Helms v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 3/25/2015. (AVC)

FILED
2015 Mar-25 AM 10:20
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JULIE DENISE HELMS,

}
}
Plaintiff,
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v.
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CAROLYN W. COLVIN,
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Acting Commissioner of Social Security, }
}
Defendant.
}

Civil Action No.: 2:13-CV-01894-RDP

MEMORANDUM OF DECISION
Plaintiff Julie Denise Helms (“Plaintiff”) brings this action pursuant to Title II of Section
205(g) and Title XVI of Section 1621(c)(3) of the Social Security Act (the “Act”), seeking
review of the decision of the Commissioner of Social Security (“Commissioner”) denying her
applications for disability, disability insurance benefits (“DIB”), and Supplemental Security
Income (“SSI”). See 42 U.S.C. §§ 405(g) and 1383(c). Based on the court’s review of the
record and the briefs submitted by the parties, the court finds that the decision of the
Commissioner is due to be affirmed.
I.

Proceedings Below
This action arises from Plaintiff’s application for disability and DIB dated March 22,

2010. Plaintiff also filed an application for SSI dated May 28, 2010. In both applications
Plaintiff alleges her disability began on September 1, 2009. (Tr. 137, 144). The Social Security
Administration initially denied Plaintiff’s applications on October 20, 2010.

(Tr. 66, 67).

Plaintiff subsequently requested and received a hearing before an Administrative Law Judge
(“ALJ”).

(Tr. 125-29).

The hearing was held on April 9, 2012, via video-conference in

Birmingham, Alabama.

(Tr. 34-65).

Plaintiff appeared in Gadsden, Alabama, and was

accompanied by her attorney. (Id). Also present at the hearing was a Vocational Expert (“VE”).
(Id.).
In her decision dated April 19, 2012, the ALJ found Plaintiff was not disabled under
sections 216(i) and 223(d) of the Act. (Tr. 21-9). Furthermore, the ALJ found Plaintiff was not
disabled under section 1614(a)(3)(A) of the Act.

(Tr. 29).

The Appeals Council denied

Plaintiff’s request for review of the ALJ’s decision, thereby making that decision the final
decision of the Commissioner, and a proper subject of this court’s appellate review. (Tr. 1).
II.

The Evidentiary Record
At the time of the hearing, Plaintiff was forty-three years old. (Tr. 39). Her highest level

of education consisted of receiving a GED. Id. Plaintiff has alleged her disability began on
September 1, 2009 due to bulging discs, degenerative disc disease, sciatica, diabetes, chronic
obstructive pulmonary disease (“COPD”), chronic bouts of pneumonia, multiple joint pain, and
spinal disorders. (Tr. 177, 181). Plaintiff previously worked as a fast food worker, cashier and
checker, printer, and billing supervisor. (Tr. 57-58, 182-183, 189). Plaintiff’s last day of work
was February 2, 2010 due to pain resulting from standing as a cashier and lifting objects. (Tr.
39, 182).
In her applications for disability benefits, Plaintiff noted that her daily activities include
preparing meals and doing light household chores, such as washing dishes and laundry. (Tr. 2068). Plaintiff further noted that she is able to go out alone and walk outside once or twice each
day, shop in stores for groceries at least one time each week (usually accompanied by her father),

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and effectively use money.1 (Tr. 209).

Plaintiff’s hobbies include reading, cross-stitch,

television, and ceramics. (Tr. 210).
When discussing her pain with the ALJ, Plaintiff rated her pain, on an average day, as a
seven on a ten point scale. (Tr. 47). When asked about her daily activities, Plaintiff stated she
can drive; however, she indicated that she gets “uncomfortable” and has back pain if she drives
or rides in a vehicle for a distance of twenty to thirty miles. (Tr. 42).
Plaintiff’s past medical history ranges from 2008 to 2010. (Tr. 186). There is a gap in
Plaintiff’s medical appointments between August 2009 and May 2010 which she attributes to a
lack of medical insurance.2 (Tr. 45).
In approximately June 2008, Plaintiff was evaluated for back and joint pain, chronic
pneumonia, diabetes, continual elevated blood counts, and breast masses. Id. There is a progress
note by Dr. John Davis which includes an assessment of folliculitis, diabetes mellitus, breast
mass, hypertension, obesity, and tinea corporis. (Tr. 331).

