Hutto v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 7/8/2014. (JLC)

FILED
2014 Jul-08 PM 04:35
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
WESLEY TOBIN HUTTO,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,

)
)
)
)
) Case No.: 5:13-CV-805-VEH
)
)
)
)
)

Defendant.

MEMORANDUM OPINION
INTRODUCTION
Plaintiff Wesley Tobin Hutto brings this action under 42 U.S.C. § 405(g),
Section 205(g) of the Social Security Act. He seeks review of a final adverse decision
of the Commissioner of the Social Security Administration (“Commissioner”), who
denied his application for Disability Insurance Benefits (“DIB”). Mr. Hutto timely
pursued and exhausted his administrative remedies available before the
Commissioner. The case is thus ripe for review under 42 U.S.C. § 405(g). For the
following reasons, the court AFFIRMS the Commissioner’s decision.
STATEMENT OF THE CASE
Mr. Hutto was 41 years old at the time of his hearing before the Administrative

Law Judge (“ALJ”). Compare Tr. 54 with Tr. 18. He has a high school education. Tr.
34. His past work experience includes employment as a grocery manager, a deli
manager, a food products field service representative, and a supermarket clerk. Tr. 49.
He claims he became disabled on April 9, 2010, due to limitations imposed by his
human immunodeficiency virus (HIV) infection and peripheral neuropathy. Tr. 154.
His last period of work ended on that date. Id.
On July 6, 2010, Mr. Hutto protectively filed a Title II application for a period
of disability and DIB. Tr. 18. On September 15, 2010, the Commissioner initially
denied these claims. Id. Mr. Hutto timely filed a written request for a hearing on
October 4, 2010. Id. The ALJ conducted a hearing on the matter on November 18,
2011. Id. On December 15, 2011, he issued his opinion concluding Mr. Hutto was not
disabled and denying him benefits. Tr. 26. Mr. Hutto timely petitioned the Appeals
Council to review the decision on January 5, 2012. Tr. 12-13. On February 28, 2013,
the Appeals Council issued a denial of review on his claim. Tr. 1.
Mr. Hutto filed a Complaint with this court on April 29, 2013, seeking review
of the Commissioner’s determination. Doc. 1. The Commissioner answered on July
31, 2013. Doc. 7. Mr. Hutto filed a supporting brief (doc. 8) on September 13, 2013,
and the Commissioner responded with her own brief (doc. 10) on October 29, 2013.

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STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.
The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This 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.
This 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. Cornelius v. Sullivan, 936 F.2d
1143, 1145-46 (11th Cir. 1991).

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STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his or her entitlement for a
period of disability, a claimant must be disabled as defined by the Social Security Act
and the Regulations promulgated thereunder.1 The Regulations define “disabled” as
“the inability to do 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
twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” that “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:
(1)

whether the claimant is currently employed;

(2)

whether the claimant has a severe impairment;

1

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, revised as of April 1, 2007.
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(3)

whether the claimant’s impairment meets or equals an impairment listed
by the Commissioner;

(4)

whether the claimant can perform his or her past work; and

(5)

whether the claimant is capable of performing any work in the national
economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to formerly applicable
C.F.R. section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 56263 (7th Cir. 1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The sequential analysis goes as follows:
Once the claimant has satisfied steps One and Two, she will automatically be
found disabled if she suffers from a listed impairment. If the claimant does not
have a listed impairment but cannot perform her work, the burden shifts to the
[Commissioner] to show that the claimant can perform some other job.
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
The Commissioner must further show that such work exists in the national economy
in significant numbers. Id.
ALJ FINDINGS
After consideration of the entire record, the ALJ made the following findings:
1.

Mr. Hutto met the insured status requirements of the Social Security Act
through December 15, 2011 – the date of the decision.

2.

He had not engaged in substantial gainful activity since April 9, 2010,
the alleged disability onset date.

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3.

He had the following severe impairments: human immunodeficiency
virus (HIV), hepatitis C, neuropathy, a depressive disorder, and an
anxiety disorder.

4.

He did not have an impairment or combination of impairments that met
or medically equaled one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1.

