that she is capable of performing some of her past relevant work.
Accordingly, IT IS ORDERED that plaintiffs complaint be and is hereby DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 28 th day of March, 2000.