Jackson v. Astrue(CONSENT)

Filing 17

MEMORANDUM OPINION AND ORDER> The decision of the Commissioner is AFFIRMED as further set out in the opinion and order. A separate judgment will issue. Signed by Honorable Judge Wallace Capel, Jr. on 9/27/2013. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
JO ANN JACKSON,

)
)
Plaintiff,
)
)
v.
) CIVIL ACTION NO. 3:12cv411-WC
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff, Jo Ann Jackson, applied for disability insurance benefits under Title II of

the Social Security Act (“the Act”), 42 U.S.C. §§ 401 et seq, and supplemental security
income (“SSI”) payments under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. Her
disability insurance benefits application was denied at the initial administrative level.
Plaintiff then requested and received a hearing before an Administrative Law Judge
(“ALJ”). Following the hearing, the ALJ issued a decision in which he found Plaintiff
not disabled at any time through the date of the decision. Tr. 22. The Appeals Council
rejected Plaintiff’s request for review of the ALJ’s decision. Tr. 1-5. The ALJ’s decision
consequently became the final decision of the Commissioner of Social Security
(“Commissioner”). 1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case

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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

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. 6). 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 disability benefits when

the person is unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.
42 U.S.C. § 423(d)(1)(A). 2
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2006).
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of
Impairments]
(4) Is the person unable to perform his or her former occupation?
Security matters were transferred to the Commissioner of Social Security.
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.

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(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.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). 3
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of
qualifying disability once they have carried the burden of proof from Step 1 through Step
4. At Step 5, the burden shifts to the Commissioner, who must then show there are a
significant number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other
evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at
1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines 4 (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
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).

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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 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

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

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III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was fifty years old at the time of the hearing before the ALJ. Tr. 138.

Plaintiff completed the eleventh grade. Tr. 147. Plaintiff’s past relevant work experience
was as a “prep cook.” Tr. 143. Following the administrative hearing, and employing the
five-step process, the ALJ found Plaintiff “has not engaged in substantial gainful activity
since April 1, 2008, the amended onset date.” (Step 1) Tr. 32. At Step 2, the ALJ found
that Plaintiff suffers from the following severe impairments: “depression; obesity; and
substance abuse (in reported remission).”

Id.

The ALJ determined that Plaintiff’s

allegation of carpal tunnel syndrome “is not medically determinable.” Id. The ALJ then
found that Plaintiff “does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526, 416.920(d), 416.925 and
416.926).” Tr. 33. Next, the ALJ found that Plaintiff:
has the residual functional capacity to perform medium work . . . except she
is best suited for short, simple, 1 to 2 step tasks.
Tr. 34. The ALJ then concluded that Plaintiff “is capable of performing past relevant
work as a prep cook which is medium, SVP2 work. This work does not require the
performance of work-related activities precluded by the claimant’s residual functional
capacity.” (Step 4) Tr. 36. Accordingly, the ALJ determined that Plaintiff “has not been

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under a disability, as defined in the Social Security Act, from June 15, 2006, through the
date of th[e] decision.” Tr. 36. 5
IV.

PLAINTIFF’S CLAIMS
Plaintiff presents three issues for this court’s consideration in review of the ALJ’s

decision: 1) whether “[t]he Commissioner’s decision should be reversed, because the
ALJ’s RFC assessment is not supported by substantial evidence as there is no evidence
on the record to explain the ALJ’s assessment of Plaintiff’s physical limitations”; 2)
whether “[t]he Commissioner’s decision should be reversed, because the ALJ’s mental
RFC determination also lacks substantial support in which to base an administrative
decision”; and 3) whether “[t]he Commissioner’s decision should be reversed, because
the ALJ failed to fulfill his duty to develop the record.” Pl.’s Br. (Doc. 12) at 3. The
court will address each argument below.
V.

DISCUSSION
A.

Whether the ALJ’s RFC assessment is supported by substantial evidence.

