Ford v. SSA CV-04-194-PB 07/07/05
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Alichia M. Ford
v. Case No. 04-CV-194-PB Opinion No. 2005 DNH 105 Jo Anne B. Barnhart, Commissioner Social Security Administration
MEMORANDUM AND ORDER
Alichia Ford applied for Disability Insurance Benefits
("DIB") on May 6, 2002.1 Ford alleged that she became disabled
on May 11, 2000 due to nerve changes and spinal cord damage
resulting from encephalomyelitis.2 Her application was denied on
July 30, 2002. At Ford's reguest, an administrative hearing to
review the denial was held on May 1, 2003 in front of
Administrative Law Judge ("ALJ") Edward G. Hoban. In a September
26, 2003 order, ALJ Hoban once again denied Ford benefits. Ford
1 Ford also applied for Supplemental Security Income ("SSI") payments on May 6, 2002, with a protective filing date of March 21, 2 002.
2 Encephalomyelitis is an acute inflammation of the brain and spinal cord. Stedman's Medical Dictionary 507 (25th ed. 1990) ("Stedman's") requested review of that decision, and on April 1, 2004, the
Appeals Council denied her request for further review, makinq the
ALJ's determination the final decision of the Commissioner. See
20 C.F.R. § 404.981. Ford now seeks reversal of the
Commissioner's decision.
I. BACKGROUND3
A. Education and Work History
Alichia Ford was born on March 13, 1976, and was twenty-
seven years old when ALJ Hoban issued his decision. She is a
hiqh school qraduate, and her past relevant work include jobs as
a jewelry assembly worker, a sales clerk for a florist and a
qreetinq card store, and an assistant manaqer of a shoe store.
Ford reportedly left her last job because of pain and stress.
B. Medical History
Ford was admitted to Dartmouth Hitchcock Memorial Hospital
on Auqust 4, 1999 in an altered mental state with diffuse body
pain. She was larqely unresponsive to auditory and tactile
3 Unless otherwise noted, the Backqround facts are drawn from the Joint Statement of Material Facts (Doc. No. 7) submitted by the parties pursuant to Local Rule 9.
- 2 - stimulus. A magnetic resonance imaging ("MRI") of her brain
taken the same day was essentially unremarkable, though an August
8 MRI that included images of her spinal cord showed high signals
in the cervical spine. Further, an August 5 electroencephalogram
("EEC") produced results consistent with encephalopathy.4 Based
on these findings. Ford was diagnosed with meningoencephalitis5
and was treated with intravenous antibiotic and antiviral
medications, as well as steroid therapy. Even after her mental
state ultimately returned to normal, however, she continued to
suffer from bilateral lower extremity weakness and diminished
strength, which at times left her unable to walk. Despite these
infirmities. Ford made dramatic improvements in muscle strength
while hospitalized, largely due to physical therapy and
occupational conditioning. Hence, she was "much improved" and
walking independently on the parallel bars as well as
transferring in and out of a wheelchair by the time she was
discharged on August 13, 1999.
4 Encephalopathy is any degenerative disease of the brain. See Stedman's 508.
5 Meningoencephalitis is an inflammation of the brain and its membranes. Stedman's 943.
- 3 - Ford was examined by Dr. Alida Griffith at the Hitchcock
Clinic on September 1, 1999. Dr. Griffith's treatment notes
refer to an MRI revealing increased signal in the thoracic spine.
Ford told Dr. Griffith that she was doing well at home and could
walk without much difficulty, but that her left leg was still
weak. Her physical examination was largely normal, except for
4/5 strength in the right lower extremity, a slight decrease in
vibration sensitivity in the distal lower extremities, and a
slightly unsteady tandem gait. Ford also reported urinary
incontinence, and Dr. Griffith referred her for a urology
consultation. Dr. Griffith instructed Ford to return for a
follow-up in six months.
Instead, Ford returned to Dr. Griffith on October 10, 2000.
