United States District Court, M.D. Alabama, Eastern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
SUSAN RUSS WALKER, Chief Magistrate Judge.
Plaintiff Amy Lynn Tyson Senn brings this action pursuant to 42 U.S.C.§ 405(g) seeking judicial review of a decision by the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits under Title II of the Social Security Act. Upon review of the record and briefs submitted by the parties, the court concludes that the decision of the Commissioner is due to be affirmed.
STANDARD OF REVIEW
The court's review of the Commissioner's decision is narrowly circumscribed. The court does not reweigh the evidence or substitute its judgment for that of the Commissioner. Rather, the court examines the administrative decision and scrutinizes the record as a whole to determine whether substantial evidence supports the ALJ's factual findings. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993); Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). Substantial evidence consists of such "relevant evidence as a reasonable person would accept as adequate to support a conclusion." Cornelius, 936 F.2d at 1145. A reviewing court may not look only to those parts of the record which support the decision of the ALJ but instead must view the record in its entirety and take account of evidence which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986). Factual findings that are supported by substantial evidence must be upheld by the court. The ALJ's legal conclusions, however, are reviewed de novo because no presumption of validity attaches to the ALJ's determination of the proper legal standards to be applied. Davis, 985 F.2d at 531. If the court finds an error in the ALJ's application of the law, or if the ALJ fails to provide the court with sufficient reasoning for determining that the proper legal analysis has been conducted, the ALJ's decision must be reversed. Cornelius, 936 F.2d at 1145-46.
Plaintiff filed her application for disability benefits on August 14, 2008, alleging that she became disabled on August 28, 2007, due to back pain, leg pain, and headaches following a motor vehicle collision. (R. 97, 137). Her application was denied at the initial administrative level, and plaintiff requested a hearing before an administrative law judge ("ALJ"). (R. 65). The ALJ held a hearing on February 10, 2010, at which plaintiff was represented by counsel. (R. 11, 26-56). On April 2, 2010, the ALJ issued a decision finding plaintiff has not been disabled as defined in the Social Security Act since August 28, 2007, her alleged onset date. (R. 8-25). The ALJ followed the five-step evaluation for determining disability benefits and concluded that plaintiff had severe impairments of lumbar disc disease, obesity, and a history of carpal tunnel syndrome. (R. 13); 20 C.F.R. § 404.1520(a)(4). He concluded at step three that none of plaintiff's impairments or combination of impairments met or medically equaled one of the listings. (R. 17). The ALJ determined that plaintiff had the residual functional capacity ("RFC") to perform a substantial range of light work. (R. 17-20). At step four, he determined that plaintiff could perform her past relevant work as a secretary and accounting clerk. (R. 20). Alternatively, at step five, the ALJ also determined that plaintiff could transfer her past work skills to several clerical positions. (R. 21).
Plaintiff appealed the ALJ's decision to the Appeals Council, and on May 11, 2011, the Appeals Council denied review. (R. 1-7). Plaintiff then filed the present action seeking review of the Commissioner's final decision. (Doc. No. 1).
Plaintiff contends the Commissioner's decision is due to be reversed because (1) the ALJ made many factual errors and failed to consider the vocational expert's testimony in determining that plaintiff was not disabled; (2) the ALJ did not specify which subpart of listing § 1.00 (musculoskeletal) he considered, and plaintiff maintains that she meets or medically equals listing § 1.02(A) or § 1.04(A); and (3) this court should consider new evidence concerning the decline of her health. (Doc. No. 16, at 1-2).
The ALJ's Factual Errors Were Harmless, and the ALJ Did Not Improperly Ignore the Vocational Expert's Testimony
Plaintiff argues that the ALJ made factual errors in his findings and failed to give adequate weight to the vocational expert's testimony that contradicted the ALJ's conclusions. (Doc. No. 16, at 2-7). The "harmless error" doctrine applies to review of the Commissioner's decisions, and plaintiff bears the burden of demonstrating that an error is harmful. See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (applying harmless error analysis in review of social security disability determination); see also Shinseki v. Sanders, 556 U.S. 396, 409 (2009) ("the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination").
