Perkins v. Colvin (CONSENT)

Filing 17

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 11/30/2016. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
WILLIAM PERKINS, III,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO.: 2:15cv908-WC

MEMORANDUM OPINION
I.

INTRODUCTION
William Perkins, III, (“Plaintiff”) filed an application for social security income

under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. § 1381, et seq, on August
27, 2012. His application was denied at the initial administrative level on January 10, 2013.
Plaintiff then requested and received a hearing before an Administrative Law Judge
(“ALJ”). Following the hearing, the ALJ issued a decision finding Plaintiff not disabled
from the application date of August 27, 2012, through the date of the decision. Plaintiff
appealed to the Appeals Council, which rejected his 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.

1

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.

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. 7); Def.’s Consent to Jurisdiction (Doc. 8). Based on the court’s review
of the record and the briefs of the parties, the court AFFIRMS the decision of the
Commissioner.
II.

STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to 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 (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
Impairments]?
(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?
2

A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

2

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.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The burden of proof rests on a claimant through Step Four. 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 One through
Step Four. At Step Five, 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. The RFC is what the claimant is
still able to do despite the claimant’s impairments and is based on all relevant medical and
other evidence. Id. It may 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

3

McDaniel is a supplemental security income (SSI) case. The same sequence applies to disability
insurance benefits. Supplemental security income cases arising under Title XVI of the Social Security Act
are appropriately cited as authority in Title II cases. See, e.g., Ware v. Schweiker, 651 F.2d 408, 412 (5th
Cir. 1981); Smith v. Comm’r of Soc. Sec., 486 F. App’x 874, 876 n.* (11th Cir. 2012) (“The definition of
disability and the test used to determine whether a person has a disability is the same for claims seeking
disability insurance benefits or supplemental security income.”).

3

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
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
4

See 20 C.F.R. pt. 404 subpt. P, app. 2.

4

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).
III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was fifty-seven years old on the date of the hearing before the ALJ. Tr. 41.

Plaintiff testified that he had completed high school as well as some college courses. Tr.
42. Following an administrative hearing, and employing the five-step process, the ALJ
found at Step One that Plaintiff “has not engaged in substantial gainful activity since
August 27, 2012, the application date[.]” Tr. 22. At Step Two, the ALJ found that Plaintiff
suffers from the following severe impairments: “status post blunt left parietal head injury
resulting in multiple depressed skull fractures, alcohol dependence, and alcohol induced
dementia.” Tr. 22. At Step Three, the ALJ 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[.]” Tr. 23. Next, the ALJ articulated Plaintiff’s RFC as
follows:
[T]he claimant has the residual functional capacity to perform medium work
as defined in 20 CFR 416.967(c) except that the claimant should not climb
ladders or scaffolds and should not work around unprotected heights or
hazardous machinery. The claimant would be limited to simple, routine and
repetitive tasks, making simple decisions. The claimant can occasionally
interact with supervisors and co-workers, but should have no interaction with
the general public.

5

Tr. 24. Having consulted with a VE at the hearing, the ALJ concluded at Step Four that
Plaintiff is unable to perform his past relevant work as a construction laborer and grass
cutter. Tr. 29. Finally, at Step Five, and based upon the testimony of the VE, the ALJ
determined that “[c]onsidering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform.” Tr. 29. The ALJ identified several representative
occupations, including “hand packager,” “clean-up worker,” and “dishwasher.” Tr. 30.
Accordingly, the ALJ determined that Plaintiff “has not been under a disability . . . since
August 27, 2012, the date the application was filed[.]” Tr. 30.
IV.

PLAINTIFF’S CLAIM
Plaintiff argues that the Commissioner’s decision should be reversed because the

ALJ erred by failing to develop the record relating to Plaintiff’s mental impairments. Pl.’s
Br. (Doc. 14) at 2.
V.

DISCUSSION
Plaintiff argues that the Commissioner’s decision should be reversed because the

ALJ failed to properly develop the record as it relates to Plaintiff’s mental impairments.
Id. As support for this argument, Plaintiff asserts that “[u]nder particular circumstances,
the ALJ has a duty to re-contact, or obtain clarification from, a consultative physician when
the report of the consultative physician’s report is inadequate or incomplete.” Id. at 8.
Plaintiff argues that “[t]he ALJ in this case had a duty to re-contact Marnie Smith Dillon,
6

