Grimes v. Social Security Administration, Commissioner

Filing 17

MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 9/19/14. (ASL)

FILED
2014 Sep-19 PM 01:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
TRACEY GRIMES,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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Case No.: 5:13-CV-470-MHH

MEMORANDUM OPINION
Plaintiff Tracey Grimes brings this action pursuant to Title II of Section
§ 205(g) of the Social Security Act. Ms. Grimes seeks review of the decision by
the Commissioner of the Social Security Administration denying her claims for a
period of disability and disability insurance benefits. See 42 U.S.C. § 405(g). After
careful review, the Court finds that the ALJ’s decision is due to be remanded.
STANDARD OF REVIEW
The scope of review in this matter is limited. “When, as in this case, the
ALJ denies benefits and the Appeals Council denies review,” the Court “review[s]
the ALJ’s ‘factual findings with deference’ and [his] ‘legal conclusions with close
scrutiny.’” Riggs v. Comm’r of Soc. Sec., 522 Fed. Appx. 509, 510-11 (11th Cir.
2013) (quoting Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).

The Court must determine whether there is substantial evidence in the record
to support the ALJ’s findings. “Substantial evidence is more than a scintilla and is
such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). In making this evaluation, the Court may not “reweigh the evidence or
decide the facts anew,” and the Court must “defer to the ALJ’s decision if it is
supported by substantial evidence even if the evidence may preponderate against
it.” Gaskin v. Comm’r of Soc. Sec., 533 Fed. Appx. 929, 930 (11th Cir. 2013).
With respect to the ALJ’s legal conclusions, the Court must determine
whether the ALJ applied the correct legal standards. If the Court finds an error in
the ALJ’s application of the law, or if the Court finds that the ALJ failed to provide
sufficient reasoning to demonstrate that the ALJ conducted a proper legal analysis,
then the Court must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).
PROCEDURAL AND FACTUAL BACKGROUND
On June 24, 2009, Ms. Grimes filed a Title II application for a period of
disability and disability insurance benefits. She asserted that she became disabled
on April 23, 2009. (R. 104).1

The Social Security Administration denied her

1

Ms. Grimes filed a prior application for a period of disability and disability insurance benefits
on November 27, 2006. An ALJ denied Ms. Grimes’s 2006 claim, and the Appeals Council
2

claim on February 4, 2010. (R. 20, 107). Thereafter, Ms. Grimes filed a written
request for a hearing. She appeared and testified at a video hearing on June 7,
2011. (R. 51-103; 112). Ms. Melissa Neel, a vocational expert, and Mr. Douglas
Friedman, an attorney for the claimant, appeared at the hearing. (R. 51). At the
time of her hearing, Ms. Grimes was 49 years old.2 Ms. Grimes has a high school
education and is able to communicate in English. (R. 33). Her past relevant work
experience is as a nurse assistant, inspector, dogcatcher, store laborer/stocker, and
nursery school attendant. (R. 33).
On September 1, 2011, the ALJ denied Ms. Grimes’s request for disability
benefits, concluding that Ms. Grimes did not have an impairment or a combination
of impairments listed in or medically equal to one listed in, 20 C.F.R. § 404,
Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526). (R.
35). The ALJ applied the Social Security Administration’s “five-step sequential
evaluation process for determining if an individual is disabled,” noting that “the
evaluation would not go on to the next step” if “it is determined that the claimant is
or is not disabled at a step of the evaluation process.” (R. 21).
denied Ms. Grimes’s request for review on September 29, 2009. Mr. Grimes did not appeal the
Commissioner’s decision. (R. 20).
2

At 49 years of age, 20 C.F.R. § 404.1563 designates Ms. Grimes as a “younger person,” which
means, generally, her age will not be considered to seriously affect her ability to adjust to other
work. 20 C.F.R. § 404.1563(c). However, in some circumstances, “persons age 45-49 are more
limited in their ability to adjust to other work than persons who have not attained age 45. Id.
(citing Rule 201.17).

