Oates v. Astrue

Filing 23

Order entered that the decision of the Commissioner of SocialSecurity, denying Plaintiffs claim for a period of disability,disability insurance benefits, and supplemental security income,be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/21/2012. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
REGINALD EARL OATES,

:
:
Plaintiff,
:
:
VS.
:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,:
:
Defendant.
:

CIVIL ACTION NO. 11-00265-B

ORDER
Plaintiff
action

Reginald

seeking

judicial

Earl

Oates

review

of

(“Plaintiff”)
a

final

brings

decision

of

this
the

Commissioner of Social Security denying his claim for a period
of disability, disability insurance benefits, and supplemental
security income under Titles II and XVI of the Social Security
Act, 42 U.S.C. §§ 401, et seq., and 1381, et seq.

On June 20,

2012, the parties consented to have the undersigned conduct any
and all proceedings in this case.

(Doc. 19).

Thus, the action

was referred to the undersigned to conduct all proceedings and
order

the

636(c).

entry

of

(Doc. 21).

judgment

in

accordance

with

Oral argument was waived.

28

U.S.C.

§

Upon careful

consideration of the administrative record and the arguments and
briefs of the parties, it is hereby ORDERED that the decision of

the Commissioner be AFFIRMED.
I.

Procedural History
Plaintiff,

on

March

13,

2008,

filed

applications

1

for

disability insurance benefits and supplemental security income,
wherein he alleges that he has been disabled since January 10,
2004,

due

to

“back

and

neck

people, hear voices, mental.”
Plaintiff’s

earnings

records

problems,

trouble

being

around

(Tr. 116-17, 157-164, 182, 192).
show

that

he

has

sufficient

quarters of coverage to remain insured through March 31, 2008
(his “date last insured”), and that he was insured through that
date.

(Id. at 33-34, 116-17, 183). His applications were denied

at the initial stage, and he filed a timely Request for Hearing
before an Administrative Law Judge (“ALJ”).

(Id. at 118-19).

On August 11, 2009, ALJ Joseph T. Scruton (“the ALJ”) held
an administrative hearing, which was attended by Plaintiff, his
representative, and vocational expert Gail Jarrell.
76).

(Id. at 30-

On August 25, 2009, the ALJ issued an unfavorable decision
1

Plaintiff has filed at least two previous applications for
disability insurance benefits and supplemental security income.
Plaintiff filed applications on September 30, 2003, which were
denied on December 5, 2003. Additionally, Plaintiff filed
applications on August 25, 2005, claiming an alleged disability
beginning on April 4, 2003. Hearings were held on June 14, 2007,
and September 6, 2007 before Administrative Law Judge R.G.
Goosens.
(Tr. 84).
In an unfavorable decision dated November
26, 2007, ALJ Goosens found that Plaintiff was not disabled.
(Id. at 79-103).
2

finding

that

Plaintiff

is

not

disabled.

2

(Id.

at

15-29).

Plaintiff’s request for review was denied by the Appeals Council
(“AC”)

on

decision

April 8,
became

the

2011.
final

(Id. at

1-6,

decision

of

accordance with 20 C.F.R. § 404.981.

11-12).
the

(Id.).

The

ALJ’s

Commissioner

in

The parties agree

that this case is now ripe for judicial review and is properly
before this Court pursuant to 42 U.S.C. § 405(g) and 1383(c)(3).
II.

Issues on Appeal
A.

Whether the ALJ erred in adopting the
conclusions of a non-acceptable state agency medical
source to support his RFC assessment and by not
ordering a consultative exam?

B.

Whether the ALJ erred by failing to consider a prior
Agency decision, which found that Plaintiff cannot
perform his past relevant work?

C.

Whether the ALJ erred by presenting an incomplete
hypothetical to the VE, and in failing to find
Plaintiff disabled under the Grids?

III. Factual Background
Plaintiff was born on November 29, 1957, and was fifty-one
(51) years of age at the time of the administrative hearing.

