United States District Court, N.D. Alabama, Southern Division
HARWELL G. DAVIS, III, Magistrate Judge.
This matter is before the undersigned magistrate judge based upon the consent of the parties pursuant to 28 U.S.C. § 636(c). On September 23, 2010, plaintiff, Judeen Morris, protectively filed a Title XVI application for supplemental security income. This claim was denied on January 12, 2011. Thereafter, plaintiff filed a written request for a hearing before an administrative law judge (ALJ). That hearing was held on April 17, 2012. Following the hearing, the ALJ issued an unfavorable decision finding that plaintiff was not disabled. (Tr. 15-26). The Appeals Council refused to grant review. Consequently, the Commissioner's decision is now ripe for review under 42 U.S.C. §§ 405(g) and 1383(c)(3).
I. ALJ Decision
Disability under the Act is determined under a five-step test. 20 C.F.R. § 404.1520. First, the ALJ must determine whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). "Substantial work activity" is work that involves doing significant physical or mental activities. 20 C.F.R. § 404.1572(a). "Gainful work activity" is work that is done for pay or profit. 20 C.F.R. § 404.1520(b). Second, the ALJ must determine whether the claimant has a medically determinable impairment or a combination of medical impairments that significantly limits the claimant's ability to perform basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii). Absent such impairment, the claimant may not claim disability. Id. Third, the ALJ must determine whether the claimant's impairment meets or medically equals the criteria listed in 20 C.F.R. § 404, Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526. If such criteria are met, the claimant is declared disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant does not fulfill the requirements necessary to be declared disabled under the third step, the ALJ may still find disability under the next two steps of the analysis. The ALJ first must determine the claimant's residual functional capacity (RFC), which refers to the claimant's ability to work despite his impairments. 20 C.F.R. § 404.1520(e). In the fourth step, the ALJ determines whether the claimant has the RFC to perform past relevant work, 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is determined to be capable of performing past relevant work, then the claimant is deemed not disabled. Id. If the ALJ finds that the claimant is unable to perform past relevant work, then the analysis proceeds to the fifth and final step. 20 C.F.R. § 404.1520(a)(4)(v). In the last part of the analysis, the ALJ must determine whether the claimant is able to perform any other work commensurate with his RFC, age, education and work experience. 20 C.F.R. § 404.1520(g). Here, the burden of proof shifts from the claimant to the ALJ to prove the existence in significant numbers of jobs in the national economy that the claimant can do given the RFC, age, education and work experience. 20 C.F.R. §§ 404.1520(g) and 404.1560(c).
At Step One, the ALJ found that plaintiff had not engaged in substantial gainful activity since her alleged onset date of September 23, 2010. (Tr. 17). At Step Two, the ALJ found that plaintiff had the following severe impairments: history of juvenile myoclonic epilepsy, not intractable; history of lumbago without evidence of underlying bony spinal abnormality; depression and anxiety; history of intermittent pancreatitis secondary to alcohol abuse; and history of intermittent medical non-compliance with treatment. ( Id. ).
At Step Three, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 18).
The ALJ then reported that, after consideration of the entire record, plaintiff has the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), secondary to a history of lumbago. He further found that she should avoid concentrated exposure to extremes of heat and cold; no driving commercial vehicles; can perform occasional to frequent stooping, kneeling, crouching, crawling and climbing of stairs and ramps; and no climbing of ropes, ladders and scaffolds. The ALJ further found that plaintiff had the following non-exertional limitations: she can understand, remember and carry out instructions sufficient to perform low semi-skilled tasks in 1-2-3 step tasks; she can maintain concentration, persistence and pace for periods up to two hours sufficient to complete an eight-hour day with routine breaks; requires a low stress job, defined as occasional changes in the work setting; and interaction with the public and co-workers should be casual. (Tr. 19).
At Step Four, the ALJ found that plaintiff has no past relevant work. At Step Five, based on the testimony of a vocational expert (VE), the ALJ found that, considering plaintiff's age, education, work experience and RFC, there are jobs that exist in significant numbers in the national economy that she can perform. (Tr. 25). Therefore, he found that she was not disabled as defined in the Social Security Act. (Tr. 26).
II. Plaintiff's Argument for Reversal
Plaintiff asserts that the ALJ failed to properly evaluate her credibility regarding her testimony of disabling symptoms and failed to properly articulate good cause for according less weight to the opinions of plaintiff's treating physician.
Plaintiff claims that the ALJ improperly credited her testimony regarding her impairments. According to plaintiff, she experiences depression and anxiety despite medication which correlated to "feeling bad" approximately 28 days a month. (Tr. 44). She also claims that she experiences anxiety attacks any time she leaves home. (Tr. 46). Although she testified she has not had a grand mal seizure in years, she states she continues to suffer from mini-seizures about once a week. (Tr. 49). She also testified that her back pain has worsened over time. (Tr. 51).
Plaintiff specifically disputes the ALJ's finding that "the record established that when claimant is compliant with her seizure medication and abstained from alcohol, her seizures were well controlled." (Tr. 22). According to plaintiff, the ALJ overlooked or mis-characterized key medical evidence, noting as an example, Dr. Diane R. Counce's October 21, 2010, treatment motes which document plaintiff's report of "shaking, " which was described as "mini-seizures, " which she alleges occur mostly at night, about twice a week. (Tr. 248). Plaintiff also notes that her Lamictal medication was increased at that time, indicating that her epilepsy was not well-controlled at that time. (Tr. 249). Plaintiff further points to treatment notes of Dr. Counce from February 2012 in which plaintiff continued to report "staring spells" resulting in a diagnosis of generalized convulsive epilepsy. (Tr. 350).
Plaintiff also alleges that the ALJ mis-characterized the evidence with regard to her depression and anxiety, noting that she has a record of treatment for anxiety going back to 2004 and that, in February 2012, she reported that she sits around the house all day doing nothing and that she has no motivation. (Tr. 349). Thus, plaintiff alleges that the ...