Lavender v. Social Security Administration, Commissioner
MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 8/3/2015. (AVC)
2015 Aug-03 PM 02:45
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
KERRY A. LAVENDER, II,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, }
Civil Action No.: 5:14-CV-01637-RDP
MEMORANDUM OF DECISION
Plaintiff Kerry A. Lavender, II brings this action pursuant to Title XVI of Section 1631(c)
of the Social Security Act (“Act”), seeking review of the decision by the Commissioner of the
Social Security Administration (“Commissioner”) denying his claim for Supplemental Security
Income (“SSI”). See also 42 U.S.C. § 1383(c). Based upon the court’s review of the record and
the briefs submitted by the parties, the court finds that the decision of the Commissioner is due to
Plaintiff’s mother filed an application for SSI on behalf of Plaintiff on June 13, 2011. (Tr.
174-191). She initially alleged that disability began on October 10, 2008, but the onset date was
later amended to June 13, 2011, the same date the application was filed. (Tr. 192, 202). The
Social Security Administration denied Plaintiff’s application on September 8, 2011. (Tr. 79).
Plaintiff then requested and received a hearing before Administrative Law Judge (“ALJ”) J.
Dennis Reap on January 10, 2013. (Tr. 38-76, 100). In his decision, dated March 8, 2013, the
ALJ determined that Plaintiff had not been under a disability within the meaning of section
1614(a)(3)(C) of the Act since June 13, 2011, the date the application was filed. (Tr. 14-31). The
ALJ also found that Plaintiff had not been under a disability within the meaning of section
1614(a)(3)(A) of the Act since March 21, 2012, the day Plaintiff attained age eighteen. (Id.).
After the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision (Tr. 1),
Plaintiff had exhausted all administrative remedies making this case ripe for review by this court.
Plaintiff was born on March 22, 1994. (Pl.’s Br. 2). Plaintiff was under the age of
eighteen at the time the application was filed, but he was over the age of eighteen at the time of
the hearing. 1 (Tr. 14). Plaintiff alleges he has been disabled since June 13, 2011, due to
“diabetes, seizures, slow mental processing, and borderline intellectual functioning.” (Pl.’s Br.
During his alleged period of disability, Plaintiff received treatment primarily from two
different sources: Dr. James Mize, a general physician, and Dr. Joycelyn Atchison, an
endocrinologist. (Tr. 65, 489-531, 555-577). For purposes of review, it is undisputed that
Plaintiff suffers from diabetes and borderline intellectual functioning. Therefore, the court will
address the evidence concerning Plaintiff’s alleged seizures and slow mental processing.
Plaintiff cites several portions of the record to support his claim that he suffers from
seizures. First, he cites Dr. Mize as noting that on May 5, 2000, “Plaintiff had a ‘seizure this
A.M.’”2 (Pl.’s Br. 3). Next, Plaintiff again cites Dr. Mize, who reported on November 16, 2011,
“that he has lot [sic] seizures with normal blood sugar levels.”3 (Pl.’s Br. 3). Plaintiff also cites a
Consequently, the ALJ had to consider whether Plaintiff was disabled under § 1614(a)(3)(C) of the Act
while Plaintiff was under the age of eighteen and whether Plaintiff was disabled under § 1614(a)(3)(A) of the Act
after Plaintiff attained the age of eighteen. 20 C.F.R. § 416.924(f).
record from Children’s Health System of Alabama, which described his alleged seizures as
“characterized by loss of consciousness, foaming at the mouth, and tonic clonic movements. He
is very tired after the seizure for approximately 30-40 minutes, and does not remember anything
that happens during the episodes. Reports some headaches after the seizures, some of which are
waking him up at night.”4 (Pl.’s Br. 3). Lastly, Plaintiff cites Dr. Mize again from an April 23,
2012 report, which noted “seizure 1 year.”5 (Pl.’s Br. 4). However, it appears from the record
that these accounts merely were the doctors documenting Plaintiff’s subjective complaints rather
than an actual diagnosis. Moreover, Dr. Atchison provided a letter to the ALJ which stated that
Plaintiff has “no disability at present.” (Tr. 592).
