Abruzzo v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 2/20/15. (MRR )

FILED
2015 Feb-23 AM 09:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DENISE DIANN ABBRUZZO,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.
I.

Introduction

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2:13-cv-2024-TMP

MEMORANDUM OPINION

The plaintiff, Denise Diann Abbruzzo,1 appeals from the decision of the
Commissioner of the Social Security Administration (ACommissioner@) denying her
application for Social Security Disability Insurance Benefits (ADIB@). Ms. Abbruzzo
timely pursued and exhausted her administrative remedies, and the decision of the
Commissioner is ripe for review pursuant to 42 U.S.C. '' 405(g), 1383(c)(3). The
parties have consented to the jurisdiction of the undersigned in accordance with 28
U.S.C. ' 636(c) and Federal Rule of Civil Procedure 73. Based upon the court=s
1

It appears that the plaintiff=s last name was misspelled on the complaint, and that the
proper spelling is AAbbruzzo,@ not AAbruzzo.@ (See plaintiff=s signature, Doc. 2-1). The Clerk is
DIRECTED to change the spelling of the name in the style of the case.
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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.
Ms. Abbruzzo was 48 years old at the time of the Administrative Law Judge=s
(AALJ@) decision, and she has a high school education. (Tr. at 27). She has past work
experience as a bus driver, bartender, electrical line worker, waitress, and assistant
manager at a restaurant. (Tr. at 150). She claims that she became disabled on
November 7, 2008, due to lower back pain, injuries to her hands, bipolar disorder, and
depression. (Tr. at 149).
When evaluating the disability of individuals over the age of 18, the regulations
prescribe a five-step sequential evaluation process.

See 20 C.F.R. '' 404.1520,

416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The first step
requires a determination of whether the claimant is Adoing substantial gainful activity.@
20 C.F.R. '' 404.1520(a)(4)(i), 416.920(a)(4)(i). If he or she is, the claimant is not
disabled and the evaluation stops. Id. If he or she is not, the Commissioner next
considers the effect of all of the claimant=s physical and mental impairments
combined. 20 C.F.R. '' 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These impairments must
be severe and must meet the durational requirements before a claimant will be found
to be disabled. Id. The decision depends upon the medical evidence in the record. See
Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If the claimant=s impairments are
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not severe, the analysis stops.

20 C.F.R. '' 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

Otherwise, the analysis continues to step three, which is a determination of whether
the claimant=s impairments meet or equal the severity of an impairment listed in 20
C.F.R. pt. 404, Subpart P, Appendix 1. 20 C.F.R. '' 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the claimant=s impairments fall within this category, he or she will
be found disabled without further consideration. Id. If they do not, a determination
of the claimant=s residual functional capacity (ARFC@) will be made, and the analysis
proceeds to the fourth step. 20 C.F.R. '' 404.1520(e), 416.920(e). Residual functional
capacity is an assessment, based on all relevant evidence, of a claimant=s remaining
ability to do work despite his or her impairments. 20 C.F.R. ' 404.1545(a).
The fourth step requires a determination of whether the claimant=s
impairments prevent her from returning to past relevant work.

20 C.F.R.

'' 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do her past relevant
work, the claimant is not disabled and the evaluation stops. Id. If the claimant cannot
do past relevant work, then the analysis proceeds to the fifth step. Id. Step five
requires the court to consider the claimant=s RFC, as well as the claimant=s age,
education, and past work experience, in order to determine if he or she can do other
work. 20 C.F.R. '' 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can do other
work, the claimant is not disabled. Id. The burden of demonstrating that other jobs
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exist which the claimant can perform is on the Commissioner; and, once that burden
is met, the claimant must prove his or her inability to perform those jobs in order to
be found to be disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
Applying the sequential evaluation process, the ALJ found that Ms. Abbruzzo
has not been under a disability within the meaning of the Social Security Act from the
date of onset through the date of his decision. (Tr. at 29). He first determined that
Ms. Abbruzzo met the insured status requirements of the Social Security Act through
Dec. 31, 2013, and that she had not engaged in substantial gainful activity since the
alleged onset of her disability.

