Fellows v. Astrue

Filing 17

MEMORANDUM OPINION. Signed by Honorable Judge Susan Russ Walker on 9/8/11. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
HARLEY D. FELLOWS,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.

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CIVIL ACTION NO. 1:10CV701-SRW

MEMORANDUM OPINION
On February 4, 2008, when he was twenty-six years old, plaintiff Harley D. Fellows
filed an application for Supplemental Security Income (SSI) alleging that he had been
disabled since birth due to heart problems, anxiety and depression. (R. 108, 114). In an
unfavorable decision issued on February 23, 2010, the ALJ concluded that plaintiff suffers
from the severe impairment of “congenital heart disease with tricuspid atresi[a], fontan, LV
dysfunction and flutter with current pacemaker placement[.]” (R. 14). She found that he
retains the residual functional capacity for “a reduced range of sedentary work” – i.e., that
he “can lift 10 pounds occasionally, sit for 8 hours and stand/walk 2 to 4 hours.” (R. 14).
The ALJ rendered a “step five” decision, relying on vocational expert testimony to conclude
that plaintiff can “perform the requirements of representative occupations such as system
surveillance monitor and call operator, both of which have significant numbers of jobs in the
national economy.” (R. 23). The Appeals Council denied review on July 29, 2010. (R. 1-5).

On August 17, 2010, plaintiff filed the present action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3) seeking judicial review of the decision by the Commissioner of Social
Security (“Commissioner”) denying his application for Supplemental Security Income under
the Social Security Act. Upon review of the record and briefs submitted by the parties, the
court concludes that the decision of the Commissioner is due to be reversed.
Standard of Review
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
court does not reweigh the evidence or substitute its judgment for that of the Commissioner.
Rather, the court examines the administrative decision and scrutinizes the record as a whole
to determine whether substantial evidence supports the ALJ’s factual findings. Davis v.
Shalala, 985 F.2d 528, 531 (11th Cir. 1993); Cornelius v. Sullivan, 936 F.2d 1143, 1145
(11th Cir. 1991). Substantial evidence consists of such “relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Cornelius, 936 F.2d at 1145.
Factual findings that are supported by substantial evidence must be upheld by the court. The
ALJ’s legal conclusions, however, are reviewed de novo because no presumption of validity
attaches to the ALJ’s determination of the proper legal standards to be applied. Davis, 985
F.2d at 531. If the court finds an error in the ALJ’s application of the law, or if the ALJ fails
to provide the court with sufficient reasoning for determining that the proper legal analysis
has been conducted, the ALJ’s decision must be reversed. Cornelius, 936 F.2d at 1145-46.

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DISCUSSION
Plaintiff argues, inter alia, that the ALJ erred by failing to find that his depression is
a severe impairment. Plaintiff alleged disability based, in part, on depression. (R. 114).
Disability Determination Services sent plaintiff to Randall Jordan, Psy.D., for a consultative
psychological examination on April 24, 2008. (See Exhibit 6F). M. Hope Jackson, Ph.D.,
a non-examining agency psychologist, reviewed plaintiff’s records and completed a
Psychiatric Review Technique Form and a Mental RFC Assessment form on May 8, 2008.
(Exhibits 8F, 9F). After the October 5, 2009 hearing, the ALJ requested and received
plaintiff’s mental health treatment records from Dr. Fernando Lopez at Spectracare. The
records included a treatment note for an evaluation on July 15, 2009, a memo regarding a
physician’s verbal order to increase plaintiff’s Depakote dosage on August 19, 2009, after
plaintiff reported to a Spectracare nurse that his medications were not working, and a form
reflecting plaintiff’s reports in February 2009 and September 2009 regarding medication
prescribed by other physicians. (Exhibits 16F, 18F).
The Commissioner’s regulations establish a “special technique” that an ALJ is
required to use in assessing a claimant’s mental impairments. See 20 C.F.R. § 416.920a.
The ALJ is required to decide whether the claimant has a medically determinable mental
impairment and, if so, to rate the claimant’s degree of limitation in four broad functional
areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or
pace; and (4) episodes of decompensation. Id. The regulation further provides, “If we rate
the degree of your limitation in the first three functional areas as ‘none’ or ‘mild’ and ‘none
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in the fourth area, we will generally conclude that your impairment(s) is not severe, unless
the evidence otherwise indicates that there is more than a minimal limitation in your ability
to do basic work activities[.]” 20 C.F.R. § 416.920a(d)(1).
In evaluating plaintiff’s mental limitations pursuant to the “special technique” set
forth in the regulation, the ALJ “adopt[ed] the findings of Dr. Jackson” and found that the
plaintiff has a “mild” limitation of functioning in activities of daily living, “moderate”
limitations in social functioning and in maintaining concentration, persistence or pace, and
that he would experience no episodes of decompensation during regular and sustained
attempts at work and work-like activities. (R. 21-22). Despite her conclusion that plaintiff
has “moderate” limitations in two of the functional areas, the ALJ did not find plaintiff’s
depression to be a severe impairment and did not include any mental functional limitations
in her finding as to plaintiff’s residual functional capacity. (R. 14).1 The ALJ’s failure to find

