Hedden v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 7/2/2012. (AVC)

FILED
2012 Jul-02 PM 02:24
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
CASSANDRA K. HEDDEN,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.

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Case No.: 5:11-CV -1337-RDP

MEMORANDUM OF DECISION
Plaintiff Cassandra K. Hedden (“Plaintiff”) brings this action pursuant to Section 205(g) of
the Social Security Act (the “Act”), seeking review of the decision of the Commissioner of Social
Security (“Commissioner”) denying her application for a period of disability and disability insurance
benefits (“DIB”) under Title II of the Act. See 42 U.S.C. § 405(g). Pursuant to the court’s review of
the record and the briefs submitted by the parties, the court finds that the Commissioner’s decision
is due to be affirmed.
I.

Proceedings Below
Plaintiff filed her application for Title II Social Security disability and DIB dated January

23, 2007, alleging an onset date of September 1, 2004. (Tr. 91-97). Plaintiff’s date last insured
(“DLI”) expired on September 30, 2006. (Tr. 25). Plaintiff’s application was denied initially and
upon reconsideration by the Social Security Administration on March 7, 2007. (Tr. 75-81).
Following these denials, Plaintiff timely requested and appeared at a hearing before an
Administrative Law Judge (“ALJ”) on February 9, 2009. (Tr. 32-74).

At the time of the hearing, Plaintiff was 38 years old and had obtained her GED and had
attended at least one year of college. (Tr. 43, 75). Her previous work experience included semi
skilled to skilled light work as a hair stylist, waitress, and cake decorator. (Tr. 116, 133). Plaintiff
alleges that she suffers from a broken left leg incurred after being thrown from a horse in 2000,
which causes unsteadiness on her feet and requires her to elevate her leg frequently throughout the
day to reduce the swelling and pain . (Tr. 53-60). Plaintiff claims that this impairment prevents her
from walking more than 50-80 yards. (Tr. 58). Plaintiff also asserts that she suffers from
degenerative disk disease, spinal stenosis, and depression. (Tr. 51-53, 62-68).
Plaintiff’s medical records reveal she fractured her tibia and fibula in February 2000 requiring
open reduction internal fixation. (Tr. 156-62). In his last progress report on March 28, 2000, Dr. Ray
A. Fambrough noted that Plaintiff was doing “very well” with “minimal swelling” in her leg and
suggested she continue her exercises to help with spasms in her calf muscles. (Tr. 160). Plaintiff’s
other medical records from 1998, 2001, 2003, and 2006 reveal doctor and emergency room visits for
purposes unrelated to any of the alleged impairments in this case, such as OB/GYN visits, a sore
throat, a hematology report, and a minor injury on her right foot after dropping a VCR or DVD
player on it. (Tr. 154, 195-216).
On June 24, 2004, Plaintiff was admitted overnight to Huntsville Hospital for psychiatric
reasons. (Tr. 163-73). In the screening form, examining physicians reported that Plaintiff claimed
to be having suicidal ideations, but otherwise had no homicidal ideations, her “thought process is
clear and coherent,” and no psychosis was noted. (Tr. 169-71). Since then, Plaintiff has denied that
she was having suicidal thoughts at that time. (Tr. 51).

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After her date last insured expired on September 30, 2006, Plaintiff received further treatment
for her impairments from Dr. Celia Lloyd-Turney.1 (Tr. 218-30). On August, 28, 2008, Dr. LloydTurney assessed Plaintiff’s residual functional capacity (“RFC”) to be extremely restrictive, stating
that Plaintiff could occasionally only lift/carry five pounds; could never push/pull with the
upper/lower extremities, climb, balance, or crawl; could occasionally stoop, kneel, crouch, reach,
handle, finger or feel; should never be exposed to environmental hazards; could rarely drive a car;
and suffered from incapacitating levels of pain. (Tr. 227-30). On January 12, 2009, Dr. LloydTurney provided a medical source opinion as to Plaintiff’s mental functioning finding “Marked”
limitations in all work-related functions and concluded Plaintiff is unable to work due to pain and
depression related to pain. (Tr. 243-44).
Plaintiff testified at the ALJ hearing on February 9, 2009, and was represented by James Izzo.
A Vocational Expert (“VE”), Betsy Gramlet, also testified at the hearing. (Tr. 32). The VE properly
classified Plaintiff’s past relevant work, and answered in response to Plaintiff’s attorney that a person
with a pain level of 7-8 on a scale of 1-10 would not be able to perform Plaintiff’s past relevant
work. (Tr. 48-50, 73).
In the ALJ’s decision dated March 3, 2009, he determined that Plaintiff has the medically
determinable impairment (“MDI”) of a history of a fractured tibia and fibula, but her MDI does not
equal a severe impairment or combination of impairments since it did not prevent her from working
for 12 consecutive months. (Tr. 22); see 20 C.F.R. § 404.1521. Accordingly, the ALJ concluded that

1

Both parties used multiple spellings of Dr. Lloyd-Turney’s name, but the court performed
a search of her name on Google, which indicated this spelling.