(Tr. at 21).

According to the ALJ, plaintiff=s

depression, anxiety, bipolar disorder, substance abuse, degenerative disc disease of the
lumbar spine, and bilateral hand trauma are Asevere@ impairments based on the
requirements set forth in 20 C.F.R. ' 404.1520(c). (Id.) However, the ALJ found that
these impairments neither meet nor medically equal any of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 22). The ALJ did not find Ms.
Abbruzzo=s allegations of pain and restrictions on her ability to work to be entirely
credible, citing the inconsistencies in her allegations and her reports of daily activities,
the inconsistencies between her allegations and the RFC, and a lack of objective
evidence that confirmed the severity of the conditions or that the conditions could

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reasonably be expected to give rise to the symptoms alleged. 2 (Tr. at 26). The ALJ
determined that Ms. Abbruzzo has the following residual functional capacity: to
perform sedentary work with the additional limitations that she can never climb
ladders, ropes, or scaffolds; can only occasionally balance, stoop, kneel, crouch, crawl,
and climb ramps or stairs; can only occasionally finger with the non-dominant left
hand; must avoid exposure to extreme cold and vibration; is limited to simple, routine,
repetitive tasks with only casual contact with the public and co-workers; and must
have a sit/stand option. (Tr. at 23).
Moving to the fourth step of the analysis, the ALJ concluded that Ms.
Abbruzzo was unable to perform any past relevant work. (Tr. at 27). The ALJ
considered the testimony of a vocational expert, and employed 20 CFR ' 404.1569 as
a guideline for finding that Ms. Abbruzzo is able to perform work in such sedentary
unskilled occupations as surveillance monitor, grader/sorter, and machine tender. He
further determined that such jobs exist in a significant number in the state and nation.
(Tr. at 28). The ALJ concluded his findings by stating that Plaintiff Ahas not been
2

The ALJ noted that, at the time of the alleged onset of disability, Ms. Abbruzzo was
employed full-time as a waitress, and that her own account of the events that led her to quit her job
did not indicate that she left her position due to her alleged disabilities. She testified at her hearing
that she left her employment at the restaurant as part of a Amutual leaving,@ because her Adisposition
and tolerance wasn=t to [her employer=s] liking.@ (Tr. at 44-45). She explained that she was Asmart
alecky@ and impatient with her co-workers, and would get agitated when her co-workers wouldn=t do
their jobs. (Id.)
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under a disability, as defined in the Social Security Act, from November 7, 2008
through the date of this decision. (Tr. at 28).

II.

Standard of Review
This court=s role in reviewing claims brought under the Social Security Act is a

narrow one. The scope of its review is limited to determining (1) whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied.

See

Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). Substantial evidence is Amore than a scintilla and is such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.@ Crawford v. Commissioner of Soc. Sec., 363 F3d 1155, 1158 (11th Cir. 2004)
quoting Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997).

The Court

approaches the factual findings of the Commissioner with deference, but applies close
scrutiny to the legal conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir.
1996). The Court may not decide facts, weigh evidence, or substitute its judgment for
that of the Commissioner.

Id.

AThe substantial evidence standard permits

administrative decision makers to act with considerable latitude, and >the possibility of
drawing two inconsistent conclusions from the evidence does not prevent an
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administrative agency=s finding from being supported by substantial evidence.=@
Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting
Consolo v. Federal Mar. Comm=n, 383 U.S. 607, 620 (1966)). Indeed, even if this Court
finds that the evidence preponderates against the Commissioner=s decision, the Court
must affirm if the decision is supported by substantial evidence. Miles, 84 F.3d at
1400. No decision is automatic, however, for Adespite this deferential standard [for
review of claims] it is imperative that the Court scrutinize the record in its entirety to
determine the reasonableness of the decision reached.@ Bridges v. Bowen, 815 F.2d 622,
624 (11th Cir. 1987). Moreover, failure to apply the correct legal standards is grounds
for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).

III.

