Chism v. Astrue(CONSENT)

Filing 14

MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 7/18/12. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CATHERINE J. CHISM,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CIVIL ACTION NO. 2:11cv380-CSC
(WO)

MEMORANDUM OPINION
I. Introduction.
The plaintiff applied for disability insurance benefits pursuant to Title II of the Social
Security Act, 42 U.S.C. § 401, et seq., and for supplemental security income benefits under
Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq., alleging that she was unable
to work because of a disability. Her application was denied at the initial administrative level.
The plaintiff then requested and received a hearing before an Administrative Law Judge
(“ALJ”). Following the hearing, the ALJ also denied the claim. The Appeals Council
rejected a subsequent request for review. 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 pursuant to

1

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.

42 U.S.C. §§ 405 (g) and 1383(c)(3).2 Based on the court's review of the record in this case
and the briefs of the parties, the court concludes that the decision of the Commissioner
should be affirmed.
II. 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...
To make this determination3 the Commissioner employs a five step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(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?
(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 "not
disabled."

2

Pursuant to 28 U.S.C. § 636(c), the parties have consented to entry of final judgment by the United
States Magistrate Judge.
3

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.

2

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4
The standard of 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); Ingram v. Comm’r. of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir.
2007). "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); Crawford v. Comm'r of Soc.
Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004). A reviewing court may not look only to those
parts of the record which supports 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, 1180 (11th Cir. 1986). The court "may not decide
the facts anew, reweigh the evidence, or substitute . . . [its] judgment for that of the
[Commissioner]." Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004) (alteration
in original) (quotation marks omitted).
[The court must, however,] . . . 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).

4

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) (Unit A).

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III. The Issues
A. Introduction. The plaintiff was 43 years old at the time of the hearing before the
ALJ and has a limited 11th grade education. The plaintiff’s prior work experience includes
work as a hospital cleaner and nurse’s assistant. Following the administrative hearing, the
ALJ concluded that the plaintiff has impairments of degenerative disc disease of the lumbar
spine and right knee difficulties. The ALJ further found that the plaintiff’s mental
impairment of depression was non-severe. Nonetheless, the ALJ concluded that the plaintiff
was not disabled because the plaintiff has the residual functional capacity to perform a
limited range of light work with a sit-stand option, no climbing of ladders, ropes, or
scaffolds, and no more than occasional stooping, balancing, crouching, kneeling, crawling,
and climbing of stairs and ramps. (R. at 22-24)
B. The Plaintiff's Claims. As stated by the plaintiff, her claims are
1. The Commissioner's decision should be reversed, because the Appeals Council
erred in failing to remand her case to the ALJ on the basis of new and material
evidence and since the Appeals Council did not provide any reasoning for denying her
appeal, it did not meaning fully consider this evidence.
2. The Commissioner's decision should be reversed, because the ALJ failed to
properly evaluate Ms. Chism's mental impairments, and erred in finding these
impairments to be nonsevere.
3. The Commissioner's decision should be reversed, because the ALJ failed to resolve
the conflict between the Vocational Expert's testimony and the Dictionary of
Occupational Titles.
(Doc. # 11, Pl’s Br. at 5).

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IV. Discussion
A. Introduction. A disability claimant bears the initial burden of demonstrating an
inability to return to her past work. Lucas v. Sullivan, 918 F.2d 1567 (11th Cir. 1990). In
determining whether the claimant has satisfied this burden, the Commissioner is guided by
four factors: (1) objective medical facts or clinical findings, (2) diagnoses of examining
physicians, (3) subjective evidence of pain and disability, e.g., the testimony of the claimant
and her family or friends, and (4) the claimant’s age, education, and work history. Tieniber
v. Heckler, 720 F.2d 1251 (11th Cir. 1983). The court must scrutinize the record in its
entirety to determine the reasonableness of the ALJ’s decision. See Walker, 826 F.2d at 999.
The ALJ must also conscientiously probe into, inquire of and explore all relevant facts to
elicit both favorable and unfavorable facts for review. Cowart v. Schweiker, 662 F.2d 731,
735-36 (11th Cir. 1981). The Commissioner’s regulations require that a written decision
contain several elements. The ALJ must state, with sufficient specificity, the reasons for his
decision referencing the plaintiff’s impairments.
Any such decision by the Commissioner of Social Security which involves a
determination of disability and which is in whole or in part unfavorable to such
individual shall contain a statement of the case, in understandable language,
setting forth a discussion of the evidence, and stating the Commissioner’s
determination and the reason or reasons upon which it is based.
42 U.S.C. § 405(b)(1) (emphasis added).
B. Appeals Council Actions. The plaintiff argues that the Appeals Council erred in
failing to remand her case on the basis of new and material evidence which it did not