Ford explained that she had been doing "pretty well" since being
discharged from the hospital, but complained of an odd feeling in
her legs, with sensitivity and dysethesia6 to hot and cold
temperatures. Ford also reported a jerking sensation and motion
in her legs. A physical examination revealed 4/5 strength in her
right hip flexor and knee extensor, and she complained of pain
6 Dysethesia is a condition in which a disagreeable sensation is produced by ordinary stimuli. Stedman's 476.
- 4 - with cold sensation below the knee, while warm stimulus felt like
pressure. Dr. Griffith opined that Ford's symptoms were the
lingering effect of acute disseminated encephalomyelitis,
although they could have been an unusual presentation of multiple
sclerosis. Ford reported ongoing urinary freguency, though she
admitted that she had not followed up with Dr. Griffith's prior
referral to a urologist. Dr. Griffith gave her a trial dose of
Neurontin for her dysesthesias and leg jerking and again referred
her to a urologist.
Ford next saw Dr. Griffith on December 12, 2000. She
complained of urinary freguency, painful leg spasms, and
difficulty sleeping. The Neurontin had caused intolerable side
effects, including drowsiness and dizziness. A physical
examination revealed that Ford's lower extremity strength was 5/5
and her sensation was intact, except for a small area of
hypesthesia7 on her left thigh. Dr. Griffith believed Ford's
symptoms were secondary to a static lesion of the thoracic spinal
cord. Although she again failed to keep Dr. Griffith's urology
referral. Ford assured Dr. Griffith that she would see a
7 Hypesthesia is diminished sensitivity to stimulation. Stedman's 747.
- 5 - urologist closer to her home. Dr. Griffith prescribed Ditropan
for spastic bladder and Baclofan as a muscle relaxant and
antispastic agent.
Ford next sought medical care on July 17, 2002, after filing
her application for disability benefits, when she was examined by
Dr. Lawrence Jenkyn. Dr. Jenkyn observed that Ford was not
taking any medication for pain. Upon examination. Ford had 5/5
strength in all four extremities, with increased tone in the
lower extremities. Although her sensation was intact, cold
stimulus to her feet resulted in withdrawal responses due to
burning pain that she experienced subjectively. A mental status
exam revealed normal mental status, speech and language
functions, visual fields, and cranial nerves. Her gait and
station were normal. Dr. Jenkyn believed that Ford was suffering
from the chronic after-effects of encephalomyelitis. He opined
that her burning dysesthesias might respond to Baclofen, which
"probably should be offered to her at some point."
Ford returned to Dr. Jenkyn for a follow-up neurological
consultation on April 21, 2003. She reported increasing
difficulty with her right hand, which had caused her to drop
things unpredictably. She also reported that her lower extremity
- 6 - pain and spasticity were "as bad as ever." Ford stated that she
had tried several over-the-counter medications, but had never
taken the Baclofen that Dr. Jenkyn had prescribed.
Dr. Jenkyn referred Ford to psychologist Lewis Sussman on
March 26, 2003 for a clinical interview with psychometric
testing, in connection with her Social Security disability
appeal. Ford told Dr. Sussman that physical activities such as
lifting and bending, staying in one position for an extended
period of time, and stress worsened her pain, but that she got
temporary relief from a hot bath or shower. Ford estimated that
she got about four hours of non-restorative sleep each night and
awakened several times per night. She noted that she was not
taking any prescription medications and complained of low energy
level and motivation, decreased appetite with weight loss, and
difficulty with her memory and concentration. Ford attributed
this in part to a motor vehicle accident she was involved in when
she was 17 years old. Ford described her mood as edgy,
irritable, and depressed, but denied that she was suicidal.
Dr. Sussman thus saw no evidence of abnormal thought process
or content. He did not think Ford was suffering from a
psychological disability that would prevent her from returning to
- 7 - work, but he did state that she would be a good candidate for
behavioral pain management counseling. He believed that she also
needed medication for depression and sleep. Although he
performed no formal testing, he opined that Ford had some memory
and attention problems, and thus recommended neuropsychological
testing and counseling.
Ford's attorney referred her to industrial rehabilitation
therapist Bradford Shedd for a Functional Capacity Evaluation
("FCE"). Shedd conducted this testing on March 26 and March 27,
2003 and issued his report on April 2, 2003. He concluded that
Ford's work capacity was for "full-time sedentary physical demand
level, mostly seated."8 During the evaluation. Ford demonstrated
sitting capacity in the range of 1 to 59 minutes, with an average
of 16 minutes. She showed a standing capacity within an 8 to 29
minute range, with an average of 17 minutes. Shedd indicated
that Ford could occasionally lift up to eight pounds, with a one
time maximum lift of 12 pounds. He did not note any walking.
