Slaughter v. Astrue
Slaughter v. Astrue
Opinion of the Court
MEMORANDUM OPINION
Pending before the court
I. Case Background
Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of an unfavorable decision by the Commissioner of the Social Security Administration (“Commissioner”) regarding Plaintiffs claim for disability benefits under Title II supplemental security income under Title XVI of the Social Security Act (“the Act”).
A. Factual History
Plaintiff was born on January 20,1962, and was thirty-nine years old on August 15, 2001, the date of the alleged onset of disability.
1. Mental Illness
The medical record generally supports Plaintiffs claims of a mental disability. The onset of Plaintiffs mental illness dates back to November 1993.
Plaintiff was next hospitalized at Ben Taub Hospital in January 1998, where he was diagnosed with a mood disorder NOS
On. August 15, 2001, Plaintiff was involuntarily admitted to HCPC after Houston police found him in a parking lot setting things on fire.
Seven and a half years later, in January 2009, Glen E. McClure, PhD., (“Dr. McClure”) saw Plaintiff for psychological examination in connection with application.
Dr. McClure noted that Plaintiff was not motivated to obtain treatment.
2. Other Impairments
In June 1996, Plaintiff went to the emergency room at Ben Taub Hospital for an ankle injury and had surgery to repair a fracture of his right distal fibula.
In December 2008, Plaintiff saw Prem Nowlakha, M.D., (“Dr. Nowlakha”), in connection with his complaint of knee pain in his disability application.
B. Procedural History
Plaintiff filed for disability benefits on September 18, 2008, claiming an inability to work since August 15, 2001, due to
In connection with his application, Plaintiff completed a questionnaire in which he described his daily activities.
In January 2009, Dr. McClure completed a consultative psychological examination in connection with Plaintiffs application for benefits.
The Commissioner denied Plaintiffs application at the initial and reconsideration levels.
A. Plaintiffs Testimony
Plaintiff reported auditory hallucinations had led to his past psychiatric hospitalizations.
Plaintiff stated that he could not read, which was a problem when he was employed as a truck driver because he could not find locations.
Plaintiff remembered assaulting his nephew in 2004 and pleading guilty to that assault.
B. Plaintiffs Mother’s Testimony
Plaintiffs mother, Ms. Johnson, stated that her son lived with her all his life except for the fourteen years when he was married.
Ms. Johnson listed the following incidents as the most disturbing things she had seen Plaintiff do: he ran down the street naked; he dug up a stop sign, spray-painted his name on the back and replanted the it; he jumped through a glass window because he claimed to have heard voices; he ran into a neighbor’s house claiming demons were after him; he ran after cars and jumped into the back of a pickup truck; he frequently laughed to himself; he burned a girlfriend’s clothes; and he fell and broke his front teeth.
Ms. Johnson testified that she had to remind Plaintiff to bathe and that she did not trust him to cook in her house.
C. The Vocational Expert’s Testimony
After hearing the foregoing testimony and reviewing the Plaintiffs file, the vocational expert, Thomas King (“VE King”), stated the only job performed by Plaintiff at the level of significant gainful activity (“SGA”) was as a truck driver.
The ALJ posed the following hypothetical:
[A]ssume the existence of a hypothetical individual ... with the claimant’s age, education and prior work experience who is limited to performing unskilled, simple, repetitive tasks which involve only occasional contact with co-workers, supervisors and members of the general public, and which do not involve occupational exposure to drugs or alcohol.*638 Would such an individual be able to perform the claimant’s past relevant work?91
Based on the record and Plaintiffs testimony, VE King found that Plaintiff could not perform his past relevant work as a truck driver.
The ALJ then asked if any jobs could be performed by an individual who was precluded from having contact with the public.
Plaintiffs attorney asked VE King if his answer about the written instructions was based on objective materials or his own experience.
