Pierce v. Astrue (CONSENT)
MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 4/12/2012. (jg, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
VIVIAN FLORENCE PIERCE,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
CIVIL ACTION NO. 2:11cv343-WC
Plaintiff, Vivian Florence Pierce, applied for disability insurance benefits under Title
II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401 et seq, and supplemental security
income payments under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. 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 he found Plaintiff not disabled from October 31, 2007 through the date of
his decision. Tr. 25. The Appeals Council rejected Plaintiff’s request for review of the
ALJ’s decision. Tr. 1-5. 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,
Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L.
No. 103-296, 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.
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 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 AFFIRMS the decision
of the Commissioner.
STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person is unable to
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 (2006).
(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?
A “physical or mental impairment” is one resulting from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.
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 “not
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
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.
light work, inability to speak English, educational deficiencies, and lack of job experience.
Each factor can independently limit the number of jobs realistically available to an
individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyrequired 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
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
Plaintiff was twenty-six years old at the time of the hearing before the ALJ. Tr. 20,
33. Plaintiff has a tenth grade education. Tr. 20, 34. Plaintiff’s past relevant work
experience was as a “weather window stripper, taking apart fuel pumps, and recycling.” Tr.
20, 34. Following the administrative hearing, and employing the five-step process, the ALJ
found Plaintiff had “not engaged in substantial gainful activity since October 31, 2007, the
alleged onset date.” (Step 1) Tr. 18. At Step 2, the ALJ found that Plaintiff suffers from the
following severe impairments: “Diabetes Mellitus, type I, and Seizure Disorder.” Id. The
ALJ then found that “[Plaintiff] does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments.” (Step 3) Id. Next, the ALJ
found that Plaintiff
has the residual functional capacity to perform unskilled, light work . . . . She
can lift and carry no more than 20 pounds occasionally and 10 pounds
frequently; she can occasionally push/pull, climb ladders or stairs, grasp, twist
and handle, perform fine finger manipulation, and reach; she can rarely work
around hazardous machinery; she can never operate a motor vehicle; and it
may be necessary for her to be absent from work two days per month as the
result of her impairments or treatment.
Tr. 19. The ALJ then found that Plaintiff is unable to perform any past relevant work. (Step
4) Tr. 24.5 At Step 5, the ALJ found that, “[c]onsidering the claimant’s age, education, work
experience, and residual functional capacity,” and after consulting with a VE, “there are jobs
that exist in significant numbers in the national economy that the claimant can perform.” Tr.
The VE classified Plaintiff’s past relevant work as a “small products assembler.” Tr. 24.
24. The ALJ identified the following occupations as examples: “Information Clerk” and
“surveillance System Monitor.” Tr. 25. Accordingly, the ALJ determined that Plaintiff “has
not been under a disability . . . from October 31, 2007 through the date of his decision.”
Plaintiff presents one issue for this Court’s consideration in review of the ALJ’s
decision: whether “[t]he Commissioner’s decision should be reversed because the ALJ failed
to follow the ‘slight abnormality’ standard in finding that [Plaintiff’s] ‘mental deficiency’ is
non-severe.” Pl.’s Brief (Doc. #12) at 5.
Whether the ALJ properly evaluated Plaintiff’s mental deficiency.
Plaintiff’s makes three arguments in support of her claim. Plaintiff argues: 1) that
the ALJ failed to follow the ‘slight abnormality’ standard in finding that [Plaintiff’s] ‘mental
deficiency’ is non-severe; 2) that the ALJ did not include any specific mental limitations in
his RFC assessment; and 3) that the ALJ did not order a consultative examination. Pl.’s Brief
(Doc. #12) at 12. Plaintiff essentially argues the ALJ did not properly evaluate her mental
Whether the ALJ failed to follow the “slight abnormality”
Plaintiff argues that “the ALJ’s decision is devoid of the proper analysis of a mental
impairment.” Pl.’s Brief (Doc. #12) at 6. Plaintiff cites to Moore v. Barnhart, 405 F.3d 1208
(11th Cir. 2005), arguing that the ALJ was required to evaluate Plaintiff’s mental
impairments using a Psychiatric Review Technique Form, which requires separate
evaluations of how Plaintiff’s mental impairment impacts her four functional areas. Id.
