socialNsecurity Chap 2

CHAPTER 2 

    Cases From Start To Finish

  

It is rare that a decision of an ALJ is affirmed by the SSA’s Appeals Council. It is even rarer still when the SSA will take a case to the District Court and fight to support the decision of the ALJ. And it is practically unheard of for the SSA to defend the decision of an ALJ at the Circuit Court level. When that happens there is reason to celebrate. I was fortunate enough to experience this rare series of fortuitous events on several occasions in almost 20 years as an ALJ. When a case follows that complete path to a final Agency Decision, it is profitable for instruction and as an illustration. The average claimant will not have to travel this entire journey to a grant of benefits.

Here is a CIRCUIT COURT CASE AS AN EXAMPLE:

Let’s take the case of Jack Smith*[1], a resident of Los Angeles, California who applied for disability insurance benefits (DIB) and Supplemental Security Income (SSI) benefits in October 1992. Claiming an on the job back injury on February 14, 1989, from lifting 75 pounds of metal castings, he filed applications for disability insurance benefits (DIB) and SSI benefits on October 28, 1992. Smith alleged that he had become unable to work since his date last worked (DLW) of March 9, 1989 due to severe pain in his back, legs, neck and head. As a result, he had allegedly also suffered a severe mental impairment, specifically anxiety, depression and alcohol abuse. His Alleged Onset Date (AOD) is March 9, 1989.

His claim was initially denied by the California State Disability Determination Service (DDS). He requested a reconsideration of the DDS denial and was again denied benefits.

He appealed the Reconsideration denial and was given a hearing before Administrative Law Judge (ALJ) London Steverson at the Downey OHA on February 18, 1993. The Social Security hearing is considered a federal hearing. Mr. Smith appeared before the judge alone (that means this was a bench trial and there was no jury present). The Government was not represented. He was represented by his own personal attorney, a member of the California Bar in good standing.

Mr. Smith was initially treated with chiropractic care and physical therapy. On March 27, 1989, a Magnetic Resonance Imaging (MRI) test revealed moderately severe central disc herniations at L4-5 and at L5-S1 of the lumbar spine. After experiencing numbness and further pain, Mr. Smith sought treatment from Dr. Omar Epps, a neurosurgeon. In July 1989, these symptoms abated and Mr. Smith received physical therapy for lower back problems until August 1989. Surgery scheduled for November 11, 1989 was cancelled. Mr. Smith continued to improve until a slip and fall accident in a grocery store on December 19, 1989. After reporting some improvement, he declined acupuncture treatment in January 1990. On February 22, 1990, Dr. Epps determined that Mr. Smith's condition was permanent and stationary, but that he had shown marked improvement in both subjective assessment and objective findings. Dr. Epps concluded that Mr. Smith could perform only light work that did not involve prolonged standing or sitting. Light work involves lifting a maximum of 25 pounds occasionally and 10 pounds frequently.

On August 20, 1991, a California state ALJ found Mr. Smith disabled and eligible for Medi-Cal benefits.

After an auto accident on March 10, 1992, Mr. Smith was treated by Dr. Charlie Luke for headache and back and neck pain. On April 29, 1992, the Los Angeles County and University of Southern California (LAC/USC) Medical Center Emergency Room treated him for chronic back pain. About June 1992, Dr. Luke reported that Mr. Smith had improved sufficiently to discontinue treatment.

On July 25, 1992, Dr. Sammy Kumar reported that Mr. Smith was receiving psychotherapy for depression and anxiety.

Mr. Smith again received treatment at the LAC/USC center from August 5, 1992 to February 10, 1993. From November 1992 to January 1993, he reported pain relief due to epidural blocks. In February 1993, Mr. Smith's treating physician reported that he had no disability. The opinion of a treating physician is entitled to controlling weight.

At the hearing before ALJ Steverson, Mr. Smith testified that his daily routine included reading law, history and other types of books for six hours, and that he watched television for three and a half hours, spent considerable time talking on the phone to friends, cleaned up around the apartment and was able to do his laundry and drive a car. Mr. Smith also testified that he could lift under 20 pounds, walk up and down stairs and play a musical instrument.

 (Standard of Review In The Ninth Circuit.)

A district court's order affirming a Social Security Commissioner's denial of benefits is reviewed by the circuit court de novo. (Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.1996)). The decision by the Commissioner must be upheld, however, if it is supported by substantial evidence and the Commissioner correctly applied the law. (Smolen, 80 F.3d at 1279; Flaten v. Secretary, 44 F.3d 1453, 1457 (9th Cir.1995)). Substantial evidence is more than a mere scintilla, but less than a preponderance. (Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.1992)). The ALJ cannot discount a claim of excess pain without making specific findings supporting that decision. (Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir.1996))

Fortunately, the Standard of Review is the same in all Federal Circuits. A quick glance at the standard in the Sixth Circuit will serve as an illustration.