Now assume for me that the claimant’s ability to concentrate is poor, his ability to persist and pace is poor; meaning his ability to sustain focused attention sufficiently long enough to permit the timely completion of tasks common found in work settings, would there be any jobs in the national economy such an individual could perform?103
VE King replied “based on those limitations, no.”
Assume that the hypothetical individual can not follow rules and/or regulations, and/or get along with his supervisors and co-employees, nor the public. Would the jobs that you’ve enumerated under the Administrative Law Judge’s hypothetical still be available?105
VE King said they would not.
[Ajssume that the claimant’s behavior is unpredictable in that he may hit a person if he disagreed with the person, or he may holler or scream at the person, regardless as to whether or not it would be a co-employee, a supervisor, or the public ... unpredictable when that would occur, but it would occur more than once or twice a week. How would that affect his ability to maintain employment in the national economy?110
VE King replied that such an individual would not be able to maintain work.
On November 20, 2009, the ALJ issued an unfavorable decision.
II. Standard of Review and Applicable Law
The court’s review of a final decision by the Commissioner denying disability benefits is limited to the determination of whether: 1) substantial evidence in the record supports the decision; and 2) the ALJ applied proper legal standards in evaluating the evidence. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002); Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999). In addition to the initial disability determination, the Social Security Administration periodically reviews continued entitlement to disability benefits. See 20 C.F.R. § 404.1594(a).
A. Substantial Evidence
The widely accepted definition of “substantial evidence” is “that quantum of relevant evidence that a reasonable mind might accept as adequate to support a conclusion,” Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000). It is “something more than a scintilla but less than a preponderance.” Id. The Commissioner has the responsibility of deciding any conflict in the evidence. Id. If the findings of fact contained in the Commissioner’s decision are supported by substantial record evidence, they are conclusive, and this court must affirm. 42 U.S.C. § 405(g); Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
The court should overturn the Commissioner’s decision only if no credible evidentiary choices or no medical findings exist to support it. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). In applying this standard, the court is to review the entire record, but the court may not reweigh the evidence, decide the issues de novo, or substitute the court’s judgment for the Commissioner’s judgment. Brown, 192 F.3d at 496. In other words, the court is to defer to the decision of the Commissioner as much as possible without making its review meaningless. Id.
In order to obtain disability benefits, a claimant bears the ultimate burden of proving he is disabled within the meaning of the Act. Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). Under the applicable legal standard, a claimant is disabled if he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment ... 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); see also Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). The existence of such a disabling impairment must be demonstrated by “medically acceptable clinical and laboratory diagnostic” findings. 42 U.S.C. § 423(d)(3), (d)(5)(A); see also Jones v. Heckler, 702 F.2d 616, 620 (5th Cir. 1983).
To determine whether a claimant is capable of performing any “substantial gainful activity,” the regulations provided that disability claims should be evaluated according to the following sequential five-step process:
(1) a claimant who is working, engaging in a substantial gainful activity, will not be found to be disabled no matter what the medical findings are; (2) a claimant will not be found to be disabled unless he has a “severe impairment;” (3) a claimant whose impairment meets or is equivalent to an impairment listed in Appendix 1 of the regulations [regulatory medical listings (“Listings”)117 ] will be considered disabled without the need to consider vocational factors; (4) a claimant who is capable of performing work that he has done in the past must be found “not disabled;” and (5) if the claimant is unable to perform his previous work as a result of his impairment, then factors such as his age, education, past work experience, and residual functional capacity (“RFC”) must be considered to determine whether he can do other work.
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20 C.F.R. § 404.1520. By judicial practice, the claimant bears the burden of proof on the first four of the above steps, while the Commissioner bears it on the fifth. Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999); Brown, 192 F.3d at 498. If the Commissioner satisfies his step-five burden of proof, the burden shifts back to the claimant to prove he cannot perform the work suggested. Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991). The analysis stops at any point in the process upon a finding that the claimant is disabled or not disabled. Greenspan, 38 F.3d at 236.