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The ALJ made no express finding that plaintiff’s depression is not severe; she simply did
not include any mental impairment among the severe impairments she identified in Finding No. 2.
(R. 14, 19-22). The ALJ first addressed plaintiff’s “physical health” and concluded that his “alleged
physical symptoms and conditions are not of a disabling degree.” (R. 19). The ALJ wrote:
All of the above factors lead the undersigned to a conclusion that the claimant’s
alleged physical symptoms and conditions are not of a disabling degree. After
considering the entirety of the record, the undersigned concludes that the claimant
would not be precluded from performing on a regular and sustained basis, the
physical requirements of a reduced range of sedentary work, with some additional
limitations. The Administrative Law Judge finds that the claimant can lift 10 pounds
occasionally, sit for 8 hours and stand and walk 2-4 hours.
Having addressed the claimant’s physical health, the undersigned is bound to address
his mental functioning.
(R. 19). The ALJ then described the evaluation process required by 20 C.F.R. § 416.920a and the
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that plaintiff suffers from a “severe’ mental impairment conflicts with her express findings
that plaintiff has a “moderate” limitation in social functioning2 and “moderate” limitations
in maintaining concentration, persistence or pace and, as plaintiff contends, constitutes legal
error. See 20 C.F.R. § 416.920a(d); Craft v. Astrue 539 F.3d 668,675 (7th Cir. 2008)(“If
the ALJ rates the first three functional areas as none or mild and the fourth area as none, then
generally the impairment is not considered severe. Otherwise, the impairment is considered
severe, and the ALJ must determine whether it meets or is equivalent in severity to a listed
mental disorder.”)(emphasis added)(citing 20 C.F.R. § 404.1520a(d), the Title II counterpart
of § 416.920a(d)).
In responding to plaintiff’s contention, the Commissioner argues that plaintiff bears
the burden of demonstrating that his impairment is severe, and that plaintiff’s record of
sporadic treatment at Spectracare “is an insufficient basis to find this impairment to be
severe.” (Commissioner’s brief, pp. 12-13). However, the Commissioner’s argument treats
the issue as one of substantial evidence only and ignores the ALJ’s findings that plaintiff