(Standard of Review In The Sixth Circuit)

The District Court exercises de novo review of district court decisions in Social Security disability cases. White v. Comm'r of Soc. Sec., 572 F.3d 272, 281 (6th Cir.2009); Lindsley v. Comm'r of Soc. Sec., 560 F.3d 601, 604 (6th Cir.2009). The Social Security Commissioner's conclusion will be affirmed absent a determination that the ALJ failed to apply the correct legal standard or made fact findings unsupported by substantial evidence in the record. White, 572 F.3d at 281 (citing 42 U.S.C. § 405(g)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lindsley, 560 F.3d at 604 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Walker v. Sec'y of Health and Human Services, 980 F.2d 1066, 1070 (6th Cir.1992); McGlothin v. Comm'r of Soc. Sec., 299 Fed. Appx. 516, 522 (6th Cir.2008) (noting that substantial evidence is “more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”) (internal quotations omitted).

In deciding whether to affirm the Commissioner's decision, “it is not necessary that the District Court agree with the Commissioner's finding, as long as it is substantially supported in the record.” Beinlich v. Comm'r of Soc. Sec., 345 Fed.Appx. 163, 167 (6th Cir.2009). Even if the District Court might have reached a contrary conclusion of fact, the Commissioner's decision must be affirmed so long as it is supported by substantial evidence. Lindsley, 560 F .3d at 604-05 (administrative findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion) (quoting Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir.1994)); Roe v. Apfel, 211 F.3d 1270, at *7 (6th Cir. April 25, 2000) (unpublished table decision).

 Mr. Smith claimed that the ALJ based his decision that he was not disabled on five incorrect or inadequate reasons.

First, he contends that the ALJ failed to explain why Mr. Smith failed to equal, even if he did not meet, section 1.05 of the Listing of Impairments (the Listings). (Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir.1990)). The ALJ has a duty to make this determination 20 C.F.R. § 416.920(d).

The Ninth Circuit Court found the ALJ's  explanation sufficient. The degenerative disc disease of the claimant's spine, and most particularly the herniated disc shown on MRI studies in August 1990 and in August 1992, did not meet or equal the requisite level of severity of section 1.05(c) of the Listing of Impairments inasmuch as a pain syndrome requiring ongoing treatment for back pain is not shown, and as there had been no dermatomal neurological deficits on clinical examination.

Second: Mr. Smith claimed that the ALJ failed to give any reason for rejecting Dr. Epps's finding that he is restricted from prolonged sitting in violation of the rule that evidence cannot be rejected without any reason. Cotter v. Harris, 642 F.2d 700, 706 (3d Cir.1981). The ALJ does provide a reason, however, for not accepting that particular finding: "The claimant's refusal of back surgery and his refusal of even acupuncture treatment reflects a lack of motivation to improve and return to work."

Third:  Mr. Smith contended that the ALJ incorrectly found that his claims of pain were contradicted by Dr. Luke's medical findings and statements made to Dr. Luke by Mr. Smith. There is substantial evidence for the ALJ's finding.

Fourth: Also Mr. Smith maintained that the ALJ incorrectly found that records of the LAC/USC Medical Center indicated that he was not disabled. There was substantial evidence for the ALJ's finding.

Fifth: Mr. Smith argued that the ALJ incorrectly found a number of inconsistencies in his complaints about continuing and excruciating pain. " 'The ALJ is responsible for determining credibility and resolving conflicts in medical testimony.' "( Saelee v. Chater, 94 F.3d 520, 522 (9th Cir.1996)) (quoting Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir.1989)). In addition to the deference accorded the ALJ's findings of credibility, there was substantial evidence for the ALJ's finding.

Mr. Smith's claim that sufficient evidence existed as to his nonexertional limitations, mental impairment and severe pain, so as to make the ALJ's application of the grids inappropriate was not persuasive. The use of the grids can be appropriate even when a claimant alleges both exertional limitations and nonexertional limitations. ( Bates v. Sullivan, 894 F.2d 1059, 1063 (9th Cir.1990)) , overruled on other grounds,( Bunnell v. Sullivan, 947 F.2d 341, 342 (9th Cir.1991)) (en banc). The ALJ properly applied the grids to Mr. Smith since the ALJ found that the alleged pain did not significantly detract from his exertional capabilities.  Though the ALJ failed to consider whether mental impairment significantly detracted from his exertional capabilities, evidence of mental impairment was not properly submitted to the ALJ. Though Mr. Smith maintained that there were numerous references in the record to his mental impairment, he failed to claim a significant mental impairment in his benefits application, failed to submit a medical or psychological report that such impairment was sufficiently serious to limit work activities, failed to raise it at the hearing, and failed to raise it before the Appeals Council. Mr. Smith's argument that the mentally impaired frequently do not realize that they are impaired as such and thus he should not be penalized for failing to raise the issue was undermined by his attorney also not raising the issue before the Appeals Council. Since Mr. Smith's claim of mental impairment, as a basis for his claim that the ALJ improperly applied the grids, was untimely, therefore the Circuit Court declined to consider it in ascertaining whether the ALJ erred in applying the grids. (Avol v. Secretary of HHS, 883 F.2d 659, 661 (9th Cir.1989))