Discussion
Ms. Abbruzzo worked for about 13 years as an electrical Alineman@ for Alabama

Power Company, but was terminated after she filed a discrimination charge. She then
went to work for a private electrical company as a lineman, but suffered injuries when
electrocuted in an accident on the job. The accident resulted in the loss of two
fingers on her left, non-dominant hand, and scar tissue in her right hand. She later
worked as a school bus driver, and then as a waitress, where she waited tables and had
some managerial duties. She quit her restaurant job on her alleged onset date. Since
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quitting work, Ms. Abbruzzo has stated that a typical day involves playing computer
games or reading Facebook, watching TV, taking short walks, talking on the
telephone, cooking simple meals, and going shopping. She often spends time at the
lake with her boyfriend.
Ms. Abruzzo alleges that the ALJ=s decision should be reversed and remanded
because, she asserts, the physical and mental RFC findings are not based on
substantial evidence. (Doc. 10). Specifically, she argues that the ALJ improperly gave
weight to the opinion of a non-medical consultant in assessing the physical RFC,
failed to make a function-by-function assessment of her RFC as required by SSR 969p, and left the “sit/stand option” insufficiently specific. (Doc. 10, pp. 7-8). In
addition, she argues that the ALJ failed to properly address the claimant=s mental
problems in his hypothetical question to the vocational expert. (Doc. 10, p. 12).
The Court must be aware that opinions such as whether a claimant is disabled,
the what the claimant=s residual functional capacity is, and the application of
vocational factors Aare not medical opinions, . . . but are, instead, opinions on issues
reserved to the Commissioner because they are administrative findings that are
dispositive of a case; i.e., that would direct the determination or decision of disability.@
20 C.F.R. '' 404.1527(e), 416.927(d). Whether the Plaintiff meets the listing and is
qualified for Social Security disability benefits is a question reserved for the ALJ, and
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the court Amay not decide facts anew, reweigh the evidence, or substitute [its]
judgment for that of the Commissioner.@ Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th
Cir. 2005).
A. The Physical RFC
The plaintiff first argues that the ALJ improperly relied upon the opinion of a
disability specialist who was not an acceptable medical source, and that he failed to
properly assess the RFC by performing a function-by-function assessment. (Doc. 10
pp. 5-9). The Commissioner has responded that the ALJ properly considered the
entire record in deriving the RFC, and that the hypothetical questions posed to the
vocational expert properly provided for all of Ms. Abbruzzo=s physical limitations.
(Doc. 11, pp. 5-11). The Commissioner concedes that the ALJ erroneously referred
to the disability examiner as a Amedical consultant,@3 but asserts that the error was
harmless because the ALJ=s ultimate RFC finding was more restrictive than the
examiner=s finding and was supported by the other evidence in the record. (Id.).

