Mankin v. Social Security Administration, Commissioner

Filing 9

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 8/3/12. (KGE, )

FILED
2012 Aug-03 AM 09:27
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAYNE M. MANKIN,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

]
]
]
] 2:11-CV-3060-LSC
]
]
]
]

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Jayne M. Mankin, appeals from the decision of the Commissioner

of the Social Security Administration (“Commissioner”) denying her application for
Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”).
Ms. Mankin 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).
Ms. Mankin was forty-one years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and she has a high school education. (Tr. at 22.) Her
past work experiences include employment as a catalyst technician, drill press
operator, shipping worker, production worker, and waitress. (Tr. at 22, 116.) Ms.
Page 1 of 13

Mankin claims that she became disabled on January 15, 2007, due to rheumatoid
arthritis, and pain in her wrists, hands, fingers, and knees. (Tr. at 67, 105, 109.)
When evaluating the disability of individuals over the age of eighteen, 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 “doing 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 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 on the medical evidence in the record.
See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If the claimant’s impairments
are 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

Page 2 of 13

will be found disabled without further consideration.

Id.

If they do not, a

determination of the claimant’s residual functional capacity (“RFC”) will be made
and the analysis proceeds to the fourth step. 20 C.F.R. § 404.1520(e), 416.920(e).
The fourth step requires a determination of whether the claimant’s
impairments prevent him or 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 his or 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.
Applying the sequential evaluation process, the ALJ found that Ms. Mankin
meets the nondisability requirements for a period of disability and DIB and was
insured through the date of her decision. (Tr. at 19.) He further determined that Ms.
Mankin has not engaged in substantial gainful activity since the alleged onset of her
disability. (Id.) According to the ALJ, Plaintiff’s scleroderma is a severe impairment
based on the requirements set forth in the regulations. (Id.) However, he found that

Page 3 of 13

this impairment neither meets nor medically equals any of the listed impairments in
Appendix 1, Subpart P, Regulations No. 4. (Tr. at 20.) The ALJ determined that the
plaintiff has the residual functional capacity to perform a maximum range of medium
work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), subject to limitations
including only occasional fine fingering and gross handling, as well as being limited to
occasional walking and standing. (Tr. at 20-21.)
The ALJ accepted the vocational expert’s testimony that, given Ms. Mankin’s
RFC, she is unable to perform any of her past relevant work. (Tr. at 22.) She is a
“younger individual,” and she has “at least the equivalent of a high school
education,” as those terms are defined by the regulations. (Id.) He determined that
Plaintiff has “no transferable skills from any past relevant work and/or transferability
of skills is not an issue in this case.” (Id.) The ALJ found that jobs exist in significant
numbers in the national economy that Ms. Mankin can perform. (Id.) The ALJ
concluded his findings by stating that Plaintiff “was not under a ‘disability,’ as defined
in the Social Security Act, at any time through the date of this decision.” (Tr. at 23.)
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

Page 4 of 13

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). 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. “The
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 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. Fed. 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
“despite 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

Page 5 of 13

apply the correct legal standards is grounds for reversal. See Bowen v. Heckler, 748
F.2d 629, 635 (11th Cir. 1984).
III.

Discussion
Ms. Mankin alleges that the ALJ’s decision should be reversed and remanded

for two reasons. First, she believes the ALJ’s residual functional capacity (“RFC”)
findings are not based on substantial evidence. (Doc. 7 at 5.) Second, she claims that
the ALJ failed to develop the record because he should have gotten a second
consultative examination (“CE”) after Plaintiff reported hand pain. (Doc. 7 at 9.)
A.

Residual Functional Capacity

Plaintiff first argues that the ALJ’s RFC findings are not based on substantial
evidence because the only definitive statement about Plaintiff’s RFC was by a
non-medical state agency “consultant.” (Doc. 7 at 6.) Specifically, Plaintiff argues
that the ALJ did not have in the record any “RFC opinions from treating, examining,
or reviewing physicians.” (Id.)
The assessment of a claimant’s RFC is “based on all relevant evidence in the
claimant’s case record,” and is not simply a doctor’s opinion. 20 C.F.R.
§ 404.1545(a)(1). An RFC is not a medical assessment, and the responsibly for
deciding issues such as a claimant’s RFC rests with the ALJ. 20 C.F.R. § 404.1527(e),