With respect to Mr. Smith's alleged nonexertional limitation of pain, the ALJ had substantial evidence to support its determination that Mr. Smith's claims of severe and excruciating pain were not sufficiently severe to detract from his exertional capabilities. (See Bates, 894 F.2d at 1063; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir.1985)) (grids inapplicable only if evidence shows that pain prevents claimant from working at any job). There was also substantial evidence to warrant the ALJ's finding that the medical evidence was insufficient and that Mr. Smith's subjective assessment was not credible. Since the ALJ made specific reference as to why Mr. Smith's claims of pain were not entirely credible and the ALJ did not make his finding based on medical evidence alone, there was substantial evidence to support that the ALJ's finding of lack of credibility was proper. (Bates, supra at 1062-63.)

Mr. Smith claimed that the ALJ did not obtain a valid waiver of his right to counsel. Relying on Binion v. Shalala, 13 F.3d 243, 245 (7th Cir.1994), he argued that in order for his waiver to be valid the ALJ should have advised him how an attorney could be of aid, the possibility of a contingency arrangement, limitations on attorney fees and the requirement of court approval of fees. In addition to the above requirements not being controlling for the Ninth Circuit Court, it has been well established that a claimant has to make a showing of the resulting prejudice or unfairness stemming from lack of counsel. (Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir.1985)); Hall v. Secretary of Health, Ed. and Welfare, 602 F.2d 1372, 1378 (9th Cir.1979). Mr. Smith neither established the requisite resulting prejudice nor even argued that any resulting prejudice stemmed from his lack of counsel.

Mr. Smith's claim that the ALJ failed to meet its heavier burden when the claimant is without counsel to "scrupulously and conscientiously probe into, inquire of and explore for all relevant facts," Vidal v. Harris, 637 F.2d 710, 713 (9th Cir.1981), was not persuasive. When the ALJ fails to meet his or her heavier burden for a claimant without counsel, remand is appropriate. Id. at 715. Considering that evidence of mental impairment (including alcohol abuse, anxiety and depression) was not fully raised by Mr. Smith before the ALJ, the ALJ satisfactorily met his heavier burden to explore all relevant facts under Vidal. Though the ALJ failed to obtain medical reports mentioned in state ALJ Hall's decision, whether such reports should have been considered was within the sound discretion of the ALJ. Wilson v. Heckler, 761 F.2d 1383, 1385 (9th Cir.1985). Without a showing from Mr. Smith that the ALJ abused his discretion, the Circuit Court would not upset the ALJ's discretionary judgment.

Mr. Smith argued that the ALJ failed to give due consideration to state ALJ Hall's ruling that he was disabled. The ALJ must explain why significant and probative evidence has been rejected. Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir.1984). The determinations of another agency, however, are not binding on the Social Security Commissioner and in his or her discretion may give it much or little weight. Wilson, 761 F.2d at 1385.

Mr. Smith's reliance on Allen v. Heckler, 749 F.2d 577, 579 (9th Cir.1984) (a prior determination of disability gives rise to a presumption of disability requiring the government to show that a claimant has improved in order to deny benefits), is misplaced. Allen, unlike the instant case, involved a prior determination by the same agency and in order to terminate benefits the government had to show that the claimant had improved. Id.

Substantial evidence exists to support the ALJ's finding that Mr. Smith can perform a full range of sedentary work. Mr. Smith's reliance on Delgado v. Heckler, 722 F.2d 570, 574 (9th Cir.1983) ("A man who cannot walk, stand or sit for over one hour does not have the capacity to do most jobs available in the national economy.") for his claim that he cannot perform sedentary work is not persuasive. Mr. Smith only claims that he cannot sit for prolonged periods, he does not fix a particular duration as to how long that he can or cannot sit. Based not only on objective medical evidence but also on Mr. Smith's description of his daily activities of prolonged reading, watching TV, talking on the telephone etc., and his lack of credibility regarding his claims of severe pain, substantial evidence exists that Mr. Smith can perform sedentary work. Even Dr. Espinosa, the physician whose determinations and diagnoses Mr. Smith principally relies on, opined that Makshanoff could perform light work.

Mr. Smith claims that the ALJ's four cited reasons for concluding that his testimony regarding severe pain was not credible is not based on substantial evidence. Despite Mr. Smith's arguments, there is substantial evidence to support the ALJ's finding that since his medical records show significant improvement in his experiences of pain, his claims of no significant relief from pain are not credible.

