Hare v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 8/31/2012. (JLC)

FILED
2012 Aug-31 AM 09:12
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
SHELANDA HARE,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF,
SOCIAL SECURITY
Defendant.

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) Case No.: 7:11-CV-1648-VEH
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MEMORANDUM OPINION
Plaintiff Shelanda Hare (“Ms. Hare”) seeks review of a final adverse decision
of the Commissioner of the Social Security Administration (hereinafter
“Commissioner” or “Secretary”), who denied her application for Disability Insurance
Benefits (“DIB”) under Title II of the Social Security Act (the “Act”) and her
application for Supplemental Security Income (“SSI”) under Title XVI of the Act.
Ms. Hare timely pursued and exhausted her administrative remedies available before
the Commissioner. The case is ripe for review pursuant to 42 U.S.C. § 405(g) of the
Act.1 The court has carefully considered the record and, for the reasons which follow,

1

42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g)
fully applicable to claims for SSI.

finds that the decision of the Commissioner is due to be REVERSED and
REMANDED for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL HISTORY
Ms. Hare is a thirty-two (32) year old female. (R. at 93.) She completed the
eleventh grade before dropping out to care for her child (R. at 133, 165). While in
school, Ms. Hare made A’s and B’s, and she did not attend special education classes.
(R. at 165.) Prior to applying for DIB and SSI, Ms. Hare worked as a truck-stop
cashier for approximately three years and, before that, as a sitter for one year. (R. at
115.) She last worked in January 2006. (Id.)
Ms. Hare contends several health problems keep her from working.
Specifically, she suffers from hypertension, pedal edema (swelling of her legs), and
obesity. Ms. Hare also contends that she suffers from depression and mild mental
retardation.
Because the evidence regarding Ms. Hare’s mental health is at issue in this
appeal, the court briefly summarizes it here. Three non-treating physicians examined
Ms. Hare’s mental health and reached differing conclusions. In 2004, Psychologist
Jerry Gragg estimated that Ms. Hare has borderline general intelligence but noted that
“had she put forth more effort during the mental status portion of the evaluation her
intellectual level possibly would have estimated higher than borderline.” (R. at 167.)
2

In 2007, Psychologist Patricia Sandusky concluded that Ms. Hare “appears capable
of functioning in an employment setting in terms of attending and concentrating,
interacting with the public, and receiving supervision.” (R. at 187–88.) Dr. Sandusky
also noted that Ms. Hare put forth little effort during her examination. (R. at 187.)
In 2009, Donald Blanton, Ph.D., administered two objective IQ examinations, the
Wechsler Adult Intelligence Scale-IV and the Wide Range Achievement Test. Based
on these tests, Dr. Blanton diagnosed Ms. Hare with mild mental retardation. (R. at
240.) Dr. Blanton noted that Ms. Hare “appeared to put good effort into [the test].”
(R. at 239.)
Ms. Hare applied for DIB and SSI in July 2007, alleging she became disabled
in February 2006. The Commissioner denied her application in October 2007. Ms.
Hare requested a hearing before an administrative law judge (“ALJ”). (R. at 46.) The
ALJ held a hearing on May 29, 2009. Ms. Hare’s counsel appeared on time for the
hearing, but Ms. Hare did not. (R. at 28.) Ms. Hare’s counsel confirmed that she was
aware of the date and time of her hearing. (Id.) She arrived late, after the hearing
was over, and the ALJ did not take or consider any testimony from her. The ALJ,
through a show cause letter, allowed Ms. Hare to explain her absence. (R. at 86.)
She apparently failed to show good cause for missing her hearing, and the ALJ
declined to hold a supplemental hearing.
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The ALJ denied Ms. Hare’s claim on October 22, 2009 because he determined
she is not “disabled” under the Act. (R. at 7-24.) The Appeals Council declined to
review the ALJ’s decision on April 1, 2011 (R. at 1.) Ms. Hare filed this lawsuit on
May 19, 2011.
STANDARD OF REVIEW
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); McRoberts
v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988); Graham v. Bowen, 790 F.2d 1572,
1575 (11th Cir. 1983); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983). This court must “scrutinize the record as a whole to determine if the decision
reached is reasonable and supported by substantial evidence.” Bloodsworth, 703 F.2d
at 1239. This court will determine that the ALJ’s opinion is supported by substantial
evidence if it finds “such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Id. Substantial evidence is “more than a scintilla,
but less than a preponderance.” Id. The court “may not decide facts anew, reweigh
the evidence, or substitute [its] judgment for that of the [Commissioner.]” Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (citation omitted).

