Castel v. Commissioner of Social Security ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Nov. 30, 2009
No. 09-12269 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-21398-CV-RLD
MARIE CASTEL,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Michael J. Astrue,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 30, 2009)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Marie Castel, through counsel, appeals the district court’s grant of summary
judgment affirming the Social Security Commissioner’s denial of supplemental
security income (“SSI”).1 Castel raises three arguments: (1) the administrative law
judge (“ALJ”) erred in deviating from Social Security Ruling (“SSR”) 96-8p,
Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims,2 by
not considering her limitations in a function-by-function analysis before
determining her residual functional capacity (“RFC”); (2) the ALJ erred in
violating SSR 02-1p, Titles II and XVI: Evaluation of Obesity,3 by not properly
taking her obesity into account; and (3) substantial evidence does not support the
ALJ’s adverse credibility determination regarding her testimony.
This Court’s review is “limited to an inquiry into whether there is substantial
evidence to support the findings of the [ALJ], and whether the correct legal
standards were applied.” Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.
2002) (per curiam). Our standard of review of a Social Security case is
“demarcated by a deferential reconsideration of the findings of fact and an exacting
examination of the conclusions of law.” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The Secretary’s factual findings are conclusive if “supported by
1
A claimant is entitled to judicial review of a final ruling from the Commissioner of
Social Security. 42 U.S.C. § 1383(c)(3).
2
61 Fed. Reg. 34474 (July 2, 1996).
3
67 Fed. Reg. 57859 (Sept. 12, 2002).
2
substantial evidence,” but the “Secretary’s conclusions of law, including applicable
review standards, are not presumed valid.” Id. at 1529 (quotation and citations
omitted). Substantial evidence is “more than a scintilla, but less than a
preponderance,” in that “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Id. at 1529 (quotation and
citation omitted). The district court’s determination on whether there was
substantial evidence to support the ALJ’s decision is reviewed de novo. Wilson,
284 F.3d at 1221
Castel applied for SSI pursuant to 42 U.S.C. § 1383(c) on November 9, 2004
and was denied benefits. Castel then appealed for a hearing in front of an ALJ. At
the time of the hearing Castel was a fifty-eight-year-old woman who spoke Creole
and limited English. Castel was five foot one inch tall and weighed 206 pounds.
Castel complained of the following impairments: severe mitral regurgitation,
moderate left atrial enlargement, decreased left ventricular relaxation, left
ventricular hypertrophy, cardiomyopathy, congestive heart failure, palpitations,
osteoarthritis, leg pain, calcaneal spurs in her left foot, pain in her left foot, swollen
feet and hands, wrist pain, constantly swollen arms and thighs, left thigh
tenderness, lower back pain, right shoulder pain, obesity, uncontrolled
hypertension, pitting edema, and a few other minor complaints. Castel had
3
previously held jobs as a seamstress and at a laundromat until 2002, but claimed
that she was no longer able to hold these jobs because of her physical ailments.
The Social Security regulations provide a five-step sequential evaluation
process for determining if a claimant has proven that she is disabled. See 20
C.F.R. §§ 404.1520, 416.920. At the first step, the claimant must prove that she
has not engaged in substantial gainful activity. At the second step, she must prove
that she has an impairment or combination of impairments that is severe. If, at the
third step, she proves that her impairment or combination of impairments meets or
equals a listed impairment, she is automatically found disabled regardless of age,
education, or work experience. If she cannot prevail at the third step, she must
proceed to the fourth step where she must prove that she is unable to perform her
past relevant work. If the claimant is unable to do past relevant work, the examiner
proceeds to the fifth and final step of the evaluation process to determine whether,
in light of residual functional capacity, age, education, and work experience, the
claimant can perform other work. Id.; see also Crayton v. Callahan, 120 F.3d
1217, 1219 (11th Cir. 1997).
The ALJ found, and neither party disputes, that Castel had not engaged in
substantial gainful employment since the application date of November 9, 2004.
The ALJ proceeded to the second step and found that Castel had several severe
4
impairments: obesity, palpitations, hypertension, left upper extremity pain, left
lower extremity pain, and left plantar neuroma. The ALJ determined that Castel
did not suffer from any mental impairments that rose to the level of severe
impairments. At the third step, Castel’s impairments or combinations of
impairments did not meet or equal one of the listed impairments proscribed by the
Social Security Administration. See 20 C.F.R. pt. 404 subpt. p app. 1. The ALJ
then moved on to step four and determined that Castel had the RFC to “lift and
carry fifty pounds occasionally and twenty-five pounds frequently” and “stand or
walk for at least six hours per eight-hour workday and . . . sit for at least six hours
per workday.” (Doc. 8-2 at 23). Based on this RFC, the ALJ found that Castel was
capable of performing past relevant work.4
I.
The ALJ Completed a Proper Function-By-Function Analysis
Castel argues that the ALJ reached an RFC determination without going
through a function-by-function analysis. Specifically, Castel claims that the ALJ
did not perform the function-by-function analysis to determine Castel’s ability to
handle strength demands. This argument is unfounded.
