Hamm v. Social Security Administration, Commissioner

Filing 17

MEMORANDUM OPINION as more fully set out in order. Signed by Magistrate Judge Harwell G Davis, III on 08/05/14. (SPT )

FILED
2014 Aug-05 PM 12:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION

REBECCA ANN HAMM,
Plaintiff
vs.
CAROLYN COLVIN,
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant

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) Case No. 3:13-cv-01278-HGD
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MEMORANDUM OPINION
Plaintiff in this action, Rebecca Ann Hamm, protectively filed for a period of
disability, Disability Insurance Benefits (DIB), and Supplemental Security Income
(SSI). (Tr. 15). The alleged onset date of her disability was October 1, 2007. Her
applications were denied on January 12, 2011, in an initial determination. (Id.).
Plaintiff timely requested and appeared at a hearing before an administrative law
judge (ALJ) on February 22, 2012. Plaintiff was represented by counsel. In a
decision dated March 30, 2012, the ALJ found that plaintiff was not disabled. (Tr.
15-22). Plaintiff requested review by the Appeals Council which was denied on

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March 4, 2013. (Tr. 4-6). The Commissioner’s decision is ripe for review under 42
U.S.C. §§ 405(g) and 1383(c)(3).
I.

Proceedings Below
Disability under the Social Security Act is determined under 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 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. § 404.1520(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 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 first must determine the claimant’s residual functional
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capacity (RFC), which refers to the claimant’s ability to work despite his
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 deemed not disabled. Id. If the ALJ finds that the
claimant is 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 his 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 the RFC, age, education and work experience.

20 C.F.R.

§§ 404.1520(g), 404.1560(c).
The ALJ strictly adhered to this decision-making protocol. Plaintiff was 47
years old at the time of the ALJ’s decision. Plaintiff has never held a job. Therefore,
the ALJ found that she did not meet the insured status requirements for Title II
benefits. Because the ALJ found that she was not entitled to a period of disability and
disability benefits, her application for disability benefits was dismissed. (Tr. 15).
The remaining issue before the ALJ was whether the plaintiff was disabled under
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§ 1614(a)(3)(A) of the Social Security Act. As noted by the ALJ, disability is defined
as the inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment or combination of impairments
that can be expected to result in death, or that has lasted or can be expected to last for
a continuous period of not less than 12 months. (Id.).
II.

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. Brown,
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, re-evaluate 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 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
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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.
III.

The ALJ’s Decision
Under Step One, the ALJ found that plaintiff has not engaged in substantial

gainful activity since October 10, 2010. (Tr. 17). Under Step Two, the ALJ found
that plaintiff has the following severe impairments: learning disabilities, specifically
in reading, written expression and mathematics, by history.

See 20 C.F.R.

§§ 404.1520(c) and 416.920(c). Because plaintiff has severe impairments, the ALJ
proceeded to Step Three of the evaluation process.
Under Step Three, the ALJ found that plaintiff does not have an impairment or
combination of impairments that meets or medically equals the severity of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and 416.926). (Tr. 18).
With regard to this finding, the ALJ stated:

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The undersigned adopts the assessment of the state agency consultant
with regard to mental functional limitations evaluated under the
requirements of Medical Listings 12.02. Arnold Mindinghall, Ph.D.,
who reviewed the record January 7, 2011, found that the claimant’s
mental impairments result in mild restriction of daily activities of daily
living, moderate difficulties in maintaining social functioning, moderate
deficiencies in concentration, persistence, or pace, and no episodes of
deterioration or decompensation in work or work-like settings.
Therefore, none of the above functional limitations is manifested at the
degree required to satisfy a listing.
Because the claimant’s mental impairments do not cause at least two
“marked” limitations or one “marked” limitation and “repeated episodes
of decompensation,” each of extended duration, the “paragraph B”
criteria are not satisfied.
(Tr. 18-19).
Under Step Four, the ALJ found that plaintiff has the residual functional
capacity (RFC) to perform a full range on work at all exertional levels, with the
following limitations: she can perform no work with exposure to unprotected heights,
dangerous, moving, unguarded machinery, or large bodies of water. She cannot climb
ropes, ladders or scaffolding and cannot drive automotive equipment. She also is
limited to no greater than unskilled work as defined in the Dictionary of Occupational
Titles and in the Social Security Regulations. Furthermore, she should have no more
than occasional interaction with supervisors, co-workers and the general public. (Tr.
19).

