Lemoine v. Colvin (CONSENT)
MEMORANDUM OPINION; copy mailed to SSA Chief Judge and SSA Office of Hearings and Appeals. Signed by Honorable Judge Wallace Capel, Jr on 7/2/2014. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
BRENDA JOANN LEMOINE,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
CIVIL ACTION NO.: 1:13cv475-WC
Plaintiff, Brenda Joann Lemoine, applied for supplemental security income
benefits. Her application was denied at the initial administrative level. Plaintiff then
requested and received a hearing before an Administrative Law Judge (“ALJ”).
Following the hearing, the ALJ issued a decision in which the ALJ found Plaintiff not
disabled at any time through the date of the decision. Plaintiff appealed that decision to
the Appeals Council, and the Appeals Counsel rejected Plaintiff’s request for review of
the ALJ’s decision. The ALJ’s decision consequently became the final decision of the
Commissioner of Social Security (“Commissioner”).1 See Chester v. Bowen, 792 F.2d
129, 131 (11th Cir. 1986). The case is now before the court for review under 42 U.S.C. §
405(g). Pursuant to 28 U.S.C. § 636(c), both parties have consented to the conduct of all
Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social
Security matters were transferred to the Commissioner of Social Security.
proceedings and entry of a final judgment by the undersigned United States Magistrate
Judge. Pl.’s Consent to Jurisdiction (Doc. 9); Def.’s Consent to Jurisdiction (Doc. 10).
Based on the court’s review of the record and the briefs of the parties, the court
REVERSES the decision of the Commissioner.
STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to benefits when the person is
engage in any substantial gainful activity by reason of any medically
determinable physical 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).2
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2011).
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1 [the Listing of
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of
A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of
qualifying disability once they have carried the burden of proof from Step 1 through Step
4. At Step 5, the burden shifts to the Commissioner, who must then show there are a
significant number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other
evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at
1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines4 (grids) or call a vocational expert (VE). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available
McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental security income case (SSI). The
same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited
as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981).
See 20 C.F.R. pt. 404 subpt. P, app. 2.
to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a
statutorily-required finding of “Disabled” or “Not Disabled.” Id.
The court’s review of the Commissioner’s decision is a limited one. This court
must find the Commissioner’s decision conclusive if it is supported by substantial
evidence. 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997).
“Substantial evidence is more than a scintilla, but less than a preponderance. It is such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (“Even if the evidence
preponderates against the Commissioner’s findings, [a reviewing court] must affirm if the
decision reached is supported by substantial evidence.”). A reviewing court may not look
only to those parts of the record which support the decision of the ALJ, but instead must
view the record in its entirety and take account of evidence which detracts from the
evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings. . . . No
similar presumption of validity attaches to the [Commissioner’s] . . . legal
conclusions, including determination of the proper standards to be applied
in evaluating claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
Plaintiff was forty-five years old on the date the application was filed and has a
limited education. Tr. 42. Following the administrative hearing, and employing the fivestep process, the ALJ found Plaintiff “has not engaged in substantial gainful activity since
July 20, 2010, the application date.” (Step 1) Tr. 21. At Step 2, the ALJ found that
Plaintiff suffers from the following severe impairments: “degenerative disc disease . . .
of the cervical and lumbar spine; asthma; osteoarthritis; hypertension; thyroid disease;
history of gastric bypass/obesity; borderline intellectual functioning; and bipolar
disorder.” Id. The ALJ then found that Plaintiff “does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
listed impairments.” (Step 3) Id. Next, the ALJ found that Plaintiff has the RFC to
perform light work with additional limitations. Tr. 22. After consulting the VE, the ALJ
concluded that Plaintiff “is capable of performing past relevant work” as a cashier. (Step
4) Tr. 41.
Despite that finding, the ALJ continued on to Step 5 and found that,
“[c]onsidering the claimant’s age, education, work experience, and residual functional
capacity,” and after consulting with the VE, “there are jobs that exist in significant
numbers in the national economy that the claimant can perform.” Tr. 42. The ALJ
identified the following occupations as examples: “housekeeper,” “garment bagger,” and
“garment folder.” Id. Accordingly, the ALJ determined that Plaintiff “has not been
under a disability, as defined in the Social Security Act, since July 20, 2010, the date the
application was filed.” Tr. 43.