Plaintiff was prescribed Lotrmine,

Doxycycline, and Maxzide. Plaintiff was instructed to have a low sodium and 1200 calorie diet.
Id. Plaintiff was referred for a mammogram, which resulted in an assessment of “[p]robably
benign.” (Tr. 331, 333).
In September 2010, she was treated for pneumonia. (Tr. 186). Dr. Davis made an
assessment of pneumonia, nocturia, hypertension, ongoing tobacco abuse, leukocytosis, closed
fracture of one or more phalanges of foot, acute pain due to trauma in the left foot, home
accidents, walking, and chronic pain syndrome. (Tr. 350). Dr. Davis’s assessment also states

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Plaintiff identified that she could use money to pay bills, handle a savings account, count change
(presumably coins), and use a checkbook and money order forms. (Tr. 209).
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Plaintiff stated that she used Aleve to address any pain symptoms during this period. (Tr. 46). Plaintiff
further stated that the she sought medical advice again in 2010 after her husband “got a job where he had insurance.”
Id.

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that Plaintiff’s pneumonia was left lower lobe pneumonia, her hypertension was under good
control with the current regimen, her closed fracture of one or more phalanges of foot should
have initial strapping of the fifth and fourth toes, and she should use a hard soled shoe. Id.
Plaintiff was also prescribed Robitussin, Phosphate, Azithromycin, Amoxil, and Proventil. (Tr.
350-1).
In August 2010, Dr. Donnellan examined Plaintiff in connection with her disability
application. (Tr. 265). He found the following concerning Plaintiff: she was not in acute
distress; she ambulated without difficulty; she was able to get up and out of the chair and on and
off the exam table without difficulty; she had no joint effusion, crepitus, swelling, or deformity;
her gait was normal; she did not require an assistive device; she could walk on her heels and toes
but could not squat; she could perform heel-to-toe with some imbalance; her grip strength and
motor strength were both 5/5; she had no muscle atrophy; and her range of motion was normal
throughout except for some reduced range of motion in her lumbar spine. (Tr. 267-68). A
sensory exam showed slightly decreased sensation to light touch in her right leg, and her cranial
nerves were intact. Id. Dr. Donnellan opined that Plaintiff could stand and walk for four to six
hours in an eight hour day taking frequent breaks, lift and carry no more than ten pounds
occasionally, would have postural limitations including crouching, bending, stooping, climbing
and crawling, and that no environmental or manipulative limitations applied to her. (Tr. 269).
During the hearing, the ALJ posed hypothetical questions to the VE. (Tr. 57). The
hypothetical questions began with the most intensive to least intensive work schedule and use of
physical abilities. (Tr. 58-62). In the first hypothetical, the ALJ directed the VE to assume
Plaintiff could stand and sit for approximately six hours in an eight-hour day, lift and carry ten to
twenty pounds, was unable to climb ladders, ropes, or scaffolding, could occasionally balance,

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stoop, kneel, crouch, and crawl, was required to avoid exposure to hazardous machinery,
unprotected heights, and could occasionally bend. (Tr. 58). The ALJ then asked the VE, in light
of these conditions applied, whether Plaintiff could perform past relevant work. Id. The VE
stated that Plaintiff could perform past relevant work as a billing supervisor as well as the
cashier/checker. (Tr. 59). The ALJ then posed a second hypothetical question: if the same
limitations in the first hypothetical applied, and assuming further a condition of sit/stand/walk
four to six hours in an eight-hour workday,3 whether Plaintiff could perform her past relevant
work. Id. Again, the VE stated that the person could perform the work of billing supervisor as
well as the cashier/checker, and that this type of work is found in the national economy. Id. In a
third hypothetical, the ALJ directed the VE to assume an individual of the same age, educational
background, and past relevant work experience as Plaintiff and directed the VE to further assume
the individual could stand or walk two hours in an eight-hour day; lift or carry ten pounds
occasionally and less than ten pounds frequently. (Tr. 59-60). Again, the VE stated that the
person could perform the work of a billing supervisor and that this type of work was found in the
national economy. (Tr. 60). Then additional hypothetical scenarios were posed by the ALJ to the
VE.