3

The ALJ found that Ms. Grimes had not “engaged in substantial gainful
activity since April 23, 2009, the alleged onset date.” (R. 22).3 The ALJ also found
that Ms. Grimes has the following severe impairments: “history of thrombotic
thrombocytopenic pepura (TTP), visual limitations, depression, and anxiety.” (R.
23). The ALJ stated that these impairments “cause more than a minimal limitation
in the claimant’s ability to perform basic work activities.” (R. 23). The ALJ
determined that Ms. Grimes’s obesity “has not in combination with [her] other
impairments impacted on [her] musculoskeletal system or general health as to
cause [Ms. Grime’s] treating doctors to diagnose her with impairments, secondary
to obesity or impairments in combination with obesity.” (R. 23).
Based on the factual findings, the ALJ concluded that Ms. Grimes had the
“residual functional capacity to perform light work as defined in 20 C.F.R.
§ 404.1567(b). (R. 28). The judge opined,
[Ms. Grimes] can occasionally lift and/or carry, to include upward
pulling, up to 20 pounds, and frequently lift and/or carry to include
upward pulling, up to 10 pounds . . . can stand and/or walk, with
normal breaks, for a total of about 6 hours in an 8-hour workday, and
sit, with normal breaks, for a total of about 6 hours in an 8-hour
workday. There are no limitations on the claimant’s upper extremities
for gross or fine handling, or in the lower extremities for the operation
of foot controls. The claimant should not climb ramps, stairs, ropes, or
scaffolds. Claimant can frequently balance, stoop, kneel, and crouch,
and she cannot work around hazardous machinery and unprotected
3

The ALJ’s findings are consistent with Ms. Grimes’ medical records. Throughout this opinion,
there are citations to both the ALJ’s decision and to supporting documents such as medical
records.
4

heights. The claimant can understand and remember simple
instructions and simple work procedures, but not detailed instructions.
The claimant can concentrate for an 8-hour workday in 2-hour
increments, with regular breaks, and she should have her own
workstation. The claimant should work for an hourly pay with only
occasional contact with the general public and any changes to the
work environment should be infrequent and gradually introduced. The
claimant cannot perform any travel jobs or commercial driving.
(R. 28, 1355–1362).
In reaching his conclusion, the ALJ gave great weight to the State Agency
medical consultants’ opinions regarding Ms. Grimes’s physical and mental
limitations.

The ALJ relied especially on the August 2009 assessment of

consultative examiner Dr. Rao R. Nadella. (R. 31–33). Dr. Nadella indicated clear
bilateral retinas of normal color, contour, and cupping. The ALJ also gave
considerable weight to Dr. Thomas W. Tenbrunsel’s 2009 assessment. (R. 33). Dr.
Tenbrunsel noted that Ms. Grimes was able to respond to long and short-term
memory problems, recognize familiar objects and name them, and write, but she
had difficulty reading due to vision problems. (R. 30, 1294). Dr. Tenbrunsel
opined that Ms. Grimes’s depression and anxiety would not preclude her from
maintaining employment, understanding, remembering, and carrying out
instructions, and responding appropriately to supervisors and coworkers. (R. 30,
1295). Dr. Tenbrunsel also diagnosed Ms. Grimes with “Major Depressive
Disorder,

Recurrent,

Severe,

without

5

Psychotic

Features . . . Anxiety

Spells . . . [and] Cognitive Disorder (difficulties with memory, finishing thoughts,
concentration, confusion, possibly result of strokes).” (R. 1294).
The ALJ gave some weight as well to an assessment in 2009 by Dr. Carol
Walker, a neuropsychologist. (R. 33). Dr. Walker administered to Ms. Grimes the
Wechsler Memory Scale-III examination, which revealed that Ms. Grimes’s
immediate memory index and her general memory index were both in the low
average range. (R. 30; 1299). Dr. Walker noted that when Ms. Grimes was
presented with spoken information, her ability to learn or recall material presented
within the context of brief stories was in the low average range immediately after
presentation and average range following a delay. (R. 30, 1299). Overall, Dr.
Walker opined, “[Ms. Grimes’s] presentation suggested she had better functioning
of the left hemisphere than of the right and her overall testing suggested she
functioned adequately for day-to-day functioning.” (R. 26, 1300).
The ALJ gave little weight to the opinion of Ms. Grimes’s treating
physician, Dr. Marshall Schreeder. (R. 32). The ALJ determined that “Dr.
Schreeder’s opinion indicating that [Ms. Grimes’s] impairments have resulted in
numerous limitations in her ability to function lacks clinical support and it is
contradicted by his own evaluations of [Ms. Grimes].” (R. 32). Dr. Schreeder’s
records “consistently show” that Ms. Grimes was “‘doing well,’ that she had no
new symptomatology, and her impairments were controlled.” When Dr. Schreeder

