CHAPTER 12

Should I Hire A Lawyer?

The government makes the application process complicated and extremely confusing. Many claims are denied at the Initial level or the Reconsideration level. After being denied for the first time, many people become discouraged and give up. But, people who appeal their denials and seek expert assistance greatly improve their chances of receiving benefits. Consider this book a form of expert assistance. Claimants who are represented by attorneys tend to be more successful than those who apply on their own. Most representatives will take your case on a contingency fee basis. That means they collect a fee only if you are awarded benefits. Whether the representative gets paid is contingent on whether you win your case.

The cardinal rule in the Social Security Disability Evaluation Process is to appeal everything. Do not take no for an answer. The only claimant who does not win his case and receive benefits is the one who does not appeal to a high enough level.

An attorney or a paralegal representative is not necessary to file an appeal. It is quite simple. If you can read and write, you can file an appeal. Anyone with a high school education can do it. It is easier than applying for a credit card. The appeal form is a one page standard government form. It does not have to be typed. All you have to do is fill in the blanks. However, since you do not have to pay your representative, it is highly recommended that you get an attorney to assist you.

A legal representative is always recommended even if not required. Any person who represents himself has a fool for a client. That is a very old and wise statement. Lawyers speak another language. They know the system and understand the process. An experienced lawyer will have been through the process many times, while you probably would be doing this for the first time. The lawyer knows what to look for. In this instance, what you do not know can and will hurt you. The appeals court will have little sympathy for you. If you throw yourself on the mercy of the court, you will find that there is no mercy in today’s courts.

The ALJ is required to "notify each claimant in writing of the options for obtaining attorney or paralegal representation, and of the availability of legal aide organizations which provide legal services free of charge.

A claimant must waive the right to be represented before the ALJ is allowed proceed with the hearing of an unrepresented claimant. Where a claimant has not been adequately informed of his statutory right, however, his waiver is not "knowing and intelligent", and may amount to reversible error on the part of the ALJ. It can be grounds for an appeal of a denial.

The ALJ will be paying close attention to the claimant during the entire hearing. The judge will assess the demeanor and the credibility of the claimant; that is, whether the claimant is believable or not. He will look for inconsistencies between the record and how the claimant behaves at the hearing. This is particularly true in cases where the claimant my allege a mental impairment, abuse of alcohol, use of street drugs, or a cognitive defect. So, do not try to impress the ALJ with how smart you are. Keep your answers short. Do not make a speech and only answer the question that is asked.

The ALJ can make a credibility assessment based on factors other than what he observes in the hearing room. He will consider your activities of daily living (ADLs) and see if they are consistent with the severity of pain and other symptoms that you allege. Is your ability to drive long distances or to sit and watch TV for hours consistent with the level of back pain that you allege. Also, is your ability to cook, or do house work consistent with your testimony concerning the weight you can lift.

An ALJ's findings regarding a claimant's credibility will be accorded great weight and deference, particularly since an ALJ is charged with the duty of observing a witness's demeanor and credibility. Any credibility assessment made by an ALJ must be supported by substantial evidence in the record.

Attorneys Fees

There is no excuse for not hiring an attorney. You can always try to act as your own attorney. That is your right in America, but any person who represents himself, has a fool for a client.

Attorneys do not work for free. Their time and their advice is their stock in trade. They do not guarantee that they will win your case. They only promise to use their best efforts. If they are not successful the first time around, then they appeal. However, they do not get paid unless you win and they will take your case on a contingency fee basis.

Before an ALJ can begin a hearing in your case, he is required to advise you of your absolute right to be represented by an attorney. If you do not know an attorney, the ALJ is required to give you a list of attorneys who practice before the Social Security Administration.

The ALJ has an obligation to make sure that the claimant understands his right to legal representation.

COVEN v. COMMISSIONER OF SOCIAL SECURITY

MELISSA A. COVEN, Plaintiff-Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

No. 10-10390. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

June 29, 2010.

Before DUBINA, Chief Judge, HULL and FAY, Circuit Judges.

PER CURIAM:

Appellant Melissa A. Coven appeals the district court's order affirming the Commissioner's denial of her application for supplemental social security income ("SSI"), 42 U.S.C. § 1383(c)(3), based on her alleged disability due to a back problem, bladder and cervix problems, degeneration of her spine and narrowing of the discs, high blood pressure, and asthma. On appeal, Coven argues that the Administrative Law Judge ("ALJ") reversibly erred in failing to elicit a knowing and intelligent waiver of her right to representation. In addition, Coven argues that the ALJ erred in failing to develop the administrative record adequately because he did not obtain mental-health records related to her alleged suicide attempt.

Coven first argues that the ALJ committed reversible error by failing to elicit from her a knowing and intelligent waiver of her right to representation. Coven does not dispute, however, that she received three notices collectively advising her that she had a right to representation, could obtain free representation, and could not be assessed a fee for representation absent the Commissioner's approval. She also does not dispute that she executed a written waiver of her right to representation during the administrative hearing after the ALJ reminded her that she could obtain representation.

We review a Commissioner's decision to determine whether "it is supported by substantial evidence and based on proper legal standards." Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004).

We have recognized that "[a] Social Security claimant has a statutory right, which may be waived, to be represented by counsel at a hearing before an ALJ." Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). Pursuant to 42 U.S.C. § 406, the Commissioner of Social Security is required to "notify each claimant in writing, . . . of the options for obtaining [attorney representation] in presenting their cases before the Commissioner of Social Security . . . [and] of the availability to qualifying claimants of legal services organizations which provide legal services free of charge." 42 U.S.C. § 406(c); see 42 U.S.C. § 1383(d) (stating that the provisions of § 406, which address old age, survivors and disability insurance, also apply to SSI). Where a claimant has not been adequately informed of her statutory right, however, her waiver is not "knowingly and intelligently" made. Smith v. Schweiker, 677 F.2d 826, 828 (11th Cir.1982) (stating that "[a] claimant cannot knowingly and intelligently waive [her] statutory right to counsel when [she] is not adequately informed of it either in a prehearing notice or at [her] hearing"). "The deprivation of the statutory right to counsel at a Social Security hearing is a statutory wrong, not a constitutional wrong." Graham, 129 F.3d at 1422.

We conclude from the record that the ALJ did not err because the record shows that Coven was advised of, and understood, her right to representation and knowingly and voluntarily waived that right. Accordingly, we affirm as to this issue.

II.

Coven next argues that the ALJ failed to satisfy his duty to "scrupulously and conscientiously probe into" the relevant facts surrounding her alleged suicide attempt. To this end, she states that she testified during the administrative hearing on January 9, 2007, that in October 2006, she was taken to, and stayed for 12 hours at, a mental health center after her mother contacted the police and reported that Coven had attempted to commit suicide.

"Because a hearing before an ALJ is not an adversary proceeding, the ALJ has a basic obligation to develop a full and fair record." Graham, 129 F.3d at 1422. However, if the right to counsel has not been waived, the ALJ is under a "special duty" to develop a full and fair record by conscientiously probing into all relevant facts. Brown v. Shalala, 44 F.3d 931, 934-35 (11th Cir. 1995). This special duty "requires, essentially, a record which shows that the claimant was not prejudiced by lack of counsel," but not that "the presence of counsel would necessarily have resulted in any specific benefits in the handling of the case before the ALJ." Id. (internal quotation marks omitted). Regardless of whether the claimant has waived her right to representation, "there must be a showing of prejudice before we will find that the claimant's right to due process has been violated to such a degree that the case must be remanded to the Secretary for further development of the record." Id.; see Kelley v. Heckler, 761 F.2d 1538, 1540 n.2 (11th Cir. 1985) (noting that "a more specific showing of prejudice" is required when the right to counsel has not been waived).