5.

He had the residual functioning capacity (“RFC”) to perform sedentary
work, as defined in 20 C.F.R. § 404.1567(a) with no climbing of ropes,
ladders, and scaffolding and no work at unprotected heights. In addition,
he should not operate dangerous, moving, unguarded machinery.

6.

He was unable to perform any past relevant work.

7.

He was born on [redacted] and was 39 years old, which is defined as a
younger individual age 18-44, on the alleged disability date.

8.

He had at least a high school education and was able to communicate in
English.

9.

Transferability of job skills was not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supported a finding that he was “not disabled,” whether or not he had
transferable job skills.

10.

Considering his age, education, work experience, and residual
functioning capacity, there were jobs that existed in significant numbers
in the national economy that he could perform.

11.

He had not been under a disability, as defined in the Social Security Act,
from April 9, 2010, through the date of this decision.

Tr. 20-26.

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DISCUSSION
The court may only reverse a finding of the Commissioner if it is not supported
by substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th
Cir. 1980)). However, the court “abstains from reweighing the evidence or
substituting its own judgment for that of the [Commissioner].” Id. (citation omitted).
Mr. Hutto urges this court to reverse the Commissioner’s decision to deny his
benefits on the basis that the ALJ improperly discredited the opinion offered by Dr.
Jon G. Rogers, PhD, a consultative examiner who evaluated Mr. Hutto on September
7, 2010, at the request of the Social Security Administration. The court disagrees and
finds that substantial evidence supported this decision. Neither did the ALJ have to
re-contact Dr. Rogers for clarification or otherwise develop the record further.
Finally, the court finds that substantial evidence supported the ALJ’s conclusion as
to Mr. Hutto’s residual functioning capacity.
I.

The ALJ Did Not Err in Discounting Dr. Rogers’s Opinion.
Mr. Hutto first argues that the ALJ improperly rejected the opinion of Dr.

Rogers. Doc. 8 at 7-12. As noted, Dr. Rogers examined Mr. Hutto on one occasion
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at the Social Security Administration’s request. Tr. 23. In his evaluation, Dr. Rogers
noted that Mr. Hutto had never seen a mental health professional before but claimed
to be currently experiencing certain diagnostic symptoms associated with depression
and anxiety/panic. Tr. 298. Mr. Hutto also reported engaging in the following daily
activities: personal hygiene, talking on the phone, laundry, lying around, walking
around, and going outdoors when possible. Tr. 299. He had a “few friends with whom
he talks on the phone, visits, plays cards, celebrates birthdays, goes out to eat, and
goes shopping.” Id. Dr. Rogers observed that Mr. Hutto’s appearance, dress,
grooming, hygiene, mood, and conversation were “good” and “normal.” Tr. 299-300.
The doctor also positively evaluated Mr. Hutto’s abilities as to orientation,
concentration and attention, memory, fund of information, abstraction, thought
process, and judgment and insight. Tr. 300-01.
In concluding his evaluation, Dr. Rogers noted the following “implications for
employment”:
Mr. Hutto is able to function independently. The quality of his daily activities
is below average. The medical evidence of record provided by [the Disability
Determination Service] was reviewed and those findings were considered in
the overall assessment of the patient. He presented on this testing occasion
stating that he cannot work “because I can only work a little while at a time .
. . as the day wears down . . . I’m in pain and weak. We’re running out of
options with the neuropathy. My feet don’t really want to work. There’s no
feeling in the bottom of my feet.” He reported anxiety is a factor in his
employability, “makes my feet set off in pain.” Medication side effects impair
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functioning.
Tr. 301. Dr. Rogers then gave the following diagnostic impression:
Axis I

Pain Disorder Associated with Psychological Factors and His
General Medical Condition DSM IV 307.89.
Depressive Disorder NOS DSM IV 311.
Anxiety Disorder NOS DSM IV 300.00.

Axis II

No diagnosis

Axis III

Dizziness, insomnia, high cholesterol, HIV (diagnosed in 1996),
and daily pain (8/10) in his back and neuropathy in his legs.