III. Analysis
Plaintiff requests judicial review of the ALJ’s decision to deny disability benefits. Plaintiff contends the ALJ did not follow proper legal procedures and that the ALJ’s decision is not supported by substantial evidence. Specifically, Plaintiff argues that the ALJ failed to evaluate Ms. Johnson’s testimony, that the ALJ’s credibility findings were not supported by substantial evidence, and that the ALJ’s step-five finding that Plaintiff could perform the jobs of dish washer, packager, and laundry worker was directly contradicted by Plaintiffs nonexertional limitation of no written instructions. Defendant points out that substantial evidence supports both the ALJ’s credibility analysis, including the ALJ’s treatment of Ms. Johnson’s testimony, and the ALJ’s step five determination. The court begins with a summary of the ALJ’s decision and then considers the parties’ summary judgment arguments.
In his November 2009 decision, the ALJ found that Plaintiff met the requirements for insured status on the alleged onset date of disability and continuing though September 30, 2004.
The ALJ determined that none of Plaintiffs impairments, either individually or in combination, met any Listing.
After reviewing the record, the ALJ found the Plaintiff had the RFC:
to perform a full range of work at all exertional levels but with the following nonexertional limitations: unskilled work requiring only simple repetitive tasks, occasional contact with co-workers and supervisors, no contact with the public, no occupational exposure, to drugs or alcohol, and no written instructions.128
The ALJ found that Plaintiffs alleged symptoms could reasonably be caused by his medically determinable complaints. However, the ALJ also found that regarding “the intensity, persistence and limiting effects of these symptoms,” Plaintiffs claims were not fully credible.
Addressing Plaintiffs testimony that he had not sought treatment because he had no money or medical insurance, the ALJ found no record evidence that Plaintiff had actually attempted to obtain access to medical treatment through “every means possible.”
The ALJ rejected Dr. McClure’s opinion that there was no evidence that Plaintiff suffered from significant intellectual deficits but in that instance credited Plaintiffs assertions that he had minimal reading skills by including a restriction in the RFC of no written instructions.
Since Plaintiffs ability to perform work at all exertional levels was compromised by his nonexertional limitations,
B. Plaintiff’s Motion
Plaintiff argues in his motion for summary judgment that the ALJ’s credibility findings were not supported by substantial evidence. Plaintiff also argues that the ALJ failed to follow the nonexertional limitation of no written instructions when performing step-five of the disability claims analysis.
1. Failure to Consider Ms. Johnson’s Testimony
Plaintiff argues that the ALJ committed error when he failed to take into account the testimony of Ms. Johnson without giving a reason for rejecting her testimony. Plaintiff cites several Ninth Circuit cases in support of a standard in which an ALJ must give “germane reasons” for rejecting “lay testimony,” and that the ALJ’s failure to do so is harmful error unless a reasonable ALJ would reach the same conclusion when considering said testimony.
Witness testimony such as Ms. Johnson’s is competent evidence that a claimant may provide to support evidence of his alleged symptoms. 20 C.F.R. § 404.1513(d)(4), (e). The ALJ may not disregard such testimony “about the effect the symptoms have on [an individual’s] ability to work ... solely because [that testimony is] not substantiated by objective medical evidence.” Social Security Ruling (“SSR”)
The portions of Ms. Johnson’s testimony that concern events prior to August 15, 2001, are outside the relevant period of disability and were properly disregarded. See Loza, 219 F.3d at 394; SSR 83-20, 1983 SSR LEXIS 25, at *3. Though the ALJ did not directly refer to Ms. Johnson by name in the decision, the ALJ specifically noted that Plaintiffs “significant psychiatric history is remote in nature and appears to be driven by his history [of] substance abuse and non compliance with his medications.”
The ALJ credited portions of Ms. Johnson’s testimony regarding her son’s inability to live by himself, needing reminders to bathe, and her not trusting him to cook in her house.
The ALJ disagreed with Dr. McClure’s opinion that Plaintiff did not have severe mental impairments based on other evidence in the record.