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In making this finding, the ALJ stated that he considered all symptoms and the
extent to which they can reasonably be accepted as consistent with the objective
medical evidence and other evidence, based on the requirements of the Social
Security regulations. (Id.). In considering plaintiff’s symptoms, the ALJ followed
the two-step process which requires that a determination first be made as to whether
there is an underlying medically determinable physical or mental impairment(s) that
could reasonably be expected to produce plaintiff’s pain or other symptoms. Second,
if such are shown to exist, the ALJ must evaluate the intensity, persistence and
limiting effects of the plaintiff’s symptoms to determine the extent to which they limit
plaintiff’s functioning. (Tr. 20).
According to the ALJ, plaintiff alleges she cannot work due to learning
disabilities, difficulty in standing for long periods, and anxiety with panic attacks.
He notes that she testified that she takes naps during the day and sometimes feels
drowsy. She stated that, when she is up, she washes dishes and takes care of the
house, although she sometimes has to take breaks. (Id.).
The ALJ found that the medical records fail to document a sufficient objective
basis to accept plaintiff’s allegations resulting in functional limitations as wholly
credible. He noted that, while she has some underlying mental conditions, the
evidence does not support her allegations of severe limitation of function to the
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degree that it would preclude the performance of all substantial gainful activity. The
medical records do not indicate any work-related limitations, and no source has
opined that she cannot perform work at the above-stated RFC. According to the ALJ,
the above-listed limitations with regard to social interaction are based on her learning
disabilities and difficulties in written expression, mathematics and reading. (Id.).
The environmental restrictions regarding work at unprotected heights, etc.,
were imposed based on plaintiff’s subjective complaints only, and were adopted from
the report of the state agency medical consultant. (See Ex. 8F). (Id.).
Plaintiff was born on November 23, 1963, and has a high school education but
no past relevant work experience. (Tr. 20-21). The ALJ further found that plaintiff’s
ability to perform work at all exertional levels has been compromised by nonexertional limitations. To determine the extent to which these limitations erode the
occupational base of unskilled work at all exertional levels, the ALJ asked a
vocational expert (VE) whether jobs exist in the national economy for an individual
with the plaintiff’s age, education, work experience and RFC. The VE testified that,
given all of these factors, the individual would be able to perform the requirements
of representative unskilled, medium occupations such as packer, laundry worker and
sorter, all of which are jobs existing in the state and national economies in substantial

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numbers. (Tr. 21). Based on this, the ALJ determined that plaintiff was “not
disabled” under the Social Security Act. (Tr. 22).
IV.

Plaintiff’s Arguments for Reversal
Plaintiff asserts that the ALJ erred in rejecting the opinion of the consultative

psychologist, Erin Smith, Psy.D. Dr. Smith concluded that plaintiff’s “overall level
of social and adaptive functioning based on cognitive and mental health issues alone,
appears to be severely impaired” and that her “ability to maintain gainful full time
employment based on cognitive and mental health issues, is severely impaired.” (Tr.
139A). Plaintiff states that the ALJ did not accord any weight to this opinion one
way or the other but impliedly rejected it by expressly adopting the opinion of the
state agency reviewing psychologist, Dr. Mindinghall, who found moderate
deficiencies in maintaining social functioning and concentration, persistence and
pace. (Doc. 13, Plaintiff’s Brief, at 7). Because of this alleged conflict in the
evidence, plaintiff asserts that the ALJ should have obtained a consultative
examination or obtained the opinion of a medical expert. Failing this, plaintiff claims
that the ALJ’s RFC findings are not based on substantial evidence. (Id. at 9).
V.

Discussion
In her assessment of plaintiff, Dr. Smith noted that plaintiff reported, among

