Williams v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION Signed by Magistrate Judge John E Ott on 9/27/17. (SAC )

FILED
2017 Sep-27 AM 10:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
SHARON LYNNE WILLIAMS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Case No. 4:16-cv-01296-JEO

MEMORANDUM OPINION
Plaintiff Sharon Lynne Williams brings this action pursuant to 42 U.S.C. §
405(g), seeking review of the final decision of the Acting Commissioner of Social
Security (“Commissioner”)1 denying her application for disability insurance
benefits. (Doc. 1).2 The case has been assigned to the undersigned United States
Magistrate Judge pursuant to this court’s general order of reference. The parties
have consented to the jurisdiction of this court for disposition of the matter. (Doc.
1

Nancy A. Berryhill was named the Acting Commissioner on January 23, 2017. See
https://www.ssa.gov/agency/commissioner.html. Under 42 U.S.C. § 405(g), “[a]ny action
instituted in accordance with this subsection shall survive notwithstanding any change in the
person occupying the office of Commissioner of Social Security or any vacancy in such office.”
Accordingly, pursuant to 42 U.S.C. § 405(g) and Rule 25(d) of the Federal Rules of Civil
Procedure, the Court has substituted Nancy A. Berryhill for Carolyn W. Colvin in the case
caption above and HEREBY DIRECTS the clerk to do the same party substitution on CM/ECF.
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References herein to “Doc(s). __” are to the document numbers assigned by the Clerk of
the Court to the pleadings, motions, and other materials in the court file, as reflected on the
docket sheet in the court’s Case Management/Electronic Case Files (CM/ECF) system.

12). See 28 U.S.C. § 636(c), FED. R. CIV. P. 73(a). Upon review of the record and
the relevant law, the undersigned finds that the Commissioner’s decision is due to
be affirmed.
I. PROCEDURAL HISTORY
Williams filed an application for a period of disability and disability
insurance benefits for a disability commencing December 29, 2007. (R. 15, 272,
290).3 Following the initial denial of her application, Williams requested a
hearing before an Administrative Law Judge (“ALJ”). Following the hearing, the
ALJ issued a decision, finding that Williams was not disabled. (R. 15-27).
Williams requested Appeals Council review. The Appeals Council vacated
the ALJ’s decision and remanded the case for further proceedings. (R. 43-56, 16870). An additional hearing was conducted. Thereafter, the ALJ issued the present
decision denying Williams’s application for benefits. Williams again requested
review of the decision. The Appeals Council denied her request. (R. 1-6).
Williams then filed this action for judicial review under 42 U.S.C. § 405(g) &
1383(c)(3). (Doc. 1).

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References herein to “R.__” are to the page numbers of the administrative record. That
record is located at document 6.
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II. STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly
circumscribed. The function of the court is to determine whether the
Commissioner’s decision is supported by substantial evidence and whether proper
legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct.
1420, 1422 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).
The court must “scrutinize the record as a whole to determine if the decision
reached is reasonable and supported by substantial evidence.” Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.
The court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If
the court finds an error in the ALJ’s application of the law, or if the ALJ fails to
provide the court with sufficient reasoning for determining that the proper legal
analysis has been conducted, it must reverse the ALJ’s decision. See Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
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III. STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits under the Social Security Act, a claimant
must show the inability to engage in “any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. §
1382c(a)(3)(A). A physical or mental impairment is “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); 42 U.S.C. § 1382c(a)(3)(D).
Determination of disability under the Social Security Act requires a five
step analysis. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). Specifically, the
Commissioner must determine in sequence:
whether the claimant: (1) is unable to engage in substantial gainful
activity; (2) has a severe medically determinable physical or mental
impairment; (3) has such an impairment that meets or equals a Listing
and meets the duration requirements; (4) can perform his past relevant
work, in light of his residual functional capacity; and (5) can make an
adjustment to other work, in light of his residual functional capacity,
age, education, and work experience.

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Evans v. Comm’r of Soc. Sec., 551 F. App’x 521, 524 (11th Cir. 2014)4 (citing 20
C.F.R. § 404.1520(a)(4)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the [Commissioner] to show other work the
claimant can do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation
omitted). The Commissioner must further show that such work exists in the
national economy in significant numbers. Id.; Evans, 551 F. App’x at 524.
IV. FACTS
Williams earned a high school diploma and a vocational degree in childcare
and guidance. She has previous work experience as a breakfast supervisor/
manager, janitor, teacher’s aide, and childcare attendant. (R. 113, 311, 321-22).
She alleges disability beginning on December 29, 2007, due to arthritis,
depression, fibromyalgia, sciatic nerve, and “foot damage.” (R. 320-21).
Following the administrative hearing, the ALJ determined that Williams had
the severe impairments of a history of anterior cervical diskectomy and fusion in
2007; right foot deformity with post-traumatic pain; osteoarthritis of the left
elbow; obesity; depression; and anxiety. (R. 18). He concluded that, despite her
impairments, Williams retained the residual functional capacity (RFC) to perform

