Jones v. Social Security Administration, Commissioner
MEMORANDUM OPINION as more fully set out in order. Signed by Magistrate-Judge Harwell G Davis, III on 12/04/13. (SPT )
2013 Dec-04 PM 02:09
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
KEITH A. JONES,
MICHAEL J. ASTRUE,
COMMISSIONER, SOCIAL SECURITY
) Case No. 5:12-cv-03517-HGD
In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3), plaintiff seeks judicial
review of an adverse social security ruling which denied claims for disability
insurance benefits (hereinafter DIB) and Supplemental Security Income (hereinafter
SSI). (Doc.1). The parties have consented to the jurisdiction of the undersigned
Magistrate Judge to conduct all proceedings and order the entry of judgment in
accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. (See Doc. 12). Upon
consideration of the administrative record and the memoranda of the parties, the court
finds that the decision of the Commissioner is due to be AFFIRMED and this action
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Plaintiff filed an application for a period of disability and disability insurance
benefits on October 23, 2008, in which he alleged that he became unable to work on
December 20, 2007. (Tr. 112-18). On March 20, 2009, these claims were initially
denied by the agency. (Tr. 73, 82). On May 12, 2009, plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”) which took place on September 7, 2010.
On November 10, 2010, the ALJ issued a decision denying plaintiff’s application.
(Tr. 24-37). The Appeals Council denied plaintiff’s request for review. (Tr. 1-6).
After the Appeals Council denied plaintiff’s request for review of the ALJ’s decision,
that decision became the final decision of the Commissioner, and therefore a proper
subject of this court’s appellate review. 42 U.S.C. §§ 405(g), 1383(c)(3).
Disability under the 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
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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
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
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the existence in significant numbers of jobs in the national economy that the claimant
can do given the RFC, age, education and work experience.
§§ 404.1520(g), 404.1560(c).
The ALJ strictly adhered to this decision-making protocol. At the time of the
ALJ’s decision, plaintiff was 49 years old with a high school education and past work
experience as an assembler working building ambulances. (Tr. 148-49, 153).
Plaintiff also has past work experience as a door assembler, cable assembler, truck
loader and painter’s helper. (Tr. 36, 68-69). He alleges that his disability is due to
back and neck problems from a 2004 injury and anxiety and depression. (Tr. 147).
The ALJ found that plaintiff had not engaged in substantial gainful activity since
December 20, 2007. (Tr. 26, Finding No. 2).
At the hearing, the ALJ found that plaintiff had severe impairments including
asthma, lumbar and cervical degenerative disease, and depression. (Tr. 26, Finding
No. 3). However, the ALJ further found that, despite these conditions, plaintiff did
not have an impairment or combination of impairments that met or equaled any
listing. (Tr. 26-28, Finding No. 4). When making this determination, the ALJ
specifically cited and considered each of plaintiff’s conditions with respect to the
listings for these conditions under sections 1.04, for disorders of the spine, 3.02 and
3.03, for pulmonary impairments, and 12.04, for affective disorders. (Tr. 26-28).
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After a detailed review of the medical evidence and plaintiff’s hearing
testimony, the ALJ next found that plaintiff had the residual functional capacity
(“RFC”) to perform a range of light work, except that he was limited to occasional
overhead reaching, but he could frequently stoop, kneel, crouch and crawl. (Tr. 28,
Finding No. 5). He also was to avoid concentrated exposure to fumes. In a finding
plaintiff asserts is most important (Pl. Br. at 7), the ALJ held that the plaintiff could
perform simple one- and two-step tasks that would require a low-stress work
environment and that required only occasional contact with the public. (Tr. 28,
Finding No. 5; Tr. 69-70). The ALJ reached this conclusion after careful and detailed
review of the medical/psychological evidence. (Tr. 28-36).