Psy.D, to seek to obtain a supplemental report for the purpose of providing clarification as
to the import of the results of the Wechsler Memory Scale-Fourth Edition (WMS-IV) of
December 5, 2012, memory testing, relative to Dr. Dillon’s earlier, October 24, 2012,
Disability Evaluation report.” Id. at 8-9. Plaintiff asserts that “[t]he ALJ did not have other
medical evidence relating to Plaintiff’s mental impairments sufficient to make an informed
decision as to whether Plaintiff was disabled, and the reports of Dr. Dillon were inadequate
and incomplete as to the import of the memory testing results and Plaintiff’s degree of
mental impairment and limitations.” Id. at 10. Specifically, Plaintiff takes issue with the
WMS-IV evaluation’s lack of “assessment as to the implications of the memory test scores
relating to the degree to which Plaintiff is impaired in his ability to understand, remember,
and carry our simple and complex instructions and to respond appropriately to supervision
. . . or otherwise explain the meaning of the test results beyond providing numerical scores.”
Id. at 9. As discussed more fully below, Plaintiff’s argument fails.
Pursuant to 20 C.F.R. § 416.919p(a), the Commissioner will review the report of a
consultative examination to determine whether specific information has been furnished. If
the report is inadequate or incomplete, the Commissioner will contact that doctor, give an
explanation of its evidentiary needs, and ask the doctor to furnish the missing information
or prepare a revised report. 20 C.F.R. § 416.919p(b). A complete consultative examination
report includes the following: (1) the claimant’s major or chief complaints; (2) a detailed
description of the claimant’s history of the major complaints; (3) a description of pertinent
7

positive and negative detailed findings based on the history, examination, and lab tests
related to the major complaints and any other abnormalities or lack thereof found during
the exam or lab tests; (4) the results of the lab tests; (5) the diagnosis and prognosis for the
claimant’s impairment; (6) a statement about what the claimant can still do despite the
impairments; and (7) an explanation or comment by the medical source on the claimant’s
major complaints. Id. § 416.919n(c)(1)–(7). If a consultative examination report does not
include a statement about what the claimant can still do despite the impairments, “the
absence of such a statement . . . will not make the report incomplete.” Id. § 416.919n(c)(6).
Here, consultative physician Dr. Marnie Smith Dillon (“Dr. Dillon”), whom the ALJ
afforded significant weight, performed a formal mental status evaluation of Plaintiff in
October 2012. In December 2012, Dr. Dillon ordered Plaintiff to undergo the WMS-IV
standardized test, which measures ability to learn and remember information presented
verbally and visually.5 The October 2012 report, which was accompanied by the followup December 2012 standardized test, contained each of the seven aforementioned
requirements to be considered complete. While Plaintiff argues that the ALJ had a duty to
re-contact Dr. Dillon regarding the December 2012 standardized test and its implication to
her October 2012 report, 20 C.F.R. § 416.919p(b) does not impose such a requirement.

5

See Gloria Maccow, Ph.D., WMS-IV: Administration, Scoring Basic Interpretation, (Nov. 21, 2016, 1:42
PM),
http://images.pearsonclinical.com/images/products/WMS-IV/WMS-IV_Webinar_
September
2011_Handout.pdf).

8

Thus, the undersigned concludes, pursuant to the regulations, that the ALJ did not have a
duty to re-contact Dr. Dillon regarding the December 2012 WMS-IV testing.
Even if an ALJ does not have a duty to re-contact a consulting physician pursuant
to the regulations, an ALJ should re-contact a consulting physician if a critical issue is
undeveloped. See Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir.2005). In such a scenario,
“[t]he ALJ is required to order medical examinations and tests only if the medical records
presented to him do not give sufficient medical evidence to determine whether the claimant
is disabled.” Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir.1994). However, if the
evidence in the record is sufficient to allow for an informed decision, the ALJ has no duty
to seek additional information outside of the record. Robinson v. Astrue, 365 F. App’x.
993, 999 (11th Cir. 2001) (holding that the ALJ did not err by not requesting an additional
consultative examination or re-contacting claimant’s treating physician because there was
substantial evidence in the record for the ALJ to determine claimant’s RFC). “In evaluating
the necessity for a remand, [the court is] guided by whether the record reveals evidentiary
gaps which result in unfairness or clear prejudice.” Brown v. Shalala, 44 F.3d 931, 935
(11th Cir.1995) (emphasis added). The likelihood of unfair prejudice may arise if there is
an evidentiary gap that “the claimant contends supports her allegations of disability.” Id.
at 936 n. 9.
Here, the record was sufficient to allow the ALJ to make an informed decision
regarding Plaintiff’s disability. In discussing the findings of Dr. Dillon, the ALJ noted:
9