Plaintiff refers to the Ninth Circuit standard of review for harmless error in regards to consideration of lay witness testimony, a standard that has never been adopted in the Fifth Circuit.
2. Inability to Afford Treatment
Plaintiff takes issue with the ALJ’s finding that Plaintiff was noncompliant with treatment and therefore could not be found disabled within the meaning of the Social Security Act.
A claimant must be unable to obtain treatment for a condition disabling in fact to be disabling in law. Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987). As the ALJ specifically noted, an inability to pay does not automatically equal a finding of disabled. See Harper v. Sullivan, 887 F.2d 92, 95 (5th Cir. 1989). Among the requirements under SSR 82-59 is that a determination must be made as to whether a failure to follow prescribed treatment is justifiable. SSR 82-59, 1982 SSR LEXIS 25, at *11. A plaintiffs claim of an inability to afford treatment as a justifiable reason for failing to follow prescribed treatment is only allowed “where such treatment is not reasonably available in the local community.” Id. at *9-10. A plaintiff must explore “all possible resources,” and “contacts with such resources and the claimant’s financial circumstances must be documented.” Id. at *10.
Here, Plaintiff provided no documentation to show he had pursued treatment options or had been turned away from treatment because of indigency. Id. at
3. Conflict between the Dictionary of Occupational Titles and the Nonexertional Limitations
Finally, Plaintiff contends that the ALJ, though he had found that Plaintiff had a nonexertional limitation of “no written instructions,” erred in finding that Plaintiff could perform the jobs of dish washer, packager, and laundry worker because the Dictionary of Occupational Titles (“DOT”) requirements for those jobs include provisions for written instructions.
Plaintiff gives no authority to support his argument beyond a listing of purported DOT requirements and case law describing the DOT requirements. For the job of dish washer, Plaintiff cites the job description of kitchen helper because, according to an unpublished district court case, the job of kitchen helper “appears to include the duties of a dish washer.”
To decide an alleged conflict between vocational expert testimony and a DOT description, the court should follow a middle ground “in which neither the DOT nor the vocational expert testimony is per se controlling,” and focus on the larger issue of whether substantial evidence supports the Commissioner’s finding that this person can do these particular jobs. Carey, 230 F.3d at 145-147 (5th Cir. 2000). The ALJ may rely on the vocational expert’s testimony if the
hypothetical question ... can be said to incorporate reasonably all disabilities of the claimant recognized by the ALJ, and the claimant or his representative is afforded the opportunity to correct deficiencies in the ALJ’s question by mentioning or suggesting to the vocational expert any purported defects in the hypothetical questions (including additional disabilities not recognized by the ALJ’s findings and disabilities recognized but omitted from the question).
Bowling, 36 F.3d at 436. Plaintiff may not scan the record for perceived inconsistencies between the testimony of the vocational expert and the DOT if the issue was not raised at the ALJ hearing. Carey, 230 F.3d at 146-47. Additionally, “DOT job descriptions should not be given a role that is exclusive of more specific vocational expert testimony with respect to the effect of an individual claimant’s limitations on his or her ability to perform a particular job,”
Here, the ALJ’s hypothetical incorporated Plaintiffs impairments and limitations of occasional contact with co-workers and supervisors, no contact with the general public, no exposure to drugs and alcohol, and unskilled, simple, and repetitive tasks. This hypothetical reasonably included “all disabilities of the claimant recognized by the ALJ.” Bowling, 36 F.3d at 436. Plaintiffs attorney had the opportunity to present his own hypothetical questions to VE King, and Plaintiff raised no issues with regards to written instructions. Id.; Boyd v. Apfel, 239 F.3d 698, 707 (5th Cir. 2001).
Though neither the ALJ nor VE King gave specific DOT entries for the jobs of dish washer, laundry worker, and packager, the ALJ specifically asked VE King whether these jobs involved written instructions.