Prejudice "at least requires a showing that the ALJ did not have all of the relevant evidence before him in the record . . . or that the ALJ did not consider all of the evidence in the record in reaching his decision." Kelley, 761 F.2d at 1540. "The court should be guided by whether the record reveals evidentiary gaps which result in unfairness or clear prejudice." Graham, 129 F.3d at 1423 (internal quotation marks omitted). "The lack of medical and vocational documentation supporting an applicant's allegations of disability is undoubtedly prejudicial to a claim for benefits." See Brown, 44 F.3d at 935-36 (holding that prejudice existed when the ALJ failed to obtain treatment records about which the claimant testified, agreed to get a rehabilitation report, but failed to do so, and failed to question an available witness after the claimant had "great difficulty" explaining how her ailments prevented her from working); but see Kelley, 761 F.2d at 1540-41 (holding that the claimant failed to show prejudice where he made no allegations that the record as a whole was incomplete or that additional favorable evidence would have been offered and the ALJ's opinion was "quite thorough").

We conclude from the record that the ALJ did not fail to develop the administrative record adequately because the ALJ thoroughly inquired into the circumstances surrounding Coven's alleged suicide attempt, the incident was unrelated to Coven's claimed inability to work, and the record contained sufficient information for the ALJ to make an informed decision. Accordingly, we affirm as to this issue.

III.

For the aforementioned reasons, we affirm the district court's order affirming the Commissioner's denial of Coven's application for SSI benefits.

AFFIRMED.

Consider this case of a claimant who appeals and tried to act as his own attorney.

DEAN v. COMMISSIONER OF SOCIAL SECURITY

TERRY L. DEAN, Plaintiff-Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

No. 09-2260.

United States Court of Appeals, Fourth Circuit.

Submitted: June 4, 2010.

Decided: July 6, 2010.

Terry L. Dean, Appellant Pro Se.

Helen Campbell Altmeyer, Assistant United States Attorney, Sharon Lynn Potter, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia; Donald K. Neely, Maija Pelly, SOCIAL SECURITY ADMINISTRATION, Philadelphia, P.A., for Appellee.

Before MOTZ and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

PER CURIAM:

Terry L. Dean appeals from the district court order adopting the magistrate judge's recommendation that the administrative law judge's denial of disability benefits be upheld on summary judgment. See Dean v. Comm'r of Soc. Sec., No. 5:08-cv-00078-FPS-JSK (N.D. W. Va. Sept. 2, 2009). On appeal, Dean, proceeding pro se, has submitted only a one-page brief, which consists of only two paragraphs, and no citations to case law or the record, to support his claim that he is "entitled to all back pay for the time lost from 2002 to 2007." We find that Dean's very vague and very terse statements in his opening brief fail to comport with the Federal Rules of Appellate Procedure and/or this Court's local rules; thus we find that Dean has waived appellate review of the issues he has attempted to raise.

An Appellant's opening brief must contain the "appellant's contentions and the reasons for them". See Fed. R. App. P. 28(a)(9)(A); see also 4th Cir. R. 34(b)(same). To the extent an Appellant's opening brief fails to comply with these requirements with regard to any particular issue, he has waived appellate review of that issue. See, e.g., Igen Int'l, Inc. v. Roche Diagnostics GMBH, 335 F.3d 303, 308 (4th Cir. 2003) ("Failure to present or argue assignments of error in opening appellate briefs constitutes a waiver of those issues," even when it appears the district court's resolution of those issues was wrong); see also Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653 n.7 (4th Cir. 2006) (conclusory assignments of error without supporting argument are insufficient to preserve a merit-based challenge to a district court's order on appeal).

Because Dean's appellate brief is insufficient to meet these standards, we find he has waived appellate review. Accordingly, the order of the district court is affirmed.

AFFIRMED.

In the following cases, the Circuit Court addresses the ALJ's right to comment on the claimant's credibility.

KLEIN v. COMMISSIONER OF SOCIAL SECURITY

REBECCA LYNN KLEIN, Plaintiff,

COMMISSIONER OF SOCIAL SECURITY, Defendant.

Case No. 09-13516.

United States District Court, E.D. Michigan, Southern Division.

September 3, 2010.

MEMORANDUM AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

AVERN COHN, District Judge.

I. Introduction

This is a Social Security case. Plaintiff Rebecca Klein (Klein) appeals from the final decision of the Commissioner of Social Security (Commissioner) denying her application for Social Security disability benefits. Klein claims disability since 2002, due to fibromyalgia, neuropathy, vertigo, anxiety, carpal tunnel, herniated cervical discs, sleep apnea, and bursitis.

The parties filed cross motions for summary judgment. The motions were referred to a Magistrate Judge (MJ) for a report and recommendation (MJRR). The MJ recommends that Klein's motion for summary judgment be denied and that the Commissioner's motion for summary judgment be granted. Klein filed timely objections to the MJRR. For reasons that follow, the Court adopts the MJRR.

II. Background

A. Facts

The MJRR sets forth the facts, many of which are repeated here.

This is Klein's second application for disability benefits. Klein's first application alleged a March 11, 2000, disability onset date and was denied by an Administrative Law Judge (ALJ) on September 11, 2002.

Klein's second application for disability benefits was filed on November 15, 2006, alleging a September 12, 2002, onset of disability, due to fibromyalgia, neuropathy, vertigo, anxiety, carpal tunnel, herniated cervical discs, sleep apnea, and bursitis.[ 1 ] Klein's application was denied on March 23, 2007, and a hearing was held before an ALJ on March 10, 2009, at Klein's request. The ALJ issued a decision denying benefits, finding that Klein did not have a disability as defined under the Social Security Act. The Appeals Council later denied review.

Klein then brought this action for judicial review, arguing that 1) the ALJ's decision that she is capable of engaging in a limited range of sedentary work is not supported by substantial evidence, 2) the ALJ erred in assessing her credibility related to the severity of her symptoms, and 3) the ALJ erred in finding that her depression is not a disability. The MJRR rejected Klein's assertions and found that there is substantial evidence in the record to support the ALJ's decisions on all three counts.

B. MJRR Objections

Klein now objects to the MJRR on the same grounds that the MJ erred 1) in concluding she was not disabled as defined under the Social Security Act, despite her fibromyalgia diagnosis and what she asserts is "ample opinion evidence" about her inability to perform sedentary work, 2) in supporting the ALJ's adverse credibility determination related to her symptoms, and 3) in disregarding her Global Assessment Function (GAF) score of 50 when concluding that her depression is not a disability.

III. Standard of Review

Judicial review of a Social Security disability benefits application is limited to determining whether the "the commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record." Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). A reviewing court may not resolve conflicts in the evidence or decide questions of credibility. Brainard v. Sec'y of HHS, 889 F.2d 679, 681 (6th Cir. 1989). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). It is "more than a scintilla but less than a preponderance." Consol. Edison Co. v. NLRB, 305 U.S. 197, 299 (1938). The substantiality of the evidence must be based upon the record taken as a whole. Futernick v. Richardson, 484 F.2d 647, 649 (6th Cir. 1973). The substantial evidence standard "presupposes that there is a zone of choice within which the decisionmakers can go either way, without interference with the courts." Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986). The portions of the MJRR that the claimant finds objectionable are reviewed de novo. 28 U.S.C. § 636(b)(1)(C); Smith v. Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).

IV. Discussion

As stated, Klein raises three objections to the MJRR. For the following reasons, the Court finds the objections to be without merit.

A. Substantial Evidence of Ability to Perform Sedentary Work

First, Klein says that the MJ erred in finding that she is able to perform sedentary work because the decision ignores ample evidence to the contrary from her own treating physicians. Klein asserts that her treating physician's opinions should be given more weight than a non-treating physician. Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 875 (6th Cir. 2007).

Indeed, Smith states that the Commissioner should "give more weight to the opinion of a source who has examined [the claimant] than to the opinion of a source who has not examined her." Smith, 482 F.3d at 875 (quoting 20 C.F.R. § 404.1527(d)(1)) (internal quote marks omitted). Here, however, the treating and non-treating physician opinions are consistent with the ALJ's assessment in that no physician states that Klein is disabled, nor do they state that she is unable to perform sedentary work activities. Further, Klein's characterization of Dr. Guernsey's and Dr. Newcomb's statements, which she uses to support her argument, is inaccurate. Particularly, the statements that "Klein has difficulty with almost all activities of daily activities of daily living," that she has "severe fatigue," and that "the problem interfere[s] with her daily activities of living" are symptoms that she reported to the physicians and not the physicians' medical opinions. In fact, the physicians do not opine that she has greater restrictions than that determined by the ALJ. Rather, they diagnose Klein with fibromyalgia, which standing alone does not require a disability finding.

