Monday, October 28, 2013

socialNsecurity Chap 4



CHAPTER 4

Step 2: Is Your Condition Severe?


The claimant has the burden of proof and the burden of going forward with the evidence at Steps 1 through 4. You must prove with clear, cogent, and convincing evidence that you have a severe mental or physical impairment.

Step 2 evaluates whether your medical condition is severe enough to significantly limit your ability to perform basic work activities. In addition, the impairment must last, or be expected to last, for a continuous period of not less than 12 months or result in death.

An impairment is severe if it significantly limits a claimant's physical or mental ability to perform basic work activities, and an impairment is not severe if it does not significantly limit a claimant's physical or mental ability to do basic work activities. There must be an impairment resulting from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques. The Social Security Administration (SSA) requires that an impairment be established by medical evidence that consists of signs, symptoms, and laboratory findings, and not only by an individual's statement of symptoms.
 The evaluation of whether an impairment(s) is ``severe'' that is done at Step 2 of the applicable sequential evaluation process set out in 20 CFR 404.1520, 416.920, or 416.924 requires an assessment of thefunctionally limiting effects of an impairment(s) on an individual'sability to do basic work activities or, for an individual under age 18claiming disability benefits under title XVI, to do age- appropriate activities; and an individual's symptoms may cause limitations and restrictions in functioning which, when considered at Step 2, may require a finding that there is a ``severe'' impairment(s) and a decision to proceed tothe next step of sequential evaluation.

At Step 2 of the sequential evaluation process, an impairment or combination of impairments is considered ``severe'' if it significantly limits an individual's physical or mental abilities to do basic work activities;an impairment(s) that is ``not severe'' must be a slight abnormality(or a combination of slight abnormalities) that has no more than aminimal effect on the ability to do basic work activities.

Symptoms, such as pain, fatigue, shortness of breath, weakness, or
nervousness, will not be found to affect an individual's ability to do
basic work activities unless the individual first establishes by
objective medical evidence (i.e., signs and laboratory findings) that
he or she has a medically determinable physical or mental impairment(s)
and that the impairment(s) could reasonably be expected to produce the
alleged symptom(s).

The finding that an individual's impairment could reasonably be expected to produce the alleged symptom(s) does not involve a determination as to the intensity, persistence, or functionally limiting effects of the symptom(s).
However, once the requisite relationship between the medically
determinable impairment(s) and the alleged symptom(s) is established,
the intensity, persistence, and limiting effects of the symptom(s) must
be considered along with the objective medical and other evidence in
determining whether the impairment or combination of impairments is
severe.

In determining the severity of an impairment at Step 2 of the
sequential evaluation process evidence about the functionally limiting effects of an individual's impairment(s) must be evaluated in order to assess the effect of the impairment(s) on the individual's ability to do basic work activities.

The vocational factors of age, education, and work experience are not
considered at this step of the process. A determination that an
individual's impairment is not severe requires a careful evaluation
of the medical findings that describe the impairment(s) (i.e., the
objective medical evidence and any impairment- related symptoms), and an
informed judgment about the limitations and restrictions the
impairment(s) and related symptom(s) impose on the individual's
physical and mental ability to do basic work activities.

When a claimant attempts to establish disability through his own testimony concerning pain or other subjective symptoms, the ALJ must apply a three-part "pain standard," which requires (1) evidence of an underlying medical condition, and either (A) objective medical evidence that confirms the severity of the alleged pain stemming from that condition, or (B) that the objectively determined medical condition is so severe that it can reasonably be expected to cause the alleged pain.
After considering a claimant's complaints of pain, the ALJ may reject them as not creditable, and that determination will be reviewed by the Appeals Council, the Federal District Court and the Circuit Court of Appeals for substantial evidence. The ALJ must consider such things as: (1) the claimant's daily activities; (2) the nature and intensity of pain and other symptoms; (3) precipitating and aggravating factors; (4) effects of medications; (5) treatment or measures taken by the claimant for relief of symptoms; and (6) other factors concerning functional limitations.
The claimant has the burden to show that he cannot perform his past relevant work due to some severe impairment. The burden then shifts to the Commissioner of SSA to show that a significant number of jobs exist in the national economy which the claimant can perform.
Because a determination of  whether an impairment  is severe requires
an assessment of the functionally limiting effects of an impairment,
symptom- related limitations and restrictions must be considered at this
step of the sequential evaluation process, provided that the individual
has a medically determinable impairment that could reasonably be expected to produce the symptoms. If the ALJ finds that such symptoms cause a
limitation or restriction having more than a minimal effect on an
individual's ability to do basic work activities, the ALJ must find that the impairment is severe and proceed to the next step in the process even if the objective medical evidence would not in itself establish that the impairment is severe. In addition, if, after completing development and considering all of the evidence, the ALJ is unable to determine clearly the effect of an impairment on the individual's ability to do basic work activities, he must continue to follow the sequential evaluation process until a determination or decision about disability can be reached.