Plaintiff concludes that the ALJ erred because he “failed to analyze any of the four functional
The problem with Plaintiff’s argument is that she argues the ALJ failed to properly
evaluate a mental impairment that she never even alleged. The Eleventh Circuit has found,
and Defendant correctly points out, that “an administrative law judge is under no obligation
to investigate a claim not presented at the time of the application for benefits and not offered
at the hearing as a basis for disability.” Street v. Barnhart, 133 F. App’x 621, 627 (11th Cir.
2005) (unpublished) (quoting Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996) (internal
quotation marks omitted)). Here, the Plaintiff did not list any mental impairment in her
application for disability benefits, nor did she testify at the hearing that she suffers any
mental deficiency that would affect her ability to work.6 Moreover, the record contains no
diagnosis that Plaintiff suffers from a mental illness. Plaintiff’s brief points out that Dr.
Davis, Plaintiff’s treating physician, and Dr. Ellis, consultative examiner, referenced a mental
condition or impairment in their treatment notes for Plaintiff. Pl.’s Brief (Doc. #12) at 8.
However, neither Dr. Davis nor Dr. Ellis are qualified mental examiners nor do their brief
At the hearing, Plaintiff indicated her diabetes and epilepsy keep her from working due to the
stress they cause her. Tr. 35.
statements in the treatment notes qualify as objective medical evidence of a mental
Moreover, neither Plaintiff nor her attorney mentioned these notations to the ALJ
during the administrative hearing, nor was it ever argued during the administrative
proceedings that Plaintiff suffered from a mental impairment. Indeed, Plaintiff failed to
identify in her brief from what mental impairment she suffers that would limit her ability to
work. Thus, “[Plaintiff] failed to present any evidence to the ALJ that would have put him
on notice of a mental or intellectual limitation on [Plaintiff’s] ability to function.” Street, 133
F. App’x at 628.7
In order to trigger the ALJ’s duty to complete a Psychiatric Review Technique Form
and incorporate its mode of analysis into his findings and conclusions, Plaintiff must first
make a colorable claim of a mental impairment. Moore v. Barnhart, 405 F.3d 1208 (11th
Cir. 2005) (“[W]here a claimant has presented a colorable claim of mental impairment, the
social security regulations require the ALJ to complete a PRTF.”) (emphasis added).
At least one other circuit has found that an ALJ did not err in failing to consider a possible
mental impairment when the record contained only isolated and sporadic references to an
impairment. See, e.g., Wilson v. Barnhart, 210 F. App’x 448, 450 (5th Cir. 2006) (finding no
error when the only evidence of depression cited by the plaintiff was one page out of the
hundreds of pages of medical records in which her physician indicated “possible depression”);
Domingue v. Barnhart, 388 F.3d 462, 463 (5th Cir. 2004) (finding no error when claimant did
not raise depression as an impairment at the administrative level and on appeal “pointed to no
evidence indicating that her alleged depression affected her ability to work”); Leggett v. Chater,
67 F.3d 558, 565 (5th Cir. 1995) (holding no error in not considering alleged mental impairments
because claimant never raised the issue of a mental impairment until his appeal to Court of
Appeals, and, although the record contained references to anxiety, stress, and depression, those
comments were isolated, and the claimant was never treated for those conditions.).
Because Plaintiff failed to even raise the issue of a mental impairment, much less provide
objective evidence, she failed to present a colorable claim of a mental impairment that would
trigger the ALJ’s duty to complete a Psychiatric Review Technique Form. Thus, Plaintiff’s
argument lacks merit.
Whether the ALJ properly determined Plaintiff’s RFC.
