Williams v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 1/31/2014. (JLC)

FILED
2014 Jan-31 PM 03:05
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
GEORGE EDWARD WILLIAMS,
Plaintiff
v.
CAROLYN W. COLVIN,1
ACTING COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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) Case No.: 7:12-CV-4101-VEH
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MEMORANDUM OPINION
Plaintiff George Edward Williams 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”) and Supplemental Security Income (“SSI”).2

Mr. Williams timely

Carolyn W. Colvin became the Acting Commissioner of Social Security on February
14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Acting Commissioner
Carolyn W. Colvin should be substituted for Commissioner Michael J. Astrue as the Defendant
in this suit. (“Any actions instituted in accordance with this subsection shall survive
notwithstanding any change in the person occupying the office of Commissioner of Social
Security or any vacancy in such office.”).
1

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
1
2

pursued and exhausted his administrative remedies available before the
Commissioner. The case is ripe for review under 42 U.S.C. § 405(g).3
FACTUAL AND PROCEDURAL HISTORY
Mr. Williams was 52 years old at the time of the administrative hearing
before the Administrative Law Judge (“ALJ”). (Tr. 34, 39). He has an eleventh
grade education. (Tr. 44). He has past relevant work as a construction worker and
material handler. (Tr. 34). He claims he became disabled on 05/15/2010, due to:
arthritis and high blood pressure. (Tr. 177). His last period of work ended on May
15, 2010. Id.
On July 23, 2010, Mr. Williams protectively filed a Title II application for a
period of disability and DIB. (Tr. 23). He also protectively filed a Title XVI
application for SSI on the same date.

Id.

On September 21, 2010, the

Commissioner initially denied these claims. Id. Mr. Williams then filed a written
request for a hearing on October 14, 2010. Id.
The ALJ conducted a hearing on the matter on January 23, 2012. Id. On
March 30 2012, she issued her opinion concluding Mr. Williams was not disabled
and denying him benefits. (Tr. 35). Mr. Williams timely petitioned the Appeal

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.
3
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.
2

Council to review the decision on April 19, 2012. (Tr. 128). On October 15, 2012,
the Appeals Council denied a review on his claim. (Tr. 1).
Mr. Williams filed a Complaint with this court on December 14, 2012.
(Doc. 1). The Commissioner answered on April 4, 2013. (Doc. 7). Mr. Williams
filed a supporting brief (Doc. 10) on May 17, 2013, and the Commissioner
responded with her own brief (Doc. 11) on June 18, 2013. With the parties having
fully briefed the matter, the court has carefully considered the record and affirms
the decision of the Commissioner.
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
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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). The ALJ’s legal conclusions,
however, are reviewed 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, the
ALJ’s decision must be reversed. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46
(11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish his entitlement for a period of
disability, the claimant must be disabled as defined by the Social Security Act and
the Regulations promulgated thereunder.4 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 of a “physical
The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, as current through December 26, 2012.
4
4

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:
(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 [Commissioner];
whether the claimant can perform his or her past work; and
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,
562–63 (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 past 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.
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FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
First, the ALJ found that Mr. Williams met the insured status requirements
of the Social Security Act through December 31, 2014 and had not engaged in
substantial gainful activity since May, 15, 2010, the alleged onset date. (Tr. 25).
She then found that Mr. Williams had the following severe impairments: rotator
cuff sprain in his left shoulder; multilevel degenerative disc disease, which is
stable; asthma, which is stable; depression, which is complicated by use of
substances;

psychosis;

substance

abuse;

mild

development

delay;

and

hypertension. Id. However, she concluded that Mr. Williams did not have an
impairment of combination of impairments that met or medically equaled one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 26).
Next, the ALJ determined that Mr. Williams retained the residual functional
capacity (“RFC”) to perform light work, except that he could stand/walk six hours
in an eight-hour day; sit six hours in an eight-hour day; could lift/carry twenty
pounds occasionally and ten pounds frequently; could occasionally climb ramps
and stairs but not a ladder, rope or scaffolding; should avoid concentrated exposure
to extreme heat, extreme cold, wetness, humidity, dusts, fumes, odors, gases, and
poor ventilation; should avoid all exposure to hazardous machinery and
unprotected heights; could occasionally reach overhead with his left non-dominant
upper extremity; could understand, remember, and complete simple instructions;
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could maintain concentration and attention for at least two hour time periods in
order to complete an eight-hour workday; and could adapt to changes in the
workplace gradually and infrequently. (Tr. 28).
Finally, the ALJ concluded that, although he was unable to perform any past
relevant work, Mr. Williams could perform occupations that existed in significant
number in the national economy. (Tr. 34). Thus, the ALJ ultimately determined
that Mr. Williams had not been under a disability, as defined in the Social Security
Act, from September 13, 2008, through the date of this decision. (Tr. 35).
ANALYSIS
The court may 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)).5 However, the court “abstains from reweighing the evidence
or substituting its own judgment for that of the [Commissioner].” Id. (citation
omitted).