Case Law to support Step 2


The following decision from the 11th Circuit Court of Appeals will demonstrate how much discretion the appeals court places in the hands of the ALJ to determine whether a claimant is exaggerating or faking.

D'ANDREA v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION
ADRIENNE F. D'ANDREA, Plaintiff-Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Michael J. Astrue, Defendant-Appellee.
No. 09-16518. Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
Filed July 28, 2010.
Before TJOFLAT, BARKETT and HULL, Circuit Judges.
PER CURIAM:
This case involves an application for disability insurance benefits filed by Adrienne F. D'Andrea on November 20, 2004, under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. She claimed that her disability began on January 1, 1998 due to chronic fatigue syndrome ("CFS") and other conditions we set out in the margin.[ 1 ] An administrative law judge ("ALJ") held a hearing on November 9, 2007, and found that D'Andrea was not disabled (prior to the expiration of her (Date Last Insured, DLI) insured status on June 30, 2005), and that her impairments caused no more than minimal limitations on her ability to work and thus were not severe. The ALJ found alternatively that even if her impairments were severe, she retained the residual functional capacity ("RFC") to perform her past relevant work (PRW).
The Appeals Council denied D'Andrea's request for review on October 30, 2008, thereby making the ALJ's decision the final decision of the Commissioner. D'Andrea thereafter brought this action in the district court, seeking review of the Commissioner's decision. The court affirmed the decision, and D'Andrea lodged this appeal.
D'Andrea argues that substantial evidence does not support the ALJ's finding that her CFS is not severe or his alternative finding that she retains the RFC to perform her past relevant work (PRW). "Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (quotation omitted). "We may not decide facts anew, reweigh the evidence, or substitute our judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quotation and alteration omitted). "Even if the evidence preponderates against the [Commissioner's] factual findings, we must affirm if the decision reached is supported by substantial evidence." Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
The Social Security Regulations outline a five-step process used to determine whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). Under the first step, the claimant has the burden to show that she is not currently engaged in substantial gainful activity. Id. § 404.1520(a)(4)(i). Next, the claimant must show that she has a severe impairment. Id. § 404.1520(a)(4)(ii). She then must attempt to show that the impairment meets or equals the criteria contained in one of the Listings of Impairments. Id. § 404.1520(a)(4)(iii). If the claimant cannot meet or equal the criteria, she must show that she has an impairment which prevents her from performing her past relevant work. Id. § 404.1520(a)(4)(iv). Once a claimant establishes that she cannot perform her past relevant work due to some severe impairment, the burden shifts to the Commissioner to show that significant numbers of jobs exist in the national economy which the claimant can perform. Id. § 404.1520(a)(4)(v); Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004).
The present inquiry concerns the second step of the sequential evaluation process—whether substantial evidence supports the ALJ's finding that D'Andrea's CFS was not a severe impairment. "The severity of a medically ascertained disability must be measured in terms of its effect upon ability to work." McCruterk v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986) (quotation omitted).
Step two is a threshold inquiry. It allows only claims based on the most trivial impairments to be rejected. The claimant's burden at step two is mild. An impairment is not severe only if the abnormality is so slight and its effect so minimal that it would clearly not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience.
McDaniel v. Bowen, 800 F.2d 1026, 1031-32 (11th Cir. 1986); see Phillips, 357 F.3d at 1237 (stating that an impairment is severe if it "significantly limits" the claimant's physical or mental ability to perform basic work activities); 20 C.F.R. § 404.1521(a) (stating that an impairment "is not severe if it does not significantly limit [the claimant's] physical or mental ability to do basic work activities").