Plaintiff presents two issues for this court’s consideration in review of the ALJ’s
decision: (1) whether “[t]he Commissioner’s decision should be reversed because the
ALJ failed to pose a complete hypothetical question to the [VE]”; and (2) whether “[t]he
Commissioner’s decision should be reversed because the ALJ erroneously relied on the
opinions of non-examining medical consultants in rejecting the opinion of examining
psychiatrists.” Pl.’s Br. (Doc. 12) at 3. The court will address each argument below.
A. Whether the ALJ failed to pose a complete hypothetical question to the VE
Plaintiff challenges the ALJ’s reliance on the VE’s testimony that Plaintiff is
capable of performing her past relevant work and that Plaintiff is capable of performing
other work that exists in significant numbers in the national economy. Plaintiff argues
that “[t]he ALJ’s hypothetical question failed to describe all of [Plaintiff]’s impairments,
both mentally and physically, and was less restrictive than the ALJ’s RFC assessment.”
Pl.’s Br. (Doc. 12) at 4. Thus, Plaintiff argues, the ALJ could not rely upon the VE’s
testimony because the ALJ failed to include all of Plaintiff’s RFC restrictions in the
hypothetical he posed to the VE. Id.
In response, Defendant argues that “there is no showing that the omissions were
material to the outcome of the case” because working as a cashier, Plaintiff’s past
relevant work, “d[oes] not require Plaintiff to stoop or crouch more than allowed by the
[RFC] finding; did not involve any workplace hazards; and did not conflict with her
credible mental limitations.” Def.’s Br. (Doc. 13) at 7. Defendant supports this argument
by citing to the Dictionary of Occupational Titles (“DOT”). Indeed, while Defendant
addresses whether there was a conflict between the VE’s testimony and the DOT,
Defendant does not deny that the ALJ’s hypothetical to the VE failed to include all of
Defendant also argues that “[e]ven if Plaintiff demonstrated some conflict with the
requirements of the cashier position, she has not demonstrated any conflict with the
other unskilled jobs identified in the ALJ’s alternative step five finding.”
Defendant supports this argument stating that “‘unskilled’ occupations involve simple
tasks, ‘routine’ work settings, and primarily involve working with objects rather than
people.” Id. Thus, Defendant argues, “[t]here were no conflicts between the ALJ’s
[RFC] finding and the requirements of these unskilled occupations identified at step
five.” Id. In this argument, Defendant does not address whether the physical limitations
that are included in the RFC, but left out of the hypothetical question, create a conflict
between the RFC and the requirements of the occupations identified by the VE.
“In order for a [VE’s] testimony to constitute substantial evidence, the ALJ must
pose a hypothetical question which comprises all of the claimant’s impairments.” Wilson
v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002) (per curiam); Jones v. Apfel, 190 F.3d
1224, 1228-29 (11th Cir. 1999). Here, the ALJ’s only hypothetical question asked the
VE to assume the following:
Assume I find a hypothetical individual the same age as [Plaintiff] with the
same education level and vocational history and . . . the additional
limitations that this hypothetical individual can perform a full range of light
[work] with no postural limitations[,] no manipulative limitations,
environmental limitations would be avoiding hazards and dangerous
machinery and heights[,] and mental limitations would be limited education
with no illiteracy.
Tr. 66. The VE testified that such an individual would be capable of returning to
Plaintiff’s past relevant work as a cashier and would be able to work as
housekeeper/cleaner or as a garment bagger. Tr. 66-67. However, the ALJ’s RFC
assessment included multiple limitations not identified in the hypothetical posed to the
VE. The ALJ found Plaintiff to have:
the [RFC] to perform light work . . . except [Plaintiff] can perform lifting
and carrying of 20 pounds occasionally and 10 pounds frequently.
