Dinkins v. Astrue(CONSENT)

Filing 16

MEMORANDUM OPINION. Signed by Honorable Judge Terry F. Moorer on 6/1/2012. (cc, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
JENNIFER LASHONE DINKINS,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CASE NO. 3:11-cv-762-TFM
[wo]

MEMORANDUM OPINION
The plaintiff, Jennifer Lashone Dinkins (“Plaintiff” or “Dinkins”), protectively filed
an application for Social Security supplemental income benefits under Title XVI on June 6,
2008, for a period of disability which allegedly began May 2, 2008. (Tr. 112-114). After the
initial application was denied, Dinkins timely requested a hearing before an administrative
law judge (“ALJ”) which took place on March 29, 2010, at which time the onset date was
amended to June 6, 2008. (Tr. 28-63). In the decision issued on August 27, 2010, the ALJ
denied Dinkins’ claim finding that while she does suffer from the severe impairments of
“seizure disorder; major depressive disorder; anxiety disorder, not otherwise specified;
degenerative arthritis of the left knee; morbid obesity; and migraine headache disorder” he
also found that “[t]he claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments.” (Tr. 13). The ALJ also found
that Dinkins “has the residual functional capacity to perform sedentary work.” (Tr. 15). A
request for review was submitted to the Appeals Council which declined review on July 14,

2011. (Tr. 1-6).

Thus, the decision of the ALJ 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 parties consent to the undersigned rendering a final judgment in
this lawsuit pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1. The Court has
jurisdiction over this lawsuit pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). After a
thorough review of the record in this case and the briefs of the parties, the Court concludes
that the decision of the Commissioner should be REVERSED and this case REMANDED
to the Commissioner for further proceedings.
I. NATURE OF THE CASE
Dinkins seeks judicial review of the Commissioner’s decision denying her application
for supplemental security income. United States District Courts may conduct limited review
of such decisions to determine whether they comply with applicable law and are supported
by substantial evidence. 42 U.S.C. § 405. The Court may affirm, reverse and remand with
instructions, or reverse and render a judgment. Id.
II. BACKGROUND
Dinkins was born on February 9, 1972, (Tr. 112) and has completed the eleventh
grade. (Tr. 34). Dinkins’ last date of employment was May 2, 2008. Id. Dinkins testified
to having worked as a dishwasher, a cook, a driver, and a member of a cleaning crew. (Tr.

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 tot he Commissioner of Social Security.

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35-37). Dinkins gave a medical history to the ALJ which showed multiple visits to the East
Alabama Medical Center (“EAMC”), treatement by a neurologist, Dr. Kishore Chivukula,
M.D., and several emergency room visits for alleged seizures. (Tr. 16-21). The ALJ
conducted a detailed review of Dinkins’ medical history, specifically the many records
surrounding the alleged seizures which were purported to have begun in May of 2008 and
lasting through the last medical record considered by the ALJ in December 2009. Id.
III. STANDARD OF REVIEW
The Court reviews a social security case to determine whether the Commissioner’s
decision is supported by substantial evidence and based upon proper legal standards. Hand
v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). The Court “may not decide the facts
anew, reweigh the evidence, or substitute [its] judgment for that of the Commissioner,” but
rather it “must defer to the Commissioner’s decision if it supported by substantial evidence.”
Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (quoting Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983)); see also Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.
1995) (stating the court should not re-weigh the evidence). The Court must find the
Commissioner’s decision conclusive “if it is supported by substantial evidence and the
correct legal standards were applied.” Kelly v. Apfel, 185 F.3d 1211, 1213 (11th Cir. 1999)
(citing Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997)).
Substantial evidence is more than a scintilla – i.e., the evidence must do more than
merely create a suspicion of the existence of a fact, and must include such relevant evidence

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as a reasonable person would accept as adequate to support the conclusion.

Hand v.

Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing Richardson v. Perales, 402 U.S. 389,
401, 91 S. Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) and MacGregor v. Bowen, 785 F.2d 1050,
1053 (11th Cir. 1986)); Foote, 67 F.3d at 1560 (citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982) and Richardson, 402 U.S. at 401, 91 S.Ct. at 1427).
If the Commissioner’s decision is supported by substantial evidence, the district court
will affirm, even if the court would have reached a contrary result as finder of fact, and even
if the court finds that the evidence preponderates against the Commissioner’s decision.
Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991). The district court must view
the record as a whole, taking into account evidence favorable as well as unfavorable to the
decision. Foote, 67 F.3d at 1560 (citing Chester v. Bowen, 792 F.2d 129,131 (11th Cir.
1986)).
The district court will reverse a Commissioner’s decision on plenary review if the
decision applies incorrect law, or if the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner properly applied the law. Keeton
v. Dep’t of Health and Human Serv., 21 F.3d 1064, 1066 (11th Cir. 1994) (internal citations
omitted). There is no presumption that the Secretary’s conclusions of law are valid. Id.;
Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991).
IV. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB”)