A. Chronic Fatigue Syndrome
Social Security Ruling 99-2p ("SSR 99-2p") confirms that a disability claim involving CFS is evaluated "using the sequential evaluation process, just as for any other impairment." SSR 99-2p at 4. According to SSR 99-2p, CFS is "a systemic disorder consisting of a complex of symptoms that may vary in incidence, duration, and severity . . . characterized in part by prolonged fatigue that lasts 6 months or more and that results in substantial reduction in previous levels of occupational, educational, social, or personal activities." Id. at 1. Symptoms of CFS include "[s]ore throat; [t]ender cervical or axillary lymph nodes; [m]uscle pain; [m]ulti-joint pain without joint swelling or redness; [h]eadaches of a new type, pattern, or severity; [u]nrefreshing sleep; and [p]ostexertional malaise lasting more than 24 hours." Id. at 2. A person with CFS might also exhibit "muscle weakness, swollen underarm (axillary) glands, sleep disturbances, visual difficulties (trouble focusing or severe photosensitivity), orthostatic intolerance (e.g., lightheadedness or increased fatigue with prolonged standing), other neurocognitive problems (e.g., difficulty comprehending and processing information), fainting, dizziness, and mental problems (e.g., depression, irritability, anxiety)."
When accompanied by appropriate medical signs or laboratory findings, CFS can be a medically determinable impairment. Id. at 2. There must be
an impairment result[ing] from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques. The Social Security Administration and regulations further require that an impairment be established by medical evidence that consists of signs, symptoms, and laboratory findings, and not only by an individual's statement of symptoms.
Id. Recognized examples of medical signs, clinically documented over a period of at least six consecutive months, that will establish the existence of a medically determinable impairment in a CFS case include "[p]alpably swollen or tender lymph nodes on physical examination; [n]onexudative pharyngitis; [p]ersistent, reproducible muscle tenderness on repeated examinations . . .; or, [a]ny other medical signs that are consistent with medically accepted clinical practice and are consistent with the other evidence in the case record." Id. at 3. Further, CFS may be established by: (1) laboratory findings including neurally mediated hypotension or an abnormal exercise stress test; and (2) mental findings, including problems with short-term memory, information processing, visual-spatial issues, comprehension, concentration, speech, word-finding, calculation, and anxiety or depression. Id. Citing Ruling 99-2p, we have recognized that "there are no specific laboratory findings that are" widely accepted as indicative of CFS and no test for CFS. Vega v. Comm'r of Soc. Sec., 265 F.3d 1214, 1219-20 (11th Cir. 2001) (holding that the ALJ failed to analyze the effect of CFS on a claimant's ability to do work meaningfully when he rejected CFS as a diagnosis for want of a definite test or specific laboratory findings to support the diagnosis).
B. Medical Opinions
Generally, the opinions of examining or treating physicians are given more weight than non-examining or non-treating physicians unless "good cause" is shown. See 20 C.F.R. § 404.1527(d)(1), (2); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Good cause exists to discredit a physician's testimony when it is contrary to or unsupported by the evidence of record, or it is inconsistent with the physician's own medical records. Phillips, 357 F.3d at 1240-41; Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991) (concluding that good cause existed not to rely on a treating physician's findings when, inter alia, his treatment notes contained unexplained inconsistencies). The ALJ may reject the opinion of any physician when the evidence supports a contrary conclusion. Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir.1985).