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meaningfully consider. This evidence consists of the report of an MRI done on October 15,
2009, in which the radiologist found “Chronic dessication of the L3-4, 4-5, 5-S1 discs. Mild
diffuse broad-base disc bulge L3-4. Minimal disc bulge L4-5 and 5-S1.” (R. at 436) In
addition, the plaintiff submitted to the Appeals Council a statement by her treating physician
written on a prescription pad sheet. It states “Pt is totally disabled due to back pain. She has
lumbar disc disease.” (R. at 437) This note was written on October 8, 2009, one week before
the MRI.
The plaintiff argues that remand is warranted because the Appeals Council’s failure
to explain its decision to uphold the ALJ shows that it did not meaningfully consider this
evidence. That argument presumes that this evidence would be sufficient to change the
ALJ’s decision. It is not.5 First, the note from the plaintiff’s treating physician was written
before the MRI was performed; thus, the MRI could not have informed his opinion.
Secondly, the MRI shows only “mild” or “minimal” problems. In light of her admitted daily
activities as correctly recounted by the ALJ, (R. at 24), the court concludes that this new
evidence is insufficient to cast doubt on the ALJ’s conclusions.
C. The Mental Impairment. The plaintiff contends that the ALJ failed to properly
evaluate her mental impairments, and erred in finding these impairments to be nonsevere.
In the present case, the ALJ found that Ms. Chism's "mental impairment of
depression does not cause more than minimal limitation in the claimant's
5

Because the court reaches this conclusion, it is unnecessary to consider the ancillary questions
about how to deal with evidence first submitted to the Appeals Council. See Ingram v. Comm'r of Soc. Sec.,
496 F.3d 1253 (11th Cir. 2007).