Only after the hypothetical included the limitation that the individual could only

occasionally maintain an eight-hour workday did the VE state that the individual could not find
work as a billing supervisor in the national economy. (Tr. 61). The VE stated that generally, “if
a person [is] missing up to two or more days a month, up to 24 days a year, then they would not
be able to maintain that job.” (Id.).
Based on the VE’s testimony, Plaintiff’s testimony, and the entirety of the record, the
ALJ determined that Plaintiff’s Residual Functional Capacity (“RFC”) renders her capable of

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There is no mention of the weight to be carried during the day.

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performing past relevant work as a billing supervisor, and has not been under a disability, as
defined in the Act, from September 1, 2009 through the date of her decision on April 19, 2012.
(Tr. 29).
III.

The ALJ’s Decision
Disability under the Act is determined utilizing a five-step test. 20 C.F.R. § 404.1520.

First, the ALJ must determine whether the claimant is engaging in substantial gainful activity.
20 C.F.R. § 404.1520(a)(4)(i). “Substantial work activity” is work activity that involves doing
significant physical or mental activities. 20 C.F.R. § 404.1572(a). “Gainful work activity” is
work that is done for pay or profit. 20 C.F.R. § 404.1572(b). If the ALJ finds that the claimant
engages in substantial gainful activity, then the claimant cannot claim disability. 20 C.F.R. §
404.1520(b).

Second, the ALJ must determine whether the claimant has a medically

determinable impairment or a combination of medical impairments that significantly limits the
claimant’s ability to perform basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii). Absent such
impairment, the claimant may not claim disability. Id. Third, the ALJ must determine whether
the claimant’s impairment meets or medically equals the criteria of an impairment listed in 20
C.F.R. § 404, Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526.
If such criteria are met, the claimant is declared disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant does not fulfill the requirements necessary to be declared disabled under
the third step, the ALJ may still find disability under the next two steps of the analysis. The ALJ
must first determine the claimant’s RFC, which refers to the claimant’s ability to work despite
her impairments. 20 C.F.R. § 404.1520(e). In the fourth step, the ALJ determines whether the
claimant has the RFC to perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the
claimant is determined to be capable of performing past relevant work, then the claimant is

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deemed not disabled. Id. If the ALJ finds the claimant unable to perform past relevant work,
then the analysis proceeds to the fifth and final step. 20 C.F.R. § 404.1520(a)(4)(v). In the last
part of the analysis, the ALJ must determine whether the claimant is able to perform any other
work commensurate with her RFC, age, education, and work experience.

20 C.F.R. §

404.1520(g). Here, the burden of proof shifts from the claimant to the ALJ to prove the
existence, in significant numbers, of jobs in the national economy that the claimant can do given
her RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 404.1560(c).
Here, the ALJ determined that Plaintiff meets the insured status requirements of the Act
through December 31, 2014, and has not engaged in substantial gainful activity since her alleged
onset date of disability. (Tr. 23). The ALJ further determined that Plaintiff has the following
severe impairments: dextroscoliosis, COPD, polyarticular arthralgias, chronic pain syndrome,
leukocytosis, osteopenia and obesity. Id. The ALJ concluded that Plaintiff “does not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the impairments” in the listings.

(Tr. 25).