6

saw Ms. Grimes in November 2010, “she was instructed to return to see him in one
year for a routine follow-up visit.” (R. 30, 704–714).
Although the ALJ only discussed the weight he have to the opinions of Dr.
Nadella, Dr. Tenbrunsel, Dr. Walker, and Dr. Schreeder, the ALJ also received
treatment records from various physicians who conducted physical and
psychological examinations of Ms. Grimes, most notably Dr. Amy Cooper, a
mental residual functional capacity (RFC) examiner; Dr. Robert Heilpern, a
physical RFC examiner; Dr. Jenny Chapman, an examining physician; and Drs.
Kenneth Winton and Steve Sullins, both optometrists. (R. 306, 1326, 1334, 1341).
Dr. Cooper’s mental RFC Assessment indicated that Ms. Grimes was able to
understand and remember simple instructions and simple work procedures (but not
detailed instructions), concentrate on simple tasks in 2-hour increments, with
regular rests and breaks, have only occasional contact with the general public, have
infrequent and gradually introduced changes to the work environment, and that she
should have her own workstation. Dr. Cooper further noted that Ms. Grimes
“would benefit from a flexible schedule as 1-2 days of work may be missed due to
mental condition.” (R. 1326).
Additionally, Dr. Heilpern’s RFC assessment stated that Ms. Grimes could
occasionally lift and/or carry, to include upward pulling, up to 20 pounds,
frequently lift and/or carry to include upward pulling, up to 10 pounds, stand

7

and/or walk, with normal breaks, for a total of about 6 hours in an 8-hour workday,
and she could sit, with normal breaks, for a total of about 6 hours in an 8-hour
workday. (R. 1355–1358). Dr. Heilpern noted that Ms. Grimes had no limitations
in using her upper or lower extremities; could frequently balance, stoop, kneel, and
crouch; could not climb ramps, stairs, ropes, or scaffolds; could not work around
hazardous machinery and unprotected heights; and had no established visual
limitations (including near acuity, far acuity, and field of vision). (R. 1355–1358).
Dr. Heilpern did find, though, that Ms. Grimes’s peripheral vision field is restricted
in both eyes. (R. 1358).
Dr. Chapman diagnosed Ms. Grimes with reoccurring migraine headaches
(variable from 2 to 4 times a month on average), TTP, and elevated blood pressure.
(R. 23, 26, 309).
Dr. Winton’s consultative evaluation revealed that “[Ms. Grimes’s] distance
visual acuity was 20/50 in the right and left eye and with best correction was 20/50
in the right and left eye.” (R. 26, 1334). Her diagnoses were visual field restriction
defect in each eye, and possible suspect glaucoma in each eye. (R. 26, 1334–35).
Dr. Winton suggested that Ms. Grimes should avoid driving and “tasks requiring
peripheral awareness, balance, and very fine acuity.” (R. 26, 1335). Dr. Sullins
similarly found that Ms. Grimes’s visual field was very constricted and that she
had “very poor peripheral vision.” (R. 26, 1342).

8

Ultimately, the ALJ found that Ms. Grimes was not capable of performing
past relevant work because the past jobs of nurse assistant, inspector, and dog
catcher were “medium in exertional requirements and semi-skilled,” the past job of
store laborer/stocker was “medium in exertional requirements and unskilled, and
the past job of nursery school attendant was “light in exertional requirements and
semiskilled.” (R. 33). All of these occupations exceed Ms. Grimes’s current
residual functional capacity. (R. 33). However, the ALJ, after considering Ms.
Grimes’s age, education, work experience, and RFC, concluded that jobs exist in
significant numbers in the national economy and in Alabama that Ms. Grimes can
perform. (R. 34, 75–76). This determination was based on the testimony of Ms.
Neel, a vocational expert, who testified that Ms. Grimes would be able to perform
the requirements of representative occupations such as:
[S]ome inspector4 jobs that are light and unskilled . . . [with]
approximately 4,000 such jobs in Alabama and 110,000 in the
U.S. . . . [S]ome cleaner jobs . . . [with] approximately 4,000 such jobs
in Alabama and 250,000 in the U.S. . . . [S]ome packer jobs . . . [with]
approximately 1,000 such jobs in Alabama and 40,000 in the U.S.
(R. 76). Consequently, the ALJ determined that Ms. Grimes is capable of making
a successful adjustment to other work that exists in significant numbers in the
national economy. (R. 34). The ALJ found that Ms. Grimes is “not disabled” under
sections 216(i) and 223(d) of the Social Security Act. (R. 34).
4

This inspector job differs from the inspector job performed by Ms. Grimes in her past work
experience by requiring only light work and no skills. (R. 76).
9