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ability to do basic work activities" (Tr. 20). A review of the record shows that
Ms. Chism has carried her burden of establishing a severe mental impairment
at Step Two of the sequential evaluation process. Treatment records from
SpectraCare note that Ms. Chism was diagnosed with: Major Depressive
Disorder, recurrent, moderate; Specific Phobia-situational; Generalized
Anxiety; Sibling Relational Problem; and Parent-Child Relational Problem (Tr.
426). Ms. Chism was prescribed Wellbutrin for her mental impairments (Tr.
408). Additionally, during the hearing, Ms. Chism testified that she is
depressed and that her depression impacts her ability to do work-related
activities (Tr. 46,47). Thus, it is reasonable to conclude that Ms. Chism's
mental impairment would cause more than a minimal limitation in her ability
to perform basic mental work activities.
(Doc. # 11, Pl’s Br. at 7).
Additionally, the plaintiff argues that the ALJ’s opinion is erroneous because it is not
based on any medical opinion or substantial evidence because no psychiatric review
technique form was completed by a physician. The court concludes the ALJ did not err.
In McCall v. Bowen, 846 F.2d 1317, 1320 (11th Cir. 1988), the court stated, “[I]n any
case where there is evidence which indicates the existence of a mental impairment the . . .
[Commissioner] may determine that the claimant is not disabled only if the . . .
[Commissioner] has made every reasonable effort to obtain the opinion of a qualified
psychiatrist or psychologist.” However, in Sneed v. Barnhart, 214 Fed. Appx. 883 (11th Cir.
2006), the court cites with approval Plummer v. Apfel, 186 F.3d 422 (3rd Cir. 1999), in which
the Third Circuit notes that
Because 42 U.S.C. § 421(d), which covers hearings before an ALJ, is excluded
from § 421(h)'s purview, an ALJ is not required to employ the assistance of a
qualified psychiatrist or psychologist in making an initial determination of
mental impairment. Instead, the Commissioner's regulations provide an ALJ
with greater flexibility than other hearing officers. At the initial and
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reconsideration levels, a PRT form-outlining the steps of the § 404.1520a
procedure-must be completed and signed by a medical consultant. 20 C.F.R.
§ 404.1520a(d)(1). However, the ALJ has several options available: she can
complete and sign the document without the assistance of a medical adviser;
she can call a medical adviser for assistance in completing the document; or,
if new evidence is received or the issue of mental impairments arises for the
first time, she can remand the case for completion of the document and a new
determination. 20 C.F.R. § 404.1520a(d)(1)(i-iii). In summary, the regulations
allow the ALJ to remand for further review, to proceed with a determination
without the assistance of a medical adviser, or to call a medical adviser for
assistance with the case.
Id. at 432.
In the instant case, the ALJ carefully and at length considered the plaintiff’s
depression.
Although the claimant did not allege symptoms of depression prior to her
hearing, she testified that she sought treatment at Spectra Care, a mental health
services provider. Subsequent to the hearing in this matter, then, the medical
records from SpectraCare were obtained. These reveal that the claimant had
first sought treatment with them in June 2008. The intake interviewed reports
that this was the first time Ms. Chism had sought mental health treatment. She
reported to them that she experienced anxiety and that she continued to be
depressed about her mother's death. She complained of "racing thoughts, her
heart races and pounds" (Exhibit B11F p. 15).The initial clinical evaluation
was "depression, anxiety, phobia and relational" (Exhibit B11F p.19) The plan
was for counseling, group therapy and she was to meet with the psychiatrist
(Dr. Lopez). In July she met with the Dr. Hammand, a psychologist. He
diagnosed a major depressive disorder, situational phobia, generalized anxiety,
and both sibling relational problems and parent/child relational problems
(Exhibit Bl1F, p. 21). She was prescribed Wellbutrin in July 2008. After that
initial contact with the psychologist, the record reveals the claimant repeatedly
failed to appear for treatment at SpectraCare, which suggests that her
symptoms of depression may not have been as serious as has been alleged in
connection with this application. The claimant attended three appointments at
SpectraCare, two assessments and one group therapy session. Her failure to
show for subsequent therapy sessions culminated in her termination from
Spectra Care services for non-compliance. (Exhibit B11F).
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(R. at 20)
Following this general overview, the ALJ considered each of the functional areas
which are used for evaluation of mental disorders: activities of daily living; social
functioning; concentration, persistence or pace; and episodes of decompensation. (R. at 2021) Finally, the ALJ concluded as follows:
While the evidence does establish a medically determinable mental impairment
of a major depressive disorder, that condition does not cause any more than
"mild" limitations in the two functional areas for assessing mental
impairments. While the claimant has alleged at the hearing that she is
depressed and this impacts her ability to work, her failure to actively
participate in a plan for alleviating her alleged symptoms and given the wide
range of activities she has identified both to her health professionals and at the
hearing in this matter, I do not find credible her allegation that this condition
would interfere with her ability to perform basic work activities. I have
reviewed the record and do not any information from any health care provider
indicating that the alleged depression in any way impacts her ability to perform
basic work activities. Accordingly, I find that her alleged depressive disorder
is not a severe impairment.
(R. at 21)
The ALJ is entitled to make this determination, and the court finds it is supported by
substantial evidence. The plaintiff’s contention regarding her mental impairment does not
entitle her to relief.
D. The Vocational Expert and Dictionary of Occupational Titles Conflict. The
plaintiff contends that a remand is warranted because the ALJ failed to resolve the conflict
between the Vocational Expert's testimony and the Dictionary of Occupational Titles
(“DOT”). The plaintiff’s argument lacks merit first, because it is inconsistent with Circuit