Plaintiff likewise cites to several places in the record to support his allegation that he
suffers from slow mental processing. Dr. Rogers, a non-treating psychological consultant, is the
one medical source of record that may corroborate Plaintiff’s claim. (Tr. 549). Dr. Rogers found:
Conversation was slow. He had extreme difficulty expressing
himself. Thought Process: Blocking was observed … Stream of talk
and mental activity were extremely slow and sluggish. Speech was
slow … His speed of mental processing was extremely slow …
Kerry reads but does not make change with sufficient accuracy for
trade level activities. Social response will be below average. He is
capable of being cooperative with peers and supervision and
maintaining a routine work cycle in a sheltered employment
situation … Response to frustration will be poor … The speed of
mental processing was slow; and probably the slowest that I have
seen in my entire practice; it took him over 5 hours what should
have taken about 1 ½ to 2 hours, which for all practical purposes,
would preclude employment.
(Tr. 550-552). Furthermore, Plaintiff was in an Individualized Education Program (“IEP”) in
high school. There is some discrepancy as to whether Plaintiff was in the IEP because of mental
deficiencies or merely because it gave him added monitoring for his diabetes. Plaintiff was given
extra time to complete exams and was allowed to take his exams in areas free from distraction.
(Tr. 245). Plaintiff graduated high school with an Alabama Occupational Diploma (Tr. 242), and
he plans to try to enroll at a community college. (Tr. 51). Dr. Rogers also administered a
Wechsler Adult Intelligence Scale-III test that showed Plaintiff had a verbal IQ of 79, a
performance IQ of 75, and a full scale IQ of 72. (Tr. 551). However, the test showed an
inconsistent pattern of achievement and the 16 Personality Factor test results were invalid. (Id.).
Furthermore, according to Plaintiff’s school record, Plaintiff achieved a normal non-verbal IQ
score of 101 in 2004. (Tr. 260). That score placed Plaintiff in the average range for his age. (Id.).
The ALJ’s Decision
For a child to be determined disabled as defined under the Act, the child must “have a
medically determinable physical or mental impairment or combination of impairments that
causes marked and severe functional limitations, and that can be expected to cause death or that
has lasted or can be expected to last for a continuous period of not less than 12 months.” 20
C.F.R. § 416.906. A physical or mental impairment is defined as “an impairment that results
from anatomical, physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1508.
Social Security regulations provide a three-step test for determining whether a child is
disabled. 20 C.F.R. § 416.924(a); see e.g. Wilson v. Apfel, 179 F.3d 1276, 1277 n.1 (11th Cir.
1999); Cole v. Barnhart, 436 F.Supp. 2d 1239, 1241 (N.D. Ala. 2006). First, an ALJ must
determine whether the child is engaging in substantial gainful activity. “Substantial gainful
activity” is work activity that involves doing significant physical or mental activities for pay or
profit. 20 C.F.R. § 416.972. If the child engages in substantial gainful activity, then the child
cannot claim disability regardless of the child’s medical condition. 20 C.F.R. § 416.924(b). If the
child is found not to be engaging in substantial gainful activity, the analysis proceeds.
