Hobbler v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION AND ORDER DISMISSING CASE that the decision of the Commissioner is AFFIRMED and costs are taxed against calimant as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 3/14/2013. (AHI )

FILED
2013 Mar-14 AM 10:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
TAMMY B. HOOBLER,
Claimant,
vs.
CAROLYN W. COLVIN,
Acting Commissioner, Social
Security Administration,
Defendant.

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Civil Action No. CV-12-S-1061-J

MEMORANDUM OPINION AND ORDER
Claimant, Tammy Hoobler, commenced this action on April 6, 2012, pursuant
to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of the
Commissioner affirming the decision of the Administrative Law Judge denying her
claim for a period of disability, disability insurance, and supplemental security
income benefits.

For the reasons stated herein, the court finds that the

Commissioner’s ruling is due to be affirmed.
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253

(11th Cir. 1983).
Claimant argues that the Commissioner’s decision was neither supported by
substantial evidence nor in accordance with legal standards. Specifically, claimant
asserts that the ALJ: (1) should have found her to be disabled under Listing 12.05C;
(2) improperly considered the opinion of the state agency psychological consultant;
(3) improperly evaluated her past relevant work and skill levels; and (4) improperly
assessed her credibility. Upon consideration of the record and the parties’ briefs, the
court concludes that these contentions are not correct, and the Commissioner’s
decision should be affirmed.
A.

Listing 12.05C
Listing 12.05C, governing mental retardation, provides as follows:
Mental Retardation. Mental retardation refers to significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e.,
the evidence demonstrates or supports onset of the impairment before
age 22.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
....
C.
A valid verbal, performance, or full scale IQ of 60 through
70 and a physical or other mental impairment imposing an additional
and significant work-related limitation of function . . . .

2

20 C.F.R. pt. 404, subpt. P, appx. 1, § 12.05 (listings) (all emphasis in original).
It appears undisputed that claimant has “a physical or other mental impairment
imposing an additional and significant work-related limitation of function.” Id.
Thus, the real issue is whether claimant has a valid IQ score of 60-70, with evidence
that her intellectual impairment began before she reached age 22. See id.
Claimant asserts that the ALJ should have found those criteria to be satisfied
based upon the assessment of Alan D. Blotcky, Ph.D., who submitted a Psychological
Evaluation Report dated February 18, 2010, in support of claimant’s separate
application for assistance from the Alabama Department of Rehabilitation Services.
Dr. Blotcky stated that claimant spends most of her time doing light housework and
resting, and that she did not cook, socialize with others, or have any hobbies or
special interests. Dr. Blotcky’s clinical observations were as follows:
Mrs. Hoobler was appropriately attired and nicely groomed for
this evaluation. She was wearing casual clothes that were clean and
neat. She did not have on make-up or jewelry. Mrs. Hoobler
complained of pain in her back. She voiced no other somatic concerns.
Mrs. Hoobler demonstrated logical and orderly thinking. Her thought
processes were concrete and simplistic. Her speech was normal. Her
abstract thinking was poor. Her memory functioning was accurate.
Mrs. Hoobler seemed extremely depressed to me. Her affect was
restricted. She looked tired and worn. She talked in a monotone. Many
of her verbalizations were morbid in content. Her energy level was low.
Mrs. Hoobler is not psychotic. She does not have a thought disorder.
This woman’s judgment is grossly intact. Her insight is good.1
1

Tr. 412.

3

Dr. Blotcky administered WAIS-III intelligence testing, which revealed a Verbal IQ
score of 65, a Performance IQ score of 65, and a Full Scale IQ score of 62. Claimant
also received a score of 42 on the Beck Depression Inventory, indicating the presence
of severe depression. Dr. Blotcky assessed claimant as suffering from major
depressive disorder, recurrent, severe, without psychosis; mild mental retardation;
multiple medical problems; and a GAF score of 40, indicating major impairment in
certain areas. He recommended that claimant receive regular psychiatric treatment.
He also stated that claimant had been functioning at the mildly retarded intellectual
level since an early age, and that her intellectual impairments would continue to be
a lifelong problem, resulting in her inability to independently manage her financial
affairs. Dr. Blotcky believed claimant’s test scores to be valid, and stated that her
prognosis was “very poor because of the combination of an affective illness and
mental retardation.”2
The ALJ assigned only little weight to Dr. Blotcky’s findings about mental
retardation and severe depression. He reasoned:
No other examining, and no treating, medical source has provided
similar findings; Dr. Blotcky’s assessment is directly at odds with that
of another consultative psychological examiner, Dr. H. Jerry Gragg, PhD
. . .; and the level of intellectual deficit assessed by Dr. Blotcky is
inconsistent with the claimant’s long work record, including work as a
2

Tr. 410-13.

