Whitten v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 3/31/2014. (JLC)
2014 Mar-31 PM 02:50
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
) CIVIL ACTION NO. 3:12-CV-0951) VEH
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, )
The plaintiff, Martha Whitten, brings this action pursuant to the provisions of 42
U.S.C. § 405(g), seeking judicial review of a final adverse decision of the Commissioner
of the Social Security Administration denying her application for Title II disability
insurance benefits. Whitten timely pursued and exhausted her administrative remedies
available before the Commissioner. Accordingly, this case is now ripe for judicial review
under 42 U.S.C. § 405(g). 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
I. STANDARD OF REVIEW
The sole function of this court is to determine whether the decision of the
Commissioner is supported by substantial evidence and whether proper legal standards
were applied. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). To that end
this court “must scrutinize the record as a whole to determine if the decision reached is
reasonable and supported by substantial evidence.” Id. (citations omitted). Substantial
evidence is “such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Id. This court may not decide the facts anew, reweigh the
evidence, or substitute its judgment for that of the Commissioner. Id. Even if the court
finds that the evidence preponderates against the Commissioner’s decision, the court
must affirm if the decision is supported by substantial evidence. Id.
Unlike the deferential review standard applied to the Commissioner’s factual
findings, “no similar presumption of validity attaches to the [Commissioner’s]
conclusions of law, including determination of the proper standards to be applied in
reviewing claims.” Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982) (quoting
Smith v. Schweiker, 646 F.2d 1075, 1076 (5th Cir. Unit A Jun.1981)). Therefore, this
court reviews de novo the Commissioner’s conclusions of law. Ingram v. Comm’r of
Soc. Sec., 496 F.3d 1253, 1260 (11th Cir. 2007). The Commissioner’s “failure to apply
the correct law or to provide the reviewing court with sufficient reasoning for
determining that the proper legal analysis has been conducted mandates reversal.”
Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
II. STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits, a claimant must be 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 twelve months.” 42 U.S.C.
§§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment” is defined as “an
impairment that results 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).
Social Security regulations outline a five-step process that is used to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
The Commissioner must determine in sequence:
whether the claimant is currently engaged in substantial gainful
whether the claimant has a severe impairment or combination of
whether the claimant’s impairment meets or equals the severity of
an impairment in the Listing of Impairments;1
whether the claimant can perform any of his or her past work; and
whether there are significant numbers of jobs in the national
economy that the claimant can perform.
Winschel v. Comm’r of Soc. Sec, 631 F.3d 1176, 1178 (11th Cir. 2011). The evaluation
process continues until the Commissioner can determine whether the claimant is
disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). A claimant who is doing
substantial gainful activity will be found not disabled at step one. 20 C.F.R. §§ 404.1520
The Listing of Impairments, (“Listings”) found at 20 C.F.R. Part 404, Subpart
P, Appendix 1, are used to make determinations of disability based upon the presence of
impairments that are considered severe enough to prevent a person from doing any
gainful activity. 20 C.F.R. § 404.1525.
(a)(i), 416.920(a)(4)(i). A claimant who does not have a severe impairment will be found
not disabled at step two. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A claimant
with an impairment that meets or equals one in the Listing of Impairments will be found
disabled at step three. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
Prior to considering steps four and five, the Commissioner must assess the
claimant’s residual functional capacity (RFC), which will be used to determine the
claimant’s ability to work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). A claimant who
can perform past relevant work will be found not disabled at step four. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At step five the burden shifts to the
Commissioner to show other work the claimant can do. Foot v. Chater, 67 F.3d 1553,
1559 (11th Cir. 1995). To satisfy this burden the Commissioner must produce evidence
of work in the national economy that the claimant can do based on the claimant’s RFC,
age, education, and work experience. 20 C.F.R. §§ 404.1512(f), 416.912(f). A claimant
who can do other work will be found not disabled at step five. 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920 (a)(4)(v). A claimant who cannot do other work will be
found disabled. Id.
Whitten filed a previous application, which was denied by an Administrative Law
Judge (ALJ) in a decision issued July 23, 2007.2 R. 11. Her request for administrative
The same ALJ issued both the July 23, 2007, decision, and the August 26, 2011,
decision, which is the subject of the current appeal.
review was denied, and she did not appeal that decision.3 R. 11. Therefore, the doctrine
of res judicata bars Whitten from asserting a claim for benefits within the period
adjudicated by that prior claim. See 20 C.F.R. § 404.957(c)(1). Whitten acknowledged
this by amending her alleged onset date to July 24, 2007. R. 225, 27.