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provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence.2 See 42 U.S.C. §
423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate and
distinct program. SSI is a general public assistance measure providing an additional resource
to the aged, blind, and disabled to assure that their income does not fall below the poverty
line.3 Eligibility for SSI is based upon proof of indigence and disability. See 42 U.S.C. §§
1382(a), 1382c(a)(3)(A)-(C). Despite the fact they are separate programs, the law and
regulations governing a claim for DIB and a claim for SSI are identical; therefore, claims for
DIB and SSI are treated identically for the purpose of determining whether a claimant is
disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n. 1 (11th Cir. 1986). Applicants under
DIB and SSI must provide “disability” within the meaning of the Social Security Act which
defines disability in virtually identical language for both programs. See 42 U.S.C. §§ 423(d),
1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§ 404.1505(a), 416.905(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.

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DIB is authorized by Title II of the Social Security Act, and is funded by Social Security taxes.
See Social Security Administration, Social Security Handbook, § 136.1, available at
http://www.ssa.gov/OP_Home/handbook/handbook.html
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SSI benefits are authorized by Title XVI of the Social Security Act and are funded by general tax
revenues. See Social Security Administration, Social Security Handbook, §§ 136.2, 2100, available at
http://www.ssa.gov/OP_Home/handbook/handbook.html

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42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). 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. 42
U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits. See 20 C.F.R. §§ 404.1520,
416.920 (2010).
(1)
(2)
(3)
(4)
(5)

Is the person presently unemployed?
Is the person’s impairment(s) severe?
Does the person’s impairment(s) 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?
Is the person unable to perform any other work within the economy?

An affirmative answer to any of the 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).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357
F.3d 1232, 1237-39 (11th Cir. 2004). Claimants establish a prima facie case of qualifying
disability once they meet 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

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This subpart is also referred to as “the Listing of Impairments” or “the Listings.”

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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 Guidelines5 (“grids”) or hear
testimony from 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. Id. at 1240. Combinations of these factors yield a statutorily-required finding of
“Disabled” or “Not Disabled.” Id.
V. STATEMENT OF THE ISSUES
Plaintiff alleges the ALJ made two errors. (Pl. Br., as amended, Doc 13 at 1). First,
Plaintiff argues “the ALJ committed reversible error by not having a medical expert give an
opinion as to whether Plaintiff’s seizure disorder equaled the seizure listing at 20 CFR Part
101 Subpart P Appendix 1 § 11.02 and 11.03.” Id. Second, Plaintiff argues “the ALJ
committed reversible error by not obtaining medical expert opinion as to the meaning of
Plaintiff’s subtherapeutic medication levels.” Id.

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See 20 C.F.R. pt. 404 subpt. P, app. 2; see also 20 C.F.R. § 416.969 (use of the grids in SSI cases).