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shift leader at McDonald’s, with the claimant’s ability to read and write,
with the lack of any special education placement . . ., with the rather full
range of the claimant’s daily activities . . ., and with the observations of
the undersigned at the hearing, a hearing in which the claimant proved
to be quite articulate, informed, and responsive.3
Claimant argues that the ALJ should have given more weight to Dr. Blotcky’s
assessment.
Social Security regulations provide that, in considering what weight to give any
medical opinion (regardless of whether it is from a treating or non-treating physician),
the Commissioner should evaluate:

the extent of the examining or treating

relationship between the doctor and patient; whether the doctor’s opinion can be
supported by medical signs and laboratory findings; whether the opinion is consistent
with the record as a whole; the doctor’s specialization; and other factors. See 20
C.F.R. § 404.1527(d). See also Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir.
1986) (“The weight afforded a physician’s conclusory statements depends upon the
extent to which they are supported by clinical or laboratory findings and are
consistent with other evidence as to claimant’s impairments.”).
Claimant first takes issue with the ALJ’s consideration of plaintiff’s work
record as a reason to reject Dr. Blotcky’s findings. Claimant points out that the
vocational expert classified claimant’s past work, including her job at McDonald’s,

3

Tr. 18-19 (citations to the record omitted).

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as unskilled, and asserts that the work “hardly demonstrates intellectual abilities
above the mentally retarded range.”4 It is true that the vocational expert testified that
claimant’s past work was unskilled,5 but so did the ALJ.6 Therefore, there is no
inconsistency. Further, even if the McDonald’s job was properly classified as
unskilled for transferability purposes, and even if claimant was a shift leader instead
of a store manager, her job duties, including limited management responsibility, are
a reflection of her intellectual abilities. The ALJ did not err in considering claimant’s
past work, among other factors, in deciding how much weight to give to Dr. Blotcky’s
assessment, and substantial evidence of record supports the ALJ’s decision.
The ALJ also properly considered claimant’s ability to read and write. It is
beyond dispute that the ability to read and write is relevant to the determination of
mental retardation. There is evidence that claimant’s ability to read and write is at
least somewhat limited, as she testified during the administrative hearing that she
only finished the eighth grade, was in special classes for speech and reading in the
seventh and eighth grade, could only read “so much,” and could “scribble” to write.7
Even so, there is other evidence that claimant can read and write at some level,
4

Doc. no. 8 (claimant’s brief), at 9.

5

Tr. 48.

6

Tr. 23 (“Transferability of job skills is not an issue in this case because the claimant’s past
relevant work is unskilled . . . .”)
7

Tr. 45.

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including claimant’s own hearing testimony, her statements on her disability report,8
and her description of her past job as requiring paperwork, computer use, counting
money, writing, and preparing reports.9 Thus, it cannot be said that the ALJ’s
consideration of claimant’s ability to read and write in deciding to reject Dr.
Blotcky’s assessment was unsupported by substantial evidence.
Next, claimant objects to the ALJ’s characterization of Dr. Blotcky’s
assessment as being “at odds” with the assessment of Dr. Gragg. Dr. Gragg evaluated
claimant on November 29, 2008, “using standard mental status examination
procedures, many of which are derived from the Wechsler scales.”10 Dr. Gragg stated
that claimant
was well oriented in all spheres, and no appreciable impairments in
memory functioning were noted. Her abstract reasoning capacity was
average, but her judgment for hypothetical situations and her insight
were fair, at best. Her attention and concentration capacity were good.
Her fund of general information was consistent with her educational
background and consistent with intellectual level estimated to lie in the
low-average range of general intelligence.11
Dr. Gragg’s final conclusions included the following statements:
It seems that [claimant] would be able to respond appropriately to
supervision and she seems to have adequate social skills to relate to
8

Tr. 150.

9

Tr. 152.

10

Tr. 318.

11

Id. (emphasis supplied).