evidence of record pertaining to plaintiff’s mental status. (R. 19-20). She then observed that “the
claimant has not sought any type of treatment one would expect from a mentally disabled individual”
and that the reports of Dr. Jordan and Dr. Jackson “[s]upport[] the Administrative Law Judge’s
finding that the claimant is not disabled from a mental standpoint.” (R. 21)(emphasis added). The
ALJ concluded her analysis of plaintiff’s mental functioning with her findings regarding plaintiff’s
limitations in the four functional areas. (R. 21-22). The question before the ALJ was not whether
plaintiff was “disabled from a mental standpoint,” but whether his residual functional capacity –
taking his physical and mental limitations, if any, into account – rendered him unable to perform past
relevant work or other jobs.
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The ALJ observed that “[s]ocial functioning in work situations may involve interactions
with the public, responding appropriately to persons in authority or cooperative behaviors involving
co-workers.” (R. 22).
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suffers from “moderate” limitations in social functioning and in concentration, persistence
or pace. The evidence of record, including the consultative psychological examination and
the opinion of the non-examining agency psychologist, was sufficient to convince the ALJ
that plaintiff has moderate limitations in these two broad functional areas; the ALJ’s
conclusion that plaintiff suffers moderate limitations establishes, as a matter of law, that
plaintiff’s mental impairment is “severe.” See 20 C.F.R. § 416.920a(d); Craft, 539 F.3d at
675.
The Commissioner further argues that “[i]n any event, the ALJ discussed this alleged
impairment, and accounted for any limitations which may have resulted from it in limiting
hi[m] to performing only unskilled work” and, also, that the ALJ’s failure to designate a
mental impairment as “severe” does not constitute reversible error because the ALJ is
obligated to consider the combined effect of all of plaintiff’s impairments – both severe and
non-severe – in the sequential evaluation process. (Commissioner’s brief, p. 13). The ALJ
did not, however, include any mental limitations in her finding as to plaintiff’s RFC; she did
not limit plaintiff to unskilled work, as the Commissioner argues. See R. 14, Finding No. 4
(“After careful consideration of the entire record, the undersigned finds that the claimant has
the residual functional capacity to perform a reduced range of sedentary work as defined in
20 CFR 416.967(a). The claimant can lift 10 pounds occasionally, sit for 8 hours and
stand/walk 2 to 4 hours.”). An ALJ’s failure to find an additional impairment to be “severe”
may be harmless, even if erroneous, where the ALJ proceeds beyond step two of the
sequential analysis and it is apparent from the decision that the ALJ considered any
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limitations imposed by the impairment in assessing the claimant’s residual functional
capacity. However, the ALJ here included no mental limitations whatsoever in her RFC
finding, despite her conclusion that plaintiff has moderate limitations in social functioning
and in maintaining concentration, persistence and pace.3 Thus, it is clear that the ALJ did not
consider the limitations arising from plaintiff’s mental impairment in formulating plaintiff’s
RFC.
While the ALJ did not include a limitation to unskilled work in her RFC finding, she
did include a limitation to “simple, routine, repetitive task[s]” in her hypothetical question
to the vocational expert at the hearing. (R. 45).4 The addition of this limitation in the
hypothetical question, however, does not render the ALJ’s error harmless. There is evidence
that, despite his moderate limitations in concentration, persistence or pace, plaintiff “has the
ability to understand, recall and carry out short, simple instructions and to attend to such tasks
for two hour intervals.” (See R. 217)(Dr. Jackson’s functional capacity assessment).
However, the ALJ included no limitation in her hypothetical question to the VE that accounts
– either expressly or implicitly – for the ALJ’s finding that plaintiff suffers moderate
limitations in social functioning. See R. 44-45.5 “In order for a vocational expert’s testimony
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Additionally – although the court’s conclusion of reversible error does not rest on this
observation – the ALJ’s analysis suggests that she first determined the RFC according to plaintiff’s
“physical health” (R. 19) and then added no mental limitations to that physical RFC assessment after
she determined that plaintiff “is not disabled from a mental standpoint” (R. 21). See n. 1, supra.
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The court notes that the ALJ’s hypothetical question did not limit the lifting of ten pounds
to “occasionally,” a limitation expressed in her RFC finding. (R. 14, 44-45).
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Dr. Jackson concluded that plaintiff’s moderate impairment in social functioning resulted
in a moderate limitation in his ability to interact appropriately with the general public and,
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to constitute substantial evidence, the ALJ must pose a hypothetical question which
comprises all of the claimant’s impairments.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th
Cir. 2002)(citation omitted). Accordingly, the ALJ’s error in failing to find that plaintiff
suffers from a severe mental impairment or to include mental functional limitations in her
RFC determination consistent with her findings that plaintiff has “moderate” limitations in
social functioning is not harmless; it deprives the ALJ’s step five finding of the support of
substantial evidence. Wilson, 284 F.3d at 1227; see also Winschel v. Commissioner of
Social Security, 631 F.3d 1176, 1179-81 (11th Cir. 2011)(where the ALJ does not indicate
that the medical evidence suggests that a claimant’s ability to work is “unaffected” by a
limitation identified in the PRT analysis, the hypothetical question must account for that
limitation)(considering a PRT finding of a moderate deficiency in concentration, persistence
or pace);6 Richter v. Astrue, 379 Fed. Appx. 959, 962 (11th Cir. May 21, 2010)(unpublished
opinion)(rejecting the Commissioner’s argument that deficiencies identified in the PRT

accordingly, that his contact with the general public should be infrequent. (R. 216-17). The ALJ
did not include this limitation or any similar limitation in her hypothetical question to the vocational
expert. (R. 44-45). While it is possible – and even probable, as to the surveillance system monitor
– that the jobs identified by the VE do not require frequent contact with the general public, there is
no evidence of record that this is so. The ALJ cited only the VE’s testimony in support of her step
five finding. While she could also have chosen to rely on the job descriptions in the DOT, she did
not do so; her written decision includes no reference to specific DOT provisions. Accordingly, the
court does not consider whether evidence in the DOT might have rendered the ALJ’s error harmless.
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The ALJ drew no express conclusion, based on medical evidence of record, that plaintiff’s
moderate limitations in social functioning had no effect on his ability to work and the court finds no
indication in the ALJ’s decision that she conducted such an analysis of the assessed limitation.
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analysis at step two need not be included in an ALJ’s hypothetical question).7
CONCLUSION
For the foregoing reasons, the decision of the Commissioner is due to be REVERSED,
and this action REMANDED to the Commissioner for further proceedings.8 A separate
judgment will be entered.
DONE, this 8th day of September, 2011.

/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE

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Because the court has determined that the Commissioner has committed reversible error
as to plaintiff’s mental limitations, the court does not reach plaintiff’s contentions regarding the
ALJ’s findings regarding his physical capacity. The court expects that the Commissioner will
consider, on remand, the issues identified by plaintiff – including his contention that the ALJ erred
in rejecting, without explanation, the additional exertional and non-exertional limitations assessed
by the consultative cardiologist.
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In reversing the Commissioner’s decision for legal error, the court has not determined and
intends no implication that the Commissioner should, on remand, find plaintiff to be entitled to
supplemental security income.
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