Axis IV

Psychosocial stress stemming from his difficulties in relationship
to his occupational problems.

Axis V

Global Assessment of Functioning = 50.

Id.
The ALJ adequately summarized Dr. Roger’s observations. He correctly noted
as well that the American Psychiatric Association defines a GAF of 50 as “consistent
with serious symptoms or a serious impairment in social, occupational, or school
functioning.” Tr. 24.2 The ALJ further recorded that Dr. Rogers “opined [that Mr.

2

The Global Assessment of Functioning, or GAF Scale, is a numeric scale that mental
health physicians and doctors use to rate the occupational, psychological, and social functioning
of adults. The Am. Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorders 32
(4th ed. 2000) (“DSM-IV”). According to the DSM-IV, a GAF of 50 indicates either (1) “serious
symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting)” or (2) “any
serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep
a job).” Id.; accord Davis v. Astrue, 287 F. App'x 748, 758 (11th Cir. 2008) (unpublished) (per
curiam) (“[A] GAF of 50 indicates either serious symptoms or serious impairments in social,
occupational, or school functioning.”).
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Hutto’s] ability to understand, remember and carry out instructions and respond
appropriately to supervisors, co-workers and work pressures in a work setting would
be severely impaired.” Id. However, the ALJ assigned this opinion “little weight” for
three reasons:
•

Dr. Rogers only examined Mr. Hutto on one occasion and did not treat
him regularly;

•

Dr. Rogers’s assessment was inconsistent with other findings in his
report; and

•

the assessment was also inconsistent with the level of physical activity
Mr. Hutto maintained.

Id.
This determination was justified. Unlike that of a treating physician, the
opinion of a one-time examiner is not entitled to deference. McSwain v. Bowen, 814
F.2d 617, 619 (11th Cir. 1987) (citing Gibson v. Heckler, 729 F.2d 619, 623 (11th
Cir. 1986)). Rather, an ALJ may discount such an opinion so long as he or she
provides specific reasons for doing so that are themselves supported by substantial
evidence. See Ellison v. Barnhart, 355 F.3d 1272, 1275-76 (11th Cir. 2003). The
ALJ’s analysis here met this standard. That is, he was specific in explaining why he
discredited Dr. Rogers’s opinion and assembled substantial evidence in support of his
conclusion. First, the fact that Dr. Rogers examined Mr. Hutto only on one occasion

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was an acceptable supporting reason for rejecting the doctor’s conclusions. By their
nature, such consultative examinations can at best provide a snapshot of the patient’s
condition. See Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1160 (11th Cir.
2004) (finding consultative psychologists’s solitary examination of claimant to be
appropriate reason for ALJ to discredit his assessment).
Substantial evidence also supports the other reasons the ALJ cited to justify his
weight designation. The ALJ accurately observed that Dr. Rogers’s diagnostic
conclusions contradicted the thrust of his report. Tr. 24. The doctor in fact devoted
most of his report to presenting how promising Mr. Hutto’s condition was. As noted,
Dr. Rogers positively evaluated Mr. Hutto’s appearance, behavior, mood, speech
patterns, and cognitive abilities. Tr. 299-301. Further, although the quality of Mr.
Hutto’s daily activities was “below average,” the ALJ concluded that he was “able to
function independently.” Tr. 301. Given this depiction, the ALJ reasonably concluded
that Dr. Rogers’s dire psychological diagnosis was unfounded.
Other parts of the record also undermine Dr. Rogers’s diagnosis. The ALJ
justifiably referenced Mr. Hutto’s failure to seek mental health treatment of any kind
in the past. This omission, at the very least, is inconsistent with a destabilizing
psychological impairment. Further, the volume and quality of Mr. Hutto’s selfreported daily activities undercut such an impairment’s existence. As the ALJ noted,
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Mr. Hutto volunteered that he regularly engaged in the following diversions: caring
for numerous pets, playing computer games, mowing grass, shopping, and interacting
with his friends. These activities are plausibly inconsistent with a “serious impairment
in social, occupational, or school functioning.” Finally, Mr. Hutto himself identified
his neuropathy as the genesis of his alleged impairments. E.g., Tr. 35-36. His reported
anxiety and depression were at most ancillary to his physical condition and only
contributing factors hindering his employability.
For all of these reasons, the court finds that substantial evidence supports the
ALJ’s decision to discredit Dr. Rogers’s evaluation of Mr. Hutto’s functional
abilities.
II.