In the present case, Whitten is seeking Title II disibility insurance benefits. Based
on Whitten’s earnings records, she has sufficient quarters of coverage to remain insured
through December 31, 2007. R. 10. Therefore, Whitten must establish that she became
disabled on or before December 31, 2007, her date last insured (DLI). See 42 U.S.C. §
423(d)(1)(A); Wilson v. Barnhart, 284 F.3d 1219, 1226 (11th Cir. 2002). This means
Whitten must show that she became disabled on or after July 24, 2007, but before
January 1, 2008.
The ALJ determined Whitten did not engage in substantial gainful activity from
her alleged onset date through her DLI. R. 13. He found that through her DLI she had the
severe impairments of “osteoporosis, scoliosis, and mild degenerative changes at L4/L5
and L5/S1.” R. 13. The ALJ concluded Whitten did not suffer from a listed impairment
through her DLI. R. 14. He found Whitten had the residual functional capacity (RFC) to
perform sedentary work as defined in 20 C.F.R. § 404.1567(a), with additional
restrictions. R. 14. She was not to work at unprotected heights, or around dangerous,
The ALJ in the present case determined the prior application could not be
reopened under any of the grounds specified in the regulations. R. 11. Courts have no
jurisdiction to review the Commissioner’s decision not to reopen a prior claim absent a
colorable constitutional claim. See Califano v. Sanders, 430 U.S. 99, 107-09 (1977).
moving, or unguarded machinery. R. 14. She also could not climb ropes, ladders or
scaffolds. R. 14. With this RFC, the ALJ found Whitten unable to perform her past
relevant work. R. 16.
When a claimant is not able to perform the full range of work at a particular
exertional level, the Commissioner may not exclusively rely on the Medical-Vocational
Guidelines (“the grids”) to establish the presence of other jobs at step five.4 Foote, 67
F.3d at 1558-59. The presence of a non-exertional impairment (such as pain, fatigue, or
mental illness) also prevents exclusive reliance on the grids. Id. at 1559. In such cases
“the [Commissioner] must seek expert vocational testimony.” Id. Based on Whitten’s
RFC, and the testimony of a vocational expert (VE), the ALJ found Whitten could
perform other work in the national economy. R. 16-17, 48-51. Therefore, he found she
was not disabled at step five of the sequential evaluation framework at any time prior to
her DLI. R. 17.
III. FACTUAL BACKGROUND
Whitten filed her current application for a period of disability and disability
insurance benefits on June 10, 2010. R. 10. She initially alleged she became disabled on
October 4, 2002, but amended her alleged onset date to July 24, 2007, the day following
The Medical-Vocational Guidelines, found at 20 C.F.R. Part 404, Subpart P,
Appendix 2, are used to make determinations of disability based upon vocational factors
and the claimant’s residual functional capacity when the claimant is unable to perform
his vocationally relevant past work. 20 C.F.R. Part 404, Subpart P, Appendix 2,
§ 200.00(a). Such determinations, however, are only conclusive when all of the criteria
of a particular rule are met. 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(a).
the ALJ’s decision on her prior claim. R. 169, 27, 225. Whitten was 48 years old on her
DLI. R. 16. She has at least a high school education, and past relevant work as a sewing
machine operator. R. 16. Whitten alleges she was disabled as of December 31, 2007,
because of back pain, and problems using her hands because of osteoporosis and
degenerative disc disease. R. 33-38.
As the ALJ observed, most of the medical evidence falls either before July 24,
2007, or after December 31, 2007. Records several months prior to the previous ALJ
decision show that on April 18, 2007, she saw Dr. Hunt, a rheumatologist, who noted
Whitten presented with “a significantly good response to Naproxen.” R. 241. Dr. Hunt
noted Whitten’s range of motion in her back showed “significant improvement,” and that
she was “no longer having any morning stiffness of note.” R. 241. She was to return for
a followup visit in four months. R. 241.
On August 15, 2007, Dr. Hunt noted Whitten “returns with a very good response
from the standpoint of stiffness on Naproxen.” R. 281. Dr. Hunt noted she had “not
regained any of her limited limitations in range of motion but has only 15 to 20 minutes
of morning stiffness and no peripheral joint tenderness.” R. 281. Whitten was to follow
up in six months – or sooner, if needed – at which time Dr. Hunt would review a bone
density scan that was to be done in the near future. R. 281. The bone scan was performed
on October 3, 2007, and showed significant osteoporosis. R. 255.