Page 6 of 13

404.1546(c); S.S.R. 96-5p. His decision must be based, not only upon the medical
evidence, but upon all of the evidence in the record. S.S.R. 96-8p, available at 1996
WL 374184. Further, while medical opinions are to be weighed by the ALJ, an RFC
finding will not be invalidated due to the absence or discrediting of a medical opinion.
Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005).
Plaintiff argues that the ALJ is required to “review and accord weight to
medical opinion[s],” and that a “[medical source opinion] of some kind is crucial to
the analysis of functioning based on the Medically Determinable Impairments.” (Tr.
at 7.) However, there is no requirement for an RFC assessment from a medical
examiner to be in the record in order for the ALJ to determine an RFC finding,
because that decision belongs to the ALJ. 20 C.F.R. § 404.1527(d)(2). In making his
determination, the ALJ reviewed Plaintiff’s medical records and the opinion of Dr.
Marlin Gill. (Tr. at 19-22.)
The ALJ gave considerable weight to Dr. Marlin Gill, the disability examiner
who conducted Plaintiff’s CE on September 30, 2008. (Tr. at 22, 156-61.) Dr. Gill’s
records show that although Plaintiff complained about leg and back pain, her gait was
normal and she could walk unassisted. (Tr. at 156-60.) Plaintiff's back, hips, and legs
were non-tender and strength was 5/5 bilaterally. (Tr. at 156-60.) Plaintiff had no

Page 7 of 13

swelling in her legs or hands, and Dr. Gill found nothing remarkable during the CE or
in Plaintiff's past medical record. (Tr. at 156-57.) Dr. Gill’s assessment of rheumatoid
arthritis was based on Plaintiff's self-report; however, when lab testing was done in
2010, the plaintiff proved to be negative for rheumatoid arthritis. (Tr. at 157, 177.)
Plaintiff alleges that because the “ALJ did not address postural capabilities or
restrictions” within the RFC assessment, the ALJ did not consider it. (Doc. 7 at 6.)
However, there is nothing in the record to suggest Plaintiff would have postural
restrictions beyond the ALJ’s determination of the plaintiff’s need to sit and stand at
the prescribed intervals. (Tr. at 21.) Plaintiff has not pointed to any evidence to
suggest that she has postural problems the ALJ overlooked or ignored. When Dr. Gill
assessed the plaintiff, he made no statements that would suggest postural problems,
and during the exam the plaintiff’s posture capabilities posed no problem. (Tr. at 157.)
Dr. Gill noted that Plaintiff could squat all the down, that her back looked normal, and
that she could “bend and twist well.” (Tr. at 157.) The ALJ made no specific remark
about the postural capabilities of the plaintiff because nothing remarkable was in the
evidence about the plaintiff's postural capabilities.
The ALJ gave more limited weight to the disability specialist, Mark Swink. (Tr.
at 22.) Mr. Swink completed a physical summary based on the objective medical

Page 8 of 13

evidence, and concluded that Plaintiff had no severe impairments, while the ALJ
found the Plaintiff suffers from scleroderma, which is a severe impairment. (Tr. at 22,
161.) As the Plaintiff notes, the ALJ made this determination based upon lab work in
2010, showing Plaintiff tested positive for a high level of Anticentromere B antibodies:
more than 8.0, with normal levels being less than 1.0. (Doc. 7 at 8; Tr. at 177-78.)
Plaintiff's levels were consistent with a finding of scleroderma—exactly what the ALJ
found when he made his determination. (Tr. at 20.) However, the ALJ found that
Plaintiff's scleroderma was not severe enough to be disabling. (Tr. at 21.) Plaintiff
received no treatment for it from 2005 -10, which the ALJ took as evidence that the
scleroderma was not as disabling as Plaintiff alleged. (Id.) Although it is true the ALJ
did not mention the lab results in her report, she did mention the results at the
hearing, and it is clear from the ALJ's determination the lab results were considered
by the ALJ. (Tr. at 19, 37.)
Plaintiff also contends the ALJ's report is “internally inconsistent” with regard
to the RFC assessment, and asserts that the ALJ reported that there was “nothing in
the medium range [Plaintiff] could perform.” (Doc. 7 at 6.) However, the ALJ found
that the plaintiff had the RFC to perform medium work. (Doc. 7 at 6; Tr. at 22.) The
sentence Plaintiff attributes to the ALJ begins with “[t]he vocational expert testified.”