In determining whether plaintiff could perform past relevant work, the ALJ
asked a hypothetical question to the Vocational Expert (“VE”) and was advised that
he could not. That exchange is as follows:
ALJ: Please assume you’re dealing with a hypothetical individual the
same age as the Claimant, with the same educational background and
past work experience. Further assume that this hypothetical individual
retains the capab[ility] of lifting 20 pounds occasionally, 10 pounds
frequently, can stand six of eight hours, walk six of eight hours, and sit
six of eight hours. Overhead reaching would be occasional. Stooping,
kneeling, crouching, and crawling would be frequent. Fumes, avoid
concentrated exposure. This individual could do simple one, two-step
tasks, and would require low-stress work environment. While low-stress
is not defined with – not a functional limitation, a functional limitation
to resolve the stress would be only occasional contact with the public.
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Could such an individual perform any of the Claimant’s past relevant
work as actually performed or as generally performed in the national
VE: No, sir, the most immediate reason being that all the past relevant,
relevant work was above that of sedentary.
ALJ: Could such an individual perform any other work which exists in
the national economy? And if so, please identify the jobs, the DOT
number if available, and the incidents of the jobs in the regional or
VE: Yes, sir, there are jobs that would fall within those parameters.
Such jobs as a weaver defect clerk.
The VE then named other types of jobs plaintiff could perform for which jobs
were available in the local and national economy, including garment sorter and box
sealer inspector. (Tr. 70-71).
The ALJ then provided a variation on this hypothetical question, stating as
ALJ: Hypothetical number two is the same as hypothetical number one.
The only modification is this individual would miss various time from
work. The frequency of these have to be in the sole discretion of this
individual. By way of illustration, this individual may have pain or may
have psychological related events that would interfere with attending at
the work station. It could be 15 minutes one day, it could be multiple
hours another day. It would occur on a frequent basis. Would that
affect your answer?
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VE: It would, Your Honor, in that it would be considered excessive
absenteeism or excessive breaks, and really preclude jobs I’ve
mentioned or any other work in the national economy.
The ALJ, using the VE testimony and looking to the Medical-Vocational
Guidelines as a framework for decision making, ultimately concluded that significant
numbers of jobs existed in the national economy that plaintiff could perform despite
his RFC. (Tr. 36-37, Finding No. 10). Therefore, the ALJ found that plaintiff was
not disabled. (Tr. 37, Finding No. 11).
Plaintiff’s Argument for Reversal
Plaintiff seeks to have the Commissioner’s decision reversed. He argues that
the hypothetical question posed to the VE did not incorporate all of the plaintiff’s
established limitations and capabilities. (Pl. Br. at 8-9). According to plaintiff, in
addition to the non-exertional limitations listed in the hypothetical question to the
VE, the ALJ should have included limitations noted in the functional capacity
assessment of Dr. Frank Nuckols wherein he states:
Claimant would likely have trouble carrying out more detailed tasks and
instructions. Claimant would be expected to maintain attention and
concentration for 2 hours without customary rest breaks. A well-spaced
work environment would be best for maximum concentration. Claimant
would likely miss 1-2 days/month due to psych symptoms.
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Contact with the public should be infrequent and non-intensive.
Supervision should be tactful, constructive and non-threatening.
Because the hypothetical question failed to include these limitations, plaintiff
asserts that the ALJ failed to pose a hypothetical question which comprised all of the
claimant’s impairments (limitations), contrary to Wilson v. Barnhart, 284 F.3d 1219,
1227 (11th Cir. 2002). Therefore, plaintiff asserts that VE’s testimony did not
constitute “substantial evidence” sufficient to sustain the Commissioner’s factual
findings. See 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 390, 401
S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).
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
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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 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.
When, as in the present case, a claimant is unable to do past relevant work, the
examiner must determine whether in light of the RFC, age, education and work
experience, the claimant can perform other work. Wilson v. Barnhart, 284 F.3d 1219,
1227 (11th Cir. 2002); see also Crayton v. Sullivan, 120 F.3d 1217, 1219 (11th Cir.
1997). The ALJ may determine whether the claimant has the ability to adjust to other
work in the national economy by applying the Medical Vocational Guidelines (the
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grids), 20 C.F.R. § 404, Subpart P, Appendix 2, or by the use of a vocational expert,
Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004).
With regard to the limitations which plaintiff alleges the ALJ improperly failed
to include in his hypothetical question to the VE, the ALJ found that plaintiff had a
severe impairment of depression. (Tr. 26). Therefore, he evaluated plaintiff’s mental
limitations by application of the special psychiatric review technique (PRT) set forth
in 20 C.F.R. § 404.1520a (2012).