In the second step, an ALJ must determine whether the child has a medically
determinable impairment or a combination of medical impairments that is “severe” under the
Act. Id. At this stage of the analysis, “severe,” as understood under Social Security regulations,
requires that the child have a medically determinable impairment, or an impairment or
combination of impairments that is greater than a slight abnormality that causes no more than
minimal functional limitations. Id. Absent such a “severe” impairment, the child may not claim
Third, an ALJ must determine whether the child’s impairment meets or medically equals
an impairment included in the Listing of Impairments listed in 20 C.F.R. § 404, Subpart P,
Appendix 1 (a “Listing”). 20 C.F.R. § 416.924(d). If the child’s impairment meets a Listing, the
child is declared disabled. Id. Alternatively, the child may also be declared disabled if the child’s
impairment or combination of impairments functionally equals a Listing. Id. In determining
whether the child’s impairment or combination of impairments functionally equals a Listing, the
ALJ must consider the child’s functional capacity with regard to six domains. 6 20 C.F.R. §
416.926a. To functionally equal a Listing, the child’s impairment or combination of impairments
must result in “marked” limitation in at least two of the domains or an “extreme” limitation in at
least one domain. 20 C.F.R. § 416.926a(d). A “marked” limitation is one that “interferes
seriously with [the child’s] ability to independently initiate, sustain, or complete activities.” 20
C.F.R. § 416.926a(e)(2)(i). It is “more than moderate” but “less than extreme” and is equivalent
A domain is a broad area of functioning. The six domains considered in determining whether a child’s
impairment functionally equals a Listing are: (1) acquiring and using information; (2) attending and completing
tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for yourself;
and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(i)-(vi).
to the functioning one “would expect to find on standardized testing with scores that are at least
two, but less than three, standard deviations below the mean.” Id. An “extreme” limitation
requires a limitation that is “more than marked” and is “the equivalent of the functioning [one]
would expect to find on standardized testing with scores that are at least three standard
deviations below the mean.” Id. In assessing whether the child has a “marked” or “extreme”
limitation or combination of limitations, an ALJ must consider the functional limitations from all
medically determinable impairments, including impairments that are not severe. 20 C.F.R. §
416.926a(a). An ALJ must consider the interactive and cumulative effects of the child’s
impairment or combination of impairments in any affected domain. 20 C.F.R. § 416.926a(c).
The test for assessing whether an adult claimant is disabled under the Act uses the same
first three steps as the test for assessing whether a child is disabled under the Act (from above),
but the test for adults has two additional steps. If an adult (1) is not engaging in substantial
gainful employment, (2) has a severe impairment, and (3) does not meet or medically equal a
Listing, the next step is to determine the claimant’s residual functional capacity (“RFC”), which
refers to the person’s ability to work despite his impairments. 20 C.F.R. § 404.1520(e). At this
step, an ALJ determines whether the claimant’s RFC allows the claimant 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 an ALJ finds the
claimant 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, an 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 the
existence, in significant numbers, of jobs in the national economy that the claimant can do given
his RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 404.1560(c). When
seeking to determine whether jobs exist that the claimant can perform given his RFC, an ALJ
may elicit testimony from a vocational expert (“VE”) by asking hypothetical questions to
establish whether someone with the same limitations as the claimant would be able to perform
work in the national economy. Id.
In the present case, the ALJ determined that Plaintiff had not engaged in substantial
gainful employment and had two severe impairments – diabetes mellitus and borderline
intellectual functioning – that satisfy step two of the analysis. (Tr. 18-19). The ALJ then found
that Plaintiff does “not have an impairment or combination of impairments that met or medically
equaled one of the [Listings].” (Tr. 19). Likewise, the ALJ concluded that Plaintiff did not
functionally equal any Listing. (Id.). In reaching that conclusion, the ALJ found that Plaintiff had
less than marked limitations in “acquiring and using information,” “caring for yourself,” and
“health and physical well-being.” (Tr. 24, 26-27). The ALJ found that Plaintiff had no limitations
in the other three domains. (Tr. 24-26). Therefore, the ALJ concluded that Plaintiff was not
disabled as defined under the provisions of the Act before attaining age 18. (Tr. 27).