8 Shedd's conclusions referenced the Department of Labor's definition of sedentary work as "reguir[ing] sitting for more than six hours out of an eight-hour workday, lifting no more than 10 lbs. on an occasional basis, with possible freguent lifting of small objects weighing less than 10 lbs." reaching, vision, or memory and attention limitations, but he
indicated that Ford should avoid stooping and bending. Effort
screening tests revealed that Ford gave consistent effort
throughout the testing, and thus the results gave a reasonable
estimate of her work capacities. Shedd recommended that she seek
pain management counseling.
Ford underwent a neuropsycholgical examination at Dartmouth
Medical Center on July 16, 2003. Neuropsychologist Robert Roth
conducted extensive intelligence, memory, motor function, and
mood testing. Ford's scores ranged from low average to high
average. Her language skills were all in the average or high
average range, and her mood screening indicated moderate symptoms
of depression, without suicidal ideation, and severe self-
reported anxiety.
Dr. Roth concluded that Ford's overall intellectual
functioning was in the average range. He identified deficits in
complex problem solving, with a mild relative weakness for
cognitive flexibility. Ford's other executive functions,
including visual memory, memory for structured verbal
information, attention, and fine motor speed and coordination,
were intact. Her test results were consistent with her history of traumatic brain injury and encephalomyelitis. Dr. Roth
recommended that Ford break down complex tasks into smaller, more
manageable pieces, and that she take notes and occasional short
breaks.
C. Administrative Evidence
Ford filed a Disability Report with Social Security on April
10, 2002. In that report, she indicated that she was able to
carry her 18-pound child to the car and back. She noted that she
could not sit, stand, or walk for longer than 20 minutes, and
that she had difficulty climbing stairs and getting up after
bending over for too long. She also reported that sustained
activity caused pain in her back and legs, and that her legs
tired very guickly. Finally, she stated that on a good day her
concentration was "pretty good," but that she had trouble
concentrating if she was in pain.
Ford completed an Activities of Daily Living ("ADL")
guestionnaire on May 23, 2002. She reported cooking two times
per week and grocery shopping once per month. She indicated that
she was able to clean and do laundry two or three times per week
with the help of a neighbor. She also indicated that she left
the house twice per day, to drive her children to and from
- 10 - school.
On July 25, 2002, Dr. Charles Header, a state agency
consultant physician, reviewed Ford's file and completed a
Residual Functional Capacity ("RFC") assessment. He determined
that Ford retained the ability to occasionally lift up to 20
pounds and frequently lift up to ten pounds; that she could
stand, walk, or sit for about six hours in an eight hour workday,
and was otherwise unlimited in her ability to push or pull with
her upper and lower extremities. Dr. Header also indicated that
she was limited to only occasional postural actions such as
balancing, stooping, kneeling, and crouching. He found no
manipulative, visual, communicative, or environmental
limitations. In support of his conclusions. Dr. Header noted
that Ford was able to drive, do some chores, and shop with
assistance, and that she used no ambulatory device and did not
require daily narcotic analgesics.
D. Ford's Testimony
Ford, who was represented by counsel, testified at the Hay
1, 2003 hearing before ALJ Hoban. There she explained that she
had trouble doing housework because the motion irritated her
back, and that she was further unable to cook or do dishes, lift
- 11 - a gallon of milk without difficulty, or pick up her children,
ages seven, five, and one.
Ford testified that Dr. Jenkyn told her that her
encephalomyelitis had eaten away part of her spinal cord, causing
nerve damage and resulting in back and leg pain. She said her
legs regularly "jumped," and occasionally would give out if she
was standing. Ford also reported that her right hand would
sometimes "let go for no apparent reason." She explained that
she had pain every day, although some days were worse than
others. On a bad day, she reported having to lie down four or
five times for 30 to 45 minutes each time, and that she had at
least three bad days each week.