4
The ALJ did not need to discuss the fifth step because Castel was deemed capable of
past relevant work, and thus the analysis ends at the fourth step.
5
The ALJ made a determination of Castel’s RFC at step four of the function-
by-function analysis. The ALJ considered two disability examiners’ reports,
Castel’s testimony, and two Disability Determination Services’ (“DDS”) reports in
arriving at Castel’s RFC. See SSR 96-8p, 61 Fed. Reg. 34474, 34477 (July 2,
1996) (advising that the RFC assessment must consider all relevant evidence,
including medical history, medical evaluations, daily activities, and lay evidence).
The ALJ ultimately decided that Castel was capable of medium exertion level work
and thus was capable of performing past relevant work.
An exam by Dr. Adam, a disability examiner, reflected Castel’s ability to
walk and work with her hands. Dr. Cusco, also a disability examiner, prepared a
report that discussed Castel’s work abilities, such as walking, lifting, grabbing, and
manipulating. One DDS report found Castel capable of a full range of light
exertion level work while another DDS report found her capable of medium
exertion level work.5
Dr. Adam found that Castel did not have any back tenderness, that she had
full grip strength with normal fine manipulation, and that she was able to walk
5
The ALJ referred to two DDS doctor reports finding Castel capable of medium exertion
level work. However, the two reports the ALJ refers to are actually a handwritten and typed
version of the same report. There is also a dispute over whether the report was prepared and
signed by a doctor or a non-physician administrator. Castel argues that this discrepancy is
reversible error, but as we will discuss later it was a harmless error on the part of the ALJ.
6
without assistance. Dr. Cusco reported very similar findings, most importantly that
Castel was able to walk without assistance. Further, Castel testified that she lived
alone, cooked, did laundry, walked outside, and went to church. These findings are
consistent with the ALJ’s final determination that Castel is capable of performing
the duties of a seamstress or employee of a laundromat.
We do not require the ALJ to “specifically refer to every piece of evidence
in his decision,” so long as the decision is sufficient to allow us to conclude that
the ALJ considered the claimant’s medical condition as a whole. Dyer v. Barnhart,
395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam). The ALJ found that the
medium level work determination was consistent with the medical evidence and
found Castel’s RFC to be at a medium level of work. The ALJ performed a proper
RFC function analysis, based on substantial evidence, and we shall defer to his
conclusions.
II.
The ALJ Properly Considered Castel’s Obesity When Determining Her RFC
Castel argues that the ALJ erred in not properly taking her obesity into
account in determining her RFC. Specifically, Castel asserts that the ALJ violated
SSR 02-1p6 because (1) the ALJ failed to consider her left lower extremity pain
6
The relevant portions state:
“An assessment should also be made of the effect obesity has upon the
7
and left plantar neuroma in combination with her obesity; and (2) even though the
ALJ found her obesity to be a severe impairment, he did not specify any resulting
functional limitations from such impairment.
Castel’s contentions are not supported by the record. The record reflects that
the ALJ considered Castel’s obesity.7 Further, the ALJ made specific reference to
SSR 02-1p in his ruling.8 The ALJ determined that Castel’s obesity was a severe
impairment. However, the ALJ’s decision reflects that Castel’s obesity was
ultimately determined not to result in any specific functional limitations.9
individual’s ability to perform routine movement and necessary physical activity
within the work environment. . . As explained in SSR 96-8p . . . our RFC
assessments must consider an individual’s maximum remaining ability to do
sustained work activities in an ordinary work setting on a regular and continuing
basis. . . .
....
The combined effects of obesity with other impairments may be greater than
might be expected without obesity. . . .
....
. . . When we identify obesity as a medically determinable impairment . . . ,
we will consider any functional limitations resulting from the obesity in the RFC
assessment, in addition to any limitations resulting from any other physical or mental
impairments we identify.”
67 Fed. Reg. 57859, 57862–63 (Sept. 12, 2002).
7
The ALJ noted that Drs. Adam and Cusco found Castel to be more than two hundred
pounds at a height of five foot one inch. (Doc. 8-2 at 22).
8
The ALJ stated in his order that, “I have taken the claimant’s obesity into account in
formulating this residual functional capacity in terms of her limitations and restrictions arising
there from in accordance with Social Security Ruling 02-1p.” (Doc. 8-2 at 23).
9
It is also worth noting that Castel weighed around two hundred pounds when she last
worked in a laundromat in 2002. (See Doc. 8-2 at 111). The ALJ did not explicitly state this in
his decision but Castel’s ability to perform her work duties at her current weight supports the
8
III.
The ALJ Made a Proper Adverse Credibility
Determination in Reference to Castel’s Complaints of Pain
We apply a three-part pain standard when a claimant seeks to establish
disability through her own testimony regarding pain or other subjective symptoms.
Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (per curiam). The pain
standard requires:
(1) evidence of an underlying medical condition and either (2)
objective medical evidence that confirms the severity of the alleged
pain arising from that condition or (3) that the objectively determined
medical condition is of such a severity that it can be reasonably
expected to give rise to the alleged pain.
Id. The ALJ “must consider a claimant’s subjective testimony of pain” if the
claimant satisfies the three-part test. Foote v. Chater, 67 F.3d 1553, 1560 (11th
Cir. 1995) (per curiam). Castel’s “subjective testimony supported by medical
evidence that satisfies the standard is itself sufficient to support a finding of
disability.” Holt, 921 F. 2d at 1223 (citation omitted).
If the ALJ finds that the testimony of the claimant is not credible the ALJ
must articulate the reasons for finding a lack of credibility. Foote, 67 F.3d at
ALJ’s finding that obesity did not substantially affect her functional capacity.
9
1561–62. The ALJ is not required to explicitly conduct a credibility analysis, but
the reasons for finding a lack of credibility must be clear enough that they are
obvious to a reviewing court. Id. at 1562 (citation omitted). “A clearly articulated
credibility finding with substantial supporting evidence in the record will not be
disturbed by a reviewing court.” Id. at 1562 (citation omitted).
Castel argues that substantial evidence does not support the ALJ’s adverse
credibility finding regarding her testimony. First, Castel argues that her complaints
of pain and functional limitations are consistent with each other and with the
record. Castel next asserts that the ALJ erred in relying on a DDS report that was
possibly prepared by a non-physician. Further, Castel argues that the ALJ erred by
referring to the questionable DDS report as two distinct reports, when in fact it was
a handwritten and typed version of the same report.
The ALJ’s decision establishes a clear record of the reasons why Castel’s
testimony was not credible. As the ALJ properly noted, Castel lives alone, cooks,
does her laundry at the laundromat (similar to the functions of her previous job),
attends church, and reads the Bible. See Harwell v. Heckler, 735 F.2d 1292, 1293
(11th Cir. 1984) (per curiam) (a claimant’s daily activities may be considered in
evaluating complaints of disabling pain). Furthermore, the ALJ found that these
activities conflicted with Castel’s claims regarding the limitations resulting from
10
her impairments. The ALJ also found that Castel had sought medical treatment
very few times since she filed her claim. See Watson v. Heckler, 738 F.2d 1169,
1173 (11th Cir. 1984) (per curiam) (finding that a claimant’s failure to seek
medical treatment is relevant in assessing credibility). The ALJ also determined
that the reports from the disability examiners conflicted with Castel’s testimony
concerning her work abilities.10 The ALJ even explicitly stated in the decision that
he did not find Castel entirely credible.
Castel contends that the ALJ erred in determining her RFC because he relied
on what he believed were two DDS reports concerning Castel’s RFC. It is clear
that the two reports the ALJ refers to are in fact one report, with the only difference
being that one version is handwritten and the other is typed. The signature at the
end of the handwritten DDS report looks like the letter “M.” Castel correctly
argues that this signature resembles the signature of Deborah Tyson from a
February 15, 2005 form. Deborah Tyson is a single decision-maker (“SDM”), not
a doctor, and so Castel argues that the ALJ’s reliance on a report prepared by an
SDM is error. The Appellee argues that the “M” signature on the DDS report is
consistent with Dr. Muth.11 The Appellee also notes that other documents refer to
10
The reports from Drs. Adam and Cusco indicate that Castel is capable of a work ability
level above that to which she testified at the hearing. (Doc. 8-2 at 22).
11
Dr. Muth performs disability examinations and is therefore qualified to complete DDS
reports.
11
a functional capacity evaluation done by Dr. Muth around the same time as the
DDS report in question was signed.
This Court does not need to determine who signed the DDS report in
question. The ALJ references the DDS report at issue in two sentences, but
dedicates two paragraphs to the reports of Drs. Adam and Cusco. The record does
not reflect that the ALJ placed great weight on the DDS reports, as Castel
contends. Rather, the evaluations by Drs. Adam and Cusco seem to have been the
primary basis for the ALJ’s decision. The DDS report merely confirmed this
objective medical evidence. This Court does not find any error caused by the
ALJ’s reference to this DDS report, and to the extent that one could argue that the
ALJ erred, the error would not rise above the level of harmless error.
The ALJ’s finding that Castel’s testimony was not credible was adequately
articulated and properly supported by substantial evidence. Substantial evidence
supports the ALJ’s adverse credibility determination, in that (1) the ALJ proffered
specific and adequate reasons for discounting her testimony; and (2) medical
records from other physicians indicated that Castel’s subjective complaints were
improbable, even if the ALJ mistakenly relied on an RFC assessment that might
have been completed by a non-physician.
Conclusion
12
Based on a review of the record and the parties’ briefs, we find that the ALJ
made a reasoned decision, supported by substantial evidence, and find no error.
The district court’s order of summary judgment is affirmed.
AFFIRMED.
13