Plaintiff’s first two arguments challenge the ALJ’s RFC determination, arguing
that the RFC is not supported by substantial evidence as to either Plaintiff’s physical or
mental limitations.
At the administrative law judge hearing level, the ALJ is responsible for assessing
a claimant’s RFC. 20 C.F.R. § 404.1546(c). The ALJ must assess a claimant’s RFC

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This appears to be a typographical error as the ALJ’s opinion notes Plaintiff amended her
alleged onset date at the hearing to April 1, 2008. Tr. 30; 4.
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“based on all of the relevant medical and other evidence[,]” and, in general, the claimant
will be responsible for providing the evidence used to make a finding about the RFC. 20
C.F.R. § 404.1545(a)(3). The United States Court of Appeals for the Eleventh Circuit
has held that the ALJ’s RFC assessment may be supported by substantial evidence, even
in the absence of an opinion from an examining medical source about Plaintiff’s
functional capacity. See, e.g., Green v. Soc. Sec. Admin., 223 F. App’x 915, 923 (11th
Cir. 2007) (unpublished opinion) (finding the ALJ’s RFC assessment supported by
substantial evidence where he rejected treating physician’s opinion properly and
formulated the plaintiff’s RFC based on treatment records, without a physical capacities
evaluation by any physician); see also Dailey v. Astrue, 2012 WL 3206482, at *9 (S.D.
Ala. July 18, 2012) (“an ALJ may reach an RFC determination in appropriate
circumstances on a record that does not include an RFC opinion from a treating or
examining medical source.” (citing Griffin v. Astrue, 2008 WL 4417228, at *10 (S.D.
Ala. Sept. 23, 2008))).
The court finds that the ALJ’s RFC assessment is supported by the evidence of
record in this case. As to Plaintiff’s physical RFC determination, Plaintiff argues that
there are no medical opinions of record because “[t]he only opinions of record regarding
Ms. Jackson’s remaining physical abilities despite her impairments are found at Exhibit
6F (Tr. 334-341). Exhibit 6F, however, was completed by a Single Decisionmaker
(SDM).” Pl.’s Br. (Doc. 12) at 4. The ALJ’s opinion notes that the conclusions of the

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SDM “also supported a finding of ‘not disabled.’” Tr. 35. However, the ALJ also noted
that those physicians are non-examining and that while “their opinions do not as a general
matter deserve as much weight as those of examining or treating physicians, those
opinions do deserve some weight, particularly in a case like this in which there exist a
number of other reasons to reach similar conclusions.” Tr. 35. Thus, the ALJ did not
rely on the opinion of the SDM, but simply noted that it supported other medical opinions
of record. The court finds no error in the ALJ’s analysis of the SDM’s opinion. See, e.g.,
Carter v. Astrue, 2012 WL 2135471, at *4 (M.D. Ala. June 13, 2012) (finding harmless
error where an ALJ relied on a state agency RFC assessment he “acknowledge[d] . . . is
that of a single decision-maker,” and to which the ALJ assigned “ ‘little weight’ to the
extent that it differ[ed] from his own conclusions[,]” instead choosing to “assign[ ]
‘greater weight to the treating and examining physician[s’] reports,” because “the ALJ’s
express reasoning does not suggest that he ‘essentially adopted the State Agency RFC”)
(citing Siverio v. Comm’r of Soc. Sec., 461 F. App’x 869 (11th Cir. 2012) (finding the
ALJ’s reliance on SDM’s RFC assessment was not harmless error because “[t]he ALJ’s
opinion shows not only that the ALJ labored under the mistaken belief that [the SDM]’s
RFC assessment had been authored by a physician, but also that he gave [the SDM]’s
RFC assessment ‘significant weight.’ The remaining record evidence does not provide
substantial evidence for the finding that [the plaintiff] was capable of performing medium
work.”)); see also Stewart v. Astrue, 2012 WL 1969318, at *6 (E.D. Pa. May 31, 2012)

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(“Even if there were a concern that the ALJ labored under the mistaken belief that the
Physical RFC form at Exhibit 10F had been authored by a physician, the error would be
harmless in light of the remaining record evidence providing substantial evidence for the
finding that Stewart was capable of performing work at the light exertional level.”)
(citing Siverio, 461 F. App’x at 871-72)).
Moreover, in evaluating Plaintiff’s physical limitations, the ALJ discussed a
consultative examination performed by Dr. Popov in January 2010, stating that Dr. Popov
opined that Plaintiff was:
well developed, well nourished, alert, does not appear acutely ill, not in
acute distress, cooperative and well groomed. The respiratory and
cardiovascular examinations were normal. The cervical spine exam was
normal, and only minimal point tenderness was found in the lumbar exam.
The SI joints showed full range of motion without point tenderness (Exhibit
11F/6). The neurological exam was normal, except for 4/5 strength in all
extremities. However, this was attributed to poor motivation during the
exam (Exhibit 11F/7). While the claimant complained of carpal tunnel
syndrome, no nerve conduction study has been performed, and Dr. Popov
noted no problems with her upper extremities during the exam except for
that previously noted. He noted the claimant was treated for depression
which was poorly controlled. The physical diagnosis was unspecified
backache, controlled, and carpal tunnel syndrome.
Tr. 34-35 (emphasis in original). Dr. Popov also opined that “[a]ll [of Plaintiff’s] medical
problems can effectively be treated.” Tr. 386. Dr. Popov also completed a Physical CE
sheet, which the ALJ “discounted since they appear to be based solely on subjective
claimant provided information, rather than on the objective findings.” Tr. 35. Indeed,
Dr. Popov’s notes state that “Pt claims she can sit for 1 hr, stand 15’, walk 20 yards, does

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not lift and carry since she was told not to(?) and can not travel [sic].”