Ford also testified that she returned to her job as an
assistant manager in the shoe store after her hospitalization in
August 1999, but stopped working after several months because she
could no longer do the job. She explained, for example, that she
was unable to kneel, reach, and move the shoe boxes as the job
reguired, and that she was very tired and occasionally fell
asleep while at work. Ford then testified that she was unsure if
she could do a full-time sedentary job, in part because she could
not sit for longer than 20 minutes.
- 12 - E. Vocational Expert's Testimony
Vocational Expert ("VE") James Parker also testified at the
hearing. He explained that Ford's past work as an assistant
manager at a shoe store would be classified as light work by the
Dictionary of Occupational Titles, but as medium work based on
her description of the job. He testified that her work as a
sales clerk was semi-skilled and ranged from light to medium and
her work as a jewelry assembler was unskilled and ranged from
sedentary to light.
The ALJ asked VE Parker to consider a hypothetical claimant
with Ford's work history and physical capacity for light work, as
set forth in Dr. Header's RFC assessment. VE Parker testified
that such a claimant could perform Ford's past work as a sales
clerk, but not her work at the shoe store.
Based on his examination of Ford's April 2, 2003 FCE,
however, VE Parker testified that a claimant with all the
limitations identified in that report could not perform any of
Ford's past work. Nevertheless, he stated that such a claimant
could work as a surveillance system monitor, an order clerk, or a
jewelry repairer. After accounting for Ford's need to alternate
between sitting and standing, VE Parker testified that such an
- 13 - accommodation would reduce the number of available jobs in New
Hampshire and nationally by approximately one-half.
Next, VE Parker stated that a claimant with the limitations
testified to by Ford at the hearing, including her need to lie
down for thirty to forty-five minutes, could not sustain any
employment, including the three jobs he identified earlier. VE
Parker indicated that his testimony was consistent with the
information in the Dictionary of Occupational Titles.
II. STANDARD OF REVIEW
After a final decision by the Commissioner denying a
claimant's application for benefits, and upon a timely reguest by
the claimant, I am authorized to review the pleadings submitted
by the parties and the transcript of the administrative record
and enter a judgment affirming, modifying, or reversing the ALJ's
decision. 42 U.S.C. § 405(g). My review is limited in scope,
however, as the ALJ's factual findings are conclusive if they are
supported by substantial evidence. Id.; see Irlanda Ortiz v.
Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir.
1991). The ALJ is responsible for settling credibility issues,
drawing inferences from the record evidence, and resolving
- 14 - conflicting evidence. See Irlanda Ortiz, 955 F.2d at 769. I
must uphold the ALJ's findings "if a reasonable mind, reviewing
the evidence in the record as a whole, could accept it as
adeguate to support [the ALJ's] conclusion." Rodriguez v. Sec'y
of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). The
ALJ's decision is thus supported by substantial evidence if it is
reasonable.
The ALJ's findings of fact are not conclusive, however,
"when derived by ignoring evidence, misapplying the law, or
judging matters entrusted to experts." Nguyen v. Chater, 172
F.3d 31, 35 (1st Cir. 1999). If the Commissioner, through the
ALJ, has misapplied the law or failed to provide a fair hearing,
deference to the Commissioner's is not appropriate, and remand
for further development of the record may be necessary. See
Seavey v. Barnhart, 276 F.3d 1, 11 (1st Cir. 2001) . I apply
these standards to the arguments Ford raises in her appeal.
III. DISCUSSION
The Social Security Act defines "disability" for the
purposes of Title II as the "inability to engage in substantial
gainful activity by reason of any medically determinable physical
- 15 - or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
When evaluating whether a claimant is disabled due to a physical
or mental impairment, an ALJ's analysis is governed by a five-
step seguential evaluation process. 20 C.F.R. § 404.1520. The
ALJ is reguired to consider the following issues when determining
if a claimant is disabled: (1) whether the claimant is engaged in
substantial gainful activity; (2) whether the claimant has a
severe impairment; (3) whether the impairment meets or eguals a
listed impairment; (4) whether the impairment prevents or
prevented the claimant from performing past relevant work, and
(5) whether the impairment prevents or prevented the claimant
from doing any other work. 20 C.F.R. § 404.1520. An affirmative
answer at one step leads to the next step in the analysis. Id.