 Mr. Smith's argument that substantial evidence does not exist to support the ALJ's second finding that Mr. Smith's refusal of surgery "reflects a lack of motivation to improve and return to work," ER at 8, is not entirely persuasive. Although failure to seek medical treatment cannot be used to infer a lack of credibility of the claimant regarding his or her experience of pain, Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir.1993), the unexplained absence of treatment for pain may be used to impeach credibility. Orteza v. Shalala, 50 F.3d 748, 750-51 (9th Cir.1995). While Mr. Smith's present explanations for the absence of treatment for his pain may be compelling, the explanations were not offered to the ALJ at the hearing. The ALJ's determination was supported by substantial evidence.

 Substantial evidence supports the ALJ's third finding that Dr. Luke's medical records show Mr. Smith's significant improvement and Mr. Smith's statement to Dr. Luke that he felt well undermine Mr. Smith's allegation of continuing severe pain.

 The ALJ's fourth finding that physicians rejected Mr. Smith as a suitable candidate for surgery because his claimed back pain failed to match any anatomical distribution is also supported by substantial evidence. Mr. Smith's argument that allegations of pain cannot be discredited solely on the basis of a lack of objective medical evidence, Penny, 2 F.3d at 957, is not persuasive. The ALJ discredits the pain allegations not merely from objective medical evidence but also from statements made by Mr. Smith about his daily routine. Doing laundry, reading law and history for at least 6 hours a day, playing a musical instrument, watching television and talking on the telephone with friends is incompatible with the pain that Mr. Smith claims. See Fair v. Bowen, 885 F.2d 597, 604 (1989); Orteza, 50 F.3d at 750-51.

 Mr. Smith also claims that if the ALJ noted the disparity between the objective medical evidence and his allegations of severe pain "the possibility of a mental impairment as the basis for the pain should have been investigated." Bunnell, 947 F.2d at 343. Since the ALJ did not consider the possibility of mental impairment, Mr. Smith argues, the ALJ's determination is legally deficient. The ALJ's findings that Mr. Smith's pain allegations were not credible, his refusal to seek treatment, and his lack of motivation to improve and return to work, however, support an inference that the ALJ found Mr. Smith's pain allegations to be exaggerated so as to obtain benefits and not work which would foreclose the necessity of considering mental impairment. See Saelee, 94 F.3d at 522.

 Mr. Smith contends that the magistrate, in adopting the ALJ's incorrect findings, committed three abuses of discretion. First, Mr. Smith argues the magistrate erroneously found that the ALJ properly developed the record since the magistrate found that there was no reason for the ALJ to inquire into a mental impairment. As discussed in the analysis to issue III, the ALJ satisfactorily met his heavier burden, under the Vidal standard, to develop a full record.

 Second, Mr. Smith claims the magistrate incorrectly agreed with the ALJ that Mr. Smith did not meet section 1.05 of the listings without considering whether he equaled the listings. As discussed in the analysis of issue I, there is substantial evidence that the ALJ fully considered, under Marcia, whether Mr. Smith equaled, even if he did not meet, the Medical Listings of Impairments.

 Third, Mr. Smith asserts that the magistrate erroneously accepted the ALJ's determination to reject Dr. Espinosa's opinion that Mr. Smith was precluded from prolonged sitting. As discussed in the analysis of issue I, given the substantial evidence regarding Mr. Smith's daily activities and his unwillingness to seek treatment, the magistrate properly accepted the ALJ's determination.

CONCLUSION

We AFFIRM the district court's grant of summary judgment in favor of Shirley S. Chater, Commissioner of the Social Security Administration.

The following case is a District Court decision. It is well written, but the claimant lost. He will have to appeal to the Circuit Court. If this were a medical situation, I would have to say that in this case “the operation was a success, BUT the patient died”.

BONSANTO v. ASTRUE

LUCY BONSANTO, Plaintiff,

v.

MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

Case No. 2:09-cv-366-FtM-DNF.

United States District Court, M.D. Florida, Ft. Myers Division.

September 28, 2010.

OPINION AND ORDER

DOUGLAS N. FRAZIER, Magistrate Judge.

Plaintiff filed an application for a period of disability and disability insurance benefits [DIB] and Supplemental Security Income [SSI] on February 15, 2006, alleging an onset of disability of January 1, 2002 . Plaintiff has acquired sufficient quarters of coverage to remain insured through June 30, 2004. The Agency denied this application in initial and reconsideration determinations. Plaintiff timely requested and appeared at a hearing on October 16, 2007 before Administrative Law Judge (ALJ) Steven D. Slahta. In a hearing decision dated February 23, 2008, the ALJ found Plaintiff not disabled. The ALJ's hearing decision rested as the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review, on April 24, 2009. [Tr. 3-5]. The ALJ's final hearing decision is now ripe for review under sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383 (c)(3).