Using the PRT, the ALJ found that plaintiff had mild restriction in the activities
of daily living based on a review of the function report plaintiff completed and a
report from consultative psychologist Jon G. Rogers, Ph.D. (Tr. 27, 156-63, 336-40).
The ALJ noted that plaintiff indicated that he takes his children to and from
school, cuts grass, does whatever he can to help his wife around the house, takes care
of his personal needs, prepares meals such as sandwiches, drives a car, shops in stores
but cannot walk long, attends church every Sunday that he is physically able, lifts up
to 25 pounds without pain, and walks 1/4 mile before needing rest. (Tr. 33).
Based on plaintiff’s report to Dr. Rogers that he lived with his wife and
children, but had few friends and no social activities except for church, the ALJ found
that plaintiff had moderate difficulties in maintaining social functioning. The ALJ
also found that plaintiff had moderate difficulties with regard to concentration,
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persistence and pace. (Tr. 27). While plaintiff indicated in his Function Report that
he had no problems with concentration, memory, understanding or following
instructions, Dr. Rogers found that plaintiff could not perform a serial 7's subtraction
task. However, he could spell the word “world” backward and answer three math
problems correctly. He also could correctly repeat five digits forward and three digits
backward, recall three objects after five minutes, remember his activities from the day
before the evaluation, and recall the birthdays of his family members and his age
when he left school. (Id.).
The ALJ also found that plaintiff has experienced one to two episodes of
decompensation, each of extended duration.
He was hospitalized for this in
November 2007 because he was acting in a delusional manner and was experiencing
auditory hallucinations, claiming deceased family members were talking to him. At
that time, plaintiff denied being depressed, suicidal, homicidal or having
hallucinations. He reported being upset as a result of losing his job. When he was
discharged, he exhibited no signs of any behavioral problems. (Tr. 28, 239).
Dr. Nuckols was one of two state agency reviewing psychiatrists who evaluated
plaintiff. The other was Dr. Peter Sims. The ALJ considered and gave “significant
weight” to the mental RFC assessments of these physicians. (Tr. 35, 332-35, 355-58).
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In reaching a functional capacity assessment, including the portion quoted
above, Dr. Nuckols rated plaintiff’s social interaction as follows. With regard to his
ability to ask simple questions or request assistance, he rated him “not significantly
limited.” He rated his abilities to interact appropriately with the general public, to
accept instructions and respond appropriately to criticism from supervisors, to get
along with co-workers or peers without distracting them or exhibiting behavioral
extremes, and to maintain socially appropriate behavior and adhere to basic standards
of neatness and cleanliness, as “moderately limited.” In none of these, or any other,
categories was he found to be “markedly limited.” (Tr. 333).
In these same categories, Dr. Peter Sims also found that plaintiff’s ability to ask
simple questions or request assistance was “not significantly limited.” (Tr. 356). Dr.
Sims also agreed that plaintiff’s ability to accept instructions and respond
appropriately to criticism from supervisors was “moderately limited.” However, he
concluded that plaintiff’s abilities to interact appropriately with the general public,
to get along with co-workers or peers without distracting them or exhibiting
behavioral extremes and to maintain socially appropriate behavior and adhere to basic
standards of neatness and cleanliness, were “not significantly limited.” (Tr. 356).
In his functional capacity assessment, Dr. Sims found as follows with regard
to plaintiff’s ability to sustain concentration and persistence:
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The claimant does not have severe limitations of attention,
concentration, or task completion that prevent him from sustain[ed]
attention on work related tasks or prevent him from completing work
related tasks. He appears to be distracted by his physical pain but,
despite this impairment, can maintain attention sufficiently to complete
simple 1- to 2- step tasks for periods of at least 2 hours, without the need
for special supervision or extra rest periods. The claimant may be able
to complete more complex tasks if they are broken down into smaller,
simpler sections to be completed. The claimant appears able to
complete an 8-hour workday, provided all customary breaks from work
are provided. The claimant may benefit from a flexible daily schedule.