[Plaintiff] can stand and walk for about 6-hours in an 8-hour workday.
[Plaintiff] is unlimited in pushing and pulling of operation of hand and foot
controls other than noted for lifting and carrying. [Plaintiff] could
occasionally perform climbing of ramps and stairs, balancing, stooping,
kneeling, crouching, and crawling, but no climbing of ladders, ropes or
scaffolds. [Plaintiff] has no manipulative limitations, no visual limitations,
and no odors, dusts, gases, and poor ventilation; and she should avoid all
exposure to hazardous machinery and unprotected heights. [Plaintiff] has
the ability to understand, remember, and carry out short and simple
instructions, and she is able to concentrate and attend for reasonable periods
of time; however, changes in the work environment or work expectations
should be introduced gradually.
Plaintiff argues that the hypothetical question did not address the mental
limitations of being able to understand, remember, and carry out short and simple
instructions, or the need for changes in the work environment or work expectations
should be introduced gradually.
Moreover, the hypothetical “fail[ed] to take into
consideration [Plaintiff]’s need to occasionally perform climbing of ramps and stairs,
balancing, stooping, kneeling, crouching, and crawling; no climbing of ladders, ropes, or
scaffolds; and the need to avoid concentrated fumes to odors, dusts, gases, and poor
ventilation.” Pl.’s Br. (Doc. 12) at 5-6. The court agrees that this hypothetical is
incomplete based on the failure to include all of Plaintiff’s physical and mental
Because the VE testified based on an incomplete hypothetical that failed to
properly incorporate all of Plaintiff’s limitations as found in the ALJ’s RFC, the ALJ
could not have relied on the VE’s testimony as the VE’s testimony was not supported by
substantial evidence. See, e.g., Dial v. Comm’r of Soc. Sec., 403 F. App’x 420 (11th Cir.
2010) (finding “it is undisputed that the ALJ failed to include all of Dial’s employment
limitations in the hypothetical questions posed to the VE. Thus, the VE’s testimony did
not constitute substantial evidence upon which the ALJ could rely.” (citing Jones v.
Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999) and Pendley v. Heckler, 767 F.2d 1561,
1562-63 (11th Cir. 1985)); Baines v. Astrue, 781 F. Supp. 2d 228, 238 (D. Del. 2011)
(holding that the ALJ’s hypothetical question to the VE failed to properly reflect
claimant’s limitations, where ALJ’s RFC found that claimant could do only “occasional
pushing, pulling, reaching, handling, fingering, and feeling maneuvers with her left upper
extremity,” but the hypothetical to the VE only stated that claimant had to “avoid
overhead reaching,” and ALJ told VE to generally look for jobs that “can be performed
with one arm with minimal assist from the other.”).
Based on the foregoing, the court finds that this case is due to be remanded on the
basis that the VE’s testimony did not comprise substantial evidence, as it did not
incorporate all of Plaintiff’s limitations. Wilson, 284 F.3d at 1227. On remand, the ALJ
should reevaluate, in consideration of all of Plaintiff’s limitations, whether Plaintiff is
able to perform past relevant work as a cashier and, if not, whether other jobs exist in the
national economy that Plaintiff is able to perform, ensuring that all of Plaintiff’s
limitations are accurately incorporated in the hypothetical to the VE.
B. Whether the ALJ erroneously relied on the opinions of non-examining
medical consultants in rejecting the opinion of examining psychiatrists
Plaintiff argues that “[t]he ALJ erred in discrediting opinions of examining
physicians in favor of non-examining physicians.” Pl.’s Br. (Doc. 12) at 9. It appears
Plaintiff’s argument here is two-fold. First, Plaintiff appears to argue that “[t]he ALJ
gave consideration to [Dr. Randall Jordan’s] opinion,” but never defined what weight was
given to said opinion. Id. at 10. Second, Plaintiff appears to challenge the ALJ’s
decision not to afford any weight to the examination by, or opinions of, Dr. Ann
McDowell, an examining psychiatrist. Id.
To the extent that Plaintiff complains that the ALJ did not define the weight given
to Dr. Jordan’s opinion, the court finds no error.