For the reasons set forth below, the Court finds that the Commissioner's decision is due to be AFFIRMED.

I. SOCIAL SECURITY ACT ELIGIBILITY, THE ALJ'S DECISION AND STANDARD OF REVIEW

Plaintiff is entitled to disability benefits when she is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to either result in death or last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423 (d) (1)(A); 1382c(a)(3)(A). The Commissioner has established a five-step sequential evaluation process for determining whether Plaintiff is disabled and therefore entitled to benefits. See 20 C.F.R. § 416.920(a)-(f); Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997). Plaintiff bears the burden of persuasion through Step 4, while at Step 5 the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

The decision of Administrative Law Judge Steven D. Slahta, dated December 10, 2007, found Plaintiff was not under a disability as defined in the Social Security Act, at any time from January 1, 2002, (alleged onset date), through June 30, 2004 (date last insured "DLI") 20 C.F.R. 404.1520(g).

At Step 1 the ALJ found Plaintiff had not engaged in substantial gainful activity since her alleged onset date of January 1, 2002, through her date last insured of June 30, 2004. (Tr. 13). At Step 2 the ALJ found Plaintiff suffered from severe impairments of fibromyalgia, colitis, irritable bowel syndrome, obesity, and depressive disorder. At Step 3 the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled 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, 404.1526, 416.920(d), 416.925 and 416.926). At Step 4 the ALJ determined Plaintiff has the residual functional capacity to perform a wide range of sedentary work with a sit/stand option. At Step 5 the ALJ found Plaintiff (through June 30, 2004), was unable to perform any of her past relevant work as a cook, culinary manager, teacher, and retail salesperson.

In reviewing a decision by the Commissioner, the District Court is bound to uphold the Commissioner's findings if they are supported by substantial evidence and based upon proper legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997). Factual findings are conclusive if supported by "substantial evidence," which is more than a scintilla and consists of such relevant evidence as a reasonable person would accept as adequate to support a conclusion. Lewis v. Callahan, 125 F.3d at 1440. The Court does not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). If the Commissioner's decision is supported by substantial evidence, the Court must affirm even if the evidence predominates against the decision. Wilson v. Barnhart, 284 F.3d at 1291. However, the Court must conduct an exacting examination of whether the Commissioner followed the appropriate legal standards in deciding the claim and reached the correct legal conclusions. Wilson v. Barnhart, 284 F.3d at 1291. The failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted will mandate reversal. Keeton v. Department of Health and Human Servs., 21 F.3d at 1066.

II. Review of Facts and Conclusions of Law

A. Background Facts:

Plaintiff was born on July 18, 1968, and was thirty-nine years old at the time of the February 28, 2008, hearing decision. Plaintiff reported she has a high school education, two years of college and has worked in the past as a cook, culinary manager, teacher, and retail salesperson. Plaintiff reports her disability began January 1, 2002, due to fibromyalgia, colitis, irritable bowel syndrome, obesity, and depressive disorder. After review of the medical evidence and testimony at the hearing from Plaintiff, the ALJ found Plaintiff not disabled.

The ALJ found Plaintiff had the residual functional capacity (RFC) for a wide range of sedentary work with a sit/stand option. The ALJ found that Plaintiff could occasionally climb, balance, kneel, stoop, crouch, and crawl and precluded exposure to hazards. The ALJ limited Plaintiff to unskilled, low stress work defined as one to two step tasks, routine repetitive tasks, working primarily with things rather than people, and entry level positions. Plaintiff could not return to her past relevant work. Relying on the testimony of a vocational expert (VE) and the Medical Vocational Guidelines (Grids) as a framework for decision making, the ALJ found that other work existed in significant numbers in the national economy that Plaintiff could perform. The ALJ found Plaintiff not disabled.

Plaintiff has an extensive history of gastric conditions, including irritable bowel syndrome, and reflux disease. On March 9, 2003, Plaintiff was diagnosed with probable acute cholecystitis, reflux disease, and irritable bowel syndrome ("IBS"). Plaintiff underwent surgery several days later and was diagnosed with acute calculous cholecystitis. Plaintiff continued to receive treatment through October 2004 with Dr. Andrew Conn.. On October 19, 2004, Plaintiff presented with abdominal cramping and frequent diarrhea. On October 27, 2004, Dr. Conn performed a colonoscopy. Dr. Conn's notes post-op reveal "colon polyp, normal colon, probable irritable bowel syndrome ("IBS").

Plaintiff's abdominal pain continued to be problematic, resulting in an additional emergency room visit on August 18, 2005, (past "DLI" of June 30, 2004) where Plaintiff was treated by Dr. A. Lafferty. Plaintiff was diagnosed with abdominal pain, vomiting and diarrhea with possible colitis. Plaintiff received normal saline, Levaquin, Flagyl, Phenergan and Dilaudid and was given an out-patient prescription of Flagyl, Leavquin, Phenergan and Vicodin. Dr. Lafferty's report further stated that Plaintiff's "[c]omplete blood count is within normal limits. Serum electrolytes were within normal limits with the exception of the glucose being 100. Liver function tests and lipase within normal limits. Urine pregnancy test negative. Urinalysis is normal".