2

In the instant decision, the ALJ noted that Plaintiff’s
prior denials dated December 5, 2003, and November 26, 2007, are
“final,
binding,
and
administratively
res
judicata.”
Accordingly, he limited his decision to determining whether
Plaintiff was disabled from November 27, 2007, the day after the
last
unfavorable decision was issued, and he amended
Plaintiff’s onset of disability date. (Tr. 18). Plaintiff does
not challenge this temporal limitation in the instant case.
3

(Tr. 149, 157, 161, 182).
twelfth

grade

custodian.

education

Plaintiff testified that he has a
and

(Id. at 35, 55).

has

past

relevant

work

as

a

Plaintiff reported that he started

experiencing back and neck pain after an automobile accident in
2003 and that he treats his back pain with cream and an electric
back warmer. (Id. at 35, 200). According to Plaintiff, he is
able to care for his personal needs, and is able to shop with
his mother, but he can do little else. (Id. at 38-9, 201).
IV.

Analysis
A.

Standard Of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

determining

limited
1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990). 3

Martin v. Sullivan, 894 F.2d
A court

may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

Brown v.

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
3

This Court’s review of the Commissioner’s application of
legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987).
4

Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla but
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

In

determining

whether

substantial

evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.

Chester v. Bowen, 792 F.2d 129, 131

(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163
(S.D. Ala. 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits must prove his disability.
416.912.
substantial

20 C.F.R. §§ 404.1512,

Disability is defined as the “inability to do any
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 months.”
42 U.S.C. §§ 423(d)(1)(A), 404.1505(a), 416.905(a).

The Social

Security regulations provide a five-step sequential evaluation
process for determining if a claimant has proven his disability.

5

20 C.F.R. §§ 404.1520, 416.920.4
In the case sub judice, the ALJ determined that Plaintiff
has

not

engaged

in

alleged onset date.
Plaintiff

has

the

substantial
(Tr. 20).

severe

gainful

activity

since

his

The ALJ concluded that while

impairments

of

hypertension,

lumbar

strain, diabetes mellitus, degenerative joint disease of right
acromioclavicular
mixed

with

joint,

anxiety,

mood

disorder,

depression,

4

adjustment

psychosis

not

disorder
otherwise

The claimant must first prove that he or she has not
engaged in substantial gainful activity.
The second step
requires the claimant to prove that he or she has a severe
impairment or combination of impairments. If, at the third step,
the claimant proves that the impairment or combination of
impairments meets or equals a listed impairment, then the
claimant is automatically found disabled regardless of age,
education, or work experience.
If the claimant cannot prevail
at the third step, he or she must proceed to the fourth step
where the claimant must prove an inability to perform their past
relevant work.
Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.
1986). In evaluating whether the claimant has met this burden,
the examiner must consider the following four factors: (1)
objective medical facts and clinical findings; (2) diagnoses of
examining physicians; (3) evidence of pain; (4) the claimant’s
age, education and work history. Id. at 1005. Once a claimant
meets this burden, it becomes the Commissioner’s burden to prove
at the fifth step that the claimant is capable of engaging in
another kind of substantial gainful employment which exists in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985).
If the Commissioner can demonstrate that there are such jobs the
claimant can perform, the claimant must prove inability to
perform those jobs in order to be found disabled.
Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
6

specified, and substance abuse disorder, in partial remission,
they do not meet or medically equal the criteria for any of the
impairments

listed

Regulations No. 4.

in

20

C.F.R.

Pt.

404,

(Id. at 20-21).

Subpt.

P,

App.

1,

Relying on the record

evidence, the ALJ determined that Plaintiff retains the residual
functional capacity (“RFC”) to:
perform a range of light work as defined in
20 C.F.R. 404.1567(b) and 416.967(b). He can
occasionally climb stairs, ramps, ladders,
ropes, and scaffolds. He can occasionally
stoop, crouch, kneel, and crawl. He can
occasionally reach in all directions with
his non-dominant, right arm. He is able to
understand short, simple instructions. He is
limited to jobs that require dealing with
things rather than people. He is limited to
occasional interpersonal contact.
(Id. at 23).
The ALJ also determined that Plaintiff can “lift and carry
twenty

pounds

occasionally

and

ten

pounds

frequently,

stand

and/or walk for six hours in an eight hour workday, and sit for
six hours in an eight hour workday.”

(Id. at 26).

The ALJ

utilized the services of a VE and determined that Plaintiff is
capable of performing his past relevant work (hereinafter “PRW”)
as

a

cleaner/housekeeper,

unskilled.

which

(Id. at 27, 67).

is

classified

as

light

and

The ALJ found that, comparing

Plaintiff’s RFC with the physical and mental demands of his PRW,
Plaintiff

is

able

to

perform

his
7

PRW

as

it

is

generally

performed.

