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Roberta Davis v. Commissioner of Social Security

November 18, 2011



Claimant, Roberta Davis, seeks judicial review of the final decision of the Commissioner of the Social Security Administration denying her claim for disability, disability insurance benefits and Supplemental Security Income (SSI). The Commissioner filed the Transcript of the proceedings (hereinafter referred to as "Tr." followed by the appropriate page number) and the parties filed legal memoranda in support of their positions. For the reasons set out herein, the decision of the Commissioner is AFFIRMED, pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

I. Social Security Act Eligibility, Procedural History and Standard of Review

The law defines disability as the inability to do 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. §§ 416(i), 423(d)(1); 20 C.F.R.§ 404.1505.The impairment must be severe, making Claimant unable to perform his previous work, or any alternative substantial gainful activity which exists in the national economy. 42 U.S.C.§423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.

A. Procedural History

On September 4, 2003, the Claimant filed applications for disability, disability insurance benefits and Supplemental Security Income payments with an alleged disability onset date of May 1, 2003. (Tr. 23). Claimant's request for benefits was denied initially on February 24, 2004 and upon reconsideration on June 11, 2004. (Tr. 23, 38, 43). A hearing was held by the Administrative Law Judge (hereinafter referred to as "ALJ") on December 13, 2005 after a finding of good cause for the late filing of the request. (Tr. 23). Claimant waived her right to representation, appeared and testified. (Tr. 23). Joyce Courtright, a vocational expert, also presented testimony. (Tr. 23). On March 24, 2006, the ALJ determined that the Claimant was not disabled within the meaning of the Social Security Act. (Tr. 29). On July 25, 2007, the Appeals Council vacated the ALJ's decision because new and material evidence was presented. (Tr. 249-51). On October 30, 2007, Claimant's representative notified the Appeals Council that the new evidence that served as grounds for remand did not belong to Claimant, but to someone else with the same name. (Tr. 12). Upon realization of the error, the Appeals Council vacated its remand order and granted Claimant 20 days to present new evidence and/or arguments. (Tr. 10-14). Claimant's representative submitted a new request for review, legal memorandum, and new evidence but the Appeals Council denied the request for review on September 23, 2010. (Tr. 5-9).

B. Standard of Review

District Courts review de novo the ALJ's decision in a limited inquiry as to whether the decision as a whole is supported by substantial evidence. Conner v. Astrue, 415 F. App'x 992, 995 (11th Cir. 2011); 42 U.S.C. § 405(g). "Substantial evidence is more than a scintilla but less than a preponderance." Id. Substantial evidence consists of relevant information that would lead a reasonable person to conclude that there was adequate support for the ALJ's decision. Id. When conducting the review, the court is not permitted to reweigh the evidence or substitute its judgment for the ALJ's judgment. Hernandez v. Comm'r of Soc. Sec., 2011 U.S. App. LEXIS 14174 at *2 (11th Cir. 2011). However, the court may reverse when " the ALJ fails to apply the correct law or to provide [us] with sufficient reasoning for determining that the proper legal analysis has been conducted." Id.

C. Five-Step Process in Evaluating a Claim of Disability

The ALJ must follow a five-step process in evaluating a claim of disability. 20 C.F.R. §§ 404.1520, 416.920. First, if a claimant works and performs substantial gainful activity, she is not disabled. 20 C.F.R.§§ 404.1520(a)(4)(i), (b). Second, if a claimant does not have any impairment or combination of impairments which significantly limit a claimant's physical or mental ability to perform basic work activities, then the claimant does not suffer from a severe impairment and is therefore not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), (c). Third, if a claimant's impairments do not meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, she is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), (d). Fourth, if a claimant can perform past relevant work despite the impairments of her residual functional capacity, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), (e). Fifth, a court must consider the residual functional capacity as well as the age, education, and work experience of Claimant to determine if she can make an adjustment to other work. If Claimant is able to adjust to other work, Claimant will not be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), (f)--(g).

II. Review of Facts

A. Background Facts

The Claimant was between the ages of 45 and 49 at all pertinent times to this decision, which is considered to be a younger individual. (Tr. 27).She has a high-school education and no transferable skills from any past relevant work. (Tr. 27). Claimant previously worked at Juicy Lucy's primarily using a deep fryer in 2004 and as a Pizza Hut delivery driver in 2005. (Tr. 24). Claimant alleges her neck and back problems coupled with her manipulative difficulty prevent her from working. (Tr. 24). She also complains of irritable bowel syndrome, asthma, anxiety, depression, bipolar disorder, and personality disorder. (Tr. 24).

B. The ALJ's Findings

At the first step, the ALJ concluded that Claimant's work history suggests she is capable of engaging in substantial gainful activity. (Tr. 24). The ALJ explained that even though the earnings of Claimant's job at Juicy Lucy's and Pizza Hut do not satisfy the monthly threshold amounts of substantial gainful activity, they are nonetheless substantial and suggest the capacity for the Claimant to engage in substantial gainful activity. (Tr. 24).