Through September 2005, Plaintiff was treated by Dr. Asif H. Choudhury. Plaintiff was diagnosed with abdominal pain and referred for further testing. On September 6, 2005, Dr. Choudhury performed an esophagogastroduodenoscopy with biopsy and colonoscopy. Plaintiff's post-operative diagnosis was gastritis.

As of September 19, 2005, Plaintiff reported biliary type diarrhea. On September 21, 2005, Dr. Choudhury performed the following procedures: endoscopic retrograde, cholangiopancreatography with sphincterotomy. Dr. Choudhury post-operative diagnoses reflects: "[B]iliary dysfunction with Sphincter of Oddi Dysfunction, status post sphincterotomy was done and balloon sweeping was done without any evidence of any stone."  "[A]SSESSMENT: Most likely biliary Dysfunction with Sphincter of Oddi Dysfunction causing the problem, status post sphincterotomy was done".

Plaintiff was examined and treated by Jack Clark, DO, on March 8, 2006 for abdominal pain. Plaintiff reported that "everything hurts". Plaintiff also reported being in pain for the past five years and having ongoing digestive symptoms with abdominal distress. She reported migraine headaches, anxiety, colitis, "IBS", muscle and bone pain and numbness in her legs and the corners of her mouth. Dr. Clark's examination also revealed Plaintiff was morbidly obese and looked depressed. Plaintiff had trigger points in the trapezius area, gluteal locations, trochanteric bursa, left elbow and low cervical area. Dr. Clark diagnosed "[f]ibromyalgia as part of effective spectrum disorder with migraine headache, chronic abdominal and pelvic pain, depression and anxiety". Plaintiff returned to Dr. Clark in October 2007 with complaints of widespread pain. Dr. Clark noted that he had not seen Plaintiff in over a year. Examination revealed myofascial trigger point tenderness and allodynia. However, Plaintiff's motor strength was intact.

State Agency Physician Ronald Kline reviewed Plaintiff's medical records in May 2006, and found that she could occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds. Dr. Kline found that Plaintiff could sit, stand and/or walk for six of eight hours (Tr. 317). Dr. Kline found that Plaintiff could occasionally climb, balance, stoop, kneel, crouch, and crawl. Specifically, Dr. Kline found Plaintiff to be:

"[m]orbidly obese with HX IBS and alleging diffuse pains consistent with fibromyalgia. Recent Cellulitis right foot and talar fx, now healed. 69" 284 lbs BP 112/70. Recent Exams show multiple tender trigger points but are otherwise normal".

State Agency Physician, Timothy Foster, Ph.D. psychologist, reviewed Plaintiff's medical records on May 16, 2006, and determined Plaintiff to be mildly restricted in activities of daily living; mildly restricted in maintaining social functioning, moderately restricted in maintaining concentration, persistence or pace, with no episodes of decompensation. Dr. Foster's notes state:

"[T]his is a 37 yr old female at initial alleging fibromyalgia, insomnia as well as alleging depression. There is no hx of psych treatment. Cl was sent to examining Dr. Zsigmond for current psych interview and MSE. Dr. Zsigmond gives only the dx of Adjustment disorder to this applicant. I am not finding severe functional limits from mental at this time".

State Agency Physician, Dr. Laura Browning reviewed Plaintiff's medical records in November 2006 and also found that she could occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds. Dr. Browning found Plaintiff could sit, stand and/or walk for six of eight hours and found no postural limitations. Dr. Browning's notes state:

"... In 9/05 all tests, including EGD, colonoscopy, CAT scan of the abdomen and pelvis, were negative. She has had cholescystesctomy in the past. She underwent a total abdominal hysterectomy in 10/05 secondary to pelvic pain, fibroids and ovarian cysts. 3/06 follow-up showed no complaints and the pelvic exam was negative. In 3/06 she also underwent a full physical exam for possible Fibromyalgia — at that time she weighed 289 lbs., her lungs were clear, there was" FROM" [full range of motion] of all joints — the remainder of the exam was also unremarkable.

Dr. Nancy Dinwoodie, reviewed Plaintiff's medical records on November 16, 2006 and completed the Psychiatric Review Technique Forms ("PRTF"). Plaintiff was noted to be mildly restricted in activities of daily living; mildly restricted in maintaining social functioning, moderately restricted in maintaining concentration, persistence or pace, with no episodes of decompensation. Dr. Dinwoodie notes state:

"[C]1 is a 38 year old female alleging disability to chronic pain and anxiety. Cl was in Ruth Cooper CSU 08-06 got 1 day. Cl learned that her husband was with another woman. Cl OD'ed and was hospitalized. Cl had labile mood and was very attention seeking. DX Adjustment Disorder and Cocaine and Benzodazepine abuse. MER revealed that she had questionable credibility. Cl has had a recent life crisis in regard to her husband. Cl related that she tried to take her life, but she denied suicidal intent in the hospital. This goes along with the statement that she was needy and attention seeking".