Page 9 of 13

(Tr. at 22.) Contrary to Plaintiff's allegations, there is no internal inconsistency. The
vocational expert was given four different hypotheticals. (Tr. at 61-63.) Plaintiff quotes
the vocational expert’s response to the most limiting of the those hypotheticals, which
was that there were not a significant number of jobs in the medium exertional range
of work that Plaintiff could perform. (Tr. at 22) However, after looking at the totality
of the evidence, the ALJ determined that Plaintiff could perform some work in the
medium exertional range with the restrictions described in the RFC. (Id.) The
vocational expert testified that an individual limited to the maximum of a medium
range of work, limited to occasional fine fingering and gross handling, and limited to
occasional walking and standing, would be able to perform the requirements of
representative occupations such as gate guard, and that a significant number of such
jobs exist in the national economy. (Tr. at 64.) For these reasons, the ALJ's RFC
findings were based on substantial evidence.
B.

Duty to Develop the Record

Administrative hearings under the Social Security Act are not adversarial
proceedings. Richardson v. Perales, 402 U.S. 389 (1971). The ALJ has the duty to
develop the facts fully and fairly and to probe conscientiously for all of the relevant
information. Ware v. Schwieker, 651 F.2d 408, 414 (5th Cir. 1981). In any case, there

Page 10 of 13

must be a showing of prejudice in order to trigger remand for reconsideration; the
record must reveal “evidentiary gaps which result in unfairness or clear prejudice.”
Smith v. Schweiker, 677 F.2d 826, 830 (11th Cir. 1982) (quoting Ware, 651 F.2d at 413).
In all social security disability cases, the claimant bears the ultimate burden of
proving disability, and is responsible for furnishing or identifying medical and other
evidence regarding his impairments. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987), Doughty v. Apfel, 245 F.3d. at 1278, 42 U.S.C. § 423(d)(5) (“[A]n individual
shall not be considered to be under a disability unless he furnishes such medical and
other evidence of the existence thereof as the Commissioner of Social Security may
require.”). The regulations also establish that the claimant's burden is to provide the
relevant medical and other evidence he believes will prove his alleged disability. See
20 C.F.R. § 404.1512(a) and (c). Moreover, the claimant's burden is to provide a
medical record that is complete, and if he or she fails to do so, the ALJ will make a
decision based on the evidence of record. See 20 C.F.R. §§ 404.1513(e), 404.1516.
Plaintiff argues that the CE performed by Dr. Gill is inadequate because
Plaintiff's condition has changed since that examination. (Doc. 7 at 9.) Plaintiff alleges
the pain in her hand began in September 2009. (Tr. at 175.) On January 15, 2010—one
year after the CE—Plaintiff was prescribed medication to relieve hand pain that

Page 11 of 13

radiated to the forearms. (Tr. at 176.) Plaintiff also points out that the ALJ stated at
the hearing that it was “difficult to assess where [the plaintiff] really [is]” because
there is little medical history. (Tr. at 66.) Plaintiff argues the ALJ should have ordered
another CE to fully develop the record pursuant to 20 CFR 404.1519(a). (Doc. 7 at 9.)
The ALJ may request that Plaintiff the have an additional CE only after the ALJ
has given “full consideration to whether the additional information needed . . . is
readily available from the records of [the claimant’s] medical sources.” 20 C.F.R.
§ 404.1519a(a)(1); Doughty v. Apfel, 245 F.3d 1274, 1280-81 (11th Cir. 2001).
The ALJ took into consideration the lab work and the plaintiff's pain in her
hands when he stated the restrictions in Plaintiff's RFC. (Tr. at 20-21.) Furthermore,
the ALJ looked at all of the medical evidence presented to her and discovered the
plaintiff had been to the doctor several times from 2005-10, but never due to
scleroderma, despite her arguments that it was disabling. (Tr. at 21.) The ALJ found
that the fact that Plaintiff's scleroderma has been unattended for five years “suggests
this condition is not as severe as [Plaintiff] has alleged.” (Tr. at 21.) The ALJ also
considered Plaintiff’s “documented longitudinal medical record history,” and found
that while Plaintiff may not be able to perform all types of work activity, the evidence
failed to show that the plaintiff was disabled to the extent of being unable to work. (Tr.

Page 12 of 13

at 22.) Therefore, the ALJ did not fail in her duty to develop the record.
IV.

Conclusion
Upon review of the administrative record, and considering all of Ms. Mankin's

arguments, the Court finds the Commissioner’s decision is supported by substantial
evidence and in accord with the applicable law. A separate order will be entered.
Done this 3rd day of August 2012.

L. Scott Coogler
United States District Judge
167458

Page 13 of 13