(Id. at 27).

In the alternative, the ALJ further

found that assuming arguendo that Plaintiff is not capable of
performing his PRW, Plaintiff can perform other jobs that exist
in significant numbers in the national economy, such as small
products assembler and sorter. Thus, he concluded that Plaintiff
is not disabled.

(Id. at 28-29).

The relevant evidence of record5 reflects that Plaintiff was
examined by Dr. Larry B. Thead on December 28, 2005, at the
request of the Agency.

(Id. at 231-35).

Plaintiff reported

that he injured his back in an automobile accident in 2003, and
that he has suffered with neck and back pain ever since.

(Id.).

On physical exam, the range of motion in Plaintiff’s extremities
was full, intact, and without tenderness or discomfort.
233).

(Id. at

Flexion and extension testing revealed full range of

motion at the wrists and elbows.

(Id.).

Range of motion was

full and intact without tenderness or limitation to dorsal and
plantar flexion at the ankles bilaterally.

(Id.).

In addition,

Plaintiff was able to rotate his body 65 degrees clockwise and
counterclockwise, and heel/toe walk and squat, but he was not
able

to

touch

his

toes.

(Id.).

5

Decreased

mobility

over

While the undersigned has examined all of the medical
evidence contained in the record, including that which was
generated before Plaintiff’s alleged onset date, only that
evidence which is relevant to the issues before the Court is
included in the summary.
8

Plaintiff’s neck and lumbar spine was noted, as was tenderness
of the paravertebral lumbar musculature.
upper

and

lower

Plaintiff’s
range

of

gait

motion

extremities
was
in

tested

normal.
the

Dr.

lumbar

paravertebral lumbar musculature.
Plaintiff

“would

have

no

(Id.).
5/5

Thead

spine

difficulty

bilaterally,
diagnosed

with

(Id.).

Plaintiff’s
and

decreased

tenderness

of

the

Dr. Thead opined that

performing

work

related

physical activities such as sitting, handling, limited walking,
standing, and carrying.”

(Id. at 234).

The record reflects that Plaintiff was treated by various
physicians at the VA Gulf Coast Health Care System (“VA Clinic”)
from at least March 2006 through April 2009. (Id. at 236-326,
353-472).
extensively

During

that

time

for

diabetes

period,

mellitus,

Plaintiff

was

treated

psychosis,

hallucinations,

drug and alcohol abuse, and back pain. (Id.).

Plaintiff was

admitted for inpatient treatment at the VA from April 12 through
April 26, 2007 and from June 14 through June 18, 2007, due to
reports of homicidal thoughts and command hallucinations. (Id.
at

255-61,

313-14).

Plaintiff

was

treated

by

Dr.

Angelos

Vamvakas during both hospitalizations.
During Plaintiff’s April admission, it was noted that he
had a goiter and was hyperthyroid.

(Id. at 259).

A thyroid

scan showed normal uptake and no imaging abnormalities.
9

(Id.).

Plaintiff was encouraged to follow up with his personal doctor.
(Id.).

Plaintiff’s right shoulder pain was explored with x-rays

and a CT scan, but no fracture was observed.

(Id.).

Prior to

discharge, Plaintiff reported that he continued to have auditory
hallucinations
anyone.

but

(Id.).

stated

that

he

had

no

intention

to

hurt

Dr. Vamvakas diagnosed psychotic disorder NOS,

rule out malingering, right shoulder pain, cocaine dependence,
antisocial
assigned

personality
a

GAF

score

Plaintiff’s

second

Plaintiff’s

complaints

hospital

admission,

disorder,
of

35.

and

(Id.

hospitalization,

and

were
his

similar
auditory

associated any objective signs.

hyperthyroidism,
at

Dr.
to

259-260).
Vamvakas
those

During

noted

that

his

prior

at

hallucinations

(Id. at 256-57).

and

were

not

Dr. Vamvakas

opined that mostly likely Plaintiff was malingering in order to
have access to the IP unit.
that

he

informed

(Id. at 257).

Plaintiff

that

he

Dr. Vamvakas noted

was

already

taking

antipsychotic medication and that there was nothing more to do
for

him.

(Id.).