Finally, Klein says that an opinion by treating physician Dr. Englemen that "she is unable to work" proves her work limitations. This statement too is presented out of context, as it is again a record of Klein's reported symptoms and not Dr. Englemen's opinion. Dr. Englemen simply concludes that Klein suffers from certain medical conditions, including fibromyalgia, osteoarthritis (OA), congestive heart failure (CHF), and narcolepsy.

Thus, the Court agrees that the Commissioner's decision to deny benefits was within the allowable "zone of choice" and that it was supported by substantial evidence from both treating and non-treating physicians, consistent with Smith.

B. Substantial Evidence of Adverse Credibility Assessment

Next, Klein says that the ALJ's adverse credibility finding is not supported by substantial evidence. Klein seems to further suggest that her fibromyalgia diagnosis proves the accuracy of her reported symptoms and, thus, her disability.

An ALJ's findings regarding a claimant's credibility "are to be accorded great weight and deference, particularly since an ALJ is charged with the duty of observing a witness's demeanor and credibility." Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). Any credibility assessment made by an ALJ must be supported by substantial evidence in the record. Id. However, "there is nothing patently erroneous in the ALJs decision to rely on her own reasonable assessment of the record over the claimant's personal testimony." White v. Comm'r of Soc. Sec., 572 F. 3d 272, 287 (6th Cir. 2009).

Here, the ALJ found that Klein's testimony about her work limitations lacked credibility because of her conservative treatment regime, medical opinion evidence that her ability to move was normal, and evidence that shows Klein over-stated medication side effects. Regarding the latter, in 2002 Klein reported that morphine made her a "little groggy," and in 2009 Klein reported no medication side effects at all.

Thus, the Court agrees that there is substantial evidence to support the ALJ's adverse credibility finding, especially in light of the deference given to ALJ's related to these determinations.

C. Substantial Evidence of Moderate Depression

Lastly, Klein argues that the ALJ erred by not considering her GAF score of 50 when weighing the evidence regarding her depression.[ 2 ] Klein says that, while the GAF score alone is not determinative, it should have been considered when determining whether her depression is a disability. This argument is without merit.

"While a GAF score may be of considerable help to the ALJ in formulating the [residual functional capacity (RFC)], it is not essential to the RFC's accuracy." Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002). Further, an ALJ is not required to reference the GAF score in making a disability determination. Id.; see also Smith, 572 F.3d at 284 (lack of mental disability decision affirmed where ALJ reasonably weighed medical evidence and not GAF score in the high 40s, low 50s). Finally, a GAF score of 50 does not require a disability finding. DeBoard v. Comm'r of Soc. Sec., 211 F. App'x 411, 415 (6th Cir. 2006).

Here, the ALJ relied on opinions from both a non-examining physician and an examining psychologist and found that the two opinions were "largely consistent" related to Klein's depression in that they found symptoms of depression, but also concluded that she was able to perform simple and routine tasks. Further, the ALJ considered testimony from a vocational expert who stated that a hypothetical person in Klein's condition could perform a significant number of sedentary level jobs including working as a cashier, surveillance monitor, or information clerk. Klein asserts that the hypothetical is defective because it failed to include her reported limitation of a required two hour rest period during the work day. Klein relies on Dr. Newcomb's medical opinion to support this limitation, however, his opinion does not state that she requires rest during the workday. Rather, Dr. Newcomb's opinion notes Klein's reported symptoms of severe fatigue for which he suggests continued evaluation and treatment. Finally, the ALJ appropriately considered that Klein has not sought psychological treatment for her depression. See White, 572 F.3d at 283 ("A reasonable mind might find that the lack of treatment . . . indicate[s] an alleviation of symptoms.").

Thus, the Court agrees that the ALJ reasonably weighed the evidence and found that Klein is not disabled due to her mental condition.

V. Conclusion

For the reasons stated above and in the MJRR, Klein's motion for summary judgment is DENIED and the Commissioner's motion for summary judgment is GRANTED. The case is DISMISSED.

SO ORDERED.

1. As noted in the ALJ's Decision, Klein's second application states an alleged onset disability date of September 12, 2002, which is one day after Klein's first application was denied, on September 11, 2002.

2. See White v. Comm'r of Soc. Sec., 572 F. 3d 272, 287 (6th Cir. 2009) ("A GAF of 41 to 50 means that the patient has serious symptoms . . . OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).").

Here is another case where the ALJ's assessment of credibility is an issue on appeal.

ANDRUS v. ASTRUE

LISA ANDRUS, Plaintiff,

MICHAEL J. ASTRUE, Commissioner of Social Security Defendant.

Case No. 4:09CV990 CDP.

United States District Court, E.D. Missouri, Eastern Division.

September 3, 2010.

MEMORANDUM AND ORDER

CATHERINE D. PERRY, District Judge.

This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner's final decision denying plaintiff Lisa Andrus's application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. In her complaint, Andrus claims that she is disabled because of degenerative disc disease and obesity. The Administrative Law Judge found that Andrus is not disabled and therefore not eligible for benefits, and Andrus has appealed that decision. Because I conclude that the A dministrative Law Judge's decision is supported by substantial evidence, I will affirm the decision.

Procedural History

On April 9, 2007, Andrus filed an application for disability insurance benefits. The claim was denied on June 13, 2007. On June 25, 2007, Andrus filed a timely request for hearing by an ALJ. On February 14, 2008, the ALJ issued a ruling from the January 15, 2008, hearing. The ALJ ruled that Andrus was not disabled as defined in the Social Security Act. On May 20, 2009, the Appeals Council denied plaintiff's request for review. Thus, the ALJ's ruling stands as the final decision of the Commissioner.

Testimony Before the Administrative Law Judge

Andrus testified that she lives with her husband and 18 year old son. (Tr. 21). She has a twelfth grade education and some additional training in administration. (Tr. 21). Andrus also stated that her prior work experience included jobs as an office manager and a daycare teacher. (Tr. 22).

Andrus testified that she had multiple ailments including degenerative disc disease, herniated discs, high blood pressure, asthma, overactive bladder, and obesity. (Tr. 23, 28). She has constant low back pain and difficulty maintaining her balance. (Tr. 24). Andrus stated that she can walk approximately 50 yards with her cane before she needed to rest. (Tr. 24-25). Andrus also described difficulty with concentration and memory as a result of her medications. (Tr. 35-36). She stated she was 5'6" tall and weighed 380 pounds. (Tr. 27). Andrus smokes a little less than two packs of cigarettes per day. (Tr. 30). Andrus said she can carry up to 20 pounds. (Tr. 30).

Andrus described her daily activities. She is able to shower and dress herself, do light housework, sweep and mop floors, use a computer, and fix simple meals. (Tr. 30-33). Andrus can also drive short distances and fold laundry. (Tr. 37-38). Andrus testified that she cannot travel her mother's nursing home without assistance or attend parent teacher conferences as a result of her condition. (Tr. 37-38).

Medical Records

Andrus claims that she qualifies for disability based on degenerative disc disease and high blood pressure. (Tr. 104). Andrus is a 52 year old female and she alleges that her disability began on March 30, 2007. (Tr. 81).

On August 14, 2003, Andrus had a MRI of her spine. (Tr. 294-95). This test revealed significant degenerative disc narrowing at L3-4 with moderate disc protrusion or focal disc herniation with compression of the right anterior thecal sac and encroachment of the inferior right L3-4 foramen. (Tr. 294-95). The MRI also showed a desiccated disc at L4-t with mild diffuse disc bulge and focal posterior central disc protrusion or small focal disc herniation with mild impression of the anterior thecal sac. (Tr. 294-95). In September 2003, Andrus saw Dr. Scodary for her back pain. (Tr. 248-49). She told the doctor that her back pain started approximately three years ago. (Tr. 248-49). On September 17, 2003, plaintiff underwent steroid injections from Dr. Smith to treat her degenerative disc disease. (Tr. 250). Andrus had two more injections for treatment over the next month, with the doctor recording improvement in his progress notes on September 24 and October 1. (Tr. 253-54).