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Plaintiff was not disabled prior to September 30, 2006, her DLI, and thus ineligible for DIB. (Tr. 25).
On February 18, 2011, the Appeals Council denied Plaintiff’s request for review of the ALJ’s
decision, making that decision the final decision of the Commissioner, and therefore, a proper
subject of this court’s review. (Tr. 1-3); see 42 U.S.C. § 405(g).
II.

ALJ Decision
Disability under the Act is determined under a five-step analysis. 20 C.F.R. § 404.1520(a).

First, the ALJ must determine whether the claimant is engaging in substantial gainful activity. 20
C.F.R. § 404.1520(b). “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.
Second, the ALJ must determine whether the claimant has a medically determinable
impairment or a combination of medical impairments that is “severe.” 20 C.F.R. §§ 404.1520(c),
416.920(c). Absent such impairment, the claimant may not claim disability. 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. 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.
Before proceeding to steps four and five, 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

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the fourth step, the ALJ determines whether the claimant has the RFC to perform past relevant work.
20 C.F.R. 404.1520(f). If the claimant is determined to be capable of performing past relevant work,
then she is deemed not disabled. If the ALJ finds the claimant unable to perform past relevant work,
then the analysis proceeds to the fifth and final step.
In the final step 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. §§ 404.1512(g), 404.1560(c).
In this case, the ALJ determined that Plaintiff: (1) has not engaged in substantial gainful
activity since the onset of her alleged disability on September 1, 2004 (Tr. 22), but (2) does not have
a severe impairment or combination of impairments since the “medical record does not show that
she had any significant limitations at any time from” the date of her alleged disability onset on
September 1, 2004, through her DLI on September 30, 2006. (Tr. 24). Because the ALJ determined
that Plaintiff does not have a severe impairment under prong two of the five-step analysis, he deemed
it unnecessary to proceed further in the analysis and thus concluded that Plaintiff was not disabled
as of the DLI, and therefore not entitled to a period of disability or DIB. (Tr. 25).
III.

Plaintiff’s Argument
Plaintiff requests that the ALJ’s decision be reversed and benefits awarded, or in the

alternative, that the case be remanded under sentence four for further proceedings, including a review
of the record by a Medical Expert (“ME”) and for reevaluation of Plaintiff’s RFC prior to her DLI

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with VE testimony as warranted. (Pl.’s Mem. 11). Plaintiff’s primary argument is that the ALJ erred
in failing to utilize the services of a medical expert. (Pl.’s Mem. 5). More specifically, Plaintiff
alleges that a new RFC should be developed for the relevant time period in light of the opinion and
findings of treating physician Dr. Lloyd-Turney, who Plaintiff also asserts was improperly
discredited by the ALJ. (Pl.’s Mem. 5-6). Plaintiff also contends that the ALJ should have
recontacted Dr. Lloyd-Turney for clarification of her opinion as to Plaintiff’s onset date of disability.
(Pl.’s Mem. 10).
IV.

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 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

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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. Legal standards are reviewed de novo. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
Cir. 2005). 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.
For the reasons set forth below, the ALJ’s decision denying Plaintiff benefits is due to be
affirmed.
V.

Discussion — Substantial Evidence Supports the ALJ’s Decision That Plaintiff Was
Not Disabled Prior to Her DLI
Plaintiff argues that the ALJ failed in his duty to develop the record by not ordering a new

consultative examination to determine her RFC for the relevant period. (Pl.’s Mem. 3). However,
it is well settled that the burden is on a claimant to prove her case – not the ALJ to prove for her or
act as her counsel. See 42 U.S.C.§ 423(d)(5)(A); 20 C.F.R. § 404.1512(a), (c) (2012); Smith v.
Schweiker, 677 F.2d 826, 829 (11th Cir. 1982). The current regulations also require that Plaintiff
must show that she became disabled prior to the expiration of her disability insured status and that
the disability was severe for a continuous period of 12 months. See 20 C.F.R. §§ 404.101, 404.130,
404.131, 404.1505(a), 404.1509, 404.1520(a)(4)(ii); Moore, 405 F.3d at 1211; Barnhart v. Walton,
535 U.S. 212, 217 (2002). There must also be “a clear showing of prejudice before it is found that
the claimant’s right to due process has been violated to such a degree that the case must be remanded
to the [Commissioner] for further development of the record.” Graham v. Apfel, 129 F.3d 1420,
1422-23 (11th Cir. 1997). In this case, it is readily apparent that Plaintiff failed to fulfill her burden

