Whitaker v. Astrue (CONSENT)

Filing 17

MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 10/1/13. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
PAMELA S. WHITAKER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACT. NO. 2:12cv812-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 concluded that the plaintiff was not under a
“disability” as defined in the Social Security Act. 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).
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.

The case is now before the court for review pursuant to 42 U.S.C. §§ 405 (g) and
1383(c)(3). Pursuant to 28 U.S.C. § 636(c), the parties have consented to entry of final
judgment by the United States Magistrate Judge. 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 determination2 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

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).3
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. 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).

3

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. Pamela Whitaker was 47 years old on the date of alleged onset of
disability and 50 years old at the time of the hearing before the ALJ. (R. 35). She has her
general equivalency diploma (GED). (R. 36). Whitaker’s prior work experience includes
work as a tractor trailer driver, a security guard and a fast food cook. (R. 37, 39). Following
the administrative hearing, the ALJ concluded that the plaintiff has severe impairments of
“hypertension, degenerative disc disease of the cervical and lumbar spine, impingement of
the right shoulder, major depressive disorder, posttraumatic stress disorder, and alcohol abuse
(20 CFR 404.1520(c)and 416.920(c)).” (R. 14). However, the ALJ concluded that the
plaintiff did not have impairments that met the criteria of any of the Listings of Impairments
set forth at 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ also concluded that the
plaintiff was unable to perform her past relevant work, but, using the Medical-Vocational
Guidelines, 20 C.F.R. Pt. 404, Subpt. P., App. 2, as a framework and relying on the testimony
of a vocational expert, she concluded that there were a significant number of jobs in the
national economy that the plaintiff could perform. (R. 22-24). Thus, the ALJ concluded that
Whitaker was not disabled because she had the residual functional capacity to perform light
work with restrictions. (R. 17, 24).
B. The Plaintiff's Claims. Whitaker presents two issues for the Court’s review. As
stated by Whitaker, the issues are as follows:
1.

The Commissioner’s decision erroneously relies upon an incomplete
hypothetical question posed to the vocational expert, whose testimony
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the ALJ utilized as support for the decision that Ms. Whitaker is not
disabled.
2.

The Commissioner erred in finding that Ms. Whitaker can perform a
range of light work, a finding which is not supported by linkage to
either the medical opinion evidence or reasonable inferences drawn
from the medical evidence as a whole.

(Doc. # 12, Pl’s Br. at 2). It is to these issues that the court now turns.
IV. Discussion
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 ALJ must 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 ALJ must also 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) (emphases added).

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A.

The ALJ’s hypothetical questions to the VE accounted for all of

Whitaker’s limitations. At step five of the sequential analysis, the Commissioner must
determine that significant numbers of jobs exist in the national economy that the claimant can
perform. Phillips, 357 F.3d at 1239; 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). An
ALJ may make this determination either by applying the Medical Vocational Guidelines or
by obtaining the testimony of a vocational expert. Phillips, 357 F.3d at 1239-40. “In order
for a vocational expert'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). However, a hypothetical question “may be
adequate where it implicitly accounts for the claimant’s limitations.” Beegle v. Soc. Sec.
Admin., Com’r, 482 Fed. Appx. 483, 487 (11th Cir. 2012) (citing Winschel v. Comm'r of
Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)). Moreover, “[a]n ALJ's errors in
conducting the five step evaluation process may be harmless if they do not prejudice the
claimant.” Jones v. Comm’r of Soc. Sec., 492 Fed. Appx. 70, 72 (11th Cir. 2012) (citing
Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983)).
During the administrative hearing, the ALJ posed the following hypothetical questions
to the vocational expert.
Q

I’d like to ask that you assume an individual with the same work
history that you have already described for Ms. Whitaker. I’m
going to ask further that you assume that I find that the
individual is limited in the following fashion: lifting and
carrying no more than 20 pounds occasionally, 10 pound
frequently; no overhead reaching with the right dominant arm;
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no climbing ladders, scaffolds, or ropes, or anything that would
require her to lift her arms up over her head for that purpose; no
work around unprotected heights or dangerous equipment; and
no complex or detailed job instructions; no working in crowds,
and only occasional contact with the public. With these
restrictions, in your opinion, could such an individual perform
any of the work that Ms. Whitaker has performed in the past?
A

No, ma’am. Based on the hypothetical, I do believe the
individual would be excluded from performing the past relevant
work.