Tr. 386.

Additionally, the ALJ noted “neither her treating physician nor the consultative examiner
provided any credible work-related restrictions based on her physical complaints.” Tr.
35. Based on this evidence, the ALJ limited Plaintiff to a “medium exertional level” of
activity “[b]ased on the history of complain[t]s of back pain combined with obesity . . . to
give the claimant every benefit of the doubt” and noted that “[t]here is a lack of any
objective evidence, such as x-rays, to support any further reduction in the exertional
level.” Tr. 35. Thus, the court finds there was sufficient evidence on the record for the
ALJ to determine Plaintiff’s physical RFC.
As to Plaintiff’s mental RFC, this too is supported by substantial evidence.
“Agency regulations require the ALJ to use the ‘special technique’ dictated by the PRTF
[Psychiatric Review Technique Form] for evaluating mental impairments.” Moore v.
Barnhart, 405 F.3d 1208, 1213 (11th Cir. 2005) (citing 20 C.F.R. § 404.1520a-(a)).
“This technique requires separate evaluations on a four-point scale of how the claimant’s
mental impairment impacts four functional areas:

‘activities of daily living; social

functioning; concentration, persistence, or pace; and episodes of decompensation.’” Id.
(quoting 20 C.F.R. § 404.1520a-(c)(3-4)). The ALJ is required “to complete a PRTF and
append it to the decision, or incorporate its mode of analysis into his findings and
conclusions. Failure to do so requires remand.” Id. at 1214 (citing other circuits for this
holding). In this case, there is a PRTF form on the record, completed by Dr. Estock, and

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while the ALJ does not address the form specifically, he did evaluate Plaintiff on all four
functional areas and, thus, he did “incorporate its mode of analysis into his findings and
conclusions.” See, e.g., Bentley v. Astrue, 2008 WL 4498963, at *4 (M.D. Ga. Sept. 30,
2008 (finding no error where “although the ALJ did not complete a PRTF, he did analyze
and incorporate the PRTF’s mode of analysis into his decision.”). In this case, the ALJ
found that Plaintiff has: 1) “mild restriction” in activities of daily living; 2) “moderate
difficulties” in social functioning; 3) “moderate difficulties” with regard to concentration,
persistence, or pace; and 4) experienced no episodes of decompensation of extended
duration. Tr. 33 (emphasis added). The ALJ incorporated Plaintiff’s mental restrictions,
limiting her to “unskilled” work “[b]ased on her history of mental health treatment” and
“short, simple, 1 to 2 step tasks.” Tr. 34-35.
In challenging the ALJ’s mental RFC assessment, Plaintiff contends that “the nonexamining opinions of record expressed by Dr. Estock do not provide substantial
support” and that because “the evidentiary record contains additional significant
treatment from East Alabama Mental Health including 14 progress notes,” then “the ALJ
should have either requested Ms. Jackson’s treating psychiatrist to express medical
opinions or obtained an updated medical source opinion from an examining source.”
Pl.’s Br. (Doc. 12) at 7. However, Plaintiff fails to allege what, if any, further limitations

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are contained in these additional notes that are not accounted for in the ALJ’s
assessment. 6 Thus, this argument lacks merit.
Finally, in determining Plaintiff’s RFC, the ALJ evaluated Plaintiff’s credibility,
noting that while, in October 2008, Plaintiff told her mental health provider she had been
clean for 9 years, her testimony reflected she had only been off cocaine a number of
months at that time. The ALJ, thus, determined this inconsistency “serves to diminish the
credibility of the claimant’s allegations.”

Tr. 35.

The ALJ also noted Plaintiff’s

noncompliance with medications (Exs. 8F at 10 & 13F at 7).
Accordingly, upon review of the record, the court finds that the ALJ’s RFC is
supported by substantial evidence and Plaintiff’s argument lacks merit.
B.