At the second step, the ALJ concluded that the Claimant has "severe" impairments including:

(1) degenerative disc disease in the cervical spine; (2) status-post fusion at C5-6; (3) spinal curvature; (4) disc bulging at L4-5; (5) subacromial fluid and osteoarthritis in the right shoulder; (6) chronic obstructive pulmonary disease; (7) irritable bowel syndrome; and (8) gastroesophagel reflux disorder. (Tr. 25). The ALJ also concluded that Claimant suffers from anxiety, depression, and bipolar disorder but these conditions do not limit Claimant's performance of daily activities. (Tr. 25).

The ALJ concluded at the third step that the Claimant's impairments do not meet or medically equal the severity criteria of any of the listings in Appendix 1, Subpart P, Regulation No. 4. (Tr. 25).

At the fourth step, the ALJ concluded that the Claimant has retained residual functional capacity for a wide range of sedentary work. (Tr. 27). The ALJ determined Claimant's limitations were reasonable. (Tr. 27). The ALJ further explained:

[C]laimant can lift, carry, push and pull up to 10 pounds occasionally and five pounds frequently; she can stand and/or walk for up to two hours and sit for up to six hours in a typical eight-hour workday. She cannot reach overhead with the right upper extremity. She can occasionally climb ramps (but never ropes, ladders or scaffolds), balance and stoop; however, she cannot kneel, crouch or crawl at any time. She must not be exposed to dangerous moving machinery or unprotected heights, to extreme temperatures or humidity, or to pollutants (gasses, dust, fumes). She may have only an occasional interaction with the public. (Tr. 27). Furthermore, the ALJ determined that Claimant's continuous work just below substantial gainful activity further fails to support her allegation of disability. (Tr. 26).

Lastly, after considering the Claimant's age, education, work experience, and residual functional capacity, the ALJ determined that there are a significant number of available local and national jobs the Claimant can perform. (Tr. 27). The vocational expert testified that available jobs included: lens inserter, lens-block gauger, and stone setting. (Tr. 27). Based on these findings, the ALJ concluded that Claimant was not considered disabled. (Tr. 27).

C. Medical Evidence

At the age of 2, Claimant was diagnosed with asthma. (Tr. 171). Claimant injured her neck in an auto accident at age 11. (Tr. 171). Between the ages of 16 and 17, Claimant suffered from chronic headaches and problems with her cervical vertebrae. The Claimant had tubal ligation in 1990, her gallbladder removed in 1991, and her uterus removed with fibroid tumors in 1993. (Tr. 171).

Claimant also had a cervical fusion and a breast biopsy which proved negative for cancer. (Tr. 171). In 2001, Claimant injured her right knee, right arm, and lower back in another auto accident. (Tr. 171).

On May 21, 1996, Laura Seed, M.D. of the Ruth Cooper Center evaluated Claimant and diagnosed her with bipolar disorder and obsessive compulsive disorder. (Tr. 127). Dr. Seed reevaluated Claimant on July 10, 1996 and determined that Claimant suffered from a personality disorder, rather than bipolar disorder, obsessive compulsive disorder, depression, and asthma. (Tr. 127-28).

On December 1, 1999, Norma Henriquez, M.D. diagnosed Claimant with depressive disorder, generalized anxiety disorder, personality disorder and asthma. (Tr. 112). Dr. Henriquez noted that continued treatment was needed to monitor the side effects of medication. (Tr. 112). Dr. Henriquez also noted that the patient had previously demonstrated significant cognitive, emotional, and behavioral deterioration. (Tr. 112).

On February 23, 2000, Claimant had an MRI that revealed no interval change but bilateral posterolateral C5-6 broad protrusions extending into the region of the C6 nerve roots bilaterally with marked right and moderate left neural foraminal narrowing. (Tr. 153). Stuart Bobman, M.D. of the Radiology Regional Center in Ft. Myers suggested clinical correlation for bilateral C6 radiculopathy. (Tr. 153).

On March 29, 2000, Claimant was examined by Gary Correnti, M.D. of Southwest Florida Regional Medical Center for bilateral arm pain. (Tr. 131, 133).Dr. Correnti performed anterior cervical discectomy and fusion at C5-6. (Tr. 141). An MRI revealed a large central herniated disk with bilateral neural foraminal stenosis. (Tr. 131).

Claimant returned to Dr. Correnti on April 7, 2000 for a post surgery checkup where Claimant complained of hoarseness, difficulty swallowing, a lump located by the incision site, numbness and tingling. (Tr. 141). Dr. Correnti noted a 60% improvement in Claimant's thumb pain, no fever or chills, and Claimant's strength was considered normal. (Tr. 141). Dr. Correnti concluded that the hoarseness and swallowing difficulties are due to the tissue swelling that resulted from surgery. (Tr. 141).Furthermore, there were no hematoma or abscess and Claimant's vocal cords were in good working order. (Tr. 141). Dr. Correnti noted that Claimant continued to smoke two packs of cigarettes a day, her spinal alignment was satisfactory with no fracture or bone destruction and her prevertebral soft tissues were intact. (Tr. 141-142).

On August 15, 2000, Claimant discussed the results of a subsequent MRI with Dr. Correnti. (Tr. 151). Dr. Correnti explained that the MRI taken the previous day revealed vertebral body heights to be well maintained and the spinal cord itself appeared normal. (Tr. 151). Dr. Correnti also found evidence that the anterior cervical fusion C5-6 with graft was in good position and noted postoperative changes in disc space. (Tr. 151). The MRI did not ...

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