On January 10, 2013, this became the final decision of the Commissioner
when the Appeals Council refused to review the ALJ’s decision. (R. 1). Before the
Appeals Council refused to review the ALJ’s decision, Ms. Grimes’s attorney, Mr.
Friedman, submitted a narrative by Dr. Schreeder designed to contextualize his
medical records concerning Ms. Grimes. (R. 1379). The narrative is included in
the record. The Appeals Council reviewed the narrative and found that it did “not
provide a basis for changing the Administrative Law Judge’s decision.” (R. 1–2).
Having exhausted all administrative remedies, Ms. Grimes filed this action for
judicial review pursuant to § 205(g) of the Social Security Act. See 42 U.S.C. §
405(g).
ANALYSIS
To be eligible for disability insurance benefits, a claimant must be disabled.
Gaskin, 533 Fed. Appx. at 930. “A claimant is disabled if he is unable to engage in
substantial gainful activity by reason of a medically-determinable impairment that
can be expected to result in death or which has lasted or can be expected to last for
a continuous period of at least 12 months.” Id. (citing 42 U.S.C. § 423(d)(1)(A)).
A claimant must prove that he is disabled. Id. (citing Ellison v. Barnhart,
355 F.3d 1272, 1276 (11th Cir. 2003)). To determine whether a claimant is
disabled, the Social Security Administration applies a five-step sequential analysis.
This process includes a determination of whether the claimant (1) is
unable to engage in substantial gainful activity; (2) has a severe and
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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 the light of
his residual functional capacity; and (5) can make an adjustment to
other work, in the light of his residual functional capacity, age,
education, and work experience.
Id. (citation omitted).

“The claimant’s residual functional capacity is an

assessment, based upon all relevant evidence, of the claimant’s ability to do work
despite his impairments.” Id. (citing Lewis v. Callahan, 125 F.3d 1436, 1440
(11th Cir. 1997); 20 C.F.R. § 404.1545(a)(1)).
Here, in assessing whether Ms. Grimes is disabled, the ALJ found that Ms.
Grimes’s “history of thrombotic thrombocytopenic pepura (TTP), visual
limitations, depression, and anxiety” were “severe impairments” that cause more
than a minimal limitation on her ability to perform basic work activities.” (R. 23).
Nevertheless, the ALJ concluded that Ms. Grimes is not disabled because she is
capable of successfully adjusting to other work that exists in significant numbers in
the national economy. (R. 34). The ALJ based his decision on Dr. Amy Cooper’s
mental RFC Assessment, Dr. Robert Heilpern’s physical RFC Assessment, and
testimony from the vocational expert, Ms. Neel, that a person of Ms. Grimes’s age,
education, work experience, and residual functional capacity would be capable of
performing work as an inspector, cleaner, or packer. (R. 34, 76, 1336, 1355–
1358).

11

Ms. Grimes argues that she is entitled to relief from the ALJ’s decision
because the ALJ committed reversible error “by failing to properly evaluate the
opinions of Ms. Grimes’s treating physician, Dr. Marshall Schreeder” and by
failing to include her (Ms. Grimes’s) visual limitation in the RFC determination
and the hypothetical questions posed to the vocational expert (VE) (Pl.’s Br. at 1,
13). The Court finds Ms. Grimes’s second argument persuasive. “The residual
functional capacity is an assessment, based upon all of the relevant evidence, of a
claimant’s remaining ability to do work despite his impairments.”

Lewis v.

Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 CFR § 404.1545(a)).
By definition, a severe impairment limits significantly a claimant’s ability to do
basic work activities. Therefore, all severe impairment limitations must be
incorporated into the ALJ’s RFC finding. Raduc v. Comm'r of Soc. Sec., 380 Fed
Appx. 896, 898 (11th Cir. 2010). Here, the ALJ found that Ms. Grimes had visual
limitations that constituted a severe impairment and caused more than a “minimal
limitation in the claimant’s ability to perform basic work activities.” (R. 23).
Therefore, the ALJ should have incorporated Ms. Grimes’s visual limitations into
his RFC.
In making his RFC determination, the ALJ reviewed the medical
examinations of Dr. Nadella, Dr. Winston, Dr. Sullins, and Dr. Heilpern. (R. 29–
31). These examiners offered conflicting findings regarding Ms. Grimes’s visual