The ALJ further found that all of Plaintiff’s

impairments, individually or in combination, are insufficient to qualify her for disability, noting
that “[n]o examining or treating medical source has reported that [Plaintiff] has an impairment
that medically equals the criteria of a listed impairment.” Id.
The ALJ determined that Plaintiff has the RFC to perform sedentary work as defined in
20 C.F.R. § 404.1567(b). (Tr. 26). The ALJ notes that Plaintiff had certain limitations. Id.
Plaintiff can stand and walk a total of two hours each during an eight-hour workday, can
lift/carry ten pounds occasionally and less than ten pounds frequently, and can use the bilateral
upper extremities on a frequent basis for fingering and handling. She can also occasionally
balance, crouch, bend, stoop, crawl and climb ramps and stairs, but can never climb ladders,

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ropes, or scaffolds. She must avoid all exposure to hazardous machinery and unprotected
heights, as well as concentrated exposure to dusts, flumes, odors, gases, poor ventilation,
extreme cold, extreme heat, wetness, humidity, and vibration. Id. The ALJ found that Plaintiff’s
impairments could reasonably be expected to cause some of her alleged symptoms; however, her
statements concerning the intensity, persistence, and limiting effects of her pain were not fully
credible to the extent they are inconsistent with her RFC. Id. After reciting the factors used to
make the determination and giving “[Plaintiff] the benefit of the doubt,” the ALJ found that
Plaintiff is capable of “performing past relevant work as a billing supervisor” and, therefore, is
not disabled under sections 216(i) and 223(d) of the Act. (Tr. 26, 29).
IV.

Plaintiff’s Argument for Reversal
Plaintiff argues that the ALJ failed to address the opinion of Dr. William Bruce

Donnellan, an examining physician, in its entirety, and further claims Dr. Donnellan’s findings
show she is precluded from being able to undertake any full time work activity. (Pl’s Mem. 3).
V.

Standard of Review
The only issues before this court are whether the record reveals substantial evidence to

sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d 835, 838
(11th Cir. 1982), and whether the correct legal standards were applied. See Lamb v. Bowen, 847
F.2d 698, 701 (11th Cir. 1988); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42
U.S.C. § 405(g) mandates that the Commissioner’s findings are conclusive if supported by
“substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district
court may not reconsider the facts, reevaluate the evidence, or substitute its judgment for that of
the Commissioner; instead, it must review the final decision as a whole and determine if the

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decision is reasonable and supported by substantial evidence. See id. (citing Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a preponderance of
evidence; “[i]t is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Martin, 894 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other
citations omitted). If supported by substantial evidence, the Commissioner’s factual findings
must be affirmed even if the evidence preponderates against the Commissioner’s findings. See
Martin, 894 F.2d at 1529. While the court acknowledges that judicial review of the ALJ’s
findings is limited in scope, the court also notes that review “does not yield automatic
affirmance.” Lamb, 847 F.2d at 701.
VI.

Discussion
After careful review, the court concludes that the ALJ’s determination that Plaintiff is not

disabled is supported by substantial evidence, and that the ALJ applied the proper legal standards
in reaching that decision. The court addresses Plaintiff’s argument below.
A.