The ALJ Had No Further Duty to Develop the Record.
Mr. Hutto next argues that the ALJ should have re-contacted Dr. Rogers for

clarification if he found the doctor’s opinion materially inconsistent with the record.
Doc. 8 at 9. According to Mr. Hutto, the ALJ’s failure to do so violated his
fundamental duty to develop the record. Id. at 10.
This complaint is unfounded. “The regulations pertaining to consultative
examinations require the ALJ to re-contact a consultative examiner only if [the
examiner’s] report is inadequate or incomplete.” Sumerel v. Colvin, 2014 U.S. Dist.
LEXIS 51108, at *14-15 (N.D. Ala. Apr. 14, 2014) (emphasis added) (citing 20
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C.F.R. §§ 404.1519p(a)-(b); 416.919p(a)). Here, Mr. Hutto does not allege – much
less show – that Dr. Rogers’s evaluation was inadequate or incomplete. He instead
contends (or at least concedes for the sake of argument) that the report was internally
and externally inconsistent. See Doc. 8 at 9. Inconsistency, however, is not a ground
for reestablishing contact. See McLamb v. Astrue, 2013 U.S. Dist. LEXIS 106929, at
*14-15 (N.D. Ala. July 31, 2013) (“[T]he ALJ had no obligation to contact Dr.
Menzel for further clarification. Plaintiff’s argument would only be persuasive if the
meaning of Dr. Menzel’s opinion was unclear . . . the problem is not a lack of clarity
but that [the doctor’s] opinion is at odds with the rest of the evidence.”).
Nor did the ALJ have any further duty to develop the record. As a general
matter, Social Security proceedings “are inquisitorial rather than adversarial.” Sims
v. Apfel, 530 U.S. 103, 111 (2000). The ALJ thus has the duty “to investigate the facts
and develop the arguments both for and against granting benefits.” Id. (citing
Richardson v. Perales, 402 U.S. 389, 400-01 (1971)). The ALJ’s duty to “fully and
fairly develop the record,” Coward v. Schweiker, 662 F.2d 731, 735-36 (11th Cir.
1981), exists whether or not the applicant is represented. Brown v. Shalala, 44 F.3d
931, 934 (11th Cir. 1995). When the claimant is unrepresented, however, the ALJ’s
duty is heightened. See Smith v. Schweiker, 677 F.2d 826, 829 (11th Cir. 1982). Mr.
Hutto was legally represented in his hearing below. Tr. 31. Thus, the ALJ had no
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special duty to “scrupulously and conscientiously probe into, inquire of, and explore
for all relevant facts.” Id. (emphasis added).
Still, an ALJ must “develop the claimant's complete medical history for at least
the 12 months preceding the month in which the application was filed, and to make
every reasonable effort to help a claimant get medical reports from the claimant's own
medical sources when permission is given.” Robinson v. Astrue, 235 F. App'x 725,
727 (11th Cir. 2007) (unpublished) (citing 20 C.F.R. § 416.912(d)). “Nevertheless,
the claimant bears the burden of proving that he is disabled, and, consequently, he is
responsible for producing evidence in support of his claim.” Ellison v. Barnhart, 355
F.3d 1272, 1276 (11th Cir. 2003) (per curiam).
The record shows that the ALJ here met these basic obligations. He fielded and
reviewed treatment records dating back to at least 2007 from Dr. Amy Carter, M.D.,
and the Davis Clinic, both of whom aided Mr. Hutto with his neuropathic pain. Tr.
22-23. The ALJ also examined consultative physical and mental evaluations that the
Social Security Administration independently ordered after Mr. Hutto’s disability
application. Tr. 23-24. Finally, the ALJ assessed determinations made by separate
state agency personnel after reviewing the record evidence on Mr. Hutto’s claimed
physical and mental impairments. Tr. 24.
In short, the ALJ comprehensively developed the record. Moreover, apart from
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his complaints regarding the treatment of Dr. Rogers’s report, Mr. Hutto does not
specify how the ALJ supposedly failed his duty. The court thus finds that this
argument lacks merit.
III.