Q

In you opinion, are there any jobs in the region or in the or in
several regions in the country that an individual with the same
work history is as Ms. Whitaker, and that is a younger individual
with a - - I thought she had a GED - - yeah, with a highs (sic)
school education be able to perform?

A

Yes ma’am. There would be positions that would be consistent
with that particular hypothetical. . . .
*

*

*

Q

My second hypothetical is going to ask that you assume an individual
with the same vocational profile as my previous hypothetical with the
same restrictions, except for I’m going to change the lifting and
carrying to no more than 10 pounds, and limit standing and walking to
30 minutes at a time, no more than two hours in an eight hour work day.
Otherwise, everything else is exactly the same. So in other words, I
guess what I’m asking you, Mr. Miller, is would you be able to identify
sedentary jobs?

A

It would be fairly limited with the ability to interrelate with the
general public. The only position that comes to mind is that of
a surveillance monitor, which is DOT code 379.367-010. That’s
sedentary and unskilled . . .

Q

*
*
*
And would you be able to [add] a few more, but it would be of
limited range?
7

A

Yes, ma’am. Yes, ma’am.

(R. 68-71)
The plaintiff complains that, in her hypothetical questions, the ALJ did not specifically
state that she found Whitaker was moderately impaired “in maintaining social functioning,
as well as her ability to respond appropriately to supervisors, coworkers, or work pressures.”
(Doc. # 12 at 3). She also complains that the ALJ did not include her moderate restriction
in maintaining concentration or pace in her hypothetical questions to the vocational expert.
(Id.) In her opinion, the ALJ stated that Whitaker had moderate difficulties in her social
functioning and with concentration, persistence or pace. (R. 16). However, both the residual
functional capacity determination by the ALJ (limiting Whitaker to light work with additional
limitations) and the hypothetical questions posed to the vocational expert do implicitly
account for moderate limitations in social functioning and concentration, persistence and
pace.

Specifically, the ALJ restricted the plaintiff to “no complex or detailed job

instructions; no working in crowds, and only occasional contact with the public.” (R. 68).
In addition, the vocational expert limited Whitaker to unskilled work. Because the ALJ’s
hypothetical questions to the vocational expert expressly limited Whitaker to work that did
not involve complex or detailed instructions and expressly limited her contact with others,
and because the vocational expert limited Whitaker to unskilled work, the ALJ implicitly
accounted for moderate limitations in Whitaker’s social functioning and concentration,
persistence and pace. See Beegle, 482 Fed. Appx. at 487 (holding that a hypothetical

