Herring v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 4/30/13. (ASL)

FILED
2013 Apr-30 AM 11:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
KIMBERLY HERRING,
Plaintiff,
vs.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

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Civil Action Number
6:12-cv-02794-AKK

MEMORANDUM OPINION
Kimberly Herring (“Herring”) brings this action pursuant to Section 205(g)
of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking review of the
final adverse decision of the Commissioner of the Social Security Administration
(“SSA”). This court finds that the Administrative Law Judge’s (“ALJ”) decision which has become the decision of the Commissioner - is supported by substantial
evidence and, therefore, AFFIRMS the decision denying benefits to Herring.
I. Procedural History
Herring filed an application for Supplemental Security Income benefits on
February 25, 2009, alleging a disability onset date of April 1, 2003 due to bipolar

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disorder, depression, anxiety, seizures, and knee problems. (R. 116, 144, 149).
After the SSA denied Herring’s claim, she requested a hearing before an ALJ. (R.
104-05, 113-14). The ALJ subsequently denied Herring’s claim, (R. 17-36),
which became the final decision of the Commissioner when the Appeals Council
refused to grant review, (R. 1-6). Herring then filed this action for judicial review
pursuant to § 205(g) and § 1631(c)(3) of the Act, 42 U.S.C. § 405(g) and §
1383(c)(3). Doc. 1; see also doc. 9.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
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703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairments 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
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(I). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
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Determination of disability under the Act requires a five step analysis.
20 C.F.R. § 404.1520(a)-(g). Specifically, the Commissioner must determine in
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative
answer to any of the above questions leads either to the next question, or, on steps
three and five, to a finding of disability. A negative answer to any question, other
than step three, leads to a determination of ‘not disabled.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
IV. The ALJ’s Decision
The ALJ properly applied the five step analysis and first determined that
Herring has not engaged in substantial gainful activity since February 25, 2009,

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and therefore met Step One.1 (R. 22). The ALJ also acknowledged that Herring’s
knee pain, degenerative disc disease, bipolar disorder, antisocial personality
disorder, and history of polysubstance abuse in remission were severe impairments
that met Step Two. Id. The ALJ proceeded to the next step and found that
Herring failed to meet or equal one of the listed impairments in 20 C.F.R. Pt. 404,
Subpt. P, Appendix 1 and thus did not satisfy Step Three. Id. Although he
answered Step Three in the negative, consistent with the law, see McDaniel, 800
F.2d at 1030, the ALJ proceeded to Step Four where he determined that Herring
has the residual functional capacity to perform light work as defined in
20 CFR 416.967(b) except she can do simple but not complex tasks, but
could maintain attention and concentration for two hours at a time to
complete an eight hour day provided all customary breaks are given;
contact with the general public and coworkers should be casual;
supervision should be non confrontational and supportive; changes to
the work setting should be gradual, well explained and infrequent.
(R. 24). As a result, the ALJ found that Herring is unable to perform any past
relevant work. Id. at 31. Lastly, at step five, the ALJ determined that,
“[c]onsidering [Herring’s] age, education, work experience, and [RFC], there are
jobs that exist in significant number in the national economy that the claimant can

1

Although Herring alleged an April 1, 2003 onset date, the ALJ properly limited his
inquiry to the period beginning on Herring’s application date. See 42 U.S.C. § 1382(c)(7)
(stating that an application for individual benefits is effective on the first day of the month
following the application date).
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perform.” Id. at 32. Accordingly, the ALJ found that Herring is not disabled. Id.
at 33; see also McDaniel, 800 F.2d at 1030.
V. Analysis
Herring contends that the ALJ erred by treating her February 25, 2009
application as a new claim for benefits and failing to consider whether the SSA
erroneously terminated Herring’s prior benefits. See doc. 9. Alternatively, Herring
contends that the ALJ did not meet his burden “to show some other work
[Herring] can perform.” Doc. 9 at 12. The court discusses these contentions
below.
A.

Termination of Prior Benefits
Herring asserts that she previously received SSI benefits due to bipolar

schizophrenic disorder, but that the SSA suspended those benefits in 2007 when
Herring was incarcerated. Doc. 9 at 2-3; (R. 44, 44). Under the regulations, the
SSA will resume the benefits of a claimant whose benefits were previously
suspended due to incarceration “the earliest day of the month in which a recipient
is no longer a resident of a public institution.” 20 C.F.R. § 416.1325(b).
However, the reinstatement applies only to those incarcerated for less than a year.
The SSA will terminate the benefits of any claimant who is incarcerated for 12
months or more. 20 C.F.R. § 416.1335.
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Purportedly, Herring was incarcerated from December 1, 2007 to November
2008, resulting in the suspension and apparent termination of her prior benefits.
Doc. 9 at 9; (R. 41). Herring contends that her attorney raised this issue before the
ALJ and noted that the SSA needed further proceedings to determine whether it
properly terminated Herring’s prior benefits and, accordingly, whether the SSA
improperly required Herring to submit a new application for benefits. Id.
Additionally, Herring contends that the ALJ should have further developed the
record regarding this issue by requesting further information about Herring’s prior
benefits, incarceration, and purported termination of benefits. Doc. 9 at 10.
Based on a review of the record, this court lacks jurisdiction to make a
determination on this claim. Herring failed to submit any evidence supporting her
contention that she previously received SSI benefits that the SSA suspended due
to her incarceration. Herring also failed to request that the ALJ obtain any such
evidence or argue the SSA improperly required Herring’s new SSI application
under 20 C.F.R. § 416.1325(b).2 Most importantly, Herring failed to ask the SSA
to reopen her prior benefits case to determine whether the SSA erroneously