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others. She has adequate intellectual functioning to be able to
understand, remember and carry out instructions. It also appears that
she would be able to handle work-related stressors effectively. It is
noted that she began to experience depression approximately four years
ago, but was able to work satisfactorily until July 2008, when she began
to experience physical problems.12
Claimant challenges the ALJ’s consideration of Dr. Gragg’s assessment because
“there is nothing in Dr. Gragg’s report to suggest that he was asked to examine, or did
examine, [claimant]’s intellectual abilities.”13 That argument simply is not supported
by the record, as it clear from Dr. Gragg’s report that he evaluated claimant’s
intellectual functioning and determined that she was operating at the low-average
level, not the mentally retarded level. Thus, the ALJ was entitled to rely upon Dr.
Gragg’s contradictory opinion in rejecting Dr. Blotcky’s assessment, and his decision
to do so was supported by substantial evidence.
Finally, claimant asserts that the ALJ should have recontacted Dr. Blotcky if
he had any doubt about Dr. Blotcky’s testing results or other opinions. Claimant cites
20 C.F.R. § 416.919p, which states, in pertinent part, that if a report from a
consultative examiner is “inadequate or incomplete,” the Commissioner should
recontact the examiner, “give an explanation of our evidentiary needs, and ask that
the medical source furnish the missing information or prepare a revised report.” 20
12

Tr. 319 (alteration supplied).

13

Doc. no. 8, at 9 (alteration supplied).

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C.F.R. § 416.919p(b). That provision does not support claimant’s argument. First,
Dr. Blotcky was not a consultative examiner engaged by the Commissioner; instead,
he submitted his report to the Alabama Department of Rehabilitation Services.
Moreover, the ALJ did not find Dr. Blotcky’s report to be inadequate or incomplete
under the regulation; he simply concluded that Dr. Blotcky’s findings were
inconsistent with other evidence of record and assigned them little weight. There is
no rule that an ALJ must always recontact a medical source for more explanation
before rejecting that source’s opinion.
In summary, the ALJ’s conclusion that claimant did not meet the requirements
of Listing 12.05C was supported by substantial evidence and in accordance with
applicable legal standards.
B.

State Agency Physician
Next, claimant asserts that the ALJ improperly considered the assessment of

Eugene Fleece, PhD, the non-examining, non-treating, state agency psychological
consultant. Dr. Fleece stated that, based primarily upon Dr. Gragg’s assessment and
claimant’s own activity reports, she suffered from mild depression, not otherwise
specified, that was treated by Cymbalta.14 He did not indicate that claimant suffered

14

Tr. 329. See also Tr. 338 (“Dr. Gragg’s CE is our only source of much information on cl’s
psych condition.”).

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from mental retardation.15 Dr. Fleece indicated that claimant would experience mild
restriction of activities of daily living; mild difficulties in maintaining social
functioning; moderate difficulties in maintaining concentration, persistence, or pace;
and no extended episodes of decompensation.16 On a Mental Residual Functional
Capacity Assessment form, Dr. Fleece indicated that claimant was not significantly
limited in most areas. She would be moderately limited in the ability to maintain
attention and concentration for extended periods, and in the ability to complete a
normal workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and
length of rest periods.17 Dr. Fleece concluded that claimant could concentrate for
two-hour periods on simple, familiar, or repetitive tasks, and she might miss one day
of work each month due to her psychological problems.18
The ALJ afforded Dr. Fleece’s assessment significant weight as the opinion of
a specialist that was based upon a comprehensive review of the available record and
uncontradicted by the opinion of any treating source.19 Claimant objects to the ALJ’s
decision because Dr. Fleece did not examine claimant, and he did not review Dr.
15

Tr. 330.

16

Tr. 336.

17

Tr. 340-41.

18

Tr. 342.

19

Tr. 22.