Next, the ALJ assessed whether Plaintiff was disabled under the Act after attaining age
18. The ALJ first determined that Plaintiff had not developed any new impairment since
attaining age 18. (Id.). As there were no new impairments to consider, the ALJ again concluded
that Plaintiff had not engaged in substantial gainful activity and also that Plaintiff had two severe
impairments, neither of which met or medically equaled any of the Listings. (Tr. 27-28). The
ALJ then concluded that Plaintiff “has had the residual functional capacity to perform light work
as defined in 20 C.F.R. 416.967(b). However, the claimant can only perform simple, routine,
repetitive tasks.” (Tr. 29).
Given Plaintiff’s limited RFC, the ALJ consulted with a VE to determine any jobs in the
national economy that would be suitable for Plaintiff to perform. (Tr. 71). Considering Plaintiff’s
limitations, the ALJ concluded that Plaintiff was still “capable of making a successful adjustment
to … work that exists in significant numbers in the national economy .…” namely as a tagger, a
sorter, or a packager. (Tr. 30). Once the ALJ determined that Plaintiff was capable of adjusting to
work that exists in significant numbers in the national economy, the ALJ concluded that Plaintiff
“has not been under a disability, as defined [under the Act] since March, 21, 2012, the day
[Plaintiff] attained age 18.” (Id.).
Plaintiff’s Argument for Reversal
Plaintiff raises two arguments on appeal. Both arguments essentially contend that the
ALJ’s decision was not supported by substantial evidence. First, Plaintiff contends that the ALJ
failed to give Dr. Rogers’s opinion proper weight. Second, Plaintiff contends that the ALJ failed
to propose a proper hypothetical question to the Vocational Expert, which resulted in the ALJ
improperly concluding that there were jobs in significant numbers in the national economy
suitable for Plaintiff. More specifically, Plaintiff contends that the ALJ failed to consider the
effect Plaintiff’s seizures would have on his ability to perform the jobs listed by the Vocational
Standard of Review
Judicial review of disability claims under the Act is limited to whether the
Commissioner’s decision is supported by substantial evidence and whether the correct legal
standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.
2002). “Substantial evidence is less than a preponderance, but rather such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Moore v. Barnhart, 405
F.3d 1208, 1211 (11th Cir. 2005); see also Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). The
Commissioner’s factual findings are conclusive when supported by substantial evidence.
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). If supported by substantial evidence, the
Commissioner’s factual findings must be affirmed, even if the record preponderates against the
Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir.
2004); see also Martin, 894 F.2d at 1529. Legal standards are reviewed de novo. Moore, 405
F.3d at 1211.
After careful review, the court finds the following arguments of Plaintiff are without
merit and the ALJ’s decision is due to be affirmed.
The ALJ Appropriately Weighed Dr. Rogers’s Opinion.
Plaintiff argues that the ALJ should have given more weight to Dr. Rogers’s opinion.
When determining whether a claimant is disabled, the ALJ must always consider the medical
opinions in the case along with the rest of the relevant evidence. 20 C.F.R. § 404.1527(b)
(effective June 13, 2011 to March 25, 2012). Regardless of its source, the ALJ must evaluate
every medical opinion he receives. 20 C.F.R. § 404.1527(d). The opinions of a psychological
consultant can be given weight only insofar as they are supported by evidence in the case record.
SSR 96-6p, 1996 WL 374180 (July 2, 1996). Psychological consultants are highly qualified
experts “in the evaluation of the medical issues in disability claims under the Act.” Id. And
although the ALJ is not bound by the opinion of a psychological consultant, the ALJ may not
ignore the opinion. Id. The ALJ must explain the weight given to such opinions in the decision.
Id. However, “there is no rigid requirement that the ALJ specifically refer to every piece of
evidence in his decision.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005).
In his decision, the ALJ addressed Dr. Rogers’s opinion and, in fact, gave it considerable
weight. (Tr. 21). The ALJ noted Plaintiff’s borderline intellectual functioning as one of his
severe impairments, primarily because of Dr. Rogers’s opinion. (Id.). This conclusion was
reached even though the ALJ believed “the full record shows some doubt as to this diagnosis.”