Strickland is binding precedent in this Circuit. See Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir.1981) (en banc) (adopting as binding precedent all decisions of the
former Fifth Circuit handed down prior to October 1, 1981).
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5

The Commissioner may also be reversed if the record shows that she has
failed to follow the proper legal framework. See Lewis v. Callahan, 125 F.3d
1436, 1439 (11th Cir. 1997) (“[The court] review[s] the Commissioner’s decision
to determine if it is supported by substantial evidence and based on proper legal
standards.”) (emphasis added). Moreover, in contrast to the substantial evidence
standard, “[n]o similar presumption of validity attaches to the [Commisioner’s]
legal conclusions, including determination of the proper standards to be applied in
evaluating claims.” Walker, 826 F.2d at 999 (citing Wiggins v. Schweiker, 679
F.2d 1387, 1389 (11th Cir. 1982)).
Mr. Williams urges this court to reverse the Commissioner’s decision to
deny her benefits on the following grounds: (1) the ALJ failed to fully and fairly
develop the record; (2) her RFC findings contained a factual inconsistency; and (3)
she did not properly perform a function-by-function analysis pursuant to Social
Security Rule (“SSR”) 96-8p. The court finds these arguments unpersuasive.
I.

The ALJ fulfilled her duty to develop a full and fair record.
The ALJ has a duty to develop a full and fair record. Ellison v. Barnhart,

355 F.3d 1272, 1276 (11th Cir. 2003); Cowart v. Schweiker, 662 F.2d 731, 735
(11th Cir. 1981). Nevertheless, the claimant bears the burden to prove that he is
disabled and to produce medical evidence supporting his claim. 20 C.F.R. §
416.912(c); Ellison, 355 F.3d at 1276. Mr. Williams contends that the ALJ did not
8

fulfill her duty because she failed to request a medical source opinion; she did not
order another consultative examination; and she did not consult a medical expert
opinion pursuant to 20 C.F.R. 404.1529(b).
A. Medical Source Opinion
First, Mr. Williams claims that “there is no medical source opinion (MSO)
by any physician of record.” (Pl.’s Br. 6). There is no bright line rule about when
the ALJ must request a medical source opinion from a physician.

Compare

Coleman v. Barnhart, 264 F.Supp.2d 1007, 1010 (S.D. Ala.2003) with Green v.
Social Security Admin., 223 Fed. App'x. 915, 923 (11th Cir. 2007). The ultimate
question remains whether the decision is supported by substantial evidence.
However, in the present case, the record did contain an MSO.
The Regulations define a MSO as follows:
Medical opinions are statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and
severity of your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and your physical or
mental restrictions.
20 C.F.R. § 404.1527(a)(2).
The record contains two MSOs from two examining physicians.

Dr.

Marshall Kuremsky stated, “even if manual labor is not an option for him, he
certainly would be a candidate for at least some type of modified duty.” (Tr. 296)
(emphasis added). In his Physical Summary, Dr. Robert Heilpern relied on this
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MSO from Dr. Kuremsky. (Tr. 303). Dr. Heath R. Patterson also offered an MSO
in his Psychiatric Evaluation. He opined that “[t]he claimant appeared motivated
to mislead [the] examiner and exaggerate or feign a number of psychiatric
difficulties.” (Tr. 302) (emphasis added). He also diagnosed Mr. Williams with
malingering. Id. The ALJ clearly had no duty to request a third MSO.
B. Consultative Examination
The ALJ’s duty to develop the record encompasses an obligation to order a
consultative evaluation or “when the evidence as a whole is insufficient to allow
[the Commissioner] to make a determination or decision on [the] claim.”

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C.F.R. § 404.1519a(b). When the record does contain sufficient evidence to make
an informed decision, the ALJ is not required to order a consultative examination.
See Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001); Holladay v. Bowen,
848 F.2d 1206, 1210 (11th Cir. 1988).

Sufficient evidence does not mean

“absolute certainty” regarding a claimant’s condition; the Social Security Act
“requires only substantial evidence to sustain the Secretary's findings.” Holladay,
848 F.2d at 1210.
The record contained sufficient evidence to support the ALJ’s findings. On
June 17, 2010, Mr. Williams was building a retaining wall and suffered from heat
exhaustion, cramps, and dehydration.

(Tr. 257).