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law and, secondly, because there is no real conflict between the vocational expert’s testimony
and the DOT. Here is what the plaintiff argues.
In the instant case, the VE's testimony that a claimant, who requires a sit/stand
option, could perform light jobs such as garment folder, laundry article sorter,
and office helper is not consistent with the DOT (Tr. 52). The DOT specifies
that "standing" is defined as "being on one's feet in an upright position without
moving about." Thus, according to the DOT, jobs defined as “light work”
entail standing for up to six hours a day in “an upright position without moving
about” and would not allow for a sit/stand option.
(Doc. # 11, Pl.’s Br. at 10-11).
At the beginning of the vocational expert’s testimony, the ALJ asked her, “Ms.
Gillespie, I would ask that if at any time your testimony is going to be different than the
information that might be found in the Dictionary of Occupational Titles, that you will bring
it to my attention?” (R. at 52) The vocational expert responded that she would. She never
indicated to the ALJ that any differences existed.
The ALJ posed to the vocational expert the following hypothetical:
Now, let's assume that we have an individual with the same work history as
you've already described for Ms. Chism, and let's assume further that such an
individual can lift and carry 20 pounds occasionally and 10 pounds frequently;
would need a sit/stand option, able to sit/stand, but can do those throughout an
eight-hour work day. In addition, can only occasionally perform postural
activities such as stooping, balancing, crouching, kneeling, and crawling; and
can only occasionally climb stairs and ramps; and never climb ladders, ropes,
or scaffolds.
(R. at 53-54)
In response to questions by the ALJ, the vocational expert testified that with these
restrictions, the plaintiff could not perform any of the work she performed in the past. (R. at
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54) The ALJ then asked the vocational expert whether “there [were] any jobs in the region
or in the several regions of the country that such an individual with the same work history
as Ms. Chism, as a younger individual and a high -- or, less than a high school education,
limited education, [would be] able to perform with these restrictions?” Id. The vocational
expert responded affirmatively.
One example would be a garment folder. The DOT code is 789.687-066. This
is unskilled, light work, with approximately 524,000 nationally, and 10,000 in
the state of Alabama. A second example would be a laundry article sorter. The
DOT code is361.38 -- excuse me, .687-014. Again, this is unskilled, light
work, with approximately 473,000 nationally, and 12,000 in the state of
Alabama. A third example would be an office helper. The DOT code
is239.567-015 -- excuse me, 010. This is unskilled, light work, with
approximately 101,000 nationally, and 1,700 in the state of Alabama.
(R. at 55)
In this Circuit, a vocational expert’s testimony trumps the DOT to the extent that the
two are inconsistent. Jones v. Apfel, 190 F.3d 1224, 1229-30 (11th Cir. 1999). In Jones v.
Comm’r of Soc. Sec., the court discussed the very issue raised by the plaintiff.
Jones cites SSR 00–4p, which provides that “[n]either the DOT nor the [VE's
testimony] automatically ‘trumps' ” and instructs the ALJ to “elicit a
reasonable explanation” for a conflict between the two before relying on the
VE's testimony. SSR 00–04p, 2000 WL 1898704 (Dec. 4, 2000). Social
Security Rulings are not binding on this Court. See B.B. v. Schweiker, 643 F.2d
1069, 1071 (5th Cir. Unit B Apr.1981); see also Stein v. Reynolds Sec., Inc.,
667 F.2d 33, 34 (11th Cir.1982) (providing that we are bound by decisions
issued by Unit B panels of the former Fifth Circuit). To the extent SSR 00–4p
conflicts with Jones, we are bound by Jones. Furthermore, the ALJ arguably
discharged his duty under SSR 00–04p by asking the VE about inconsistencies
with the DOT, and then noting in his decision that the VE had explained that
over half the cashier positions the DOT classified as light work were actually
sedentary work.
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423 Fed. Appx. 936, 939 n. 4 (11th Cir. 2011)
This court, of course, is bound by Circuit precedence; thus, the plaintiff’s claim fails
on this alone. However, even were that not so, the plaintiff still would not succeed.
20 C.F.R. § 404.1567 deals with physical exertion requirements and says in part as
follows:
To determine the physical exertion requirements of work in the national
economy, we classify jobs as sedentary, light, medium, heavy, and very heavy.
These terms have the same meaning as they have in the Dictionary of
Occupational Titles, published by the Department of Labor. In making
disability determinations under this subpart, we use the following definitions
...
(b) Light work. Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg controls. To be considered capable
of performing a full or wide range of light work, you must have the ability to do substantially
all of these activities. If someone can do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.
Thus, the plaintiff is plainly incorrect to suggest that light work entails only walking
or standing. By definition, light work can also consist of sitting. In SSR 83-12 the
Commissioner discusses the special circumstances of the sit/stand option noting the need for
vocational expert testimony concerning unskilled jobs.
In some disability claims, the medical facts lead to an assessment of RFC
which is compatible with the performance of either sedentary or light work
except that the person must alternate periods of sitting and standing. The
individual may be able to sit for a time, but must then get up and stand or walk
for awhile before returning to sitting. Such an individual is not functionally
capable of doing either the prolonged sitting contemplated in the definition of
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sedentary work (and for the relatively few light jobs which are performed
primarily in a seated position) or the prolonged standing or walking
contemplated for most light work. (Persons who can adjust to any need to vary
sitting and standing by doing so at breaks, lunch periods, etc., would still be
able to perform a defined range of work.) There are some jobs in the national
economy--typically professional and managerial ones--in which a person can
sit or stand with a degree of choice. If an individual had such a job and is still
capable of performing it, or is capable of transferring work skills to such jobs,
he or she would not be found disabled. However, most jobs have ongoing
work processes which demand that a worker be in a certain place or posture for
at least a certain length of time to accomplish a certain task. Unskilled types
of jobs are particularly structured so that a person cannot ordinarily sit or stand
at will. In cases of unusual limitation of ability to sit or stand, a VS should be
consulted to clarify the implications for the occupational base.
The mere fact that a job is classified as light work cannot mean that it does not allow
for a sit/stand option. And nothing in the DOT definitions of garment folder,6 laundry
articles sorter7 or office helper8 indicate that those particular jobs do not allow for a sit/stand
option.
Here, the application of the light work restrictions found by the ALJ required the