On January 3, 2008, Plaintiff was examined by Claudia Zsigmond, Psy.D. (Dr. Zsigmond completed a General Clinical Evaluation with Mental Status, Memory Test Assessment and Completion of Mental Functional Capacity Form provided by the Office of Disability Determinations). Plaintiff reported to Dr. Zsigmond that in August of 2006 she was psychiatrically hospitalized following an overdose on prescription medications and Cocaine. Plaintiff was placed under the Baker Act for approximately one week until she mentally stabilized. Since then Plaintiff has been treated on an out-patient basis and receives pastoral counseling. Dr. Zsigmond noted:

"[H]er prognosis is poor due to her poorly managed mental illness and limited coping skills. On the AMS-III she obtained an immediate Memory score of 69 and General Memory score of 66 placing her in the Extremely Low range of memory functioning. However, her poorly managed mental illness and poor concentration impaired her performance".

"[R]ECOMMENDATION: "[O]btain health Insurance and continue appropriate medical care, including a neurological consultation given her report of recent "mini-stroke". She would also benefit from individual counseling to address depression and enhance her coping skills".

Plaintiff was seen by Stanley Rabinowitz, M.D., S.C. on December 22, 2007 at the request of the Office of Disability Determinations. Plaintiff's chief complaint was that she was suffering from fibromyalgia. Dr. Rabinowitz found Plaintiff to be morbidly obese and noted she complained of "[p]ain with any range of motion testing or orthopedic maneuver." "[I] indicated to her how difficult it would be to do an adequate examination if she couldn't try to do things on her own. She had great difficulty doing this, and finally consented to trying to do an appropriate examination. Significant symptom magnification and embellishment were evident." IMPRESSIONS: "Chronic fibromyalgia with multiple somatic complaints; history of chronic depression, history of irritable bowel syndrome and right upper extremity pain, etiology undermined."

B. SPECIFIC ISSUES

I. DID COMMISSIONER FAIL TO ARTICULATE REASONS FOR ONLY CREDITING TREATING AND CONSULTATIVE OPINIONS AND DISCREDITING THE OPINIONS OF OTHER MEDICAL SOURCES.

Plaintiff contends the ALJ failed to adequately explain the basis for selectively crediting or discrediting multiple opinions from multiple medical sources. Plaintiff also contends that the rationale for discrediting these opinions centers mostly on the alleged lack of "objective" evidence, despite the continuous findings of trigger points and Plaintiff's diagnosis of severe fibromyalgia.

In June 2006, Dr. Asif Choudbury's opinion was Plaintiff was unable to work due to a fibromyalgia attack. The ALJ gave little weight to this opinion as the examination showed only diffuse abdominal tenderness. Dr. Choudbury noted that Plaintiff's gastro-intestinal symptoms worsened when her fibromyalgia worsened. However, the record shows that gastrointestinal work-ups were repeatedly within normal limits with little objective evidence to explain Plaintiff's symptoms. Further, Dr. Choudhury noted that "[P]laintiff's rheumatologist should decide whether or not Plaintiff needs disability due to fibomyalgia", indicating he was unsure about his opinion. The ALJ properly found that Dr. Choudhury's limitations were inconsistent with the evidence of record.

Dr. Clark notes show that April 2006 through August 2006, Plaintiff showed positive fibomyalgia trigger points. However, he also noted that there were no deformities or synovitis over the joints, Plaintiff joints had full range of motion. Further, he noted that Plaintiff's motor strength was intact throughout and there was equal and symmetric deep tendon reflexes. The ALJ properly found that Dr. Clark's limitations were inconsistent with the evidence of record.

Dr. Rabinowitz's notes show that he was unable to test the Plaintiff's gait because of her dependence on assistance (holding on to objects in the room) and a quad cane when ambulating. Further, that "her range of motion testing was impossible to adequately perform because Plaintiff complained of significant pain with even minimal range of motion testing of the ankles, knees, hip, and shoulders." Significantly, there was no evidence of active joint inflammation, deformity, instability, or contracture. There was no evidence of paravertebral muscle spasm. Straight leg raising was negative bilaterally in the sitting position and postive bilaterally in the supine position. Grip strength was 4/5 in the left hand and could not be assessed in the right hand. Additionally, as noted above Dr. Rabinowitz found that Plaintiff was embellishing and magnifying her symptoms.