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question may be adequate if it implicitly accounts for all the claimant’s limitations (citing
Winschel, 631 F.3d at 1180)). See also Jacobs v. Comm’r of Soc. Sec., — Fed. Appx. —,
2013 WL 2436454 (11th Cir., June 6, 2013) (No. 12-15509) (“The ALJ’s hypothetical
questions to the vocational expert fully accounted for Jacobs’s moderate difficulties in
maintaining his concentration, persistence, or pace by limiting him to one to three step noncomplex tasks, consistent with the RFC assessment.”)
Further, because the vocational expert testified that a significant number jobs
requiring both light and sedentary work were available that could be performed by a person
with Whitaker’s residual functional capacity (R. 68-71), Whitaker cannot demonstrate that
she was prejudiced by the lack of an express reference to a moderate limitations in social
functioning and concentration, persistence and pace. See Beegle, supra.
Therefore, the court finds no reversible error in the ALJ’s failure to specifically
mention Whitaker’s moderate limitations.
B. The record supports the ALJ’s Residual Functional Capacity (“RFC”)
Assessment. Whitaker also complains that the ALJ’s RFC is not supported by substantial
evidence because the ALJ’s RFC determination “is not supported by linkage to either the
medical opinion evidence or reasonable inferences drawn from the medical evidence as a
whole.” (Doc. # 12 at 7). The ALJ concluded that the plaintiff had the residual functional
capacity
to perform light work as defined in 20 CFR 416.1567(b) and 416.967(b)
except the claimant can never reach overhead with the right non-dominant
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arm; never climb ladders, ropes, or scaffolds; never work at unprotected
heights or around dangerous equipment; never have complex or detailed job
instructions; and never work in crowds or have more than occasional contact
with the general public.
(R. 17).
An ALJ is required to independently assess a claimant’s residual functional capacity
“based upon all of the relevant evidence.” 20 CFR § 404.1545(a)(3) (“We will assess your
residual functional capacity based on all of the relevant medical and other evidence.”); 20
C.F.R. § 404.1546(c) (“Responsibility for assessing residual functional capacity at the
administrative law judge hearing . . . level. If your case is at the administrative law judge
hearing level . . ., the administrative law judge . . . is responsible for assessing your residual
functional capacity.”) See also Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)
(“The residual functional capacity is an assessment, based upon all of the relevant evidence,
of a claimant’s remaining ability to do work despite his impairments.”). “Residual functional
capacity, or RFC, is a medical assessment of what the claimant can do in a work setting
despite any mental, physical or environmental limitations caused by the claimant’s
impairments and related symptoms. 20 C.F.R. § 416.945(a).” Peeler v. Astrue, 400 Fed.
Appx. 492, 494 n.2 (11th Cir. 2010).
The plaintiff argues that “[t]here was no physical capacities assessment from either
a treating source or even the consultative examiner,” and consequently, there is no “linkage”
between the medical evidence and the ALJ’s residual functional capacity determination.
(Doc. # 12 at 8). Whitaker also complains that “[t]here is no evidence of record from a
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treating or examining physician which supports the findings of the Commissioner with regard
to [her] abilities to engage in work-related tasks.” (Id. at 13). In essence, the plaintiff
contends that the record must contain a residual functional capacity determination by an
examining or treating physician. However, the plaintiff’s argument conflates the nature of
residual functional capacity with the responsibility for making the residual functional
capacity determination. The Commissioner’s regulations clearly show who is responsible
for making the residual functional capacity determination when a case has reached the
administrative law judge hearing.
If your case is at the administrative law judge hearing level or at the Appeals
Council review level, the administrative law judge or the administrative
appeals judge at the Appeals Council (when the Appeals Council makes a
decision) is responsible for assessing your residual functional capacity.
20 CFR § 404.1546.
But that observation does not end the enquiry. The essential question raised by the
plaintiff is whether it is necessary to have a residual functional capacity assessment by a
medical provider as part of the evidence which an ALJ must consider in reaching a
determination. In this case, the answer is no. The ALJ stated that she
considered all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical evidence and
other evidence, based on the requirements of 20 C.F.R. 404.1529 and 416.929

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and SSRs 96-4p4 and 96-7p.5 I have also considered opinion evidence in
accordance with the requirements of 20 C.F.R. 404.1527 and 416.927 and
SSRs 96-2p, 96-5p, 96-6p, and 06-3p.6
(R. at 18) (footnotes added).
The ALJ reviewed and considered all the medical evidence in the record in
determining Whitaker’s RFC. The court has independently considered the record as a whole
and finds that the record provides substantial support for the ALJ’s conclusions.
Consequently, the court concludes there was sufficient medical evidence before the ALJ from
which she properly could made a residual functional capacity assessment.
Whitaker accuses the ALJ of substituting her judgment for that of a physician by
assessing her physical abilities, and contends that the ALJ should have more fully developed
the record by securing a mental RFC from a treating or examining mental health provider.
See Doc. # 12 at 12. It is Whitaker’s burden to establish the evidentiary basis from which
her residual functional capacity may be determined. In the fourth step of the sequential
analysis, the ALJ determines the claimant's RFC and her ability to return to her past relevant
work. Phillips, 357 F.3d at 1238. While the ALJ has the responsibility to make a