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Folds garments for bagging or boxing, following guide marks on table or using folding board
(cardboard or metal form). Secures folds with metal clips. May insert tissue paper between folds. May make
final inspection of garment. May pack garments in bags and boxes [PACKAGER, HAND (any industry)].
May be designated according to garment folded as Shirt Folder (garment; knitting).
7

Sorts laundry into lots, such as flatwork, starchwork, and colored articles prior to washing or
ironing: Places sorted articles in bins, nets, or baskets, or onto conveyor belt. May weigh flatwork and record
weight on laundry ticket. May affix customer's identification mark on articles or fasten identifying pin to
nets.
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Performs any combination of following duties in business office of commercial or industrial
establishment: Furnishes workers with clerical supplies. Opens, sorts, and distributes incoming mail, and
collects, seals, and stamps outgoing mail. Delivers oral or written messages. Collects and distributes
paperwork, such as records or timecards, from one department to another. Marks, tabulates, and files articles
and records. May use office equipment, such as envelope-sealing machine, letter opener, record shaver,
stamping machine, and transcribing machine. May deliver items to other business establishments.

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assistance of a vocational expert to inform the ALJ whether there were any jobs the plaintiff
could perform consistent with the restrictions found by the ALJ. The vocational expert
provided a list of jobs she concluded the plaintiff could perform with the limitations stated
by the ALJ in his hypothetical. Identification of those jobs was within the province of the
vocational expert. Thus, the ALJ complied with SSR 00-4p.
Accordingly, the court concludes that the decision of the Commissioner is due to be
affirmed. A separate final judgment will be entered.
Done this 18th day of July, 2012.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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