Next, Plaintiff argues “the ALJ failed to include any specific limitations in his RFC
based upon [Plaintiff’s] mental impairment.” Pl.’s Brief (Doc. #12) at 6. The problem again
is that Plaintiff is putting the cart before the horse. As Defendant points out, “the ALJ was
not required to consider Plaintiff’s alleged mental impairment because she did not produce
objective evidence sufficient to suggest a reasonable possibility that a severe mental
impairment existed.” Def.’s Brief (Doc. #) at 9. Because the ALJ properly found that
Plaintiff does not suffer from a mental impairment, the ALJ properly did not include mental
limitations in Plaintiff’s RFC.
In reaching his determination regarding Plaintiff’s RFC, the ALJ noted Plaintiff “has
a 10th grade education; she can read, write, add subtract; she can do simple math.” Tr. 20.8
He further noted “that the claimant testified that she can go shopping and banking; she can
bend, stoop and squat; she can use her hands; she can prepare meals; she can dress herself;
she can do her hair; she can do some housework; she has help with the chores such as laundry
and dishes; she can visit family and friends; she likes to make key chains, play video games,
Plaintiff does not allege nor is there any evidence on the record that Plaintiff completed the
tenth grade in special education classes.
and watch television; on a daily basis, she plays with the dog, feeds the fish, and helps do the
chores.” Tr. 23. Accordingly, the ALJ “conclude[d] that the claimant’s ability to engage in
a wide array of activities of daily living is persuasive evidence that the claimant’s alleged
symptoms resulting from physical and/or mental impairments are not totally disabling.” Id.
Moreover, the ALJ’s RFC determination limited Plaintiff to unskilled, light work and also
accounted for Plaintiff’s alleged stress indicating “it may be necessary for her to be absent
from work two days per month as the result of her impairments or treatment.” Tr. 19.
Accordingly, the ALJ’s RFC determination is proper.9
Whether the ALJ failed to order a psychiatric evaluation.
Lastly, Plaintiff argues that “the ALJ should have at least ordered a psychiatric
evaluation of [Plaintiff] based upon the notations in the medical record as well as her hearing
testimony. This is more so the case as [Plaintiff’s] case is devoid of any psychological
assessment by the Commissioner.” Pl.’s Brief (Doc. #12) at 11.
The ALJ is charged with the duty of developing a full and fair record, meaning that
the ALJ must “scrupulously and conscientiously probe into, inquire of, and explore for all
the relevant facts.” Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). However, the
Eleventh Circuit has found that the ALJ should order a consultative psychiatric examination
The court also finds it instructive that Plaintiff’s past relevant work was as a “weather
window stripper, taking apart fuel pumps, and recycling,” a position she held for two
years. Plaintiff indicated that she stopped working because she was harassed by coworkers. Tr. 22, 283. Plaintiff does not allege nor is there any evidence in the record
indicating that she stopped working, or suffered any work limitations, due to a mental
when the combination of the claimant’s testimony and the opinions of the treating
physician(s) indicates the existence of a mental impairment. See McCall v. Bowen, 846 F.2d
1317, 1320 (11th Cir. 1988).
In this case, the ALJ was not required to order a psychiatric evaluation because there
were not sufficient suggestions of mental impairment in the record “to require the
administrative law judge to question [Plaintiff’s] mental capacity and order a consultative
examination.” Ingram v. Comm’r. of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir.
2007). Indeed, “[i]t is Plaintiff’s burden, not the Commissioner’s, to establish a disability.”
Russell v. Astrue, 2010 WL 3827982, *12 (N.D. Ga. 2010). As noted above, here, the record
contains no diagnosis that Plaintiff suffers from a mental impairment and Plaintiff never even
alleged a mental impairment. Thus, Plaintiff’s argument that the ALJ should have ordered
a psychiatric evaluation is due to fail.
The Court has carefully and independently reviewed the record and concludes that,
for the reasons given above, the decision of the Commissioner is AFFIRMED. A separate
judgment will issue.
Done this 12th day of April, 2012.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE
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