Emergency room records

indicated renal insufficiency. (Tr. 258). In July, a CT scan revealed advanced
10

chronic microvascular disease. (Tr. 283). Mr. Williams, however, refused to stay
at the hospital and undergo a renal consult.

(Tr. 286). Before this visit to the

hospital, the ALJ noted that Mr. Williams had not been seen for four years, except
for bronchitis and a toothache. (Tr. 29).
On August 28, 2010, Dr. Kuremsky performed a consultative examination
on Mr. Williams. He noted that Mr. Williams occasionally took over the counter
medications but did seek medical attention for his back pain. (Tr. 293). He further
stated that Mr. Williams said he could lift ten pounds, “ambulate[d] without
difficulty or limp,” and was only “marginally cooperative throughout the exam.”
(Tr. 295).
In November 2010, Mr. Williams returned to the emergency room after
being assaulted. Dr. Bryan Givhan noted that “[m]otor exams shows him to have
5/5 strength in all muscle groups in both the lower and upper extremities.” (Tr.
358). Dr. Givhan further reported that a review of systems was “[d]ifficult to
obtain because of the level of intoxication.” (Tr. 357). An August 2011 record
indicated that his microvascular disease was “stable.” (Tr. 330).
Dr. Patterson performed a consultative psychological examination on Mr.
Williams on September 15, 2010. Dr. Patterson opined that “mild impairments in
memory may legitimately be present.” (Tr. 301). He further stated:

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[H]is ability to use appropriate judgment to make acceptable work decisions
and manage his funds is unknown. He did not appear to respond to the
examiner in an open or honest manner. His responses to tasks meant to
measure basic cognitive skills appear to reflect poor effort. This claimant’s
level of intellectual functioning cannot be reliably estimated at this time.
However, conversationally such skills historically appear to fall within the
borderline range.
(Tr. 302).

Based on this exam, Dr. Robert Estock determined that there was

insufficient evidence to rate Mr. Williams’s mental impairments. (Tr. 304).
Mr. Williams was referred to Indian River for psychiatric treatment in
August 2011. (Tr. 321). However, “[t]here is no indication that [he] followed
through with the referral.” (Tr. 29). On October 15, 2011, Dr. Kamal Raisini
examined Mr. Williams in inpatient psychiatry at Northport Medical Center. (Tr.
336).

He opined that Mr. Williams benefitted from the therapy and “gained

maximum benefit from the hospital stay.” Id. He discharged Mr. Williams with an
outpatient follow-up. Id. Again, the record does not indicate that Mr. Williams
followed through with the outpatient referral.
In January 2012, Mr. Williams sought psychiatric treatment at the Northport
Medical Center. Dr. M. Omar Mohabbat noted that Mr. Williams suffered from a
“grief disorder” after Mr. Williams’s son stabbed and killed Mr. Williams’s sister.
(Tr. 413).

He noted that Mr. Williams responded well to medication, and

discharged him after two days. (Tr. 414).

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While the record would contain more certainty if Mr. Williams had a more
consistent treatment history or if Dr. Patterson had been able to perform a proper
examination, the evidence of record was sufficient to allow the ALJ to make a
decision on Mr. Williams’s claim. Furthermore, Mr. Williams’s non-cooperation
with medical personnel is noted throughout the record. See (Tr. 29, 295, 298-302,
336, 357). As the court in the Southern District of Florida stated:
[A] claimant has a duty to cooperate in furnishing the ALJ with or helping
the ALJ to obtain available medical or other evidence about his or her
impairments. When a claimant fails to cooperate in obtaining evidence, the
ALJ can make a decision based on the information available.
Levy v. Astrue, 07-80157-CIV, 2008 WL 4753518, at *12 (S.D. Fla. Oct. 28, 2008)
(citing 20 C.F.R. § 416.916). The ALJ did not err by failing to order a third
consultative examination.
C. Medical Expert
Mr. Williams argues that the ALJ should have consulted a medical expert
before making his RFC finding. The determination of a claimant’s RFC is not a
medical assessment. Langley v. Astrue, 777 F. Supp. 2d 1250, 1261 (N.D. Ala.
2011) (Guin, J.) (citing 20 C.F.R. § 404.1545). Thus, the ALJ is not required to
consider a medical expert opinion before making his RFC finding. Id. (citing 40
C.F.R. § 404.1546(c)).
II.

The ALJ’s RFC finding is not inconsistent with her Psychiatric Review
Technique and is supported by substantial evidence.
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Mr. Williams argues:
The ALJ failed to reconcile her assessment of moderate difficulties and
moderate limitations in maintaining concentration, persistence and pace
([Tr.] 26) with her finding in her RFC assessment that [Mr. Williams] can
maintain concentration and attention for at least two hour time periods in
order to complete and eight hour work day ([Tr.] 27).
(Pl.’s Br. 9).