other things, academic issues which included poor reading comprehension, poor
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listening comprehension, poor spelling, poor math skills, and poor short term
memory. Plaintiff advised Dr. Smith that when she completed high school, she tested
out at a third to fourth grade level. She claimed that she was unable to fill out a check
or read paperwork adequately and that she requires assistance with reading
comprehension and writing tasks. She reported that she was in special education
throughout her schooling and that she received a certificate of completion. (Tr. 13738).
Plaintiff also reported that she is married and lives with her husband of 26
years and has four grown children and nine grandchildren. Her daily activities
include getting out of bed between 7:00 and 8:00 a.m., doing household chores,
watching television, and doing laundry and ironing. She is not able to drive and
could not pass the driver’s test. (Tr. 138).
With regard to her mental status, Dr. Smith noted, among other things, that
plaintiff’s behavior during the interview was appropriate and that she was able to
answer questions with appropriate spontaneous verbalizations. Her speech was
normal in rate and tone, and there were no difficulties with articulation or prosody.
(Id.).
Her cognition appeared to Dr. Smith to be Borderline to Extremely Low range.
She struggled to provide age appropriate similarities and gave no interpretations to
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proverbs. She was able to register three objects immediately and could recall one
after a five-minute delay. According to Dr. Smith, her attention and concentration
were poor. She could perform simple mental arithmetic calculations which required
addition or subtraction of two numbers but could not perform multiplication or
division tasks. Her recent and remote memory was intact, and Dr. Smith believed that
she obtained a complete and valid interview with plaintiff. (Id.).
Based on this interview, Dr. Smith concluded that plaintiff’s ability to maintain
gainful full time employment was severely impaired based on cognitive and mental
issues. However, she also stated that plaintiff’s ability to manage any funds which
she may receive is adequate. (Tr. 139A).
In reaching his conclusions, Dr. Mindinghall noted that plaintiff was slow to
answer, had problems remembering dates and could not concentrate. He noted that
she claimed to have sleep problems due to pain but no personal care problems.
According to Dr. Mindinghall, plaintiff advised that she prepares simple foods,
washes clothes, irons, washes dishes, cleans house, plants flower beds, goes outside
daily, shops, pays bills, counts change, handles a savings account, watches TV, goes
to church and the store weekly, and plays with her grandchildren. (Tr. 152).
However, she cannot drive and has problems with memory, concentration,
understanding and following instructions. (Id.).

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Dr. Mindinghall also reviewed the report of Dr. Smith’s interview with plaintiff
and her conclusions regarding her ability to work. (Id.). In his functional capacity
assessment, Dr. Mindinghall stated that plaintiff can understand and remember simple
instructions, but not detailed or complex instructions, because of significant learning
difficulties. She can carry out a simple task, but not detailed or complex ones for the
same reason. He found that she should be able to attend and concentrate on simple
and familiar tasks for two hours and that she would benefit from a familiar, repetitive
work routine. However, she should not have excessive work responsibilities, quick
decision-making, rapid changes or multiple demands. She would benefit from regular
rest breaks and a slowed pace but would still be able to maintain an acceptably
consistent work pace. (Tr. 156).
Dr. Mindinghall also stated that plaintiff’s contact with the public, co-workers
and supervisors should be casual and informal with supportive, non-confrontational
feedback. Changes in her work setting and routine should be presented gradually and
infrequently. She would need help with planning and goal setting. (Id.).
Contrary to the assertions of plaintiff, the opinions of Dr. Smith and Dr.
Mindinghall are not inconsistent. Dr. Smith opined that plaintiff’s overall level of
functioning appeared to be severely impaired by her mental health issues. Dr.
Mindinghall took these limitations into consideration in arriving at his functional

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capacity assessment. Likewise, the ALJ recognized the significant nature of these
impairments and found them to be “severe” at Step Two of the sequential evaluation.
He acknowledged that plaintiff’s impairments “significantly limit[] [her] physical or
mental ability to do basic work activities.” See 20 C.F.R. §§ 404.1521(a) and
416.921(a).
While Dr. Smith concluded that plaintiff’s ability to maintain gainful full time
employment was severely impaired based on cognitive and mental issues, it is
important to remember that, under the regulations, the Commissioner is ultimately
“responsible for making the determination or decision about whether [the claimant]
meet[s] the statutory definition of disability . . . . A statement by a medical source
that [the claimant is] ‘disabled’ or ‘unable to work’ does not mean that [the
Commissioner] will determine that [the claimant is] disabled.”