2

The record shows that Herring’s attorney mentioned Herring’s incarceration and prior
benefits briefly at the hearing before the ALJ, but failed to further discuss the issue or indicate
that the prior case needed to be reopened prior to the ALJ making a determination based on
Herring’s new application. See (R. 40-41, 44).
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terminated her benefits. In other words, Herring has not yet obtained an “initial
determination” or “final decision” regarding the termination of her prior benefits.
Given that the regulations state clearly that only “initial determinations” that have
become final through exhaustion of the administrative process outlined in 20
C.F.R. § 416.1400 are subject to administrative and judicial review, and that
“termination of [a claimant’s] benefits” is a determination for the SSA to make
initially, 20 C.F.R. § 416.1402(b), this court lacks jurisdiction to hear the
suspension/termination issue. See 42 U.S.C. § 405(g) (stating that the court only
has power to enter a judgment “upon the pleadings and transcript of the record”).
Moreover, because Herring failed to adequately raise this issue at her hearing, the
ALJ’s failure to address it or to request further information is not erroneous.
B.

Determining Whether a Claimant Can Perform Other Work
Herring alternatively contends that the ALJ failed to meet his burden at step

five of the disability analysis, which requires the ALJ to determine “whether the
claimant is unable to perform any work in the national economy.” McDaniel, 800
F.2d at 1030; 20 C.F.R. § 404.1520(g). Specifically, Herring argues that the ALJ
did not properly question the vocational expert,“ignored the [vocational expert’s]
[] responses to the hypothetical questions presented,” and that it is “impossible”
for someone “who only went as far as the eighth grade and does not read and write
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very well [to] earn[] her living as a document preparer” as the vocational expert
opined Herring could. Doc. 9 at 13-14.
Under the regulations, an ALJ may rely upon a vocational expert’s
testimony as substantial evidence regarding a claimant’s disability status if the
ALJ poses a hypothetical question to the expert that includes all of the claimant’s
impairments. Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002). At the
hearing the ALJ asked the vocational expert to
assume a hypothetical person of Ms. Herring’s age, education, and work
experience. And [] assume that this hypothetical person could do . . .
simple but not complex tasks, but could maintain attention and
concentration for two hours at a time and complete an eight-hour day,
provided all customary breaks were given. Contact with the general
public and coworkers should be casual. Supervision should be nonconfrontational and support. And changes to the work setting should be
gradual, well-explained, and infrequent. . . . Are there any jobs in the
local or national economy that could be performed within the confines
of these limitations?
(R. 62-63). The vocational expert opined that a person with such limitations could
perform light unskilled work as a night cleaner, motel housekeeper, routing clerk,
or document preparer. Id. at 63-64. The ALJ went on to ask the vocational expert
whether an inability to maintain persistence and pace consistently for two hours at
a time throughout a 40-hour work week due to manic episodes of bipolar disorder
or routinely missing one to two days a month would preclude such work. Id. at 64-

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65. The vocational expert stated that these additional limitations would “result in
[the claimant’s] dismissal in competitive work.” Id. at 65. In response, Herring’s
attorney asked the vocational expert if the claimant could still perform the
proposed jobs if she also had a sedentary limitation. Id. at 65-66. The vocational
expert responded that the claimant would still be able to perform work as a
document preparer. Id. at 66.
A review of this testimony demonstrates that the ALJ posed adequate
hypotheticals to the vocational expert and did not ignore the expert’s responses.
Herring does not challenge the ALJ’s RFC finding, which does not include a
sedentary restriction or an inability to concentrate for two hours at a time. Id. at
24. Since the ALJ did not include these restrictions in Herring’s RFC, the ALJ
was not required to consider the vocational expert’s opinion regarding those
additional limitations. Instead, the ALJ’s first hypothetical directly reflects his
RFC finding. Compare (R. 24), to (R. 62-63). Additionally, the ALJ specifically
instructed the vocational expert to consider Herring’s education in the hypothetical
analysis, which sufficiently accounted for Herring’s eighth grade education.
While Herring may disagree with the vocational expert’s ultimate finding, the ALJ
posed a hypothetical including all of Herring’s impairments and, therefore,
properly relied on the expert’s analysis in his disability determination. Wilson,
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284 F.3d at 1227. Accordingly, the ALJ’s determination at step five of the
disability analysis is consistent with the vocational expert’s testimony and thus is
supported by substantial evidence.
VI. CONCLUSION
Based on the foregoing, the court concludes that the ALJ’s determination
that Herring is not disabled is supported by substantial evidence and proper legal
standards were used in making this determination. Therefore, the Commissioner’s
final decision is AFFIRMED.
DONE the 30th day of April, 2013.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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