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STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish her entitlement for a period of
disability, the claimant must be disabled as defined by the Social Security Act and the
Regulations promulgated thereunder.2 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).3 To establish an entitlement to
disability benefits, a claimant must provide evidence of a “physical or mental
impairment” which “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:

2

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, as current through August 23, 2012.
3

In general, the legal standards applied are the same regardless of whether a claimant
seeks DIB or SSI. However, separate, parallel statutes and regulations exist for DIB and SSI
claims. Therefore, citations in this opinion should be considered to refer to the appropriate
parallel provision as context dictates. The same applies to citations of statutes or regulations
found in quoted court decisions.
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(1)
(2)
(3)
(4)
(5)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the Secretary;
whether the claimant can perform her past work; and
whether the claimant is capable of performing any work in the national
economy.

See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2010); accord, McDaniel v.
Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “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 Secretary to show that the claimant can perform some
other job.” Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993); 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. Foote, 67 F.3d
at 1559.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
At Step One, the ALJ determined that Ms. Hare was not engaged in
substantially gainful employment. (R. at 12.) At Step Two, he determined that Ms.
Hare has the following severe impairments: morbid obesity, due in part to an eating
disorder; pedal edema, high blood pressure; and depression. (R. at 12.) At Step

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Three, the ALJ determined that Ms. Hare’s severe impairments do not meet or equal
one of the listed impairments in 20 C.F.R. 404, Subpart P, Appendix 1. (R. at 13.)
The ALJ then purportedly examined the medical evidence and determined that
Ms. Hare had the residual functioning capacity (“RFC”) to perform sedentary work
with the following limitations: occasionally kneeling, crouching, crawling, climbing
ramps and stairs, using her arms and legs to operate push and pedal controls, and no
climbing of ladders, ropes, or scaffolds, no work around dangerous machinery, no
work in extreme heat or cold. (R. at 20.) The ALJ also limited Ms. Hare to doing
routine tasks involving only simple instructions and simple work-related decisions.
(Id.) The ALJ based his RFC determination on the evaluations conducted by Drs.
Abney, Gragg, Sandusky, and, to some extent, Dr. Blanton. The ALJ also based his
determination on the “clear lack of any recommended physical limitations on the part
of her treating physicians, throughout the medical history presented to me.” (R. at
22.) At Step Four, the ALJ determined that Ms. Hare had no relevant past work. (R.
at 23.) At Step Five, the ALJ considered the testimony of Robert John Beadles, Jr.,
the Commissioner’s vocational expert (“VE”). The VE testified that a person with
Ms. Hare’s age, education, work experience, and RFC could find work as a telephone
solicitor, a machine operator, or a small products assembler. (R. at 32.) The VE also
testified that his conclusions were consistent with the Dictionary of Occupational
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Titles. (R. at 33.) Based on the VE’s testimony, the ALJ concluded that Ms. Hare is
not disabled.
ANALYSIS
The court can reverse a finding of the Secretary 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)).4
Ms. Hare raises four issues on appeal. First, she contends that the ALJ
improperly discredited the opinion of Dr. Donald W. Blanton that she is mentally
retarded.

Second, she contends that, because she is mentally retarded, her

impairments meet or medically equal a listed impairment, specifically Listing 12.05C.
Third, she contends that the ALJ’s physical RFC determination is not supported by
substantial evidence. Finally, she contends that the ALJ relied on testimony from the
VE which conflicts with the Dictionary of Occupational Titles.

4

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
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The court finds that issues one, two, and four are meritless. However, because
the ALJ’s physical RFC determination is not supported by substantial evidence, the
court will reverse and remand this case for additional fact finding.
A.

The ALJ Did Not Err in Discrediting Dr. Blanton’s Opinion
Ms. Hare contends that, because Dr. Blanton performed objective IQ tests, the

ALJ improperly discredited his opinion in favor of the opinions by Drs. Gragg and
Sandusky, who performed no objective testing. This argument fails. The ALJ is
entitled to weigh the medical opinion evidence in the record, see 20 C.F.R.
§ 404.1527(c), and can discount medical opinion evidence which is not supported by
the record. See 20 C.F.R. § 404.1527(c)(3); Popp v. Heckler, 779 F.2d 1497, 1499
(11th Cir. 1986). The Eleventh Circuit “has recognized that a valid I.Q. score need
not be conclusive of mental retardation where the I.Q. score is inconsistent with other
evidence in the record on the claimant’s daily activities and behavior.” Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (citing Popp v. Heckler, 779 F.2d 1497,
1499 (11th Cir. 1986).
Here, the ALJ discounted the opinion of Dr. Blanton as inconsistent with the
record as a whole. (R. at 18–19.) Specifically, the ALJ noted that Ms. Hare achieved
the eleventh grade without special education classes, that she reported receiving A’s