3

The ALJ gave partial weight to the assessment of Ashley N. Harris, a Single Decision
Maker (ASDM@) who prepared the physical residual functioning capacity assessment. (Tr. at 306-13).
Federal law permits states to test modifications to the disability determination process. See 20 C.F.R.
' 404.906. To expedite the processing of applications, SDMs have been authorized to make initial
disability determinations in Alabama without the signature of a medical consultant. See Malone v.
Colvin, No. 5:12-cv-514-LSC, 2013 WL 4502075 (N.D. Ala. Aug. 22, 2013)
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The RFC describes the work that the claimant Ais still able to do despite the
limitations caused by his or her impairments.@ Crow v. Commissioner, 571 Fed. Appx.
802, 805 (11th Cir. 2014), quoting Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir.
2004). The ALJ considered all of the evidence in the record in determining the
claimant's RFC. Id. The RFC is based upon Aall relevant medical and other evidence[]
of a claimant=s remaining ability to work despite his impairment.@ Castle v. Colvin, 557
Fed. Appx. 849, 852 (11th Cir. 2014). An RFC can be determined Aeven without a
physician=s assessment@ in cases where the medical evidence shows Arelatively little
physical impairment.@ Castle, 557 Fed. Appx. at 854. In Siverio v. Colvin, the appellate
court noted that an ALJ=s reliance on the opinion of a Asingle decision maker@ who is
not a physician can be error where the ALJ falsely believed the SDM was a physician,
and where he gave the SDM=s assessment Asignificant weight.@ 461 Fed. Appx. 869,
872 (11th Cir. 2012). However, the Eleventh Circuit Court of Appeals likewise has
noted that a mistaken reference to an SDM as a doctor may be harmless error where
Athe ALJ stated that he considered all of the evidence in the record, which also
included opinions by [claimant=s] treating physician and the non-examining physician,
both of whom were medical doctors and there is nothing to indicate that the opinion
of the SDM was anything more than cumulative of other evidence, let alone
dispositive.@ Cooper v. Colvin, 521 Fed. Appx. 803, 807 (11th Cir. 2013); see also Malone,
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2013 WL 4502075 at *4-5. Moreover, opinion evidence by a physician regarding the
plaintiff=s physical limitations is not essential to a finding that denies benefits. Malone,
2013 WL 4502075 at *5.
In this case, the ALJ relied upon the July 2010 imaging of the claimant’s lumbar
vertebra, the October 2010 consultative examination with a physician, subsequent
clinic records, and pain clinic records. (Tr. at 24). The ALJ further relied upon the
claimant=s own testimony and reports to the SSA, including the fact that the claimant
was able to Ago grocery shopping, use the computer, and drive.@ (Tr. at 25). The ALJ
noted that claimant=s reports that she was unable to use her hands freely was
contradicted by her ability to work a 40-hour week as a bus driver and a waitress
before her onset date, while there had been no evidence of any substantial change in
the impairments to her hand at or after the onset date. Although the ALJ gave
Apartial weight@ to the SDM=s report and once referred to Harris as a AState agency
medical consultant,@ he later referred to her only as a AState agency consultant,@ and
he ultimately found that Ms. Abbruzzo is more limited than the state agency
consultant had determined. Clearly, these erroneous references by the ALJ were
harmless error as his assessment of her RFC capacity was not significantly influenced
by the SDM.

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The plaintiff further argues that the ALJ erred in failing to perform a
Afunction-by-function@ analysis.

Social Security Ruling 96-9p defines an RFC

assessment as Aa function-by-function assessment based upon all of the relevant
evidence of an individual=s ability to perform work-related activities.@ SSR 96-9p,
1996 WL 374185 (July 2, 1996). The functions of sedentary work are:
lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount
of walking and standing is often necessary in carrying out job duties.
Jobs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met.
20 C.F.R. '' 404.1567(a), 416.967(a). In his determination, the ALJ discussed Ms.
Abruzzo=s claims, history, daily activities, and medical records. He then determined
that the evidence in the record indicates that Ms. Abruzzo had an RFC that allowed
her to perform sedentary work with certain limitations. (Tr. at 23-27). The ALJ=s
written opinion takes into account the medical and non-medical evidence in the
record prior to making his RFC determination.
The purpose of the Afunction-by-function analysis@ requirement is to ensure
that the ALJ determines, based on the entire record, that the claimant is able to
perform the functions required in a particular classification of work. An Aanalysis of
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the evidence and statement that [the claimant] could perform [sedentary] work
indicate[s] how much work-related activity [the claimant can] perform@ because SSR
96-9p defines the amount and type of work-related activity required for sedentary
work.

Freeman v. Barnhart, 220 Fed. Appx. 957, 960 (11th Cir. 2007).

In this

jurisdiction, Athere is no rigid requirement that the ALJ specifically refer to every piece
of evidence in his decision, so long as the ALJ=s decision . . . is not a broad rejection
which is not enough to enable [the district court or this Court] to conclude that [the
ALJ] considered her medical condition as a whole.@ Dyer v. Barnhart, 395 F.3d 1206,
1211 (11th Cir. 2005) (internal citations omitted).
In this case, in determining the plaintiff=s ability, the ALJ specifically instructed
the VE to consider an employee who needed the option to sit or stand at will. (Tr. at
57.)

See Carter v. Commissioner of Soc. Sec., 411 Fed. Appx. 295, 298 (11th Cir.