The court finds that there is no inconsistency in the ALJ’s

determinations.
The ALJ properly limited Mr. Williams to maintaining concentration for two
hours and understanding and carrying out simple instructions because of his
limitations in concentration, persistence, and pace. (Tr. 28). The Eleventh Circuit
has found:
Because the ALJ: (1) indicated that the medical evidence suggested
Forrester's ability to work was unaffected by her moderate limitations in
concentration, persistence, or pace; and (2) limited the VE's hypothetical to
simple, routine, and unskilled work, the ALJ's hypothetical to the VE
comprised all of Forrester's relevant limitations [in concentration,
persistence, and pace.
Forrester v. Comm'r of Soc. Sec., 455 Fed. App'x 899, 903 (11th Cir. 2012). The
ALJ’s limitations to simple instructions and two hour concentration in her RFC
finding similarly addressed Mr. William’s limitations in consistency, persistence,
and pace. Id.; see also Jarrett v. Comm'r of Soc. Sec., 422 Fed. App'x 869, 871
(11th Cir. 2011) (“By including that Jarrett had limitations in her ability to
concentrate, this hypothetical question adequately accounted for the ALJ's finding
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that Jarrett had moderate difficulties in concentration, persistence, and pace.”).
The ALJ also stated that he found moderate difficulties by “giving the claimant the
benefit of the doubt,” suggesting that Mr. Williams’s “ability to work was
unaffected by his moderate limitations.” (Tr. 27); Forrester, 455 Fed. App'x at
903.

The ALJ accounted for Mr. Williams’s limitations in concentration,

persistency, and pace in her RFC determination.
III.

The ALJ’s RFC determination complied with the function-by-function
requirements of SSR 96-8p.
SSR 96-8p provides:
The RFC assessment must first identify the individual's functional
limitations or restrictions and assess his or her work-related abilities on a
function-by-function basis, including the functions in paragraphs (b), (c),
and (d) of 20 CFR 404.1545 and 416.945. Only after that may RFC be
expressed in terms of the exertional levels of work, sedentary, light,
medium, heavy, and very heavy.

1996 WL 374184, at *1. The ALJ meets this requirement when he assesses the
claimant’s functional limitations and restrictions and then expresses his functional
limitations in terms of exertional levels. See Castel v. Comm'r of Soc. Sec., 355
Fed. App'x 260, 263 (11th Cir. 2009); Freeman v. Barnhart, 220 Fed. App'x 957,
959–60 (11th Cir. 2007);6 see also Bailey v. Astrue, 5:11–CV–3583–LSC, 2013
WL 531075 (N.D. Ala. Feb. 11, 2013).7
Although these unpublished cases are not controlling, this court nevertheless finds them
persuasive and adopts their reasoning.
7
This case is also not controlling, but this court finds it to be persuasive and adopts its
reasoning.
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6

The ALJ must consider all of the relevant evidence, including:
medical history, medical signs and laboratory findings, the effects of
treatment, including limitations or restrictions imposed by the mechanics of
treatment (e.g., frequency of treatment, duration, disruption to routine, side
effects of medication), reports of daily activities, lay evidence, recorded
observations, medical source statements, effects of symptoms, including
pain, that are reasonably attributed to a medically determinable impairment,
evidence from attempts to work, need for a structured living environment,
and work evaluations, if available.
SSR 96–8p at *4–*5. The ALJ, however, is not required to “specifically refer to
every piece of evidence in his decision,” so long as the decision is sufficient to
show that the ALJ considered the claimant's medical condition as a whole. Dyer v.
Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005); see also Castel, 355 Fed. App'x at
263.
The record reveals that the ALJ assessed Mr. Williams’s functional
limitations and considered all the relevant evidence. Before expressing her RFC
finding as an exertional level, the ALJ noted and discussed Mr. Williams’s trips to
the emergency room, for both physical and mental problems, (Tr. 29-31);
summarized Dr. Kuremsky’s findings, noting that the claimant’s grip strength and
motor strength was 5/5, (Tr. 31); considered Mr. Williams’s testimony regarding
his limitations, (Tr. 32); specifically noted that Mr. Williams stated he could
sometimes lift thirty pounds, id.;

and stated that because of “his June 2010

incident of heat exhaustion and asthma, he is to avoid concentrated exposure to
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extreme heat …” (Tr. 33). The ALJ performed a proper RFC function analysis,
based on substantial evidence, and the court will defer to his conclusions.
CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the
parties’ submissions, the court concludes 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 of the Commissioner will be affirmed by
separate order.
DONE and ORDERED this the 31st day of January, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

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