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and B’s while in school, and that she can carry out many daily tasks without
assistance (e.g., shopping, handling money, driving, and caring for her children).
Furthermore, the opinions of Drs. Gragg and Sandusky can constitute
substantial evidence. 20 C.F.R. § 404.1512(b)(6); Richardson v. Perales, 402 U.S.
389, 402 (1971). These opinions support the Commissioner’s finding that Ms. Hare
is not mentally retarded. They are also consistent with the record as a whole. For
these reasons, the ALJ did not err in discrediting the opinion of Dr. Blanton.
B.

The ALJ Did Not Err in Finding Ms. Hare Does Not Meet Listing 12.05C.
This argument assumes that the ALJ improperly discredited the opinion of Dr.

Blanton. As explained in the preceding section, the ALJ did not err in this regard.
Thus, this argument fails.
C.

Even Assuming that the VE’s Testimony Conflicts with the Dictionary of
Occupational Titles, the ALJ Did Not Err in Relying on the VE’s
Testimony.
Ms. Hare contends that the VE’s testimony is inconsistent with the Dictionary

of Occupational Titles. Even assuming that Ms. Hare is correct, the Eleventh Circuit
has held that the ALJ is entitled to rely on the VE’s testimony when it conflicts with
the Dictionary of Occupational Titles. See Jones v. Apfel, 190 F.3d 1224, 1229–30
(11th Cir. 1999); see also Miller v. Comm’r of Soc. Sec., 246 F. App’x 660, 662 (11th

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Cir. Aug. 31, 2007) (unpublished) (treating Jones as binding precedent). Thus, this
argument fails.
D.

The ALJ’s Physical RFC Determination Is Not Supported by Substantial
Evidence.
The ALJ found that Ms. Hare could perform a limited range of sedentary

work.5 (R. at 20.) As described earlier, the ALJ limited Ms. Hare to occasional
walking, standing, kneeling, crouching, and crawling. The ALJ purportedly found
Ms. Hare able to do these tasks based on the physical examination conducted by a
non-treating physician, the psychological exams conducted by Drs. Gragg, Sandusky,
and Blanton, and “the clear lack of any recommended limitations on the party of her
treating physicians . . . .” (R. at 22.) The court has scoured the referenced evidence,
as well as the entire record, and can find no support at all for the physical limitations
identified by the ALJ. Because the ALJ’s physical RFC determination is not
supported by any evidence, the ALJ erred in determining that Ms. Hare can still work.
A claimant’s RFC 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 C.F.R. § 404.1545). In
5