(Id.). And although the ALJ gave serious weight to Dr. Rogers’s opinion, Plaintiff asserts that the
ALJ should have gone one step further and accepted Dr. Rogers’s conclusion that Plaintiff would
be limited to a “sheltered work situation” that would effectively preclude him from any gainful
employment.7 (Pl.’s Br. 12-13). The court disagrees.
The ALJ is responsible for reviewing the evidence and making appropriate conclusions of
law. 20 C.F.R. § 404.1527(f)(2). So, while the ALJ must take a psychological consultant’s
opinion into account, it is for the ALJ to make the final determination of disability. 20 C.F.R. §
404.1527(f)(2)(i). Therefore, here, the ALJ was not required to accept Dr. Rogers’s conclusion
about Plaintiff’s inability to engage in gainful employment, especially in light of the fact that Dr.
Rogers is a psychological consultant who likely was not fully informed of the sorts of jobs that
might be available for Plaintiff in the national economy.
Moreover, there was other evidence in the record that was in conflict with Dr. Rogers’s
opinion. Not only did Plaintiff test within the normal IQ range in 2004 (Tr. 260), but Dr.
Heilpern, the state reviewing physician, also reviewed Plaintiff’s medical history and determined
that Plaintiff had less than marked limitation in three domains and no limitation in the other three
domains. (Tr. 588-89). Given the evidence in the record and Dr. Heilpern’s opinion, this court is
convinced that the ALJ applied the proper legal standards when weighing Dr. Rogers’s opinion,
and therefore the ALJ’s decision to give Dr. Rogers’s opinion only partial weight is supported by
Plaintiff also contends that because Dr. Rogers opined that Plaintiff suffers from slow
mental processing, the ALJ committed reversible error by not including slow mental processing
as a severe impairment. (Pl.’s Br. 17-19). This argument is without merit. At the second step of
the test, the ALJ must determine that a claimant has at least one severe impairment to move on to
step three. See Heatly v. Comm’r of Soc. Sec., 382 F. App’x 823, 824-25 (11th Cir. 2010)
(concluding that even if the ALJ erred by not indicating whether an impairment is severe at step
two, the error was harmless because all step two requires is a finding of one severe impairment).
Step two is merely a threshold question: a box that is either checked yes or no. Once the box is
checked yes, then the analysis proceeds to step three. Id. And at the later steps of the analysis, the
ALJ is obligated to consider all of the claimant’s impairments, whether classified as severe or not.
Here, the ALJ appropriately considered all of Plaintiff’s alleged impairments when
concluding that Plaintiff did not meet, medically equal, or functionally equal a Listing. (Tr. 1930). So, the ALJ applied the correct legal standards when concluding that Plaintiff’s slow mental
processing was not a severe impairment, and his determination is supported by substantial
The ALJ Posed a Proper Hypothetical Question to the Vocational Expert.
Plaintiff argues that the hypothetical question the ALJ posed to the Vocational Expert did
not encompass all of his impairments, and therefore the ALJ’s conclusion that there were jobs in
significant numbers in the national economy that Plaintiff could perform is not supported by
substantial evidence. That argument is off the mark.
In the last part of the analysis, an ALJ must prove the existence, in significant numbers,
of jobs in the national economy that the claimant can perform given his RFC, age, education, and
work experience. When seeking to determine whether jobs exist that the claimant can perform,
an ALJ may elicit testimony from a Vocational Expert by asking the Vocational Expert
hypothetical questions to establish whether someone with the same limitations as the claimant
would be able to perform work in the national economy. See Winschel v. Comm’r of Soc. Sec.,
631 F.3d 1176, 1180 (11th Cir. 2011) (quoting Wilson v. Barnhart, 284 F.3d at 1227) (“In order
for a vocational expert’s testimony to constitute substantial evidence, the ALJ must pose a
hypothetical question which comprises all of the claimant’s impairments”).