2011)(holding that failure to pose a hypothetical that included all of the impairments
was harmless error where the question Asufficiently encompassed@ the claimant's
limitations); Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983). A review of the
ALJ=s RFC determination indicates to the court that the ALJ did consider Ms.
Abbruzzo=s medical condition as a whole in making her RFC determination and,
therefore, fulfilled the requirement of a function-by-function analysis.

Castel v.

Commissioner of Social Security, 355 Fed. Appx. 260, 263 (11th Cir. 2009). Likewise, his
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“sit/stand option” is specified in the question to the VE, that is, that she be able to sit
or stand at will. This is sufficiently specific.
Accordingly, the ALJ=s finding as to the plaintiff=s physical RFC is supported
by substantial evidence.

B. Consideration of Mental Impairments
The plaintiff also challenges the ALJ=s finding regarding mental impairments,
asserting that he did not address concentration, persistence, pace or the ability to
respond to work stress. (Doc. 10, pp. 10-13). Ms. Abbruzzo further challenges the
ALJ=s failure to provide more restrictive mental limitations than Aonly casual contact
with the public and coworkers.@ (Id.)
The ALJ determined that Ms. Abbruzzo had Asevere@ depression, anxiety, and
bipolar disorder. He further found that she had only moderate limitations in activities
of daily living, social functioning, and concentration, persistence, and pace. (Tr. at
21).

He noted that A[n]either the claimant=s testimony, her reports to the

Administration nor other substantial evidence ... supports finding that the claimant=s
mental impairments have prevented her from initiating or participating [in] activities
of daily living independent of supervision or direction, or that the claimant would
have serious difficulty performing these activities in a suitable manner, on a
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consistent, useful, routine basis, or without undue interruptions or distractions due to
her mental impairments.@ (Id.)
A review of the entire decision demonstrates that the ALJ=s determination is
supported by substantial evidence. The claimant reported socializing with friends and
her boyfriend, drinking beer at the lake, and having the ability to focus on computer
games, reading, and television. The only allegation that she has trouble interacting
with others at work is that she becomes Aagitated@ when her co-workers don=t
perform their share of the work. The ALJ considered the opinions of consultative
psychologist Catherine Prince; however, he gave them only partial weight, noting that
the difficulties documented were not consistent with the descriptions of daily
activities reported by Ms. Abbruzzo and by her mother. (Tr. at 26). Ms. Prince gave
Ms. Abbruzzo a Global Assessment of Functioning score of 55, which was
considered by the ALJ, and which undisputedly indicates only moderate impairment
in social, occupational, or school functioning. (Tr. at 25).
The ALJ gave great weight to the assessment of the State agency=s
psychological consultant in reaching his conclusions about Ms. Abbruzzo=s mental
impairments. (Tr. at 26). Dr. Estock found the claimant to have only moderate or not
significant limitations. (Tr. at 314-16). He opined that she was able to understand,
remember, and carry out simple instructions, attend and concentrate for 2-hour
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periods on simple tasks with customary breaks and rests, and could benefit from a
flexible schedule. (Tr. at 316). He further determined that her interaction with the
public should be casual, and that interaction with supervisors and co-workers should
be non-confrontational.

(Id.)

The ALJ assessed Ms. Abbruzzo=s mental RFC by

incorporating the expert opinions with the claimant=s own reports of her daily
activities, and accommodated her limitations by restricting work to casual interactions.
The ALJ=s decision was both comprehensive and consistent with the applicable
SSA rulings. The objective medical and other evidence supports the ALJ=s conclusion
that plaintiff=s mental conditions did not cause disabling limitations and instead shows
that she could perform some work.

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IV.

Conclusion

Upon review of the administrative record, and considering all of Ms.
Abbruzzo=s arguments, the Court finds the Commissioner=s decision is supported by
substantial evidence and is in accord with the applicable law. A separate order will be
entered affirming the Commissioner’s decision and dismissing this case with prejudice.
DATED the 20th day of February, 2015.

_______________________________

T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE

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