Further, when a treating physician makes merely conclusory statements, the ALJ may afford them such weight as is supported by the clinical or laboratory findings and other consistent evidence of the claimant's impairments. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986); see Vega, 265 F.3d at 1220 (holding that the ALJ erred in failing to give the findings and assessments of the treating physicians any weight when the medical evidence and claimant's testimony supported a diagnosis of CFS). When a treating physician's opinion does not warrant controlling weight, the ALJ must nevertheless weigh the medical evidence based on many factors, including the examining relationship, the treatment relationship and the frequency of examination, whether an opinion is amply supported, whether an opinion is consistent with the record, and a doctor's specialization. 20 C.F.R. § 404.1527(d). Where an ALJ articulates specific reasons for failing to accord the opinion of a treating or examining physician controlling weight and those reasons are supported by substantial evidence, there is no reversible error. Moore, 405 F.3d at 1212-13. Here, the ALJ did not accord the treating physician's opinion controlling weight, and D'Andrea challenges his decision.
C. Subjective Symptoms
When a claimant attempts to establish disability through her own testimony concerning pain or other subjective symptoms, we apply a three-part "pain standard," which requires (1) evidence of an underlying medical condition, and either (A) objective medical evidence that confirms the severity of the alleged pain stemming from that condition, or (B) that the objectively determined medical condition is so severe that it can reasonably be expected to cause the alleged pain. Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (stating that this "standard also applies to complaints of subjective conditions other than pain"). "The claimant's subjective testimony supported by medical evidence that satisfies the standard is itself sufficient to support a finding of disability." Id.
"After considering a claimant's complaints of pain, the ALJ may reject them as not creditable, and that determination will be reviewed for substantial evidence." Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). The ALJ must explicitly and adequately articulate his reasons if he discredits subjective testimony. Id. "A clearly articulated credibility finding with substantial supporting evidence in the record will not be disturbed by a reviewing court." Foote v. Charter, 67 F.3d 1553, 1562 (11th Cir. 1995). There is no requirement that the ALJ refer to every piece of evidence, but the credibility determination "cannot merely be a broad rejection which is not enough to enable . . . this Court to conclude that the ALJ considered [the claimant's] medical condition as a whole." Dyer, 395 F.3d at 1210-11(quotations and alterations omitted).
Moreover, the ALJ may not reject a plaintiff's subjective complaints based on the lack of objective evidence alone. Watson v. Heckler, 738 F.2d 1169, 1172-73 (11th Cir. 1984). The ALJ must consider such things as: (1) the claimant's daily activities; (2) the nature and intensity of pain and other symptoms; (3) precipitating and aggravating factors; (4) effects of medications; (5) treatment or measures taken by the claimant for relief of symptoms; and (6) other factors concerning functional limitations. See 20 C.F.R. § 404.1529(c)(3).
After reviewing the record in this case, we conclude that substantial evidence supports the ALJ's finding that D'Andrea's CFS was not a severe impairment. In reaching this conclusion, have considered D'Andrea's argument that the ALJ erred in failing to accord appropriate weight to the opinion of her treating physician; we reject the argument because the ALJ articulated at least one specific reason for disregarding the opinion and the record supports it. We also conclude that the ALJ had ample reason for rejecting the consulting physician's RFC assessment; the physician's own clinical findings undermined the assessment. The ALJ discounted D'Andrea's subjective complaints on credibility grounds, and those grounds are well supported by the evidence. Finally, although the ALJ misconstrued the psychologists' findings, the misconstruction was harmless, as the psychologists' findings do not contradict the ALJ's conclusion that D'Andrea did not have a severe impairment.
In sum, because we conclude that substantial evidence supports the determination that D'Andrea's CFS was not a severe impairment and that she had a RFC to perform her past relevant work, the district court properly refused to disturb the Commissioner's decision and its judgment is due to be affirmed.
AFFIRMED.
1. D'Andrea alleged that she also suffered from debilitating exhaustion, nausea, dizziness affecting balance, hot sweats, cognitive and memory dysfunction, poor concentration, gastrointestinal problems, chest pain, chronic infections, sleep problems, and systematic candidiasis.