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since there is no evidence on record for the relevant time period that proves a severe impairment. See
20 C.F.R. § 404.1521 (“An impairment can be considered as not severe only if it is a slight
abnormality which has such a minimal effect on the individual that it would not be expected to
interfere with the individual’s ability to work, regardless of age, education, or work experience”).
Examining the medical record chronologically, Plaintiff sustained a fracture of her left tibia
and fibula in February 2000. (Tr. 156-57). As treatment for the fracture, Plaintiff underwent an open
reduction internal fixation and returned to work as a hairstylist until the business failed in 2004. (Tr.
51, 160-62). Plaintiff’s last checkup in March 2000, following her surgery, found that she was doing
very well, with a well-aligned tibia, minimal swelling, and strength gradually returning to her legs.
(Tr. 160). The only other medical treatment Plaintiff received between her alleged onset date of
disability, September 1, 2004, and her DLI, September 30, 2006, was for a minor injury to her right
foot. (Tr. 198-206). Given that this injury was apparently of no lasting consequence and it was on
her right foot rather than her left foot, Plaintiff failed to fulfill her burden of proving a severe
impairment fulfilling the duration requirement of 12 months. See 20 C.F.R. §§ 404.1520(c),
416.920(c)
Furthermore, the evidence of record leading up to the relevant time period supports the ALJ’s
determination that Plaintiff was not disabled on or before September 30, 2006. (Tr. 22-25). For
example, Plaintiff’s checkup in March 2000 indicates that her leg was healing well and noted no
complications. (Tr. 160). Accordingly, the Disability Determination Service (“DDS”) and the ALJ’s
determination that Plaintiff did not have a severe impairment during the relevant period is supported

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by substantial evidence, thus the ALJ was not obligated to obtain a consultative examination or
medical expert opinion pursuant to 20 C.F.R. §§ 404.1519a or 404.1529(b). (Tr. 24, 174-77).
Plaintiff also alleges that the ALJ should have utilized a consultative examination in light of
her alleged depression, which could allow an inference as to her onset date prior to her DLI. (Pl.’s
Mem. 5-11). However, the evidence of record simply does not support this argument. Prior to her
DLI, Plaintiff was admitted to the hospital for psychiatric treatment relating to suicidal thoughts. (Tr.
51, 163-73). Yet Plaintiff was only admitted overnight and the hospital noted that she was oriented
with clear and coherent thoughts and no signs of psychosis. (Tr. 163-73). During her hearing,
Plaintiff even denied that she was suicidal at that time and attributed it to emotional and physical
exhaustion from working the hair salon and raising her children. Plaintiff also did not seek further
mental health treatment prior to her DLI. (Tr. 51). All of these factors support the ALJ’s conclusion
that Plaintiff’s alleged depression was not a medically determined impairment during the relevant
time period. (Tr. 22). Moreover, even if Plaintiff was medically diagnosed with depression prior to
her DLI, a mere diagnosis of a condition does not mean that condition caused limitations amounting
to a severe impairment. See McCruter v. Bowen, 791 F.2d 1544,1547 (11th Cir. 1986). Thus, the
ALJ was not required to determine an onset date for a person who was not disabled. See Klawinski
v. Comm’r of Soc. Sec., 391 Fed. Appx. 772 (11th Cir. 2010) (finding that a medical advisor is only
required for determining an onset date after a finding of disability).
Plaintiff also asserts that the ALJ erred in discrediting the opinion and treating records of Dr.
Lloyd-Turney, who provided a very restrictive assessment of Plaintiff’s capacity to perform workrelated activities. (Pl.’s Mem. 6-11). Even though Dr. Lloyd-Turney’s findings and opinion as a

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treating physician would normally be entitled to great weight, see Phillips v. Barnhart, 357 F.3d
1232, 1240 (11th Cir. 2003), the ALJ had good cause for dismissing them since she only treated
Plaintiff from April through August 2008, and her mental assessment was rendered in January 2009,
roughly two years after Plaintiff’s DLI. (Tr. 227-30, 243-48); Moore, 405 F.3d at 1211. Accordingly,
the ALJ articulated sufficient justification to disregard Dr. Lloyd-Turney’s findings and opinion.
Simply stated, those findings and opinions are not dispositive of Plaintiff’s alleged disability prior
to her DLI.
Plaintiff also argues that the ALJ should have “recontacted Dr. Lloyd-Turney for
clarification of her opinion as to onset.” (Pl.’s Mem. 10) (citing 20 C.F.R. § 404.1512(e)). This
argument deserves some consideration as Dr. Lloyd-Turney’s handwriting – like many doctors’ –
is not entirely legible. (Tr. 244). However, ALJs are not required to recontact medical sources when
there is already substantial evidence on record to support a decision. See 20 C.F.R. § 404.1512(e);
Robinson v. Astrue, 365 Fed. Appx. 993, 999 (11th Cir. 2010). In this case, the ALJ made a
comprehensive review of the relevant record and found that Plaintiff did not demonstrate a severe
impairment prior to her DLI. (Tr. 22-25). As previously discussed, there was evidence in the record
that Plaintiff’s fractured tibia and fibula were on the mend, and that her alleged depression was only
a one-night occurrence. (Tr. 160, 163-73). Thus, there was already clear substantial evidence
supporting the ALJ’s decision and, accordingly, there was no requirement for further clarification
through recontacting Dr. Lloyd-Turney.

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VI.

Conclusion
The court concludes that the ALJ’s determination that Plaintiff’s medically diagnosed

impairment did not equal a severe impairment prior to her DLI of September 30, 2006 was based on
substantial evidence and proper legal standards were applied. The Commissioner’s final decision is,
therefore, due to be affirmed, and a separate order in accordance with this memorandum of decision
will be entered.
DONE and ORDERED this

2nd

day of July, 2012.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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