Plaintiff had the burden to prove he could not perform the jobs set out by the vocational expert. Crowley, 197 F.3d at 198. Plaintiff has presented no evidence that he could not perform the jobs of dish washer, packager, or laundry worker. Therefore, the ALJ property determined that the Plaintiff was not to be disabled under the Act.
Accordingly, the court DENIES Plaintiffs summary judgment motion.
C. Defendant’s Motion
Defendant also moves for summary judgment. Defendant asserts in his response that the ALJ’s decision should be affirmed because the ALJ properly determined Plaintiff was never under a disability-
The court recognizes the seriousness of Plaintiffs medical conditions. However, the court must review the record with an eye toward determining only whether the ALJ’s decision is supported by more than a scintilla, but less than a preponderance of evidence. See Carey, 230 F.3d at 135. The court finds more than a scintilla of evidence in support of the ALJ’s decision. Therefore, the court cannot overturn the decision of the ALJ, who is given the task of weighing the evidence and deciding disputes. See Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001); Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir. 1991).
For the reasons stated above, the court finds Defendant satisfied his burden. As a result, the ALJ’s decision finding Plaintiff not disabled is supported by substantial record evidence. The court also agrees with Defendant that the ALJ applied proper legal standards in evaluating the evidence and in making his determination. Therefore, the court GRANTS Defendant’s summary judgment motion.
IV. Conclusion
Based on the foregoing, the court GRANTS Defendant’s Motion for Sum
. The parties consented to proceed before the undersigned magistrate judge for all proceedings, including trial and final judgment, pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Doc.15.
. See Transcript of the Administrative Proceedings ("Tr.”) 128, 135.
. See Tr. 31, 46, 153, 330.
. See Tr. 33, 55, 150, 166.
. See Tr. 315-28.
. See Tr. 317,319-20.
. See Tr. 320.
. Id.
. See Tr. 321.
. See Tr. 228.
. See Tr. 232. PCP is the street name for the recreational drug phencyclidine
. See Tr. 211.
. See Tr. 217.
. See Tr. 215, 219.
. See Tr. 345-360.
. See Tr. 333-43.
. See Tr. 333, 343.
. See Tr. 268.
. See Tr. 264, 268.
. See Tr. 268.
. See Tr. 272.
. See Tr. 264-65.
. See Tr. 264.
. See Tr. 290-97.
. See Tr. 292.
. See Tr. 292-93.
. See Tr. 295.
. Id.
. Id.
. Id.
. Id.
. Id.
. See Tr. 248, 259, 261.
. See Tr. 236.
. See Tr. 149.
. See Tr. 288.
. See Tr. 285-89.
. Id.
. SeeTr. 149, 310, 312-14.
. See Tr. 135, 139.
. In order to qualify for [DIB], the claimant must prove that the onset of his disability was on or before the date on which he was last insured. Loza v. Apfel, 219 F.3d 378, 394 (5th Cir. 2000).
. The claimant cannot receive payment for [SSI] for any time prior to the application, regardless of the length of the disability. 20 C.F.R. § 416.335; Brown v. Apfel, 192 F.3d 492, 495 n. 1 (5th Cir. 1999).
. See Tr. 158-165. Other questionnaires completed by Plaintiff show that his activity level remained constant after he filed for disability benefits. See Tr. 148-154, 172-178, 182-188.
. See Tr. 158.
. SeeTr. 160.
. SeeTr. 161.
. Id.
. See Tr. 158.
. SeeTr. 162.
. See Tr. 290-97.
. SeeTr. 296.
. SeeTr. 298-311.
. SeeTr. 298, 301.
. See Tr. 308.
. See Tr. 77-84, 86-89, 95-87, 99-101.
. SeeTr. 102-3.
. SeeTr. 104-125.
. SeeTr. 39-76.
. SeeTr. 47.
. SeeTr. 47-48.
. SeeTr. 49.
. See Tr. 50.
. See Tr. 48.