Whitten did not return to Dr. Hunt until March 12, 2008, approximately two and
one-half months after her DLI. R. 280. Dr. Hunt noted Whitten had “very little
discomfort as a consequence of ankylosing spondylitis.”5 R. 280. He noted she had
“clearly improved substantially” on Naproxen. R. 280. He indicated Whitten reported “a
lot of trouble with short term memory and admits that she is depressed.” R. 280. Whitten
was to make an appointment to discuss those issues with her primary care physician. R.
280. There are additional treatment records from Dr. Hunt, but they are too distant in
time from Whitten’s DLI to be relevant to her claim.
During the relevant time period, Whitten saw Dr. Auxier, her primary care
physician, only once. On September 5, 2007, she saw Dr. Auxier for an annual physical.
R. 317. She reported that she was “still depressed [at] times.” R. 317. Dr. Auxier’s
physical examination of Whitten’s back, neck and extremities was normal. R. 317. She
diagnosed Whitten with vaginitis and weakness and prescribed Cymbalta. R. 317.
Whitten did not see Dr. Auxier again until November 12, 2008, (eleven months
after her DLI) when physical examination of Whitten’s back, neck, and extremities was
again normal. R. 316. The treatment note does not indicate any complaints of symptoms
related to Whitten’s osteoporosis or degenerative disc disease. R. 316.
Ankylosing spondylitis “is an inflammatory disease that can cause some of the
vertebrae in [the] spine to fuse together. This fusing makes the spine less flexible and can
result in a hunched-forward posture.” http://www.mayoclinic.org/diseases-conditions/
ankylosing-spondylitis/basics/definition/con-20019766 (last visited March 12, 2014).
IV. ISSUES PRESENTED
Whitten’s brief raise the following issues: 1) Whether the ALJ erred in finding the
medical records did not demonstrate any significant changes in her condition after his
July 23, 2007, decision; 2) whether the ALJ erred in rejecting Whitten’s allegation that
she cannot perform work activity for a complete work day, or maintain acceptable work
attendance; and 3) whether the ALJ failed to properly evaluate the limitations alleged by
Whitten related to her ability to perform repetitive activities with the upper extremities.
Whitten argues the medical records from her treating doctors “demonstrated a
progression in the claimant’s impairments which is inconsistent with her limitations
remaining constant between her first and second [ALJ] decisions.” Pl.’s Br. 7. The ALJ’s
2011 decision rests on his finding that there had been no significant changes in Whitten’s
condition after his decision on July 23, 2007, but before January 1, 2008. The ALJ
observed that there was little medical evidence during that time period:
The claimant simply does not have any medical evidence that indicates any
significant changes from the findings of the ALJ decision, dated July 23,
2007. The majority of the evidence falls within the period of time prior to
the date of the decision, or following the date through which the claimant
was last insured for Title II benefits, December 31, 2007.
R. 15. The ALJ concluded that “a review of the evidence shows no evidence of any
worsening of the claimant’s impairments from the time of the previous administrative
law judges decision on July 23, 2007 through December 31, 2007, her date last insured.”
R. 16. Therefore, he found Whitten’s RFC had not changed since the earlier decision.6 R.
At Whitten’s ALJ hearing, her attorney stated that an October 3, 2007, bone
density scan showed that her condition had worsened. R. 28. That scan showed
significant osteoporosis. R. 255. However, the October 2007 bone density scan is not, by
itself, sufficient to show Whitten was more restricted by her impairment after July 23,
2007. See McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir.1986) (“[T]he ‘severity’ of
a medically ascertained disability must be measured in terms of its effect upon ability to
work, and not simply in terms of deviation from purely medical standards of bodily
perfection or normality.”); Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005)
(“[T]he mere existence of these impairments does not reveal the extent to which they
limit [the claimant’s] ability to work or undermine the ALJ’s determination in that
In his decision, the ALJ noted that the October 2007 bone density scan showed “a
decrease in bone mineral density consistent with osteoporosis.” R. 16. However, he
explained that Whitten’s “osteoporosis was considered in the previous administrative law
judge’s decision,” and that the results of the new scan “do not show any significant
The RFC finding in the ALJ’s earlier decision was the same as in the decision
under review on this appeal. R. 93.
increase of osteoporosis since previous testing.”7 R. 16. Moreover, the treatment records
support the ALJ’s finding that none of Whitten’s impairments worsened significantly
during the relevant period of time.