The ALJ asked the Vocational Expert what jobs would be available for Plaintiff in the
national economy considering Plaintiff’s age, education, RFC, and work experience. (Tr. 71).
Considering Plaintiff’s severe impairment of borderline intellectual functioning, the ALJ
narrowed the inquiry even further and asked the Vocational Expert if any jobs would exist that
Plaintiff could perform with the additional limitation of “simple, routine, repetitive work tasks
involving occasional interaction with public, co-workers, and supervisors.” (Id.). The Vocational
Expert listed three jobs that would fit all of the criteria: tagger, sorter, and packager. (Id.).
Plaintiff argues that the ALJ should have limited the inquiry even further to take into account
Plaintiff’s alleged slow mental processing and seizures.8 (Pl.’s Br. 20-23). Plaintiff believes that
if these alleged impairments had been taken into account, the Vocational Expert would have
Plaintiff cites to Pendley v. Heckler for the proposition that the ALJ committed reversible error by not
including Plaintiff’s alleged slow mental processing and seizures in the hypothetical question. 767 F.2d 1561, 1563
(11th Cir. 1985). That case is easily distinguishable from this one. In Pendley, the ALJ failed to account for a severe
impairment in his hypothetical question. In this case, there is substantial evidence that supports the ALJ’s conclusion
that neither the slow mental processing nor the seizures were severe impairments. Thus, no such error occurred.
concluded that there were no jobs in the national economy that Plaintiff could perform. (Id.).
That argument misses the mark.
As discussed above, the ALJ’s decision not to include Plaintiff’s alleged slow mental
processing as a severe impairment was supported by substantial evidence. Therefore, the critical
question for the court to consider is whether substantial evidence supports the ALJ’s conclusion
that Plaintiff’s alleged seizures were not as severe as Plaintiff claims. If substantial evidence
supports the ALJ’s conclusion, the ALJ did not commit reversible error by neglecting to account
for the alleged seizures in the hypothetical question he posed to the Vocational Expert.
Although Plaintiff claims to suffer from seizures, the evidence Plaintiff cites to support
his claim is inconclusive, at best. First, it is unclear as to whether there is any objective medical
evidence that Plaintiff actually suffers from seizures. While Plaintiff cites to many places in the
record which purport to support his claim, the nature of the reports seem to suggest that the
doctors merely were documenting Plaintiff’s subjective accounts of his seizures. Second, what
little objective medical evidence there is with regard to the seizures seems to suggest that
Plaintiff was not suffering from seizures, at least not with the intensity and frequency Plaintiff
claimed. For instance, Dr. Atchison recommended Plaintiff undergo an MRI of his brain, which
yielded normal results in December 2011. (Tr. 513, 522). When Plaintiff returned to Dr.
Atchison in May 2012, Plaintiff did not report any seizure activity. (Tr. 506-510). And while Dr.
Atchison did refer Plaintiff to a neurologist to examine the seizures further, there is no evidence
in the record from a neurologist that supports Plaintiff’s claim. (Tr. 573). Lastly, and perhaps
most notably, Dr. Atchison provided a letter to the ALJ for the purposes of Plaintiff’s hearing in
which she reported that Plaintiff has “no disability at present.” (Tr. 592). Although this is not
dispositive, it is record evidence the ALJ could consider. Given the medical evidence of record
and Plaintiff’s treating physician’s opinion that Plaintiff is not disabled, the court concludes that
there is substantial evidence to support the ALJ’s conclusion that Plaintiff’s alleged seizures
were not as severe as Plaintiff claims. Therefore, the ALJ posed a proper hypothetical to the
Vocational Expert that encompassed all of Plaintiff’s impairments.
The court concludes that the ALJ’s determination that Plaintiff is not disabled is
supported by substantial evidence and proper legal standards were applied in reaching this
determination. 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 August 3, 2015.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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