“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).
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assessing a claimant’s physical ability to work, the ALJ considers her ability to sit,
stand, walk, lift, carry, push, pull, and perform other physical functions. See 20
C.F.R. § 404.1545(b). While the ALJ makes the ultimate decision on a claimant’s
RFC, see 20 C.F.R. § 404.1546(c), the ALJ is not qualified to interpret raw data in a
medical record, see Manso-Pizarro v. Sec’y of Health & Human Serv., 76 F.3d 15, 17
(C.A.1 (Puerto Rico),1996); Rohrberg v. Apfel, 26 F. Supp. 2d 303, 311 (D.Mass
1998). Moreover, the ALJ has a duty to develop a “full and fair record.” See Welch
v. Bowen, 854 F.2d 436, 440 (11th Cir. 1988). Therefore, “[i]t is reversible error for
an ALJ not to order a consultative examination when such an evaluation is necessary
for him to make an informed decision.” Holladay v. Bowen, 848 F.2d 1206, 1209
(11th Cir. 1988) (citing Reeves v. Heckler, 734 F.2d 519, 522 n. 1 (11th Cir. 1984)).
In this case, the ALJ found that Ms. Hare’s pedal edema could “be painful,
particularly when associated with obesity” and noted that Ms. Hare’s obesity
“significantly increases the limitations caused by her pedal edema.” (R. at 22.) The
ALJ then said that his physical RFC determination was “based primarily on [Ms.
Hare’s] obesity and pedal edema.” But the record lacks any evidence regarding Ms.
Hare’s ability to sit, stand, walk, crawl, kneel, or stoop after the alleged onset of her
disability in February 2006. The ALJ was not qualified to determine, on his own, the
extent that Ms. Hare’s obesity and pedal edema limit her physical abilities. But that
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is exactly what the ALJ did when he determined Ms. Hare’s physical RFC from the
current record.
The ALJ purportedly based his physical RFC determination on Ms. Hare’s
medical records. Yet, none of the evidence referenced by the ALJ in his opinion
supports the RFC he reached. (See R. at 22.) First, the report of the non-treating
physician Dr. Richard S. Abney states that Ms. Hare appeared to have a normal range
of motion in most of her joints. (R. at 191.) However, the report makes no
assessment of (nor does it even mention) Ms. Hare’s ability to work, and does not
recommend that she exercise. (Id.) Second, the reports by Drs. Gragg, Sandusky, and
Blanton assess only Ms. Hare’s mental abilities, not her physical abilities. Third, the
ALJ noted that Ms. Hare is “capable of losing weight.” (R. at 22.) He noted that she
had lost fifty (50) pounds since Dr. Abney examined her, and apparently equated her
weight loss with an ability to exercise. But there is no evidence in the record that Ms.
Hare actually lost weight through exercise, and not all weight loss occurs through
exercise. Fourth, the ALJ noted that Ms. Hare’s treating physicians “have actually
recommended against restriction and lobbied for more physical activity.” (Id.) This
conclusion overstates the record. One treating physician stated that Ms. Hare “needs
weight loss [and] exercise,” but made this suggestion in 2003, well before Ms. Hare’s
alleged onset of disability. (R. at 157.) In 2009, another physician noted that Ms.
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Hare needed to lose weight but said nothing about exercise. (R. at 252.) All other
references to weight loss the court identified in the record merely mention that Ms.
Hare needs to lose weight. (See R. at 262.) They say nothing about exercise.
Finally, the ALJ emphasized that no physician has placed physical restrictions on Ms.
Hare. (R. at 22.) But, a physician’s failure to recommend restrictions is not evidence
that a claimant does not have physical restrictions. See Lamb v. Bowen, 847 F.2d
698, 703 (11th Cir. 1988) (“Such silence is equally susceptible to either inference,
therefore, no inference should be taken.”). Thus, the absence of physical restrictions
in Ms. Hare’s medical records does not support the ALJ’s RFC determination.
However, the court cannot end its inquiry with the evidence referenced by the
ALJ. The court must consider the entire record to determine if substantial evidence
exists to support the Commissioner’s findings. See 42 U.S.C. § 405(g). The court
has identified one piece of evidence—a state-agency physical RFC assessment
completed by Phyllis Rinks—which was not cited by the ALJ and which might
support the Commissioner’s position. (R. at 212-19.) Rinks’s 2007 assessment
concludes Ms. Hare can do more than sedentary work. The court rejects this
assessment for two reasons. First, Rinks’s credentials are not in the record. Thus, the
court cannot determine if Rinks is medically qualified to assess Ms. Hare’s physical
limitations. Second, and more importantly, Rinks explains that her physical RFC
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assessment is based on Ms. Hare’s past work as a cashier and Dr. Abney’s medical
report. (R. at 213–14). As explained earlier, Dr. Abney’s report says nothing about
Ms. Hare’s physical limitations. And, Ms. Hare’s past work as a cashier also tells us
nothing about her physical abilities after February 2006. After all, Ms. Hare claims
she quit her job as a cashier due to her health problems.
For the foregoing reasons, the court finds that the Commissioner’s disability
decision is not supported by substantial evidence. The record simply lacks any
evidence to support the ALJ’s physical RFC determination. Because the ALJ lacked
information to make a proper determination, he should have ordered a consultive
examination. When he failed to do so, he also failed in his duty to develop a full and
fair record. As a result, he also erred at Step Five, when he used his unsubstantiated
RFC determination to decide that Ms. Hare can still work. Of course, the ALJ’s RFC
determination is not necessarily the wrong one. In fact, Ms. Hare may be far less
limited than the ALJ determined. But what the ALJ cannot do (but which he did do
here) is base his RFC determination on silence in the record. Thus, the court reverses
the decision of the ALJ and remands with instructions to develop a full and fair
record on Ms. Hare’s physical abilities. Once the ALJ has developed a full and fair
record, the ALJ can properly determine her RFC, and, thereby, reach a legally
sufficient disability decision.
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CONCLUSION
For the forgoing reasons, the decision of the Commissioner is due to be
REVERSED as explained in this opinion. This case is REMANDED for further
proceedings consistent with this opinion.
DONE and ORDERED this the 31st day of August, 2012.

VIRGINIA EMERSON HOPKINS
United States District Judge

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