Whether the ALJ failed to fulfill his duty to develop the record.

Next, Plaintiff argues that the ALJ failed in his duty to develop a full and fair
record because he did not order objective medical testing to establish that Plaintiff suffers
from carpal tunnel syndrome. Pl.’s Br. (Doc. 12) at 8. Plaintiff argues as follows:
Despite the fact that Dr. Popov provided a diagnostic impression of
aggravated carpal tunnel syndrome based upon his personal examination,
the ALJ simply dismissed Ms. Jackson’s carpal tunnel syndrome because
“no nerve conduction study had been performed” (Tr. 35, 386). Before
dismissing Ms. Jackson’s carpal tunnel syndrome, however, the ALJ had a

6

Dr. Estock completed both a Psychiatric Review Technique form and Mental RFC form in February
2009. Tr. 362-79. In the Psychiatric Review Technique form Dr. Estock opined Plaintiff has: 1) “mild
restriction” in activities of daily living; 2) “moderate difficulties” in social functioning; 3) “mild
difficulties” with regard to concentration, persistence, or pace; and 4) experienced no episodes of
decompensation of extended duration. Tr. 372 (emphasis added). Thus, the ALJ’s evaluation, which
found moderate limitations in two areas, is actually more restrictive than Dr. Estock.

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duty to develop the record by obtaining such objective studies so as to
allow himself to make an informed decision.
Pl.’s Br. (Doc. 12) at 8 (emphasis in original).
“[R]egardless of whether a claimant is represented by counsel, the ALJ ‘has a duty
to develop a full and fair record.’” George v. Astrue, 338 F. App’x 803, 805 (11th Cir.
2009) (citing Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995)). Remand is not
required, however, unless the administrative record as a whole is “inadequate or
incomplete or ‘show[s] the kind of gaps in the evidence necessary to demonstrate
prejudice.’” George, 338 F. App’x at 805 (citing Graham v. Apfel, 129 F.3d 1420, 1423
(11th Cir. 1997)). “Even though Social Security courts are inquisitorial, not adversarial,
in nature, claimants must establish that they are eligible for benefits. The administrative
law judge has a duty to develop the record where appropriate but is not required to order
a consultative examination as long as the record contains sufficient evidence for the
administrative law judge to make an informed decision.” Ingram v. Comm’r of Soc. Sec.
Admin, 496 F.3d 1253, 1269 (11th Cir. 2007) (emphasis added) (citing Doughty v. Apfel,
245 F.3d 1274, 1281 (11th Cir. 2001)).

“The regulations do not require the

Commissioner to secure a consultative evaluation, nor do they create a right to a
consultative examination.” Pike v. Astrue, 2012 WL 2930780, at *5 (M.D. Ala. July 18,
2012).
The record in this case does not support Plaintiff’s contention that the ALJ failed
to develop the record by not ordering carpal tunnel testing. At the hearing, Plaintiff
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testified that Dr. Atassi diagnosed carpal tunnel in both of her hands and told her she
needs surgery, but that he could not recommend the surgery due to her lack of medical
insurance. Tr. 8. However, no medical records support this statement. The medical
records from the Goodwater Clinic simply state “CTS – splint, refer.” Tr. 227. Thus, the
court finds the ALJ did not err in finding that “there is no support, other than claimant’s
oral history, regarding carpal tunnel syndrome, and this finding is discounted.” Tr. 35.
Moreover, the court notes that there already was a consultative examination—
performed by Dr. Popov in 2010—on the record before the ALJ. Dr. Popov’s written
opinion discussed Plaintiff’s carpal tunnel syndrome by noting “Pt told by an MD 2 1/2
yrs ago that she had R CTS. No nerve cond. study was done. Pt did not follow up with
doctor but continues to wear a wrist brace during the day. Pt advised to take off the brace
during the day and have follow up done with the M.” Tr. 386. A review of Dr. Popov’s
notes suggests his “diagnosis” of “carpal tunnel syndrome - aggravated” reflects
Plaintiff’s self-reported complaints rather than his own diagnostic impression. This is
most evident in the fact that Dr. Popov’s medical recommendations do not discuss
Plaintiff’s carpal tunnel syndrome. The ALJ discussed and considered Dr. Popov’s
medical opinion, as described above, and discounted Plaintiff’s allegations with respect
to her carpal tunnel syndrome. Thus, there was nothing further for the ALJ to do in
developing the record with respect to Plaintiff’s carpal tunnel syndrome.

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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.
separate judgment will issue.
Done this 27th day of September, 2013.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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A