12

limitations. Based upon these opinions, the ALJ posed questions to the VE who
testified that the cleaner job would not be available to a person without peripheral
vision; the packer job would require near acuity at the constant level; and the
inspector job would require frequent near acuity. (R. 79–80). The VE stated, “If
they’re not able to [have near acuity] at least frequently or constantly, no, [these
jobs] would not be available.” (R. 80).
The ALJ concluded that Ms. Grimes’s RFC would permit her to work as a
cleaner, packer, or inspector. Therefore, the ALJ implicitly rejected the opinions of
those physicians whose findings contradicted those of Dr. Heilpern, who found that
Ms. Grimes had no established visual limitations. In fact, the ALJ stated that he
assigned “great weight to the assessments given by the State Agency medical
consultants.” (R. 31). However, the ALJ failed to state with particularity the
weight he gave to the remaining opinions concerning Ms. Grimes’s visual
limitations and the reasons for doing so. (R. 31). At the RFC stage, an ALJ may
reject the opinion of any physician when the evidence supports a contrary
conclusion,” but an ALJ must “state with particularity the weight he gives to
different medical opinions and the reasons why.” McCloud v. Barnhart, 166 Fed.
Appx. 410, 418–19 (11th Cir. 2006) (citing Bloodsworth v. Heckler, 703 F.2d
1233, 1240 (11th Cir. 1983)); Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir.
1987).

13

Dr. Heilpern opined that Ms. Grimes’s peripheral vision is restricted in both
eyes.

(R. 1358). Dr. Winton opined that Ms. Grimes has restricted peripheral

vision, and she is limited with respect to tasks requiring “peripheral awareness,
balance or fine acuity.” (R. 1334). Dr. Winton also found that Ms. Grimes has a
visual acuity of 20/50 in both eyes without glasses and with best correction. (R.
1334). Dr. Nadella opined that Ms. Grimes’s visual acuity is 20/30 on the right,
and 20/40 on the left. (R. 1289). The ALJ considered all of this evidence, but he
did not state with particularity the weight assigned to these conflicting medical
opinions concerning Ms. Grimes’s vision. Therefore, the Court cannot determine
whether substantial evidence supports the ALJ’s RFC finding and cannot evaluate
whether the ALJ’s RFC finding can be reconciled with the VE’s opinion that
certain visual impairments may limit Ms. Grimes’s ability to perform the jobs for
which the ALJ found her qualified. See Winchel, 631 F.3d at 1179 (“It is possible
that the ALJ considered and rejected [the conflicting opinions regarding Ms.
Grimes’s visual limitations], but without clearly articulated grounds for such a
rejection, [the Court] cannot determine whether the ALJ’s conclusions were
rational and supported by substantial evidence.”).
The Commissioner argues that the ALJ properly included Ms. Grimes’s
visual limitations in the RFC assessment when he “determined Plaintiff’s visual
limitations resulted in an RFC to do light work, with no climbing ramps, stairs,

14

ropes, or scaffolds, no working around hazardous machinery or unprotected
heights, and no travel jobs or commercial driving.” (Def.’s Br. at 20). The
Commissioner further states that the “ALJ’s decision shows these limitations were
based on a thorough review of the record evidence, including the visual findings in
Dr. Schreeder’s exam records and consultative exams from Dr. Nadella, Kenneth
R. Winton, O.D., and Steve Sullins, O.D.” (Id.).
The Commissioner also argues that an ALJ is not required to include in
hypothetical questions references to a claimant’s diagnoses or impairments; the
ALJ need only include the claimant’s functional limitations. (Def.’s Br. at 19).
Although an ALJ need not include in a hypothetical findings that he has properly
rejected as unsupported, as discussed above, the Court cannot determine whether
substantial evidence supports the ALJ’s apparent rejection of the conflicting
evidence regarding Ms. Grimes’s visual limitations. Thus, remand is warranted.
Compare Manzo v. Comm’r of Soc. Sec., 408 Fed. Appx. 265, 268 (11th Cir.
2011) (“The ALJ did not need to include [the claimant’s] claimed visual
limitations in the hypothetical question because . . . substantial evidence supported
the ALJ’s rejection of these claimed limitations during the relevant time period.”)
with Lawton v. Comm’r of Soc. Sec., 431 Fed. Appx. 830, 834 (11th Cir. 2011)
(“Without an explanation of the weight accorded by the ALJ, it is impossible for a

15

reviewing court to determine whether the ultimate decision on the merits of the
claim is rational and supported by substantial evidence.”).
CONCLUSION
For the reasons stated above, the Court REMANDS this matter under
sentence four of 42 U.S.C. § 405(g) with instructions to the ALJ to fully evaluate,
consider, and explain the weight given to each of the medical opinions concerning
Ms. Grimes’s visual limitations; to incorporate all physical limitations into
hypothetical questions posed to a vocational expert and into RFC findings; and to
conduct any additional proceedings consistent with this opinion.
DONE and ORDERED this September 19, 2014.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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