First, plaintiff argues the ALJ erred in stating, "The fact that [plaintiff] attends college and cares for her 2 young children suggests that she is capable of performing some type of work activity." (R. 13, citing R. 105, 109-13, 474-75, 532). The evidence on which the ALJ relied, plaintiff argues, was her reports of constant pain at a level of eight on a ten-point scale and a radiology report that has nothing to do with plaintiff's attending school or raising children. (R. 474-75). The evidence that the ALJ cited also included plaintiff's earnings statements and reports of medical treatment. This court concludes that any error in citation was harmless, as it was clear from plaintiff's testimony at the hearing that she attended college part-time and helped care for her children, who were four and five years old at the time of the hearing. In determining plaintiff's RFC, the ALJ was entitled to rely on "other factors" in evaluating plaintiff's subjective complaints, and the ALJ properly considered plaintiff's care of her children and enrollment in college, at least on a part-time basis, among these factors during the relevant period. See 20 C.F.R. § 404.1529(c)(3)(vii) (ALJ may consider "other factors" in determining claimant's credibility); Foote v. Chater, 67 F.3d 1553, 1561-62 (11th Cir. 1995) ("once such an impairment [that could reasonably be expected to produce pain] is established, all evidence about the intensity, persistence, and functionally limiting effects of pain or other symptoms must be considered in addition to the medical signs and laboratory findings in deciding the issue of disability" and ALJ must give explicit and adequate reasons for discrediting a claimant's testimony regarding pain); e.g., Dent v. Astrue, 2009 WL 3418155, at *6 (M.D. Ga. Oct. 14, 2009) (ability to attend college classes properly considered as daily activity showing claimant not as limited as alleged); Lofton v. Apfel, 2000 WL 549966, at *8 (S.D. Ala. Apr. 20, 2000) (explicit reasons for discounting testimony of pain included claimant's care of children).
Second, plaintiff argues that the ALJ misconstrued July 3, 2008, records from Gary Dawson, M.D., a pain specialist, when the ALJ stated "[s]he reported experiencing mild pain only." (R. 14). In fact, it was Dr. Dawson's own objective assessment that plaintiff "seem[ed] to be in mild pain, " but during the visit plaintiff described her pain to Dr. Dawson as "constant, moderate in intensity, aching, burning, sharp, stabbing, and tingling, " and her statement to Dr. Dawson about a month later was that her pain was "excruciating." (R. 14, 352, 380-81). However, any error the ALJ made in describing the report was harmless. The ALJ correctly recounted that Dr. Dawson said that plaintiff had pain in her lumbar area, full active lumbar range of motion with flexion, limited active lumbar range of motion with extension to ten degrees, full and painless range of motion in all major muscle groups, no laxity of subluxation of joints, no masses, effusions, misalignment, crepitus, or tenders in joints. She had a positive right Fabere test, but negative left Fabere test, straight leg raises, negative Waddell findings, normal reflexes, and 5/5 muscle strength in all groups. (R. 352, 381). The ALJ included the additional treatment notes, as well as information about epidural steroid joint injections plaintiff received in her sacroiliac joint. (R. 14, 350-52, 381). Plaintiff reported receiving two to four weeks of relief from the injections, and she told Dr. Dawson that for four weeks after the injection she could "perform any activity." (R. 351, 354). When there are inconsistencies in the record, it is the duty of the ALJ to resolve conflicts in the evidence, giving reasons to credit some evidence and discredit other evidence. See Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981) ("What is required is that the ALJ state specifically the weight accorded to each item of evidence and why he reached that decision."). The ALJ articulated specific reasons for finding that plaintiff's subjective complaints were inconsistent with the objective medical evidence and other evidence in the record, and the court finds the ALJ's inaccurate statement about plaintiff's pain on July 3, 2008, to be harmless.
Third, plaintiff argues that the ALJ incorrectly stated that plaintiff's October 3, 2007, "neurological exam was normal, " even though George Canedo, M.D., a neurology and neuromuscular specialist, left the "NEUROLOGIC:" impression blank on the October 3, 2007, visit, and at her October 31, 2007, follow-up, Dr. Canedo reported plaintiff had "[d]ecreased sensation of her lower extremity with straight leg raising test positive and mild depressed ankle reflex." (R. 14, 428, 430). In fact, directly under the "NEUROLOGIC:" heading in the October 3, 2007 notes, Dr. Canedo reported his objective findings regarding plaintiff's mental status, cranial nerves, motor strength, sensory, reflexes, coordination, and gait. (R. 430). Although on October 3, 2007, Dr. Canedo reported positive depressed ankle reflex and positive straight leg raising on the left, Dr. Canedo reported only " [s]ubjective sensory deficits distally on her lower extremities on the left. Numbness of the upper extremities, nonspecific nerve distribution." (R. 430) (emphasis added). Dr. Canedo also reported on October 3, 2007, that plaintiff was alert and oriented, and her speech, mood, and behavior were normal. (R. 430). He reported that plaintiff's motor strength was 5/5; her bulk and tone were symmetrical in all extremities; she had no abnormal movements, fasciculations or tremors; she had no apraxia, ataxia, or dysmetria; she could stand up, ambulate, turn, stop, and walk in a straight line. (R. 430). On October 31, 2007, Dr. Canedo reported "[d]ecreased sensation of plaintiff's lower extremity with straight leg raising test positive, " but only "mild depressed ankle reflex, " and Dr. Canedo reported "subjective decreased sensation of [plaintiff's] upper extremities especially on the left." (R. 428). As the ALJ correctly noted, on October 31, 2007, Dr. Canedo diagnosed plaintiff's radicular ...