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Blotcky’s assessment because it had not yet been created. Just because Dr. Fleece did
not examine claimant does not mean that the ALJ cannot favor his opinion over that
of an examining source. To the contrary, Social Security regulations provide that the
opinions of state agency psychological consultants are entitled to substantial
consideration. See 20 C.F.R. §§ 404.1527(e)(2)(i) & 416.927(e)(2)(i) (stating that,
while the ALJ is not bound by the findings of a State Agency psychological
consultant, the ALJ should consider such a consultant to be both “highly qualified”
and an “expert” in Social Security disability evaluation). See also Oldham v.
Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981) (“The Secretary was justified in
accepting the opinion of Dr. Gordon, a qualified reviewing physician, that was
supported by the evidence, and in rejecting the conclusory statement of Dr. Harris,
a treating physician, that was contrary to the evidence.”); Surber v. Commissioner of
Social Security Administration, No. 3:11–cv–1235–J–MCR, 2013 WL 806325, *5
(M.D. Fla. March 5, 2013) (slip copy) (“State agency medical consultants are
non-examining sources who are highly qualified physicians and experts in Social
Security disability evaluation, and their opinions may be entitled to great weight if
supported by evidence in the record.”). The ALJ’s determination that Dr. Fleece’s
opinion was based upon a thorough review of the record and consistent with the other
medical evidence was supported by substantial evidence.
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C.

Claimant’s Past Relevant Work and Skill Levels
Claimant also asserts that the ALJ improperly substituted his own opinion of

claimant’s past relevant work and skill levels, in contradiction to the testimony of the
vocational expert. As discussed at pages five and six, supra, the ALJ properly
considered claimant’s past relevant work.
D.

Credibility
Finally, claimant asserts that the ALJ improperly discredited claimant’s

testimony based on her daily activities. One reason for the ALJ’s rejection of Dr.
Blotcky’s assessment was that it was inconsistent with “the rather full range of the
claimant’s daily activities . . . .”20 The also found that claimant had only mild
restriction of daily activities due to depression, stating:
The evidence as a whole reflects that the claimant functions
independently in her activities of daily living and require little
assistance. Dr. Gragg noted that the claimant did not require assistance
with personal hygiene or self-care activities, and found no indication of
significant restriction of activities or constriction of interests secondary
to psychological/psychiatric issues.21
The ALJ also evaluated claimant’s credibility in determining her residual functional
capacity. He found that, while claimant’s medically determinable impairments could
reasonably be expected to cause some of her subjective symptoms, claimant’s
20

Tr. 19.

21

Id.

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statements about the intensity, persistence, and limiting effects were not fully
credible.22 One reason for that decision was that “claimant has a rather wide range
of daily activities, one inconsistent with her current claim of total disability . . . .”23
The court concludes that the ALJ’s evaluation of claimant’s credibility, and
particularly her daily activities, was in accordance with applicable law and supported
by substantial evidence. See Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992)
(“After considering a claimant’s complaints of pain, the ALJ may reject them as not
creditable, and that determination will be reviewed for substantial evidence.”) (citing
Wilson v. Heckler, 734 F.2d 513, 517 (11th Cir. 1984)) (emphasis supplied). In
addition to the ability to maintain self-care and hygiene noted by Dr. Gragg, claimant
reported that she gets her youngest daughter ready for school, helps her with
homework, picks her up from school, prepares meals on a weekly basis, washes
dishes, does laundry, goes outside twice a day, drives a car, shops for food, and
watches television.24 These activities, admittedly, are somewhat limited, and claimant
indicated that her ability to perform the activities on a regular basis has diminished
over time. It also cannot be ignored that the Eleventh Circuit has disavowed the
notion that “participation in everyday activities of short duration, such as housework
22

Tr. 22.

23

Id.

24

Tr. 161-64.

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or fishing, disqualifies a claimant from disability.” Lewis v. Callahan, 125 F. 3d
1436, 1441 (11th Cir. 1997). That does not mean, however, that a claimant’s ability
to carry out daily activities should not be considered at all in the disability
determination process. To the contrary, Social Security regulations expressly provide
that such activities should be considered. See 20 C.F.R. § 404.1529(c)(3)(i) (listing
“daily activities” first among the factors the Social Security Administration will
consider in evaluating a claimant’s pain). Here, claimant’s daily activities were not
the only factors the ALJ considered in evaluating the credibility of claimant’s pain
allegations. The ALJ also considered the consistency of claimant’s allegations with
the medical evidence of record, including the reports of consultative examiners. The
court concludes that the ALJ’s overall evaluation of claimant’s credibility was
consistent with applicable legal standards and supported by substantial evidence of
record.
Based on the foregoing, the decision of the Commissioner is AFFIRMED.
Costs are taxed against claimant. The Clerk is directed to close this file.
DONE this 14th day of March, 2013.

______________________________
United States District Judge

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