The following decision form the U S Circuit Court for the Fifth Circuit will illustrate how a court will evaluate whether a mental or physical condition is severe within the meaning of the Social Security Regulations.
BRUNSON v. ASTRUE
JIMMY D. BRUNSON, Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
No. 09-41148. Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Filed: July 16, 2010.
Before: JOLLY, STEWART, and ELROD, Circuit Judges.
PER CURIAM.
Jimmy D. Brunson appeals the district court's judgment affirming the Commissioner of Social Security's decision that he is not entitled to Social Security disability benefits. Because the Commissioner applied the correct legal standards and because there is substantial evidence to support the decision, we affirm.
I.
Mr. Brunson applied for Social Security disability benefits in July 2002. He alleged that he had been disabled since March 30, 1997, because of back problems, depression, diabetes, and high blood pressure. The date on which he was last insured for purposes of Social Security disability benefits was September 30, 1998. Accordingly, Mr. Brunson had to establish that he was disabled before the expiration of his insured status. See Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992). The Social Security Administration denied his application initially and on reconsideration. Mr. Brunson requested a hearing before an Administrative Law Judge (ALJ). Following the hearing, the ALJ found that Mr. Brunson had a medically determinable impairment related to his back but that, as of September 30, 1998, the date he was last insured, he did not have an impairment or a combination of impairments that was severe within the meaning of the sequential evaluation process used for evaluation of disability benefit claims. The ALJ's decision became the Commissioner's final decision after the Appeals Council denied Mr. Brunson's request for review. The district court affirmed the decision of the Commissioner. Mr. Brunson filed a timely notice of appeal.
II.
Mr. Brunson contends on appeal that (1) the ALJ misstated the record in asserting that there was no evidence of psychiatric treatment prior to the expiration of his insured status; and (2) the ALJ erred by ignoring evidence helpful to Mr. Brunson in deciding that his lumbar impairment is not severe under step two of the sequential analysis. An impairment is severe if it significantly limits an individual's physical or mental abilities to do basic work activities; it is not severe if it is a slight abnormality or combination of slight abnormalities that has no more than a minimal effect on the claimant's ability to do basic work activities. Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985). We review the Commissioner's decision only to ascertain whether it is supported by substantial evidence and whether the Commissioner applied the proper legal standards in evaluating the evidence. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). We may not re-weigh the evidence or substitute our judgment for that of the Commissioner, even if the evidence weighs against the Commissioner's decision. Id.
Mr. Brunson is correct in his assertion that the ALJ misstated the record when he stated that it contained no evidence of any ongoing psychiatric treatment and no evidence that Mr. Brunson was ever prescribed psychotropic medication during the period in question (March 30, 1997 through September 30, 1998). That error, however, is harm less, because the evidence in the record indicates that Mr. Brunson took anti-depressant medication which controlled his symptoms of depression during the relevant time period. Thus he did not have a severe mental impairment prior to September 30, 1998, the date he was last insured. See Johnson v. Bowen, 864 F.2d 340, 347 (5th Cir. 1988) (impairments that reasonably can be remedied or controlled by medication or treatment are not disabling). Accordingly, it would not be appropriate for us to remand the case for the purpose of having the ALJ correct this misstatement.
The ALJ applied the proper legal standard of Stone v. Heckler in determining that Mr. Brunson did not have a severe impairment or a combination of severe impairments during the period from March 30, 1997 through September 30, 1998. Furthermore, substantial evidence in the record supports the ALJ's conclusion that Mr. Brunson's back pain did not impose more than a minimal effect on his ability to engage in basic work-related activities during the relevant period. The fact that the ALJ cited certain evidence that he felt supported his decision does not mean that he failed to consider all of the other evidence in the record. To the contrary, his decision states expressly that it was made "[a]fter careful consideration of all the evidence,"and we see no reason or evidence to dispute his assertion. Indeed, based on our review of all of the evidence in the record, the Commissioner's decision is supported by substantial. That evidence shows that Mr. Brunson injured his back on March 30, 1997. His treating physician, Dr. Williams, recommended physical therapy. In a report dated August 21, 1997, Dr. Williams released Mr. Brunson to full duty work, finding that he had a four percent impairment to the person as a whole. Although Dr. Williams occasionally indicated on forms that Mr. Brunson "can't work," such declarations are not determinative, particularly when considered in the light of her clinical findings. See Frank v. Barnhart, 326 F.3d 618, 620 (5th Cir. 2003) (treating physicians' opinions that claimants are unable to work are legal conclusions for the Commissioner to make). At the hearing, the ALJ asked Mr. Brunson to describe the most severe medical problem that he had that kept him from working. Mr. Brunson mentioned his feet, ankle, dizzy spells, and complications of diabetes, but did not include back pain.
III.
We conclude that the Commissioner's decision is supported by substantial evidence and resulted from application of the correct legal standards. Accordingly, the decision of the district court affirming the Secretary's denial of benefits is
AFFIRMED.

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