“An ALJ’s failure to state with
particularity the weight given different medical opinions is reversible error.” Caldwell v.
Barnhart, 261 F. App’x 188, 190 (11th Cir. 2008) (citing Sharfarz v. Bowen, 825 F.2d
278, 279 (11th Cir. 1987) (per curiam)). “[H]owever, [when] an incorrect application of
the regulations results in harmless error because the correct application would not
contradict the ALJ’s ultimate findings, the ALJ’s decision will stand.” Caldwell, 261 F.
App’x at 190. Courts have generally found that an ALJ’s failure to state what weight is
accorded a particular piece of medical opinion evidence is harmless when the ALJ has
relied upon other opinion evidence that is consistent with the omitted evidence or the
omitted opinion is consistent with the ALJ’s ultimate findings. See, e.g., id. at 191;
Wright v. Barnhart, 153 F. App’x 678, 684 (11th Cir. 2005).
Dr. Jordan performed a psychological consultative examination of Plaintiff. The
court would note that the ALJ extensively discussed Dr. Jordan’s examination of
Plaintiff, and opinions relating thereto. The ALJ specifically noted that “Dr. Jordan
documented no more than moderate deficits.” Tr. 40. Plaintiff does not point to any
specific aspect of Dr. Jordan’s opinion that is in contradiction with the ALJ’s
determination. Further, the ALJ relied upon other opinion evidence that was consistent
with the opinions of Dr. Jordan and the ALJ’s ultimate findings are consistent with these
opinions. Accordingly, to the extent the ALJ’s failure to state what weight she gave to
the medical opinions was error, it was harmless. Caldwell, 261 F. App’x at 191.
To the extent that Plaintiff complains that the ALJ gave no weight to an examining
psychiatrist but afforded weight to the opinion of non-examining physicians, the court
finds no merit. Plaintiff correctly states that “‘[t]he law is clear that, although the opinion
of an examining physician is generally entitled to more weight than the opinion of a nonexamining physician, the ALJ is free to reject the opinion of any physician when the
evidence supports a contrary conclusion.” Pl.’s Br. (Doc. 12) at 14-15 (quoting Syrock v.
Heckler, 764 F.2d 834, 835 (11th Cir. 1985) (citing 20 C.F.R. § 404.1526)) (emphasis
Here, the ALJ found Dr. McDowell’s opinions to be unsupported by and
contrary to the evidence of record. Indeed, the ALJ explicitly stated so no less than three
times in the Decision: “[Dr. McDowell’s] assessments have been accorded no weight
due to absences of supporting medical records. The limitations [identified by Dr.
McDowell] are inconsistent with the record as a whole and they are inconsistent with the
treating physician’s treatment histories.”
“No weight is accorded to [Dr.
McDowell’s] evaluation, as there are no supporting records and the findings are
inconsistent with [Plaintiff]’s treating physician’s treatment records. [Plaintiff] made no
mention of suicidal thoughts to her treating physician and the record is absent of
hospitalizations or emergency room visits for any mental impairment other than
[Plaintiff] mentioning that she has mental problems.” Tr. 32. “The [ALJ] accords no
weight to Dr. Ann B. McDowell’s examination and assessments in Exhibits 13Fand 15F
for the reason that there are no records to support the findings and the findings are
inconsistent with [Plaintiff]’s treating physician treatment records.” Tr. 41. The court
finds that the ALJ’s decision to afford no weight to Dr. McDowell’s opinion was
supported by substantial evidence and, thus, no error occurred.
For the reasons stated above, the decision of the Commissioner is REVERSED
and this case is REMANDED to the Commissioner for the ALJ to reevaluate, in
consideration of all of Plaintiff’s limitations, whether Plaintiff is able to perform past
relevant work as a cashier and, if not, whether other jobs exist in the national economy
that Plaintiff is able to perform, ensuring that all of Plaintiff’s limitations are accurately
incorporated in the hypothetical to the VE. A separate judgment will issue.
Done this 2nd day of July, 2014.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE
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