The ALJ also properly found that Dr. Rabinowitz's findings were based upon Plaintiff's subjective complaints instead of valid objective findings. (Tr. 19). The ALJ reviewed the medical evidence of record and found the opinions of Dr. Clark and Dr. Rabinowitz's were not supported by the medical evidence of record. (Tr. 19). Substantial evidence supports the ALJ's conclusion that Plaintiff is capable of a wide range of sedentary work.

II. DID COMMISSIONER ERR IN RELYING ON "VE" TESTIMONY THAT CONFLICTS WITH THE DICTIONARY OF OCCUPATIONAL TITLES

Plaintiff argues that the ALJ erred in relying on the vocational expert's ("VE") testimony that conflicted with the Dictionary of Occupational Titles because the only occupations listed require more than the ability to perform one to two step tasks.

Plaintiff's "RFC" was for a wide range of sedentary work with a sit/stand option; "[s]he can occasionally climb, balance, kneel, stoop, crouch, and crawl" and was precluded from exposure to hazards. Plaintiff was limited to unskilled, low stress work defined as one to two step tasks, routine repetitive tasks, working primarily with things rather than people, and entry level positions. Plaintiff's "RFC" precluded her from performing her past relevant work; therefore, the burden of production shifted to the Commissioner.

To meet this burden, the Commissioner must show the existence of a significant number of other jobs in the national economy that the claimant is capable of performing, given her vocational profile and "RFC" Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987); Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir 1983). If an ALJ finds that a claimant cannot perform a full range of work within a given exceptional level, "VE" testimony is the preferred method to determine whether the claimant's non-exceptional impairments further diminish her ability to work at that level 20 C.F.R. §§ 404.1561, 416.961; Social Security Ruling (SSR) 83-12; see also Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).

To determine the extent to which these limitations erode the unskilled sedentary occupational base, the ALJ asked the "VE" whether jobs exist in the national economy for an individual with Plaintiff's age, education, work experience, and residual functional capacity. The "VE" testified that given all the factors the individual would be able to perform the requirements of representative occupations such as: surveillance systems monitor (DOT code 379.367-010: sedentary; SVP 2; 200 local jobs; 1,000 state jobs: 100,000 national jobs) and semi-conductor bonder (DOT code 726.685-0) and determined that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform (20 C.F.R. 404.1560 (c), 404.1566, 416.96(c), and 416.966).

The ALJ asked the "VE" whether an individual with Plaintiff's "RFC" and other vocational characteristics could perform her past relevant work or other work . The "VE" testified that such an individual could not perform Plaintiff's past relevant work, but could perform other work, including the jobs of surveillance system monitor and semi-conductor bonder as listed above . The "VE's" testimony was based upon a hypothetical question that fairly set out all of Plaintiff's limitations. The ALJ, therefore properly relied on the "VE's testimony to find that Plaintiff could perform other work and was not disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). The documentary evidence and an analysis of Plaintiff's testimony supports the ALJ's "RFC" determination and his hypothetical question to the "VE". Therefore, pursuant to SSR 00-4p, the vocational expert's testimony is consistent with the information contained in the Dictionary of Occupational Titles. Thus, Plaintiff failed to prove that a material inconsistency actually existed between the "VE"'s testimony and the "DOT".

The ALJ applied the correct legal standards in evaluating Plaintiff's case, and substantial evidence supports the ALJ's finding that Plaintiff was not disabled.

C. CONCLUSION

For the foregoing reasons, the ALJ's decision is consistent with the requirements of law and supported by substantial evidence. Therefore, based on the application for a period of disability and disability insurance benefits protectively filed on February 15, 2006, Plaintiff is not disabled under sections 216(I) and 223(d) of the Social Security Act.

Based on the application for Supplemental Security Income protectively filed on February 15, 2006, Plaintiff is not disabled under section 1614(a)(3)(A) of the Social Security Act.

Accordingly, the decision of the Commissioner is AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk of the Court is directed to enter judgment dismissing this case and thereafter, to close the file.

DONE AND ENTERED.

1. Both parties have consented to the exercise of jurisdiction by a magistrate judge, and the case has been referred to the undersigned by an Order of Reference signed by Judge Richard A. Lazzara dated September 1, 2009. (Doc. 16).

2. Rheumatologists may be better qualified to determine the effects of fibromyalgia because not all doctors are trained to recognize this disorder. See Stewart, 2000 U.S. App. LEXIS 33214, at *8 (citation omitted); see also Burroughs v. Massanari, 156 F.Supp. 2d 1350, 1367 (N.D. Ga 2001 (acknowledging that a specialist in rheumatology is better qualified to diagnose fibromyalgia and determine its effects on an individual); 20 C.F. R. § 404.1527(d)(5) (stating that specialists' opinions on medical issues related to their area of specialty are generally given more weight).

3. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills. (SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).

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[1]*NOTE: The name and location of the claimant has been changed.

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