The only treatment note during the relevant time period from Dr. Hunt, Whitten’s
treating rheumatologist, was from August 15, 2007. At that visit, he found Whitten had
a “very good response from the standpoint of stiffness,” and had “no peripheral joint
tenderness.” R. 281. When Whitten next saw Dr. Hunt on March 12, 2008 (several
months after her DLI), he noted that she had “very little discomfort as a consequence of
ankylosing spondylitis” and that she had “clearly improved substantially” on Naproxen.
R. 280. Dr. Hunt’s treatment records, therefore, show Whitten’s condition was
There is also only one treatment note during the relevant time period from Dr.
Auxier, Whitten’s primary care physician. That note, dated September 5, 2007, does not
indicate Whitten reported any symptoms from her osteoporosis or degenerative disc
disease. R. 317. Additionally, Dr. Auxier’s physical examination of Whitten’s back,
neck, and extremities was normal. R. 317. Whitten did not see Dr. Auxier again until
November 12, 2008 – eleven months after her DLI – when physical examination of
Whitten’s back, neck, and extremities was again normal. R. 316. That treatment note
does not indicate any complaints of symptoms related to Whitten’s osteoporosis or
In his July 23, 2007, decision, the ALJ found Whitten had osteoporosis, and that
it was a severe impairment. R. 99.
degenerative disc disease. R. 316. Therefore, Dr. Auxier’s treatment notes show no
worsening of Whitten’s condition.
The treatment records provide substantial evidence to support the ALJ’s finding
that Whitten’s condition did not worsen during the relevant time period. Therefore, the
ALJ did not err in finding Whitten’s RFC remained unchanged from the RFC assessed in
the July 23, 2007 decision.
Whitten also argues the ALJ did not properly consider her ability to perform work
activity for a complete workday or the impact of her alleged inability to maintain
acceptable work attendance. Pl.’s Br. 7-8. The focus of her argument is addressed to
whether the ALJ’s RFC finding took into account her ability to sustain work activities
on a regular and continuing basis. Id. at 8. In assessing Whitten’s RFC, the ALJ was
required to consider her physical abilities “on a regular and continuing basis.” See 20
C.F.R. § 404.1545(b) (“When we assess your physical abilities, we first assess the
nature and extent of your physical limitations and then determine your residual
functional capacity for work activity on a regular and continuing basis.”). There is no
indication in the ALJ’s decision that his RFC finding did not take into account
Whitten’s ability to work on a regular and continuing basis as required by the
regulations. Therefore, the ALJ’s finding that Whitten had the RFC to perform
sedentary work with additional restrictions must be presumed to represent a finding that
the work could be done on a regular and continuing basis.
The ALJ also found that Whitten’s allegations were not credible to the extent
they were inconsistent with his RFC finding. R. 15. As discussed above, the ALJ’s
finding that there had been no significant change in Whitten’s condition between the first
ALJ decision and her DLI is supported by substantial evidence. Therefore, the ALJ did
not err in rejecting Whitten’s testimony about her ability to sustain work on a regular
and continuing basis.
Whitten argues that the ALJ failed to properly evaluate her allegations of
limitations “related to her ability to perform repetitive activities with the upper
extremities.” Pl.’s Br. 9. The ALJ discussed Whitten’s testimony “that she cannot use her
hands to wrap gifts.”8 R. 15. However, he did not find Whitten had a severe impairment
of her upper extremities. R. 13. Nor did he include any restrictions in the use of
Whitten’s upper extremities in his RFC assessment. R. 14. The ALJ made the same
findings in his 2007 decision. R. 92, 93.
None of the treatment notes during the relevant time period show any complaints
of worsening symptoms that would affect Whitten’s ability to use her upper extremities.
Moreover, although Whitten argues the ALJ did not properly evaluate her allegations of
difficulties with the use of her upper extremities, she has not shown any diagnosis of a
medically determinable impairment that would affect Whitten’s use of her upper
Whitten testified at her hearing on July 27, 2011, that she had been unable to
wrap Christmas gifts in December 2007. R. 33.
extremities. As discussed above, the ALJ’s finding that there had been no significant
changes in Whitten’s condition between the first ALJ decision and her DLI is supported
by substantial evidence. Therefore, the ALJ did not err in failing to include restrictions
on Whitten’s use of her upper extremities in his August 2011 RFC finding.
Based upon the court’s evaluation of the evidence in the record and the parties’
submissions, the court finds that the Commissioner’s decision is supported by substantial
evidence and that she applied proper legal standards in arriving at it. Accordingly, the
court will affirm the decision by separate order.
DONE and ORDERED this the 31st day of March, 2014.
VIRGINIA EMERSON HOPKINS
United States District Judge
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