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Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered
binding precedent; however, they may be cited as persuasive authority. 11th Cir. R. 36-2.
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a range of light work with limitations: she can occasionally stoop and crouch; she
can never climb, drive, push and pull with either upper extremity, reach overhead
with her left upper extremity, work around unrestricted heights, or use foot
controls with her right foot; and she can perform simple, repetitive, non-complex
tasks. (R. 20). Ultimately, the ALJ found that Williams was not disabled through
her date last insured. (R. 26-27).
V. DISCUSSION
Williams asserts that the ALJ did not afford adequate weight to a functional
capacity evaluation (FCE) that was done in March 2012, which found that she was
limited to occasional wrist flexion and extension. (Doc. 8 at 9-10 (citing R. 602)).
As a result of this failure, she concludes, the hypothetical questions presented by
the ALJ and the resulting testimony from the vocational expert are flawed. (Doc.
8 at 5-12).
Before examining Steps Four and Five of the sequential evaluation process
outlined above, the ALJ determined that Williams retained the RFC to perform a
range of light work. (R. 20-21). This determination is not contested by Williams.
Even if it were contested, the court finds that it is supported by substantial
evidence in the record. The challenge in this case concerns whether the ALJ
improperly relied on answers to hypothetical questions posed to the vocational
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expert that did not include all of Williams’s established limitations and
capabilities. To properly evaluate this claim, it is necessary to review the relevant
evidence in the record that was before the ALJ concerning Williams’s upper
extremities, including her writs, elbows, and shoulders.
In January 2011, Dr. Laura Mason, a neurology consultative examiner,
reviewed Williams’s medical records and performed a physical examination of
Williams. In the “History of Present Illness” section of her evaluation, she noted
as follows:
[Williams] fell on her left arm 11 years ago, but for the past 5 years
has had left elbow pain and her left hand and arm up to the elbow will
go numb. There are no particular fingers this happen[s] to; it is the
entire hand. She is left handed and all activities make the fingers go
numb.
(R. 549). During the examination, Dr. Mason found that Williams was not in
acute distress and was able to maneuver on and off the examination table very
well, and she did not require an assistive device to ambulate. The only
abnormality Dr. Mason reported with regard to Williams’s coordination/
station/gait was an inability to toe walk on the right. (R. 551). Dr. Mason did not
identify any muscle atrophy, but noted normal muscle tone, 4/5 muscle strength in
her left upper extremity, and 5/5 muscle strength in all other extremities. She also
found that Williams’s sensation was intact; and her range of motion was within
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normal limits except for her shoulders. (R. 551-52). In the “Diagnoses” section of
the report, Dr. Mason stated that Williams suffered from arthritis and arthralgias,
mainly affecting the upper extremities and that she might have suffered a possible
ulnar compression of her left arm. Dr. Mason recommended nerve conduction
studies to further assess the situation. (R. 552).
Williams’s medical records were reviewed on March 24. 2011, by Dr.
Robert Heilpern, a non-examining state agency consultant. (R. 24, 576-83). He
opined that Williams could lift and carry ten pounds frequently and twenty pounds
occasionally; could sit and stand/walk for six hours each in an eight-hour
workday; was limited to frequently pushing and pulling with her upper
extremities; could never crawl or climb ladders, ropes, and scaffolds; could
frequently perform all other postural activities; could not perform overhead
reaching with either upper extremity, could perform frequent reaching in all other
directions with her upper extremities, and could perform unlimited handling,
fingering, and feeling; had no visual or communicative limitations; should avoid
all exposure to dangerous machinery, commercial driving, and unprotected
heights; could tolerate unlimited exposure to noise; and should avoid concentrated
exposure to extreme heat/cold, wetness, humidity, vibrations, and fumes/gases.
(R. 577-80).
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Williams sought treatment from Dr. Ann Golden with Rome Orthopedic
Surgeons in March 2012. Williams complained of left elbow pain. During the
assessment period, she stated “that in 1996 she fell on the elbow and did not seek
treatment.” (R. 595). She also stated that “she gets off balance a lot and falls.”
(Id.) She further stated that she fell the previous week and went to a local
emergency room. (Id.) She stated that she was “unable to fully extend the elbow”
and because she is left hand dominant, she has trouble using her left arm for her
daily activities. (Id.) She was diagnosed as having degnerative arthritis in the
elbow and carpal tunnel syndrome. (R. 596). She was scheduled for testing and
follow-up. (Id.) X-rays showed “advanced arthritic changes and joint space loss
with osteophyte formation anteriorly as well as posterioly.” (R. 598).
On March 19, 2012, Williams underwent an FCE administered by Advanced
Rehabilitation. The FCE was completed by Don Koshute, an athletic trainer, and
Cory Tucker, a physical therapist. (R. 602). The evaluation revealed that
Williams would be able to perform “sedentary light to light medium” work with
restrictions. (Id.) Specifically, the FCE report states:
Assessment of non-material handling tasks or work activity shows the
client with occasional tolerance for wrist motions flex/ext and