On November 12, 2003, a Nerve Conduction Study revealed mild left S1 radiculopathy with denervation in the distribution of the S1 root. (Tr. 261-64). Andrus underwent four lumbar/sacral nerve root blocks between October 29 and December 27, 2003. Dr. Smith noted that her pain was reduced as a result of the treatment. (Tr. 257). He further opined that the plaintiff's biggest problem may be her weight. (Tr. 259).

Andrus was prescribed morphine tablets beginning on February 4, 2005, until December 11, 2007. (Tr. 158-207).

On August 12, 2005, Andrus saw Dr. Campbell for pain in her leg and back. (Tr. 302). Campbell noted that motion of Andrus's lumbar spine is markedly reduced in all planes with obvious discomfort on all movements. (Tr. 302). He also stated that her asthma is complicated by her smoking and he recommended she discontinue use. (Tr. 302). Dr. Campbell issued Andrus a handicapped parking placard. (Tr. 302).

On January 9, 2006, Andrus sought treatment from Dr. Campbell for cellulitis of her left leg. (Tr. 224). The doctor instructed her she should elevate her leg as much as possible, and that he preferred her to stay off of it until she had significant improvement. (Tr. 224).

On March 23, 2007, Dr. Campbell noted that Andrus's blood pressure was elevated, and that her weight was approaching 400 pounds. (Tr. 216). He also stated that she had quite a bit of pitting edema in her lower extremities. (Tr. 216). The doctor instructed Andrus to limit her sodium intake and discontinue nicotine use. (Tr. 216). Andrus informed Dr. Campbell that she was applying for disability benefits because of her low back pain and peripheral neuropathy. (Tr. 216).

On April 27, 2007, Andrus informed Dr. Campbell that she was "able to tell a big difference" in her edema from medication. (Tr. 214). Dr. Campbell noted that she had minimal if any ankle edema. (Tr. 214).

On May 29, 2007, Dr. Leung performed a consultative examination of Andrus at the request of the Disability Determination Services. (Tr. 234-36). Andrus informed Dr. Leung that her medications helped her pain. (Tr. 234). Andrus stated that she was able to lift between 10 and 20 pounds. (Tr. 234). Andrus also stated that she continued to smoke two packages of cigarettes per day. (Tr. 235). Andrus had no muscle atrophy. (Tr. 236). Dr. Leung found that her lumbar range of motion was slightly reduced. (Tr. 238). He also stated that her memory and concentration were within normal limits. (Tr. 235). Andrus had a positive straight leg raise test in the supine position, but a negative straight leg test in the seated position. (Tr. 238). Dr. Leung noted that Andrus is morbidly obese and struggles with unassisted movement. (Tr. 236). Dr. Leung diagnosed Andrus with hypertension and lumbar degenerative disc disease. (Tr. 236).

On July 2, 2007, Dr. Campbell prescribed a footrest wheelchair for Andrus's disc degeneration. (Tr. 293). The wheelchair was issued as a lifetime prescription. (Tr. 293).

On December 12, 2007, Andrus saw Dr. Campbell to have her blood pressure checked. (Tr. 297). Dr. Campbell once again requested that Andrus stop smoking. (Tr. 297). Andrus stated that if she could find a way to lose weight she would quit smoking. (Tr. 297).

Legal Standard

The court's role on review is to determine whether the Commissioner's findings are supported by substantial evidence on the record as a whole. Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001). Substantial evidence is less than a preponderance, but is enough so that a reasonable mind would find it adequate to support the ALJ's conclusion. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000). As long as there is substantial evidence on the record as a whole to support the Commissioner's decision, a court may not reverse it because substantial evidence exists in the record that would have supported a contrary outcome, id., or because the court would have decided the case differently. Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992). In determining whether existing evidence is substantial, a court considers "evidence that detracts from the Commissioner's decision as well as evidence that supports it." Singh v. Apfel, 222 F.3d 448, 451 (8 th Cir. 2000) (quoting Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999)).

To determine whether the decision is supported by substantial evidence, the Court is required to review the administrative record as a whole and to consider:

(1) the credibility findings made by the Administrative Law Judge;

(2) the education, background, work history, and age of the claimant;

(3) the medical evidence from treating and consulting physicians;

(4) the plaintiff's subjective complaints relating to exertional and non-exertional impairments;

(5) any corroboration by third parties of the plaintiff's impairments; and

(6) the testimony of vocational experts when required which is based upon a proper hypothetical question.

Brand v. Secretary of Dep't of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).

Disability is defined in the social security regulations as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death of 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)(1); § 42 U.S.C. 1382c(a)(3)(A); § 20 C.F.R. 404.1505(a); § 20 C.F.R. 416.905(a). In determining whether a claimant is disabled, the Commissioner must evaluate the claim using a five-step procedure.

First, the Commissioner must decide if the claimant is engaging in substantial gainful activity. If the claimant is engaging in substantial gainful activity, he is not disabled.

Next, the Commissioner determines if the claimant has a severe impairment which significantly limits the claimant's physical of mental ability to do basic work activities. If the claimant's impairment is not severe, he is not disabled.

If the claimant has a severe impairment, the Commissioner evaluates whether the impairment meets or exceeds a listed impairment found in § 20 C.F.R. pt. 404, subpt. P, App. 1. If the impairment satisfies a listing in Appendix 1, the Commissioner will find the claimant disabled.

If the Commissioner cannot make a decision based on the claimant's current work activity or medical facts alone, and the claimant has a severe impairment, the Commissioner review whether the claimant can perform his past relevant work. If the claimant can perform past relevant work, he is not disabled.

If the claimant cannot perform his past relevant work, the Commissioner must evaluate whether the claimant can perform other work in the national economy. If not, the Commissioner declares the claimant disabled. § 20 C.F.R. 404.1520; § 20 C.F.R. 416.920.

If the claimant demonstrates that she has an impairment or combination of impairments that do not meet or equal an impairment listed in the regulations but which preclude her from performing her last regular work, the burden shifts to the Commissioner to show the existence of some other type of work that an individual with the claimant's impairments is capable of performing. Foreman v. Callahan, 122 F.3d 24, 25 (8th Cir. 1997); Butler v. Secretary of Health and Human Servs., 850 F.2d 425, 426 (8th Cir. 1988). If the claimant has solely exertional impairments, the ALJ may apply the Medical-Vocational Guidelines contained in 20 C.F.R., Subpart P, Appendix 2, to meet this burden. Foreman, 122 F.3d at 25. When significant nonexertional limitations exist, the ALJ must call a vocational expert to testify to the existence of jobs that a person with the claimant's impairments is capable of performing. Id. at 26; Talbott v. Bowen, 821 F.2d 511, 515 (8th Cir. 1987). However, use of the guidelines is proper if the ALJ explicitly discredits complaints of pain for a legally sufficient reason. See Reynolds v. Chater, 82 F.3d 254, 258 (8th Cir. 1996); Carlock v. Sullivan, 902 F.2d 1341, 1343 (8th Cir. 1990).

When evaluating evidence of pain or other subjective complaints, the ALJ is never free to ignore the subjective testimony of the plaintiff, even if it is uncorroborated by objective medical evidence. Basinger v. Heckler, 725 F.2d 1166, 1169 (8th Cir. 1984). The ALJ may, however, disbelieve a claimant's subjective complaints when they are inconsistent with the record as a whole. See, e.g., Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir. 1990). In considering the subjective complaints, the ALJ is required to consider the factors set out by Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), which include:

claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as: (1) the objective medical evidence; (2) the subjective evidence of the duration, frequency, and intensity of plaintiff's pain; (3) any precipitating or aggravating factors; (4) the claimant's daily activities; (5) the dosage, effectiveness and side effects of any medication; and (6) the claimant's functional restrictions.

Id. at 1322.