The claimant may benefit from a well-spaced work setting. The
claimant can make simple, short-term work-related decisions. He may
need help with those decisions that are more complex or long-term. The
claimant may miss one or two days of work each month - as a direct
result of psychiatric signs and symptoms. Overall, the claimant will be
able to maintain work attendance within customary expectations.
The ALJ considered these assessments but is not required to adopt them in toto.
While statements from physicians regarding the level of work a claimant can perform
are important, they are not determinative because the ALJ has the ultimate
responsibility to assess a claimant’s residual functional capacity. See 20 C.F.R.
§§ 404.1513(c), 404.1527, 404.1545, 404.1546(c).
In addition to the reports of the state agency psychiatrists and Dr. Rogers, the
ALJ also reviewed the medical records for references to plaintiff’s depression and
noted that, in March 2009, gastroenterologist Eghierhua Ugeheoke, M.D., reported
that plaintiff exhibited no indication of memory loss, confusion, anxiety or tension.
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(Tr. 34, 383). The ALJ also noted that, in August 2009, plaintiff reported to medical
personnel at Alabama Psychiatric Services that he had been doing somewhat better
on medication, that his depression was improving and that his anger was not as
before. (Tr. 34, 400).
While plaintiff asserts that certain limitations were not included in the
hypothetical question that was asked of the VE, it is important to note that the ALJ
need not include limitations that are not supported by the evidence in the record. See
Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir. 1996) (stating the ALJ is not required
to consider non-exertional impairments that he found not to be credible). Although
not specifically stated on the record, the failure of the ALJ to include these limitations
in his hypothetical questions leads to the conclusion that he either did not find them
credible or they were implicitly included. See Winschel v. Comm’r of Soc. Sec., 631
F.3d 1176, 1181 (11th Cir. 2011) (hypothetical question must include all of
claimant’s limitations or “otherwise implicitly account” for them).
The “limitations” which plaintiff says should have been included in the
hypothetical question were speculative at best. The limitations which plaintiff states
should have been included are those where Dr. Nuckols opined: Claimant would
likely have trouble with more detailed tasks and instructions, would be expected to
maintain attention and concentration for 2 hours without customary rest breaks, a
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well-spaced work environment would be best for maximum concentration, he would
likely miss 1-2 days/month due to psych symptoms, his contact with the public should
be infrequent and non-intensive and supervision should be tactful, constructive and
It is important to note that the hypothetical questions “need only include the
claimant’s impairments, not each and every symptom of the claimant.” Ingram v.
Comm’r of Soc. Sec., 496 F.3d 1253, 1270 (11th Cir. 2007) (internal quotation marks
and citation omitted). The ALJ credited testimony that reflected plaintiff could do
simple one- or two-step tasks and would require a low-stress work environment, and
that a functional limitation to resolve the stress would be only occasional contact with
Dr. Sims opined that by being able to perform simple one- or two-step tasks for
two hours before he received a break, claimant appeared able to complete an eighthour workday, provided all customary breaks from work were provided. He further
opined that, while plaintiff may miss one or two days of work each month as a direct
result of psychiatric signs and symptoms, overall he was able to maintain work
attendance within customary expectations. Thus, it was not necessary for the ALJ to
include language about the plaintiff’s limitation of concentration to two hours
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between breaks when this would be customary, especially in a low-stress job
Furthermore, the ALJ’s hypothetical question included a limitation that the
plaintiff’s work would be limited to simple one- or two- step tasks, which clearly
implies that he would have trouble with detailed tasks and instructions. The
hypothetical question also assumed that plaintiff’s work environment was to be lowstress. This clearly implies that supervision would be non-threatening. This is
In this case, the ALJ, in his hypothetical question to the VE, included or
implicitly accounted for all of plaintiff’s limitations; he did not err by not explicitly
including the limitations which plaintiff asserts should have been included.
Therefore, the VE’s testimony constituted substantial evidence. Because substantial
evidence shows that the ALJ sufficiently accounted for Mr. Jones’s limitations, the
decision of the Commissioner is due to be AFFIRMED. A separate order will be
DONE this 4th day of December, 2013.
HARWELL G. DAVIS, III
UNITED STATES MAGISTRATE JUDGE
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