sup/pro, grasping, reaching overhead and at shoulder level and
performing table push-ups due to L elbow pain. With complaints of L
elbow pain the client demonstrates frequent tolerance for table level
reaching, fingering and fine manipulation.
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(Id.) It is this assessment that Williams asserts was not properly considered by the
ALJ.
Williams bears the ultimate burden of establishing that she was disabled.
See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). To establish
entitlement to benefits, Williams had to demonstrate that she became disabled on
or prior to the expiration of her insured status. See 42 U.S.C. § 423(a)(1)(A);
Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir. 1981). When an ALJ’s decision is
premised on vocational expert testimony, to satisfy the substantial evidence
requirement, “the ALJ must pose a hypothetical question which comprises all of
the claimant’s impairments.” Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir.
2002). The hypothetical question need not include claimed impairments that are
not supported by the medical evidence. Ingram v. Comm’r, 496 F.3d 1253, 1270
(11th Cir. 2007).
The Commissioner argues that Williams’s claim fails because she has failed
to show that the FCE performed by Koshute and Tucker was entitled to greater
weight than the medical opinion from Dr. Heilpern. (Doc. 9 at 8). Under the
deferential review standards applicable at this juncture, the court agrees.
As noted above, the FCE Williams relies upon was performed by athletic
trainer Koshute and physical therapist Tucker. Under the applicable regulations,
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neither is considered an “acceptable medical source.” See 20 C.F.R. §
404.1513(a). As non-acceptable sources, Koshute and Tucker cannot render
“medical opinions,” as defined by the regulations. See 20 C.F.R. §
404.1527(a)(2). Koshute and Tucker are considered “other sources,” and the ALJ
may consider the evidence from them. See 20 C.F.R. § 404.1513(d).
The ALJ’s decision is clear that he considered the FCE. It undergirded his
finding that Williams was capable of performing light work. (R. 23). That the
ALJ did not adopt the FCE in whole is not error if the remainder of the record
supports his determination in formulating the hypothetical questions he posed to
the vocational expert.
The court finds that the record does support the ALJ’s decision to rely on
other evidence. The ALJ assigned significant weight to the opinion from Dr.
Heilpern, who stated that Williams had no limitations in her ability to use her
hands and wrists. (R. 24 (citing R. 576-82 (Ex. 11F)). This opinion is supported
by the record, which includes a report from Dr. Mason, a neurologist, that
indicates no deficiencies in Williams’s wrist joints. (See R. 551). Accordingly,
the court finds that the ALJ’s decision affording greater weight to Dr. Heilpern’s
opinion is not error. State agency medical consultants, such as Dr. Heilpern, are
considered experts in the Social Security disability programs, and their opinions
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may be entitled to great weight if their opinions are supported by the record. See
20 C.F.R. §§ 404.1512(b)(8), 404.1527(e)(2)(i), (ii); Social Security Ruling (SSR)
96-6p, 1996 WL 374180 (S.S.A.). The ALJ was not required to afford greater
weight to the FCE from non-acceptable sources when evidence from examining
and reviewing physicians supports his determination.5
Based on the foregoing, the ALJ correctly posed a hypothetical question to
the VE that reflected Williams’s impairments and included the functional
limitations required by the evidence of record. See Jones v. Apfel, 190 F.3d 1224,
1229 (11th Cir. 1999) (“the ALJ must pose a hypothetical question which
comprises all of the claimant’s impairments”). Specifically, the ALJ asked the VE
a hypothetical question that included functional limitations consistent with
Williams’s RFC. (R. 26, 94-95). The VE responded that an individual with her
limitations could perform the representative work of cashier and retail sales
attendant. (R. 95-96). The VE further testified that more than 350,000 of these
positions exist in the national economy. (R. 95). This represents a significant
number of jobs in the national economy. See Allen v. Bowen, 816 F.2d 600, 602
(11th Cir. 1987) (80,000 is a significant number of jobs). Accordingly, the ALJ

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In arriving at this determination, the court recognizes that the FCE was done closer in
time to the ALJ’s decision.
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properly found Williams was capable of performing other work in the national
economy available in significant numbers and was not disabled.
To the extent Williams argues that the ALJ should have found her disabled
based on the VE’s responses to hypothetical questions that included limitations
regarding her ability to perform flexion and extension of her wrists, the claim is
without merit. Substantial evidence supports the ALJ’s RFC finding, and
Williams has failed to demonstrate that the ALJ erred when he assessed the
medical evidence. The ALJ was not required to include additional limitations in
the hypothetical question to the VE in the present circumstance. See Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004) (“the ALJ was not
required to include findings in the hypothetical that the ALJ had properly rejected
as unsupported”).
VI. CONCLUSION
For the reasons set forth above, the undersigned concludes that the
Commissioner’s decision is due to be affirmed. An appropriate order will be
entered separately.
DONE, this the 27th day of September, 2017.

______________________________
JOHN E. OTT
Chief United States Magistrate Judge
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