The ALJ's Findings

The ALJ found that Andrus was not disabled within the meaning of the Social Security Act. He issued the following specific findings:

1. Andrus meets the insured status requirements of the Social Security Act through September 19, 2006.

2. Andrus has not engaged in substantial gainful activity since September 19, 2006 (20 C.F.R. §§ 404.1520(b) and 404.1571 et seq.).

3. Andrus has the following severe impairments: degenerative disc disease and obesity (20 C.F.R. § 404.1520(c)).

4. The medically determinable impairments did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526).

5. Andrus has the residual functional capacity to lift or carry ten pounds occasionally and less than ten pounds frequently, sit six hours in an eight-hour day, and stand and/or walk a total of two hours in an eight-hour day. She has been able to understand, remember and carry out simple instructions, but not complex instructions (due to alleged side effects from medication). This constitutes a wide range of unskilled sedentary work.

6. Andrus's allegations of pain and symptoms were not entirely credible.

7. Andrus is unable to perform past relevant work (20 C.F.R.§ 404.1565).

8. Andrus is 49 years old, which is defined as a younger individual (20 C.F.R. § 404.1563).

9. Andrus has more than a high school education (20 C.F.R. § 404.1564).

10. Andrus does not have any transferable skills (20 C.F.R. § 404.1568).

11. Andrus has the residual functional capacity to perform a wide range of unskilled sedentary work.

12. Andrus is qualified to work in a significant number of jobs in the national economy (20 C.F.R. §§ 404.1560(c) and 404.1566).

13. Andrus is not disabled as defined by the Social Security Act (20 C.F.R. § 404.1520(g)).

The ALJ noted that no physician stated that Andrus was disabled. (Tr. 12). The ALJ also found that the claimant was not entirely credible, as she has engaged in substantial gainful activity for most of the time since her low back pain began (Tr. 12). Further, the ALJ stated that Andrus's ability to drive is inconsistent with her claims of incapacitating drowsiness and concentration problems. (Tr. 12). Evidence demonstrated that Andrus is able to perform light housework, which conflicts with her claims of mobility impairment. (Tr. 12). Overall, the ALJ concluded that Andrus's alleged symptoms did not preclude her from unskilled sedentary work. (Tr. 13).

Discussion

Andrus raises three issues on appeal from the final decision denying disability. First, she claims that the ALJ improperly relied upon the medical-vocational GRIDs guidelines in making a determination of not disabled. Specifically, Andrus argues that a vocational expert should have testified regarding her residual functional capacity. Second, Andrus claims that the ALJ failed to consider the side effects and dosage of morphine. Finally, Andrus contends that the ALJ failed to properly consider obesity in determining her residual functional capacity.

Non-exertional limitations include those "other than [limitations] on strength but which nonetheless reduce an individual's ability to work." Sanders v. Sullivan, 983 F.2d 822, 823 (8th Cir. 1992). Examples include "mental, sensory, or skin impairments," as well as impairments which result in "postural and manipulative limitations or environmental restrictions." 20 C.F.R. pt. 404, subpt. P, App. 2.

Where a claimant suffers from both exertional and non-exertional injuries, Eighth Circuit case law states:

[Where] the claimant suffers from a combination of exertional and non-exertional impairments and the Guidelines indicate that he or she is not entitled to a finding of disability based solely on exertional impairments, the ALJ must then consider the extent to which the claimant's work capacity is further diminished by his or her non-exertional impairments. Where the claimants relevant characteristics differ in any material respect from those characteristics contemplated by the Guidelines, the Guidelines may not be applied. Instead, the Secretary must produce expert vocational testimony or other similar evidence to establish that there are jobs available in the national economy for a person with the claimant's characteristics.

Thompson v. Bowen, 850 F.2d 346, 349 (8th Cir. 1988) (quoting Tucker v. Heckler, 776 F.2d 793, 795-96 (8th Cir. 1985)). Testimony from a vocational expert is not always required: "[w]hen a claimant's subjective complaints of pain 'are explicitly discredited for legally sufficient reasons articulated by the ALJ,' the Secretary's burden [at the fifth step] may be met by use of the [Medical-Vocational Guidelines]." Naber v. Shalala, 22 F.3d 186, 189-90 (8th Cir. 1994) (quoting Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir. 1989)). Also, an ALJ may use the Guidelines "even though there is a non-exertional impairment if the ALJ finds, and the record supports the finding, that the non-exertional impairment does not diminish the claimant's functional capacity to perform the full range of activities listed in the Guidelines." Lucy v. Chater, 113 F.3d 905, 908 (8th Cir. 1997); Thompson, 850 F.2d at 349-50. However, even under these circumstances, the Guidelines provide only a "framew ork" for consideration of the individual's functional capacity, and "full consideration must be given to all of the relevant facts" in the individual's case. 20 C.F.R. pt. 404, subpt. P, App. 2.

If the ALJ properly discredits a plaintiff's claims, he can rely on the medical-vocational guidelines. Naber, 22 F.3d at 189-90. The ALJ must decide if the claimant's complaints of pain are consistent with his or her prior work record and the observations of third parties and examining physicians regarding the factors articulated in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). When rejecting a claimant's subjective complaints, the ALJ must make an express credibility determination using the factors set forth in Polaski. Baker v. Apfel, 159 F.3d 1140, 1144 (8th Cir. 1998); Cline v. Sullivan, 939 F.2d 560, 565 (8th Cir. 1991).

I. The ALJ Failed to Obtain Evidence From a Vocational Expert

Andrus's first point on appeal is that the ALJ failed to obtain evidence from a vocational expert. Specifically, she claims that the ALJ improperly relied solely on the medical-vocational guidelines and should have required testimony from a vocational expert. A vocational expert is generally required to testify regarding a claimant's non-exertional limitations, however, when the claimant's allegations of pain "are appropriately discredited for legally sufficient reasons, such as inconsistencies in the record evidence, the ALJ may employ the guidelines to direct a determination of not-disabled." Cline, 939 F.2d at 565; see Carlock, 902 F.2d at 1343 ("[i]t is well established that a sufficient basis exists to discount subjective complaints of pain where the complaints are inconsistent with the record as a whole.").

The ALJ had multiple reasons to discount Andrus's allegations. The ALJ addressed her pain allegations in detail. (Tr. 12). When considering subjective complaints, the ALJ is required to consider the factors set out by Polaski v. Heckler. Polaski, 739 F.2d at 1322. The ALJ addressed several of the Polaski factors in his report. He found that the claimant's daily activities were "at odds" with her asserted inability to stand any longer than a few minutes. (Tr. 12). The ALJ noted that Andrus's testimony indicated constant and severe pain, yet she could carry 20 pounds, treatment had somewhat helped her pain, and that she did not claim obesity as an impairment on her disability application. (Tr. 12).

Regarding the side effects of medication, the A LJ stated that Dr. Leung's exam demonstrated normal memory and concentration abilities. (Tr. 12). The ALJ also determined that Andrus physician, Dr. Campbell, did not find any muscoskeletal or neurological defects and that Dr. Leung's report indicated that Andrus could walk 50 feet without assistance. (Tr. 12). While the Polaski factors must be considered, the ALJ is not required to "include a discussion of how every Polaski factor relates to the claimant's credibility"as long as "the analytical framework is recognized and considered." Casey v. Astrue, 503 F.3d 687, 695 (8th Cir. 2007); see Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004).

The ALJ also found significant that Andrus allegedly had severe pain since 2000, yet she was able to work until 2006 with her condition. (Tr. 12, 104-05, 248). Further, the record is void of any evidence of her condition seriously worsening during that period. (Tr. 12). Andrus's credibility also was at issue on multiple occasions when her physicians recommended she discontinue smoking and alter her diet in order to improve her condition, yet she repeatedly ignored her physicians requests. (Tr. 30, 216, 248, 259, 265, 297, 301, 302). A patient's repeated noncompliance with doctor's orders is relevant to a credibility determination. See Brown v. Barnhart, 390 F.3d 535, 541-42 (8th Cir. 2004). Thus, the ALJ's reliance on the Guidelines was appropriate as he expressly discredited Andrus's claims of pain for legally sufficient reasons. Baker v. Barnhart, 457 F.3d 882, 895 (8th Cir. 2006).