Substantial Evidence Supports the ALJ’s RFC Determination.
Beyond the specific matters addressed by the parties in their briefing, the court

more generally finds that substantial evidence supports the ALJ’s RFC determination.
The ALJ concluded that, despite his impairments, Mr. Hutto could still perform
sedentary work with certain limitations. Tr. 21.The Regulations define sedentary
work in the following manner:
Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which involves sitting, a
certain amount of walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required occasionally
and other sedentary criteria are met.
20 C.F.R. § 404.1567(a). Mr. Hutto primarily argues that disabling neuropathic pain
prevents him from being able to perform work of any kind. The court will thus
examine whether the ALJ properly evaluated Mr. Hutto’s pain-based allegations
under the prevailing standards in this Circuit.
A claimant who seeks “to establish a disability based on testimony of pain and
other symptoms” must show the following:

15

•

Evidence of an underlying medical condition; and

•

Either:
<

objective medical evidence confirming the severity of the alleged
pain; or

<

that the objectively determined medical condition can reasonably
be expected to give rise to the claimed pain.

Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (citation omitted). An ALJ
must articulate “explicit and adequate reasons” in order to discredit subjective
testimony. Id. (citation omitted). Failure to do so “requires, as a matter of law, that the
testimony be accepted as true.” Id. (citation omitted). However, the ALJ does not
need to “specifically refer to every piece of evidence in his decision,” so long as the
decision shows that the ALJ considered the claimant's medical condition as a whole.
Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (citation omitted).
The ALJ here was both explicit and convincing in explaining why he did not
credit Mr. Hutto’s testimony regarding the disabling effects of his pain. The ALJ first
emphasized the manifold activities Mr. Hutto engaged in on a daily basis. As
previously noted, these include performing personal care, preparing meals, doing
laundry, washing dishes, riding the lawn mower, periodically driving, and shopping
in stores. The ALJ reasonably found that this level of functioning undercut Mr.
Hutto’s claims of disabling pain. Tr. 22.
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Moreover, the ALJ’s survey of the medical record evidence revealed that Mr.
Hutto’s neuropathic pain – while a relatively constant reality – was not totally
disabling. The ALJ examined the progress notes submitted by Dr. Carter, who treated
Mr. Hutto from at least fall 2007 through summer 2010. Tr. 209-237. Dr. Carter noted
that Mr. Hutto suffered increased pain in his feet in November 2009, pain which
stress apparently aggravated. Tr. 222. However, the ALJ reasonably inferred that
these notes did not indicate a significant diminution of his functional capacity. Tr. 23.
Other evidence further suggested that Mr. Hutto’s medication tempered his
symptoms. In May 2010, his nurse at the Davis Clinic awarded him a 90 on the
Karnofsky scoring scale. Tr. 289. This score reflected “minor symptoms of a disease
present” and “no interference in function due to disease symptoms.” Id. Finally, in
follow-up records dated October 12, 2011, Dr. Theodore Mengesha, M.D., opined
that Mr. Hutto’s pain was “pretty much more or less controlled with medication.” Tr.
356.
Altogether, the ALJ marshaled “such relevant evidence as a reasonable person
would accept as adequate to support [his] conclusion.” Bloodsworth, 703 F.2d at
1239. In concluding that Mr. Hutto could perform sedentary work with certain
defined limitations, the ALJ aptly rejected the state agency single decisionmaker’s
opinion that Mr. Hutto could perform at the light level of exertion. The ALJ instead
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crafted a RFC substantially supported by the record.
CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the parties’
submissions, the court finds that the decision of the Commissioner is supported by
substantial evidence and that she applied proper legal standards in arriving at it.
Accordingly, the decision will be affirmed by separated order.
DONE and ORDERED this the 8th day of July, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

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