. SeeTr. 51-52.
. SeeTr. 49.
. Id.
. Id.
. See Tr. 54-55.
. See Tr. 46, 55.
. See Tr. 46.
. SeeTr. 57.
. See Tr. 59.
. Id.
. SeeTr. 51.
. SeeTr. 52.
. See Tr. 57.
. SeeTr. 57-58.
. SeeTr. 52.
. See Tr. 48.
. See Tr. 60.
. See Tr. 61-62.
. See Tr. 62-63.
. See Tr. 64.
. See Tr. 64-67.
. See Tr. 68.
. See Tr. 68-69.
. See Tr. 69.
. See Tr. 68.
. SeeTr. 71.
. Id.
. Id.
. See Tr. 71-72.
. SeeTr. 72.
. Id.
. SeeTr. 71-72.
. SeeTr. 72.
. Id.
. Id.
. SeeTr. 73.
. Id.
. Id.
. Id.
. Id.
. Id.
. Tr. 74.
. Id.
. Id.
. Id.
. Id.
. Tr. 75.
. Id.
. See Tr. 23-38.
. See Tr. 19-21.
. See Tr. 19-21, 23-38.
. See Harper v. Bowen, 813 F.2d 737, 739 (5th Cir. 1987), for a summaiy of the administrative steps a disability claimant must take in order to exhaust her administrative remedies.
. Doc. 1., Pl.’s Compl.
. 20 C.F.R. Pt. 404, Subpt. P„ App. 1.
. SeeTr. 28.
. See id.
. See Tr. 28-29.
. SeeTr. 29.
. See Tr. 30.
. See id.
. See id.
. See id.
. See id.
. SeeTr. 31.
. Tr. 31.
. Tr. 32.
. Id.
. Id.
. See id.
. Tr. 32-33.
. See Tr. 33.
. See id.
. See id.
. See id.
. 20 C.F.R. Pt. 404, Subpt. P., App. 2, Medical-Vocational Guidelines § 204.00.
. See Tr. 34.
. Plaintiff refers to a standard created by Ninth Circuit cases Nguyen v. Chater, 100 F.3d 1462 (9th Cir. 1996), and Stout v. Comm’r, Social Sec. Admin., 454 F.3d 1050
. Tr. 66.
. See id. (running around the street naked, digging up the stop sign, jumping through a glass balcony, running and hiding in a closet with demons after him, jumping after moving cars, laughing and talking to himself, and burning a girlfriend's clothes).
. The court notes that SSA rulings are not binding on the court but may be consulted for explanation of a statute that provides little guidance. Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001).
. Tr. 32.
. Id.
. Tr. 28.
. Tr. 33.
. Tr. 32-33.
. Tr. 31-32.
. Under such a standard, an ALJ commits harmful error with regards to lay testimony if a reasonable ALJ who fully credits that lay testimony would come to a different conclusion. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). Even if such a standard were to apply in the Fifth Circuit, there is substantial evidence that a reasonable ALJ who fully credited Ms. Johnson’s testimony could come to the same decision that the ALJ in this case did.
. Doc. 17, PL Mot. for Summ. J., p. 24.
. Id. at 25.
. Id. at 25-26.
. The case Plaintiff cites in support of this proposition dealt with the plaintiff's ability to reach, and did not involve an inability to read written instructions. Epperson v. Astrue, 2009 WL 1313325 at *4 (E.D.Ky. May 12, 2009).
. The case from which Plaintiff argues that level 2 reasoning is needed for the jobs of laundry worker and hand packager also stated that "the Level 2 reasoning definition is an upper limit across all jobs in the occupational category, not a requirement of every job within the category,” and noted that DOT job descriptions are not to be strictly interpreted. Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010).
. Tr. 72.
. Id.
Reference
- Full Case Name
- John SLAUGHTER v. Michael J. ASTRUE Commissioner of the Social Security Administration
- Cited By
- 5 cases
- Status
- Published