20 C.F.R.

§§ 404.1527(e) and 416.927(d).
Furthermore, contrary to plaintiff’s argument, the ALJ also found that
plaintiff’s mental impairments caused her ability to maintain gainful employment to
be significantly impaired. In his RFC finding, the ALJ found that plaintiff could
perform the full range of work at all exertional levels, but she could perform no work
with exposure to unprotected heights, dangerous, moving, unguarded machinery, or
large bodies of water. He also found that plaintiff could not climb ropes, ladders or

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scaffolding and could not drive automotive equipment, and that she was also limited
to no greater than unskilled work as defined in the Dictionary of Occupational Titles
and the Social Security regulations. He further found that plaintiff should have
limited interaction with supervisors, co-workers and the general public.
The regulations define unskilled work as “work which needs little or no
judgment to do simple duties that can be learned on the job in a short period of time.”
20 C.F.R. §§ 404.1568(a) and 416.968(a). The significant work-related limitations
set out by the Commissioner in the RFC take into consideration plaintiff’s “severe”
mental limitations. Although plaintiff notes that Dr. Smith opined that plaintiff’s
ability to maintain gainful full time employment would be severely impaired, Dr.
Smith did not state that plaintiff could not hold full time employment at all. Plaintiff
has failed to show how Dr. Smith’s statement shows that plaintiff’s limitations are
greater than those set out in the RFC.
Plaintiff also notes that the ALJ adopted the psychiatric review technique form
(PRTF) findings of Dr. Mindinghall, the state agency psychological reviewing
consultant, but did not adopt his mental RFC findings. (See Doc. 13, Plaintiff’s Brief,
at 7). The ALJ stated that he was adopting the assessment of the state agency
consultant with regard to mental functional limitations evaluated under the
requirements of the listing under Step Three of the sequential evaluation process, and

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he noted that Dr. Mindinghall found that plaintiff’s mental impairments resulted in
mild restriction of activities of daily living, moderate difficulties in maintaining social
functioning, moderate deficiencies in concentration, persistence or pace, and no
episodes of deterioration of decompensation in work or work-like settings. (Tr. 1819, 150). Although not accorded the same controlling weight or deference as the
opinions of treating physicians, the findings of state agency medical consultants
regarding the mature and severity of plaintiff’s impairments must be treated as expert
opinion at the ALJ and Appeals Council levels of administrative review. See SSR 966p, 1996 WL 374180 (S.S.A.). A review of the ALJ’s findings reflects that the ALJ
did consider the evidence from Dr. Mindinghall, and these findings lent further
support to the ALJ’s determination that plaintiff is not disabled.
Furthermore, the ALJ’s RFC determination did, in fact, accommodate many of
Dr. Mindinghall’s limitations. (Tr. 19, 156). Plaintiff was limited to unskilled work,
consistent with Dr. Mindinghall’s statement that plaintiff would be able to understand
only simple instructions and carry out simple tasks. Likewise, her limitation of
concentration on simple and familiar tasks to two-hour periods is accommodated by
regular breaks and lunch periods. In addition, Dr. Mindinghall opined that, despite
her need for regular breaks, plaintiff would be able to maintain an acceptably
consistent pace. (Tr. 156).

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VI.

Conclusions
This court’s basis for judicial review of the Secretary’s determinations is

provided by 42 U.S.C. § 405(g) (1988). The Secretary’s findings of fact, if supported
by substantial evidence, are conclusive. 42 U.S.C. § 405(g); Martin, 894 F.2d at
1529. Accordingly, the scope of review of the Secretary’s factual determinations is
limited to whether its findings were supported by “substantial evidence.” Martin, 894
F.2d at 1529; Bloodsworth, 703 F.2d at 1239. “Substantial evidence is defined as
more than a scintilla; i.e., evidence that must do more than create a suspicion of the
existence of the fact to be established, and such relevant evidence as a reasonable
person would accept as adequate to support the conclusion.” Foote v. Chater, 67
F.3d 1553, 1560 (11th Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 91
S.Ct. 1420, 28 L.Ed.2d 842 (1971)). This court must not reweigh the evidence nor
should substitute its discretion for that of the ALJ. See id.; Musgrave v. Sullivan, 966
F.2d 1371, 1374 (10th Cir. 1992). Even if the evidence preponderates against the
Secretary’s decision, it must be affirmed if the decision is supported by substantial
evidence. Bloodsworth, 703 F.2d at 1239 (citations omitted).
There was substantial evidence that plaintiff could perform unskilled work with
the significant limitations as set out in plaintiff’s RFC. The ALJ provided a detailed
and adequate reason for his findings. Accordingly, upon review of the administrative

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record, and considering all of plaintiff’s arguments, the court finds the
Commissioner’s decision is supported by substantial evidence and in accord with the
applicable law. Therefore, that decision is due to be AFFIRMED. A separate order
will be entered.
DONE this 5th day of August, 2014.

HARWELL G. DAVIS, III
UNITED STATES MAGISTRATE JUDGE

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