The claimant also underwent a consultative psychological evaluation on
October 24, 2012, performed by Marnie Smith Dillon, Psy.D. . . . On mental
status examination, the claimant had some stuttering, but was cooperative.
The examiner noted that the claimant’s mood was “slow,” but with intact
insight, judgment, and decision making. . . . Dr. Dillon noted that the claimant
appeared to function in the borderline to mild range of mental retardation. It
was felt that the claimant was moderately impaired in his ability to
understand, remember, and carry out simple and complex instruction and to
respond appropriately to supervision, co-workers, and work pressures in a
work setting. Dr. Dillon opined that the claimant had a guarded prognosis,
as he did not appear motivated to seek employment. . . . Dr. Dillon later
administered the Wechsler Memory Scale-Fourth Edition (WMS-IV) to the
claimant on December 5, 2012. She noted that the claimant had appropriate
speech and a logical stream of thought. The claimant achieved an Auditory
Memory score of 65; Visual Memory score of 74; Visual Working Memory
score of 70; Immediate Memory score of 67; and a Delayed Memory score
of 67 (Exhibits B-13F and B-14F).
Tr. 27 (emphasis added). Later, in affording Dr. Dillon’s opinion significant weight, the
ALJ once again noted Dr. Dillion’s indication “that the claimant appeared to function in
the borderline to mild range of mental retardation[,]” and “felt that the claimant would have
moderate limitations in his ability to understand, remember, and carry out simple and
complex instructions and to respond appropriately to supervision, co-workers, as well as
work pressures in a work setting.” Tr. 28. Clearly, the ALJ considered both of Dr. Dillon’s
reports when summarizing her findings. Along with other evidence in the record,6 such
6

The ALJ also considered a Medical Source Statement provided by Dr. Vonceil C. Smith (“Dr. Smith”),
whom the ALJ afforded “some weight.” Doc. 16-2 at 28. Regarding that statement, the ALJ noted:
Dr. Smith indicated that the claimant would have no restrictions in his ability to understand
and remember simple instructions, but marked limitations in his ability to make judgments
on complex work-related decisions due to the claimant’s test results, history and behavioral
observation. He noted that the claimant would have marked restrictions in his ability to
respond appropriately to usual work situations and to changes in a routine work setting.
Id. at 26. The ALJ also considered the opinion of the state agency psychological consultant, Kristin Bailey,
Ph.D. (“Dr. Bailey”), whom the ALJ afforded “little weight” as she was not a treating or examining

10

discussions indicate to the undersigned that there was sufficient information before the ALJ
to determine Plaintiff’s RFC and ultimate disability without re-contacting Dr. Dillon
regarding the December 2012 WMS-IV test.
Moreover, Plaintiff has not shown that he suffered prejudice as a result of any
alleged failure of the ALJ to perform further factfinding, because there is no evidence that
the ALJ’s decision would have changed in light of any additional information. As noted
above, the WMS-IV measures the ability to learn and remember information presented
verbally and visually. Scores in the 60s, which Plaintiff obtained in the categories of
auditory memory and immediate memory, indicate intellectual disability of mild severity.7
The ALJ considered such disability when he noted Dr. Dillon’s October 2012 report
indicating that Plaintiff was “moderately impaired in his ability to understand, remember,
and carry out simple and complex instruction.” Tr. 27. Furthermore, Plaintiff has not
shown that any failure by the ALJ to re-contact Dr. Dillon resulted in an evidentiary gap
culminating in unfairness or clear prejudice to Plantiff. See Brown, 44 F.3d at 935 (11th
Cir. 1995) (“In evaluating the necessity for a remand, we are guided by whether the record
reveals evidentiary gaps which result in unfairness or clear prejudice.”). Instead, Plaintiff

physician. Id. at 28. Dr. Bailey indicated that Plaintiff “would have moderate limitations in most areas of
functioning, with marked limitations in his ability to understand, remember and carry out detailed
instructions. Id.
7

See Gloria Maccow, Ph.D., WMS-IV: Administration, Scoring Basic Interpretation, (Nov. 21, 2016,
1:42 PM), http://images.pearsonclinical.com/images/products/WMS-IV/WMS-IV_Webinar_ September
2011_Handout.pdf).

11

has merely hypothesized that re-contacting Dr. Dillon could have resulted in the ALJ
imposing greater non-exertional limitations in the RFC findings, and could have resulted
in the ALJ determining that Plaintiff is disabled. See Doc. 14 at 11 (“If the ALJ had recontacted Dr. Dillon to obtain clarification of the meaning and implications of the memory
test results, additional medical evidence obtained from Dr. Dillon, if indicative of a greater
degree of mental impairment and limitation, could reasonably have resulted in greater nonexertional limitations in the RFC findings of the ALJ, and ultimately could reasonably have
resulted in the ALJ determining that Plaintiff was disabled.”) (emphasis added).
Accordingly, the undersigned concludes that the ALJ did not err by not recontacting Dr. Dillon for clarification regarding the December 2012 WMS-IV standardized
test.
VI.

CONCLUSION
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 30th day of November, 2016.

/s/ Wallace Capel, Jr.
UNITED STATES MAGISTRATE JUDGE

12