If the answer to any guestion other than (3) is negative, the
claimant is not disabled. Id. The claimant bears the burden on
the first four steps. At Step Five, the burden shifts to the
Commissioner to show "that there are jobs in the national economy
that the claimant can perform." 20 C.F.R. § 416.920(f); Heggarty
v. Sullivan, 947 F.2d 990, 995 (1st Cir. 1991); see also Keating
- 16 - v. Sec'y of Health & Human Servs., 848 F.2d 271, 276 (1st Cir.
1988). The Commissioner must show that the claimant's
limitations do not prevent her from engaging in substantial
gainful work, but need not show that the claimant could actually
find a job. See Keating, 848 F.2d at 276.
Here, the ALJ determined at Step Fivethat Ford was not
entitled to benefits because he found Ford's "capacity for
sedentary work was substantially intact and has not been
compromised by any non-exertional limits." Tr. 21 (Finding 13) .
Hence, the ALJ concluded at Step Five thatFord "has the residual
functional capacity to perform substantially all of the full
range of sedentary work." Tr. 21 (Finding 11). Ford now argues
that the ALJ: (1) failed to properly credit her subjective
complaints of disabling pain; (2) ignored the testimony of the
VE; (3) failed to consider the opinions of her treating
physicians; and (4) relied on a FCE without accounting for the
limitations and recommendations contained in the evaluation. I
address each argument in turn.
A. Ford's Subjective Pain Complaints
As part his RFC assessment, the ALJ considered Ford's
subjective complaints of pain, as reguired, and found her to be
- 17 - not fully credible. Tr. 19. He determined that based on her
activities of daily living and the medical evidence in the
record, she retained the functional capacity to perform
sedentary, simple, unskilled work. Id.
The Social Security regulations state that a claimant's
subjective complaints of disabling pain, standing alone, are
insufficient to establish disability; there must also be
objective medical evidence of an impairment that reasonably could
produce the alleged symptoms. See C.F.R. § 404.1529(a). Where
the record does not contain objective medical evidence
corroborating the claimant's allegations as to the intensity,
persistence, or functionally limiting effects of her symptoms,
the ALJ must assess the credibility of those statements based on
the entire record. See S.S.R. 96-7p. In assessing credibility,
the ALJ may rely on the claimant's daily activities, the overall
consistency of the claimant's statements, and the claimant's
efforts to obtain and comply with medical treatment of the
allegedly disabling symptoms. See id.
Here, the record contains evidence that Ford made
contradictory statements to the Social Security Administration at
different stages of her disability claim. For example, on April
- 18 - 10, 2002, Ford told a Social Security interviewer that she could
carry her 18-pound child to the car and back. By contrast, at
the hearing Ford testified that she was unable to pick up a
gallon of milk or lift her one year old child. Inconsistent
reports are relevant to the ALJ's credibility determination and
it was appropriate for him to consider them. See S.S.R. 96-7p
(explaining that "one strong indication of the credibility of an
individual's statements is their consistency, both internally and
with other information in the case record.")
Furthermore, the record reveals that Ford sought medical
treatment only sporadically and did not fully comply with her
physicians' treatment advice. After Ford was discharged from the
hospital on August 13, 1999, she was examined by Dr. Griffith on
September 1, 1999 and then again on October 10 and December 12,
2000. There is no evidence of any other treatment until July 17,
2002, when Ford was first examined by Dr. Jenkyn.9 She returned
to Dr. Jenkyn on April 21, 2003, and his note from that visit
9 In connection with her disability claim. Dr. Jenkyn referred Ford to Dr. Sussman for psychometric testing and her attorney referred her to Bradford Shedd for a functional capacity evaluation.
- 19 - references an October 9, 2002 office visit, but there are no
treatment notes from that date. Ford's final visit to a medical
professional occurred on July 16, 2003 when she underwent a
neuropsychological examination.
Likewise, Ford failed to follow up on two referrals to a
urologist and she twice failed to take the Baclofen prescribed
for her muscle spasms.10 The ALJ properly considered Ford's
sporadic treatment history and her failure to comply with her
doctors' recommendations when assessing her credibility. See
S.S.R. 96-7p (noting that "the individual's statements may be
less credible if the level or freguency of treatment is
inconsistent with the level of complaints, or if the medical
reports or records show that the individual is not following the
treatment as prescribed and there are no good reasons for this
failure"). Hence, the ALJ acted within his discretion in
considering Ford's failure to obtain regular treatment and to
comply with her physicians' directives in determining that her
subjective complaints of pain were less than fully credible.