II. The ALJ Failed to Consider Morphine Use

Andrus's second point on appeal is that the ALJ failed to consider her morphine prescription. Specifically, she alleges a failure to consider the dosage and side effects of morphine consistent with the decision in Cox v. Apfel, 160 F. 3d 1203 (8th Cir. 1998). In Cox, the claimant had undergone three surgeries for her back pain. Id. at 1205. The claimant's morphine was administered through a pump that was implanted in her spine and the doses of treatment were steadily increased during her treatment. See id. at 1208. Although the court in Cox stated "[n]o determination regarding disability can be made without an investigation into the impact of the patient's dependence and the side effects of increasing doses of the drug,"Andrus's case is distinguishable. Id. at 1209. While the court in Cox focused on the claimant's increasing morphine dosage and surgery, Andrus used a constant dosage and took the medication in tablet form. Id. at 1209; (Tr. 158-207). Further, the ALJ did consider pain and morphine usage in determining plaintiff's limitation to: "carry out simple instructions, but not complex instructions (due to alleged side effects from medication)." (Tr. 11).

The ALJ found no evidence of complaints about morphine side effects in the notes from treating physicians. (Tr. 12). Additionally, Dr. Leung stated that Andrus had normal memory and concentration abilities during an examination. (Tr. 12, 235). The ALJ also determined that Andrus's ability to drive a car conflicted with her allegations of side effects. (Tr. 12). Thus, the ALJ properly discredited Andrus's subjective complaints as they are inconsistent with the record as a whole. See, e.g., Battles, 902 F.2d at 660. The ALJ determined that the plaintiff suffers from a "mental limitation," however, this does not prevent her from performing unskilled sedentary work. (Tr. 13). The ALJ appropriately considered the effects of Andrus' medications and his conclusions in this regard are supported by the record.

III. The ALJ Failed to Consider Obesity in Determining the RFC

Andrus's final point on appeal is that the ALJ failed to properly consider obesity when determining the claimant's RFC. The ALJ found that obesity severely limited Andrus's ability to perform basic work activities, as he listed obesity during step two of the sequential evaluation process. (Tr. 9-10). During step three of the evaluation process, the ALJ determined that Andrus's impairment or combination of impairments did not meet or exceed any of the listed impairments. (Tr. 11). The ALJ stated that "listing 1.04, the listing for spinal disorders, has not been met because the medical record does not show motor loss." (Tr. 11). Listing § 1.04 states:

1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:

A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine)[.]

20 C.F.R. pt. 404, subpt. P, App. 1 § 1.04A.

Andrus argues that she almost meets the requirements of § 1.04A without considering obesity, however, the record does not indicate motor loss, atrophy with muscle weakness, or loss of motion of the spine. (Tr. 236). During an examination, Dr. Leung found no muscle atrophy and that Andrus's lower extremity strength was 4 or 4+/5. (Tr. 236, 238). Dr. Leung also stated that Andrus had slightly reduced lumbar range of motion and no lumbar tenderness. (Tr. 236, 238). While Andrus did have a positive straight leg test in the supine position, she did not have a positive test in the sitting position also as required by listing § 1.04A. (Tr. 238). Thus, the ALJ appropriately concluded that Andrus did not meet the requirements articulated in listing § 1.04A.

Andrus also argues that if the effects of obesity are combined with her other limitations, she would be considered disabled. The only physician documented side effect to obesity was lower extremity edema, which could be controlled or possibly alleviated by medication. (Tr. 12, 214). Andrus did not initially claim obesity as an impairment when she filled out her disability application, despite the fact that she weighed well over three hundred pounds at the time. (Tr. 104). Although Dr. Leung did note that Andrus had some "difficulties moving" mostly due to "morbid obesity," such a condition is consistent with the ALJ's finding that Andrus was limited to unskilled sedentary work. (Tr. 236, 11). Andrus contends that the ALJ failed to make an express ruling on the effect of her obesity, however, an ALJ has adequately assessed impairments in combination after separately discussing "physical impairments, affective disorder[s], and complaints of pain" and then determining the claimant's ability to perform past relevant work. See Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir. 1992); see Karlix v. Barnhart, 457 F.3d 742, 746 (8th Cir. 2006) ("[t]he fact that the ALJ did not elaborate on this conclusion does not require reversal, because the record supports her overall conclusion."). In this case, the ALJ made a determination on these factors and sufficiently considered her obesity. (Tr. 10-13). Therefore, substantial evidence supports the ALJ's determination that Andrus does not have an impairment or combination of impairments that met or equaled the requirements of any listed impairment.

Conclusion

For the aforementioned reasons, the ALJ's determination that Andrus was not disabled is supported by substantial evidence in the record as a whole. The decision should therefore be upheld.

Accordingly,

IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. A separate judgment in accord with this Memorandum and Order is entered this date.

The following is another CREDIBILITY case. An ALJ's findings regarding a claimant's credibility "are to be accorded great weight and deference, particularly since an ALJ is charged with the duty of observing a witness's demeanor and credibility." Any credibility assessment made by an ALJ must be supported by substantial evidence in the record.

COACHMAN v. ASTRUE

FRANK COACHMAN, Plaintiff,

MICHAEL J. ASTRUE, Defendant.

Civil Action No. 1:09-CV-427-TFM.

United States District Court, M.D. Alabama, Southern Division.

September 20, 2010.

TERRY F. MOORER, Magistrate Judge.

Following administrative denial of his application for disability insurance benefits under Title II of the Social Security Act ("the Act"), 42 U.S.C. §§ 401 et seq., and supplemental security income benefits under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq., Frank R. Coachman ("Coachman") received a hearing before an administrative law judge ("ALJ") who rendered an unfavorable decision. When the Appeals Council rejected review of this decision, it became the final decision of the Commissioner of Social Security ("Commissioner"). Judicial review proceeds pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), and 28 U.S.C. § 636 (c), and for reasons herein explained, the court AFFIRMS THE COMMISSIONER'S decision.

I. STANDARD OF REVIEW

Judicial review of the Commissioner's decision to deny benefits is limited. The court cannot conduct a de novo review or substitute its own judgment for that of the Commissioner. Walden v. Schweiker, 672 F.2d 835 (11th Cir. 1982). This court must find the Commissioner's decision conclusive "if it is supported by substantial evidence and the correct legal standards were applied." Kelley v. Apfel, 185 F. 3d 1211, 1213 (11th Cir. 1999), citing Graham v. Apfel, 129 F. 3d 1420, 1422 (11th Cir. 1997).

Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995), citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401 (1971).

If the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the court would have reached a contrary result as finder of fact, and even if the court finds that the evidence preponderates against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991). The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560.

The district court will reverse a Commissioner's decision on plenary review if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law. Keeton v. Department of Health and Human Services, 21 F.3d 1064, 1066 (11th Cir. 1994).

II. ADMINISTRATIVE FINDINGS

Coachman, age 49 at the time of the hearing, completed high school and was honorably discharged from the United States Army as a drill sergeant. Coachman's past relevant work includes employment as a janitor, security guard, delivery driver and lawn maintenance worker. He has not engaged in substantial gainful work activity since the application date of October 1, 2005. Coachman's application claims he is unable to work because of hypertension, sleep apnia, and depression.

During Coachman's administrative hearing, he described his Army career and past work as a janitor, delivery driver, security guard and lawn maintenance man. The work in lawn maintenance ended when Coachman had an argument with his supervisor over whether he could work additional hours. Coachman refused additional hours on the advice of his lawyer, who told him that accepting more work might endanger his application for disability. Coachman said that he worked as a contract custodian for the U.S. Postal Service from March through November 2005, but did not win a renewal of his contract. Coachman said that he "really got sick" from November 2005 through October 2006.