4

This Ruling clarifies the policy of the Social Security Administration on the evaluation of
symptoms in the adjudication of claims for disability benefits under title II and title XVI of the Social
Security Act.
5

This Ruling clarifies when the evaluation of symptoms, including pain, requires a finding about
the credibility of an individual and explains the factors to be considered in assessing the credibility of the
individual's statements about symptoms.
6

Generally, these Rulings describe how the Commissioner evaluates and uses medical source

opinions.

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determination of plaintiff's RFC, it is plaintiff who bears the burden of proving her RFC, i.e.,
she must establish through evidence that her impairments result in functional limitations and
that she was “disabled” under the Social Security Act. See 20 C.F.R. § 404.1512 (instructing
claimant that the ALJ will consider “only impairment(s) you say you have or about which we
receive evidence” and “[y]ou must provide medical evidence showing that you have an
impairment(s) and how severe it is during the time you say that you are disabled”). See also
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001) (it is claimant’s burden to prove
RFC, and ALJ's responsibility to determine RFC based on medical records, observations of
treating physicians and others, and claimant’s description of limitations).
During the administrative hearing, Whitaker testified that she drives, shops, and cares
for seventeen cats as well as several dogs. (R. 183, 185). Her hobbies include watching
television, reading, drawing and painting - activities that require concentration and
persistence. (R. 186). On her functional report, Whitaker indicated that she “pay[s] attention
very well;” that she follows written instructions “well” and spoken instructions “pretty
good;” and she handles change in routine “pretty good.” (R. 187-88). Whitaker’s own report
of her restrictions in the areas of social functioning and concentration, persistence and pace
supports the ALJ’s residual functional capacity determination.
In support of her position, Whitaker relies on a case from this district for the
proposition that the Commissioner’s fifth-step burden must be supported by a residual
functional capacity assessment of a physician. See Doc. 12 at 11 (“While the ALJ determines

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Plaintiff’s RFC, Plaintiff’s limitations are considered medical opinions and, as such, must
be evaluated by a physician.” Saunders v. Astrue, 1:11cv308-WC, * 8 (M.D. Ala. Mar. 23,
2012).
Saunders is distinguishable from the case at bar. In Saunders, the court concluded
that there was insufficient evidence in the record to reconcile the restrictions placed in the
plaintiff by her physicians with the ALJ’s residual functional capacity determination. Such
an evidentiary gap does not exist in this case. The ALJ had before her sufficient medical
evidence from which she could make a reasoned determination of Whitaker’s residual
functional capacity. Thus, she was not required to secure from a medical source a residual
functional capacity assessment.
Pursuant to the substantial evidence standard, this court’s review is a limited one; the
entire record must be scrutinized to determine the reasonableness of the ALJ’s factual
findings. Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992). The ALJ evaluated all the
evidence before her which led her to conclude that the plaintiff can perform light work. It
is not the province of this court to reweigh evidence, make credibility determinations, or
substitute its judgment for that of the ALJ. Instead the court reviews the record to determine
if the decision reached is supported by substantial evidence. Moore v. Barnhart, 405 F.3d
1208, 1211 (11th Cir. 2005). Substantial evidence “is less than a preponderance, but rather
such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. Given this standard of review, the court concludes that the ALJ’s residual

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functional capacity is consistent with the medical evidence as a whole as well as Whitaker’s
testimony about her impairments and abilities. In short, after a careful examination of the
administrative record, the court concludes that substantial evidence supports the conclusion
of the ALJ concerning Whitaker’s residual functional capacity to perform light work.
V. Conclusion
For the foregoing reasons, the court concludes that the decision of the Commissioner
is due to be affirmed. A separate final judgment will be entered.
Done this 1st day of October, 2013.

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

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