10 Ford started taking the Baclofen sometime between April 21, 2003 and May 1, 2003, the date of the administrative hearing. Tr. 40, 169.
- 20 - Moreover, the ALJ properly relied on Ford's Activities of
Daily Living questionnaire in assessing her credibility. On her
ADL, Ford indicated that she could clean, do laundry, and drive
her children to and from school. Ford nevertheless contends that
the ALJ did not construe the ADL correctly. To the contrary, the
ALJ appropriately considered the ADL in the context of other
evidence, including the fact that she had not been restricted
from working by any treating source. I thus conclude that the
ALJ was acting within his discretion when he resolved these
evidentiary conflicts against Ford. See Irlanda Ortiz, 955 F.2d
at 7 69.
B. Testimony of the Vocational Expert
Ford next argues that the ALJ ignored the VE's testimony
that due to her impairments, she would not be able to perform any
employment. Specifically, she charges that the ALJ disregarded
the VE's testimony that a claimant with the limitations testified
to by Ford at the hearing, including her need to lie down for 30
to 45 minutes, could not sustain any employment, including the
three jobs the VE had earlier identified.11 I disagree. Because
11 Ford also argues that the ALJ improperly discounted the VE's testimony that one half of the jobs would be unavailable if
- 21 - there was no medical evidence to support these limitations and
the ALJ permissibly discounted Ford's subjective pain complaints,
the ALJ was not required to credit, or even address this
testimony in his decision. See Arocho v. Sec'y of Health & Human
Servs., 670 F.2d 374, 375 (1st Cir. 1982) (noting that "in order
for a VE's answer to a hypothetical question to be relevant, the
inputs into that hypothetical must correspond to conclusions that
are supported by outputs from the medical authorities.").
Ford further argues that the ALJ could not properly rely on
the VE's testimony, because he indicated that he could not assess
the impact of her memory and concentration problems without
considering the results of neuropsychological testing. Again, I
disagree. Even without the results of Ford's neuropsychological
the claimant needed to alternate between a seated and standing position. This argument is without merit. Even with this reduction, the total number of jobs was approximately 199,750 jobs nationally and 920 jobs regionally that Ford could perform despite her limited RFC. This constitutes a "significant number" of jobs for the purpose of determining eligibility under the Act. See Lee v. Sullivan, 988 F.2d 789, 794 (7th Cir. 193) (1,400 jobs are significant number); Hall v. Bowen, 837 F.2d 272, 275 (9th Cir. 1989)(1,350 jobs are significant number); Barker v. Sec'y of Health & Human Servs., 882 F.2d 1474, 1479 (9th Cir. 1989) (1, 266 jobs fall within parameters of significant number); Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988) (500 jobs are significant number); Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987) (174 jobs are significant number) .
- 22 - tests, the VE testified that the three jobs he identified are
"unskilled jobs . . . which would be simple tasks," and that Ford
would only be precluded from performing these jobs if she was
unable to execute "routine, repetitive, simple one step, two step
jobs." Tr. 59. The July 2003 neuropsychological evaluation
later confirmed that Ford is in fact able to perform simple,
unskilled work. Accordingly, it was reasonable for the ALJ to
conclude that the VE's testimony that a claimant with Ford's RFC
could perform the approximately 199,750 national jobs and 920
regional jobs would not have been different had he been able to
first consider the results of her neuropsychological evaluation.
Hence, the ALJ properly evaluated the VE's testimony in concert
with the other evidence in the record.
C. The Opinions of Ford's Treating Physicians
Ford's third argument is that the ALJ failed to consider the
opinion of her treating physicians. This argument is without
merit. Ford appears to assert that the ALJ should have accorded
greater weight to the note in Dr. Jenkyn's file that "her lower
extremity pain and spasticity has been as bad as ever." Ford is
incorrect. The fact that Ford told Dr. Jenkyn that she was
experiencing pain and the fact that he recorded her complaints in
- 23 - his notes does not convert her subjective complaints of pain into
medical opinion, thus entitling it to some measure of deference.