Coachman described being diagnosed with post traumatic stress disorder (PTSD) and sleep apnea. The ALJ asked him which military experiences caused his PTSD and he said that even though he was "behind the line," he saw wounded and dead people. The VA awarded him a thirty percent pension for the PTSD, which Coachman describes as something that causes him to want to hurt people when he is in a rage. The ALJ noted that Coachman performed a significant amount of work despite his PTSD and that there was no record of treatment for PTSD. Coachman sought psychiatric counseling two months before the hearing after not seeking treatment for "four or five years." He reported taking medication for anxiety and depression. Coachman also reported problems with a painful ankle when he worked as a custodian, delivery driver, and security guard (standing for approximately six and one-half hours during an eight-hour shift). Coachman said that he renewed his prescription for pain medication two months before the hearing.

Coachman resides with his brother and cleans house, washes his clothes, cooks, shops for groceries, and attends church. Coachman said he was depressed after the death of his mother in 2001. The ALJ noted that he worked several jobs since that time. Coachman claims depression makes him want to avoid people. He reports poor results with his Continuous Positive Airway Pressure (CPAP) therapy for sleep apnea and anxiety medication. He rates the pain in his head as an eight out of ten.

The ALJ began his findings of fact by noting that Coachman's record of part-time work after his claimed onset date was a major factor in the assessment of his credibility and alleged functional limitations. Coachman's medical records showed treatment in 2004 for poor sleep, poor concentration, and depressed mood (non-compliant with medication). Records from 2005 show treatment for hypertension, hyperlipidemia, and sleep apnea. Non-compliance was also noted in these records. An x-ray of his right ankle in June 2005 showed a mild osteophyte formation and moderate plantar spurring. An x-ray in August 2005 revealed no acute fracture. In September of 2005, Coachman was instructed to take Naproxen and Extra-Strength Tylenol as needed for headache/ tension. At the time, Coachman was non-compliant with his sleep apnea regimen. In November, 2005, Coachman denied depression and reported no mental health care since 2002. Coachman denied depression again in February of 2006.

Doug McKeown, Ph.D., performed a consulting psychological examination in May, 2006. Dr. McKeown noted the PTSD diagnosis, but found that condition was not mentioned in any specific symptoms. He diagnosed Coachman with mild depressive disorder and mild obsessive compulsive symptoms. He told Coachman that ongoing counseling and further evaluation of his sleep-related difficulties would be beneficial.

Coachman reported to the VA on June 16, 2006, that he was doing better and sleeping 4-5 hours without interruption. In November of 2006 Coachman reported his current pain rating as "0." In July of 2007 Coachman reported continued discomfort in his ankle with prolonged standing and partial compliance with his CPAP. The most recent medical records before the ALJ were from Coachman's semiannual visit to the VA in January of 2008. He rated his pain at a seven, relieved by rest, with increasing discomfort in ankle with prolonged standing.

A residual functional capacity (RFC) assessment was done by a state agency examiner on June 7, 2006. The examiner found Coachman can lift and carry twenty-five pounds frequently and fifty pounds occasionally; that he can stand/walk for six hours during an eight-hour day; that he can sit for six hours during an eight-hour day; that he can occasionally climb ramps/stairs or ladders; and frequently balance, stoop, kneel, crouch and crawl. Environmental limitations include avoiding concentrated exposure to temperature extremes, fumes/odors, and hazards. A mental RFC assessment was also done on June 7, 2006 by Dr. Ellen Eno, Ph.D., a state agency psychologist. Dr. Eno found Coachman has moderate limitations in the abilities to (1) understand and remember detailed instructions, (2) carry out detailed instructions, (3) maintain attention and concentration for extended periods, and (4) respond appropriately to changes in the work setting.

A vocational expert (VE) testified during Coachman's hearing. The ALJ asked if a person restricted to medium work could perform Coachman's past relevant work (PRW) and the VE responded affirmatively.[ Coachman's attorney asked the VE whether Coachman could perform his past work, if the ALJ found credible his testimony that he did not like to be around people. The VE did not get an opportunity to respond to this question because the ALJ explained why he did not find Coachman credible.

The ALJ found Coachman is severely impaired by sleep apnea, arthralgia right ankle and posttraumatic stress disorder with depression, but that this combination of impairments does not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix I. The ALJ found Coachman's RFC permitted

"medium exertional [work] that is no more than semi-skilled. With regard to reasoning capacity, [Coachman] has the ability to apply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. [Coachman] has the ability to deal with problems involving several concrete variables in or from standardized situations."

The ALJ noted that because Coachman's RFC was for medium work, he could also perform sedentary and light work.

The ALJ discussed the Eleventh Circuit pain standard, acknowledging that disability may be established where there is (1) evidence of an underlying medical condition with either (2) objective medical evidence confirming the severity of the alleged pain and/or other symptoms arising from that condition, or (3) sufficient severity of the objective medical condition that it can reasonably be expected to produce the alleged pain and/or other symptoms. The ALJ emphasized that subjective complaints alone cannot establish disability, and that an ALJ must articulate reasons for refusing to credit a claimant's subjective testimony of pain.

The ALJ discounted Coachman's claimed level of pain attributed to arthralgia in the right ankle because x-rays of the ankle were consistently interpreted as a minor abnormality, and on several occasions Coachman reported "doing well" with no musculoskeletal complaints. The ALJ's review of the record revealed no ongoing prescriptions for pain medication. Coachman's treating sources did not opine that he was disabled, and his part-time work as delivery driver required constant use of his right foot. The ALJ noted Coachman's testimony that he could have worked more than 24 hours per week, but declined to do so upon his attorney's advice that doing so would adversely impact his application for disability. The ALJ noted that Coachman bid unsuccessfully on a custodial contract to continue working at the Post Office despite claims of pain in his ankle. Coachman's report of his social activities shows that he does not have problems getting along with other people, visits family or friends once a week, talks on the telephone 3-4 times a week, and attends church. The decision also stated that the ALJ "considered the assessments made by the Disability Determination Services personnel regarding the claimant's ability to perform basic work activities in accordance with Social Security Ruling 96-6p and reach the same conclusion that the claimant is capable of work."]

Finally, the ALJ found Coachman is capable of performing past relevant work as a custodian, a delivery driver, a maintenance man, and a security guard. The finding that Coachman can perform past work led the ALJ to conclude he is not entitled to disability benefits under the Act.

III. ISSUES

Coachman raises three issues for judicial review:

1. Whether the ALJ's RFC finding is supported by substantial evidence;

2. Whether the ALJ's finding that he can return to his past relevant work is supported by substantial evidence; and

3. Whether the Appeals Council committed reversible error in failing to remand this matter to the ALJ for consideration of newly submitted evidence.

IV. DISCUSSION

1. The ALJ's RFC finding is supported by substantial evidence.

Coachman argues the ALJ's RFC finding that he is able to perform medium exertional work that is no more than semi-skilled is not supported by substantial evidence. The Commissioner responds that the ALJ's decision is supported by substantial evidence provided by the record as a whole.

The five-step sequential analysis set forth in regulations require that a claimant prove that he is disabled. 20 C.F.R. § 404.1512; Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). Coachman's attack on the RFC finding focuses on the difference between the ALJ's assessment of his reasoning capacity and the one submitted by the reviewing State agency psychologist. He argues the ALJ finding is inconsistent with the opinion from Dr. Eno, the State agency psychological consultant, who placed Coachman's reasoning level at the Dictionary of Occupational Titles (DOT) level "1" (capable of remembering and carrying out very short and simple instructions). The ALJ found Coachman's reasoning level "3" (capable of applying commonsense understanding to instructions furnished in written, oral, or diagrammatic form). The opinion by Dr. Eno found Coachman is capable of work, though moderately limited in his ability to understand, remember, and carry out detailed instructions. Thus, the issue before the Court is whether the ALJ supported his findings which conflict with Dr. Eno's evaluation of Coachman's record.

The ALJ stated that he considered the entire record in determining Coachman's reasoning capacity before assigning a level of functioning that encompassed Coachman's past work. The record provided "very little information suggesting significant indicators for a mental health-related difficulty. Indeed, the record reveals, and in his sworn testimony, [Coachman] acknowledged that even with diagnoses of posttraumatic stress disorder and depression, he was able to work full-time as a custodian." The ALJ continued by noting Coachman's testimony that he could have worked full time as a security guard, maintenance man, or delivery driver but for his lawyer's advice that working 40 hours a week would negatively impact his disability application.