The ALJ Properly Considered the Opinion of the Consultative Examining
Physician

Plaintiff argues that the ALJ did not consider the entirety of Dr. Donnellan’s medical
opinion because the ALJ did not state that she would be required to take “frequent breaks.” (Pl’s
Mem. 7). Plaintiff essentially argues that the ALJ should have referred to every aspect of Dr.
Donnellan’s medical opinion in determining her RFC, and the failure to do so indicates the ALJ
did not consider that medical opinion as a whole. This assertion is off the mark. See Dyer v.
Barnhart, 395 F.3d 1206 (11th Cir. 2005).
In Dyer, the Eleventh Circuit stated that the ALJ need not “specifically refer to every
piece of evidence in th[e] decision” as long as the decision allows the court to conclude that the
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ALJ considered the medical condition as a whole. Dyer, 395 F.3d at 1211. In Hennes v.
Commissioner of Social Security Administration, the Eleventh Circuit noted that although the
ALJ did not specifically mention the claimant’s obesity, there was no “rigid requirement” that
the ALJ specifically refer to every piece of evidence as long as the decision allows the court to
conclude that the ALJ considered the medical conditional as a whole. 130 Fed. App’x. 343, 348
(11th Cir. 2005).
After careful review, the court finds that the ALJ did indeed consider the medical opinion
as a whole. Id. The ALJ did not err when he failed to expressly and specifically list every aspect
of Dr. Donnellan’s medical opinion. Again, the ALJ is not required to “specifically refer to
every piece of evidence” in the opinion. See Dyer, 395 F.3d at 1211. There simply is no “rigid
requirement” to catalog every shred of evidence, including the finding that Plaintiff would
require breaks. And, to be sure, the ALJ’s findings make clear that the need for breaks was
incorporated into her RFC determination.
Moreover, the ALJ stated that Dr. Donnellan’s medical opinion was given “good weight”
and that the opinion was “incorporated” into the determination of Plaintiff’s RFC. (Tr. 28). The
ALJ also summarized Dr. Donnellan’s findings as to Plaintiffs physical capabilities. (Tr. 28, Tr.
269).

In fact, the ALJ gave Plaintiff the “benefit of the doubt” when she found that Plaintiff

could “stand/walk two hours each day in an eight-hour day,” which is in actuality an even more
claimant-friendly finding than that of Dr. Donnellan.4 (Tr. 27).
Additionally, the court finds that the ALJ considered the whole opinion of Dr. Donnellan
because the ALJ properly stated both the weight given to his medical opinion, and the reason
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Dr. Donnellan opined Plaintiff could stand and walk four to six hours each day during an eight-hour
workday. (Tr. 27). Therefore the ALJ’s use of stand/walk period of two hours a day is more generous to Plaintiff
for purposes of determining her RFC. In any event, the ALJ’s determination is not in any manner inconsistent with
Dr. Donnellan’s medial opinion, and is not rendered inconsistent simply because it does not state frequent breaks
will be required during an eight-hour workday.

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therefore. The court is fully aware that the ALJ is required to “state with particularity the weight
[given] different medical opinions and the reasons therefore.” Sharfarz v. Brown, 825 F. 2d 278,
279 (11th Cir. 1987).

Here, the ALJ did indicate the weight she gave to Dr. Donnellan’s

medical opinion when she stated that “good weight has been placed in the [opinion] of Dr.
Donnellan”. (Tr. 28). In fact, the ALJ stated that “good weight” was given to the medical
opinion of Dr. Donnellan because of the physician’s “specialization and expertise in the area of
internal medicine.” (Tr. 28). Accordingly, the ALJ properly stated “with particularity” the
weight given to Dr. Donnellan’s opinion5 and the reasons therefore, thus further demonstrating
that the ALJ considered the opinion as a whole. Sharfaz, 825 F.2d at 279. Therefore, the ALJ
fully “considered” Dr. Donnellan’s medical opinion. Hennes, 130 F. App’x. at 348.
VII.

Conclusion
The court concludes that the ALJ’s determination that Plaintiff is not disabled is

supported by substantial evidence and the proper legal standards were applied in reaching this
determination. The Commissioner’s final decision is therefore due to be affirmed. A separate
order in accordance with this Memorandum of Decision will be entered.
DONE and ORDERED this March 25, 2015.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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Medical experts are considered experts in their respective fields, as well as in Social Security disability
programs. See 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i); SSR 96-6p, 1996 WL374180. Opinions of medical
experts may be given greater weight than opinions of treating and examining sources as long as there is substantial
evidence in the record to support the opinion. See 20 C.F.R. §§ 404.1512(b)(6), 404.1527(e)(2)(i) and (iii),
416.912(b)(6), 416.927(e)(2)(i) and (iii); SSR 96-6p WL374180; Crawford, 363 F.3d at 1159-60 (11th Cir. 2004);
Jarrett v. Comm’r of Soc. Sec., 422 Fed. App’x. 869, 872-74 (11th Cir. 2011).

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