See 20 C.F.R. §§ 404.1527(a) (2), 404.1527(d), 416.927(a) (2),
416.927(d). Likewise, Ford's subjective complaints are not
entitled to greater weight simply because they appear in her
physician's notes. See Craig v. Chater, 76 F.3d 585, 590 n.2
(4th Cir. 1996)(noting that "[t]here is nothing objective about a
doctor saying, without more, 'I observed my patient telling me
that she was in pain.'"). The ALJ therefore properly evaluated
the opinions of Ford's physicians.
D. The ALJ's Assessment of the Functional Capacity Evaluation
Ford's final argument is that in assessing her RFC, the ALJ
relied on the FCE without accounting for the limitations and
recommendations contained in the evaluation and thus based his
decision on conjecture and unwarranted assumptions. In
particular, she charges that the FCE indicated a need for
additional evaluations and information, including a
neuropsychological evaluation and consideration of her pain and
depression. This argument is without merit.
The ALJ determined that Ford retained the RFC to "lift up to
10 pounds occasionally consistent with sedentary work that is
- 24 - performed primarily while sitting." Tr. 21 (Finding 7). He
further determined that "[s]he is limited from performing more
than simple, unskilled work." Id. This determination is in full
accord with the various tests and evaluations included in the
record and substantial evidence supports the ALJ's conclusion
that Ford could perform unskilled, sedentary work.
The Social Security regulations define unskilled work as
"work which needs little or no judgment to do simple duties that
can be learned on the job in a short period of time . . . a
person can usually learn to do the job in 30 days." 20 C.F.R. §§
404.1568(a), 416.968(a). Dr. Sussman, who performed a
psychological evaluation of Ford in March 2003, determined that
although she "appears to have some memory and attention
problems," Ford "does not have a psychological disability that
would prevent her return to work." Similarly, the July 16, 2003
neuropsychological testing revealed "deficits in complex problem
solving, verbal learning for noncontextual information and . . .
a mild relative weakness for cognitive flexibility." (Emphasis
added). Nevertheless, Ford scored in the superior and high
average range for memory functions and in the average range for
attention/concentration and executive functioning. Overall, Ford
- 25 - scored in the average range of intellectual functioning. These
evaluations support the ALJ's conclusion that despite the
cognitive deficits that he properly acknowledged, there is no
evidence that those deficits would prevent Ford from performing
unskilled work.
It was also reasonable for the ALJ to conclude that Ford
retained the ability to perform sedentary work. According to the
Social Security regulations, "sedentary work represents a
significantly restricted range of work, and individuals with a
maximum sustained work capability limited to sedentary work have
very serious functional limitations." 20 C.F.R. part 404,
Subpart P, Appendix 2 § 200.00(h)(4). Here, the Disability
Determination Services consultant physician who reviewed Ford's
file in July 2002 concluded that she retained the ability to
perform light work, which reguires greater exertion than
sedentary work. Furthermore, industrial rehabilitation therapist
Bradford Shedd, who conducted an extensive functional capacity
evaluation in March 2003, concluded that Ford retained the
ability to perform full-time sedentary work. Hence, the ALJ's
conclusion that Ford is limited to sedentary work is consistent
with the various evaluations in the record and appropriately
- 26 - acknowledged the serious limitations caused by her impairments.12
I thus conclude that the ALJ's determination that Ford retained
the RFC to perform unskilled, sedentary work is supported by
substantial evidence.
IV. CONCLUSION
Because I have determined that the ALJ's denial of Ford's
benefits was supported by substantial evidence, I affirm the
Commissioner's decision. Accordingly, Ford's Motion for Summary
Reversal (Doc. No. 5) is denied and the Commissioner's Motion for
An Order Affirming the Decision of the Commissioner (Doc. No. 6)
is granted. The clerk shall enter judgment accordingly.
SO ORDERED.
/s/Paul Barbadoro___________ Paul Barbadoro United States District Judge
July 7, 2005
cc: Michael C. Shklar, Esg. David L. Broderick, Esg.
12 Notably, not one of the physicians or psychologists who examined and treated Ford or reviewed her records concluded that her impairments were sufficiently disabling to preclude all work.
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