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VI. DISCUSSION AND ANALYSIS
The plaintiff raises several issues and arguments related to this Court’s ultimate
inquiry of whether the Commissioner’s disability decision is supported by the proper legal
standards and substantial evidence. See Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir.
1987) (citing Wiggins v. Schwiker, 679 F.2d 1387, 1389 (11th Cir. 1982) in that “[n]o
presumption of validity attaches to the Secretary’s determination of the proper legal standards
to be applied in evaluating claims”). However, the Court pretermits discussion of the
plaintiff’s specific arguments because the Court concludes that the ALJ erred by not having
a Medical Expert to give opinion as to whether Plaintiff’s seizure disorder equaled the
seizure listings. Ergo, the ALJ’s conclusion that the plaintiff is not disabled is not supported
by substantial evidence.
As previously stated the burden of proof rests on a claimant to establish a prima facie
case of qualifying disability. Phillips, 357 F.3d at 1237-39. Dinkins argues that “whether
or not a claimant equals a Listing has to be determined by a medical opinion, and since there
is none in the exhibits, the ALJ would have had to have an ME either examine her medical
records or testify regarding this matter.” (Pl. Br. at 9). The ALJ correctly established the
requirements to meet of Section 11.02 (Epilepsy - Convulsive) or 11.03 (Epilepsy Nonconvulsive) Listings. (Tr. 14). The ALJ held:
In order to meet either listing, there must be a “detailed description of a typical
seizure pattern, including all associated phenomena.” “At least one detailed
description of a typical seizure is required.” Section 11.00(A) mandates that
“a reporting physician should indicate the extent to which of seizures reflects
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his own observation or the source of ancillary information.” In the usual case
of an actual seizure disorder, this requirement is satisfied by a physician’s
report of continuous video EEG/EKG monitoring. In this case, however, there
is no such professional observation. Section 11.00(A) goes on to state that
“[t]estimony of person other than the claimant is essential for the description
of the type and frequency of seizures if professional observation is not
available.” The only testimonial description of any “seizure” presented at the
hearing was that of the claimant. Accordingly, the claimant has failed to
provide the evidence necessary to support a finding that either Section 11.02
or Section 11.03 has been met.
(Tr. 14). A footnote to this section states that when the Listing argument was first raised by
Dinkins’ attorney the ALJ advised the claimant that “the hearing would have to be continued
in order to secure the presence of a medical expert. Acting through her representative, the
claimant indicated that a continuance would not be necessary; that she believed the evidence
was sufficient to ‘meet’ the applicable listings and wished to proceed.” Id.
The Court finds that this is an over-characterization of the conversation that took place
on the date of the hearing. After the opening statements by Dinkins’ counsel the following
discussion occurred:
ALJ: Got a question. Do you want me to -- do you want to try to present an equals
case for the seizure listings?
ATTY: I mean, I, I can –
ALJ: These -- because if -- I mean, because if you, if you want to do that, what,
what we’ll have to do is reschedule because I can’t do -- I can do meets –
ATTY: Right.
ALJ: -- without an ME, but I can’t do equals without an ME.
ATTY: Right.
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ALJ: So, would you like to try -- would you like to take a swing at that? We -- what
we’ll do is reschedule and request an ME. Or do you want to go forward today?
ATTY: Probably go forward today. I mean -ALJ: Okay
ATTY: -- I think we have the documentation -- or possibly meet -ALJ: Okay.
ATTY: -- with that.
ALJ: Go ahead. Proceed.
(Tr. 32-33).
The Court does not believe that “[p]robably go forward today” is a statement by
Dinkins as characterized by the ALJ as a belief that the evidence is sufficient to meet the
applicable listings and that she wished to proceed without a medical expert. (Tr. 33, 14).
Alabama district courts have reversed and remanded because the ALJ failed to
properly develop the record after being presented with sufficient medical records to raise
the possibility of a listing impairment. See e.g., Stutts v. Astrue, 489 F. Supp.2d 1291,
1294 (N.D. Ala. 2007) (finding that evidence in the record should have alerted the ALJ to
the possibility that the claimant meets or equals Listing and that the duty to develop the
record was not pursued by the ALJ). Additionally, the Eleventh Circuit has established
the ALJ’s duty to develop the record includes ordering a consultative examination if one
is needed to make an informed decision. Reeves v. Heckler, 734 F.2d 519, 522 n.1 (11th
Cir. 1984)(citing Ford v. Secretary of Health & Human Servs., 659 F.2d 66, 69 (5th Cir.
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1981)). While the court recognizes that a claimant seeking disability bears the burden of
proving that he is under disability as defined by the Act, the ALJ is to fully and fairly
develop the record regarding the claimant’s alleged Listing impairment and failed to do
so by not ordering a consultative examination. Ford, 659 F.2d at 69 (citing Sellars v.
Secretary, 458 F.2d 984 (8th Cir. 1972) (emphasis added)). The court established that an
administrative decision is not supported by substantial evidence if the ALJ “does not have
before him sufficient facts on which to make an informed decision.” Id. While the
regulations provide that the ALJ may order consultative examinations it is not required to
order such examinations “unless the record establishes that an examination is necessary to
enable the [ALJ] to render a decision.” Id. (citing Turner v. Califano, 563 F.2d 669 (5th
Cir. 1977)). The ALJ’s initial reaction in recognizing the need for a medical expert to
either conduct an examination of Dinkins or, at a minimum, to examine the medical
records and present their opinion as a medical record or be present to testify at the hearing
was correct. (Tr. 32).
Additionally, the issue of Dinkins medication compliance was raised. Eleventh
Circuit has established that where compliance with a prescribed course of treatment is at
issue, the ALJ has a duty to fully investigate possible reasons for the alleged
noncompliance. Lucas v. Sullivan, 918 F.2d 1567, 1572-73 (11th Cir. 1990). In Lucas,
the Court held that the ALJ erred in failing to order objective testing to determine whether
factors, other than an epileptic’s intermittent noncompliance, contributed to her

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subtherapeutic drug levels and whether her seizures would be controlled even if she took
her medication as prescribed. Id. at 1572. Dinkins testified that she was not currently
taking any medications that caused any side effects. (Tr. 40). However, the ALJ did only
a cursory inquiry as to Dilantin, which Dinkins no longer takes. Id. This was insufficient
for the ALJ to be able to establish whether compliance with all prescribed medications
would sufficiently treat the claimant’s alleged disability or the reasons for the alleged
noncompliance. Lucas, 918 F.2d at 1572-73.
For these reasons, the Court concludes that the Commissioner erred as a matter of
law, and that the case warrants remand for further proceedings. In light of the ALJ’s
failure to fully and fairly develop the record, specifically regarding ordering a medical
expert evaluation of the claimant as well as addressing the issues of medication
noncompliance, the Court concludes that the ALJ failed to meet his burden in this regard.
As a result of this failure, doubt is necessarily cast upon the ALJ’s conclusion that the
plaintiff is not disabled.
V. Conclusion
Accordingly, this case will be reversed and remanded to the Commissioner for
further proceedings consistent with this opinion. A separate order will be entered.
Done this 1st day of June, 2012.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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