In addition to Coachman's testimony, post-onset health records from November, 2005 and February, 2006, show he denied depression and had not received mental health care since 2002. Dr. McKeown's consulting examination produced a diagnosis of mild depressive disorder and mild obsessive compulsive symptoms. Dr. McKeown noted Coachman's PTSD diagnosis, but he found that condition was not mentioned in any specific symptoms. Coachman reported no ongoing mental health treatment other than through the Veteran's Administration.

The record supports the ALJ's decision that Coachman is able to perform at the level of reasoning indicated in the administrative decision. Coachman's argument confuses the ALJ's consideration of the State agency mental health opinion with adoption of the opinion in every detail. It is clear from the record that the ALJ considered the entire record, which contained reliable evidence which conflicted with the State agency opinion. Accordingly, the Court finds no error as to this issue.

2. The ALJ properly found Coachman can perform his past relevant work.

Coachman argues the ALJ's finding that he can perform his past work is not based on substantial evidence. The Commissioner responds that Coachman did not meet his burden of proving an inability to perform his past work. The Commissioner also concedes that Coachman did not work as a lawn maintenance worker long enough for that occupation to be considered "past work." Therefore, the remaining occupations cited by the ALJ — custodian, delivery driver, and security guard — are the relevant jobs at issue in this case.

Coachman claims that two errors are incorporated into the ALJ's decision. The first is that the hypothetical posed to the VE did not include the specific functional limitations the ALJ found to exist, and the VE's response is therefore not supported by substantial evidence. "[I]n order for a VE's testimony to constitute substantial evidence, the ALJ must pose a hypothetical question which comprises all of the claimant's impairments." Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004), quoting Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). If the ALJ had cited the VE's testimony to support his ultimate finding that certain jobs are within Coachman's ability, remand would be appropriate. However, as noted by the Commissioner and confirmed by the record, the ALJ relied upon the VE's testimony only for purposes of classifying Coachman's past work and exertion levels. The ALJ is not required to obtain VE testimony to determine whether a claimant can return to his past relevant work. See Lucas v. Sullivan, 918 F.2d 1567, 1573 n.2 (11th Cir. 1990); see also 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2). Therefore, there is no error in the ALJ's reliance on the VE's testimony for the limited purposes noted above.

The second error cited by Coachman is that the ALJ did not consider the physical and mental demands of his past work. Coachman cites SSR 82-62 as grounds for error, arguing that the policy ruling requires that an ALJ who finds a claimant can perform past work must identify the physical and mental demands of the past job/occupation. The Commissioner responds that the ALJ fully complied with SSR 82-62 when he relied upon the DOT description of these jobs as they are generally performed in the national economy. Further, the record shows the ALJ asked Coachman about the physical demands of his past work for all three of the remaining occupations. Coachman's responses about the exertional demands are therefore in the record and permitted the ALJ to determine whether the physical requirements are within his RFC. Coachman also said that he does not use a cane, and was not taking pain medication when working these jobs, despite his claim that his ankle was a source of significant pain. This information was used by the ALJ to determine Coachman is able to perform his past work as generally performed. The Commissioner also notes that SSR 82-62 specifically provides that the DOT can provide supplemental information on skill level and exertional demands of a job. The ALJ compared Coachman's RFC with the demands of these jobs and found no inconsistencies.

The record supports the ALJ's reliance on the Coachman's own testimony and the DOT information on physical requirements to find he is capable of performing his past work as a custodian, delivery driver, or security guard, and there is no reversible error as to this issue.

3. The Appeals Council did not err by failing to remand the case back to the ALJ for consideration of additional medical evidence.

Coachman argues the Appeals Council should have remanded his case upon its review of updated physical and mental health records. The Commissioner responds that the Appeals Council did not err because the additional records were not material and would not have changed the administrative result.

Coachman submitted VA Medical Center records from January 2008- January 2009; Southeast Alabama Medical Center records from January 17, 2008; and records from Dr. Hicks (psychologist) from March/April 2008. The VA records gave additional background on the source of Coachman's PTSD claim, documented additional problems with thoughts of hurting someone, short temper, sweats, low back pain, itching, tremors, leg cramps, and muscle pain. Seroquel and Zocor were discontinued as possible causes of the tremors, leg cramps, and muscle pain. Dr. Hicks noted on March 17, 2008, that Coachman had not been seen since 2002. Coachman reported auditory hallucinations, visions of random people he wants to hurt, and depression. Dr. Hicks opined that Coachman is disabled due to severe depression on April 28, 2008. The Appeals Council denied review without stating any specific reason for its decision, though one of the possible reasons listed for granting review is the receipt of "new and material evidence and the decision is contrary to the weight of all the evidence now in the record."

Coachman argues the new evidence may well have changed the ALJ's review of the record because it provides objective evidence of his ankle pain and additional detail of the PTSD claim. Coachman acknowledges that when the record was reviewed by the ALJ, there was no opinion from any physician which found him disabled, and believes the statement from Dr. Hicks would have changed the ALJ's decision. Coachman argues the Council's failure to return the record for ALJ consideration, and the failure to state a specific reason for denying review, are both grounds for remand by this Court.

The Commissioner argues that Coachman does not meet the standard for remand upon his claim of error by the Appeals Council. In Falge v. Apfel, 150 F.3d 1320 (11th Cir. 1998), the Eleventh Circuit held that evidence submitted to the Appeals Council justifies a remand where a plaintiff shows "that (1) new, noncumulative evidence exists, (2) the evidence is material such that a reasonable possibility exists that the new evidence would change the administrative result, and (3) good cause exists for the applicant's failure to submit the evidence at the appropriate administrative level." Falge, 150 F.3d at 1323. The Commissioner concedes the first Falge criteria and acknowledges that the evidence submitted is new and not merely cumulative. Instead, he argues the second criteria, i.e., material evidence which creates a reasonable possibility that the administrative result would change, is not present.

The Commissioner supports his argument with the observation that Coachman's psychiatric complaints increased after the ALJ's April 2008 decision. The ALJ asked Coachman during the administrative hearing what specific incidents triggered his PTSD, and Coachman's reply was, essentially, that he had seen wounded and dead soldiers. Coachman's brief highlights medical records from 2009 which state Coachman feared for his life during training exercises and a convoy mission. The new evidence also notes a worsening of Coachman's PTSD in December, 2007, and attributes a workplace argument, and subsequent firing, to that condition. Coachman's testimony before the ALJ showed that the argument occurred when Coachman was replaced by another worker because he refused to work more than 24 hours per week on the advice of his lawyer. Finally, less than two weeks after the administrative hearing, and six years after last seeking mental health care, Coachman reported auditory hallucinations and "visions of random people he wants to hurt" to Dr. Hicks. The Court notes that these reports arose only after the ALJ found Coachman was not credible on the issues of his pain and PTSD as grounds for disability. The opinion from Dr. Hicks would therefore be less persuasive to the ALJ, and less likely to serve as grounds for a different result, where the ALJ vehemently stated that Coachman's record showed an ability to work through the ankle pain without medication, and no stressors or treatment for PTSD. See Weetman v. Sullivan, 877 F.2d 20, 23 (9th Cir. 1989).

The Court finds that the new evidence was not likely to change the administrative result if the Appeals Council had remanded the case for additional consideration by the ALJ. Therefore, the evidence is not "material" as contemplated by the Eleventh Circuit in Falge. Further, the Court adopts the Commissioner's argument that the Appeals Council is not required to explain the reason(s) it denied review. See 20 C.F.R. §§ 404.967, 416.1467 (conferring discretion to Appeals Council to deny review without explanation). Thus, there is no error in the denial of review by the Appeals Council, or the decision not to remand to the ALJ for further consideration of the new evidence.

V. CONCLUSION

Pursuant to the findings and conclusions detailed in this Memorandum Opinion, the court concludes that the ALJ's non-disability determination is supported by substantial evidence and proper application of the law. It is, therefore, ORDERED that the decision of the Commissioner is AFFIRMED.

A separate judgment is entered herewith.

Below is another case where the ALJ’s credibility assessment was affirmed on appeal.