He

diagnosed

Plaintiff

with

cocaine

and

alcohol dependence, reported auditory hallucinations, rule out
malingering, and antisocial personality disorder.

(Id. at 257).

Plaintiff was seen by Dr. Doug Ewing at the VA in 2008.
During a February 2008 visit, Dr. Ewing observed that Plaintiff
appeared

to

be

in

emotional

distress
10

and

that

Plaintiff’s

psychosis was likely cocaine induced.

(Id. at 274-76).

Ewing assigned a GAF score of 45. (Id. at 276).

Dr.

At Plaintiff’s

April 2008 visit, Dr. Ewing opined that Plaintiff’s mood was not
proportionally severe to account for psychotic hallucinations
and

thought

that

fabrication

or

gain

long

or

a

the

hallucinations

exaggeration
history

for

of

could

financial

cocaine

be
or

abuse.

the

result

legal

(Id.

at

of

secondary
395-98).

Plaintiff’s laboratory results taken on March 4, 2008, April 11,
2008 and December 10, 2008, were

negative for barbiturates,

amphetamine, cocaine, cannabinoid, opiates, and benzodiazepine.
(Id. at 379-80, 392-94, 403).
VA Clinic in 2009.
hearing

voices,

statements

Dr.

Ewing

noted

the

that

voices,

other

than

no

other

Scott

Long,

Plaintiff’s

evidence

was

(Id. at 373-76).

Plaintiff
assistant

While Plaintiff reported that he was still

regarding

presented.

Plaintiff was also treated at the

at

was
the

evaluated
VA,

on

by

November

20,

2007.

a

physician’s

(Id.

at

285).

Plaintiff reported left sided back pain with occasional pain
extending down the left leg.

(Id.).

A straight leg raise test

was negative, and the range of motion in Plaintiff’s back was
limited

in

all

directions

due

to

left

sided

pain.

(Id.).

Plaintiff was diagnosed with low back strain, was prescribed
Toradol, and directed to restrict from heavy lifting for one
11

week.
was

(Id.).
taken

Radiological imaging of Plaintiff’s lumbar spine
that

same

day.

(Id.

at

316).

Plaintiff’s

intravertebral disc space, vertebral body height, and overall
vertebral alignment were maintained.
L5 was noted.
defect

was

(Id.).

noted,

and

(Id.).

Sacralization of

No evidence of pars interarticularis
his

soft

tissues

were

unremarkable.

(Id.).
At the request of the Agency, medical consultant Donald E.
Hinton, Ph.D. (hereinafter “Dr. Hinton”) reviewed Plaintiff’s
medical

records,

and

on

April

9,

2008,

he

completed

Psychiatric Review Technique and Mental RFC Assessment.

a

(Id. at

327-343). He diagnosed Plaintiff with Psychosis, NOS, antisocial
personality disorder, and alcohol and cocaine abuse. (Id. at
329, 334-35).

Dr. Hinton opined that Plaintiff is moderately

limited in maintaining concentration, persistence, and pace, and
in maintaining social functioning, that he is mildly limited in
activities of daily living, and he has not suffered not episodes
of decompensation.

(Id. at 337).

In the Mental RFC Assessment (Id. at 341-343), Dr. Hinton
opined that Plaintiff is able to understand, remember and to
carry out short and simple instructions, and that he is able to
concentrate

and

attend

for

reasonable

periods

of

time.

He

opined that Plaintiff should not have general public as part of
12

a usual job duty.
Phillip

W.

(Id. at 343).
Lambert,

a

single

decision

maker

with

the

Agency, reviewed Plaintiff’s file and completed a Physical RFC
Assessment. (Id. at 345-52). He listed Plaintiff’s diagnoses as
diabetes and low back pain, and opined that Plaintiff can lift
and/or carry 50 pounds occasionally and 25 pounds frequently,
stand and/or walk about 6 hours in an 8-hour workday, sit about
6

hours

in

an

8-hour

workday,

unlimited amount of time.

and

push

and/or

pull

for

an

(Id. at 345-46).

He further opined

that Plaintiff is limited in that he can

occasionally climb

ladders/ropes/scaffolds,

ramps/stairs,

and

stoop,

frequently balance, kneel, crouch, and crawl.
also

found

that

Plaintiff

has

no

and

can

(Id. at 347).

manipulative,

environmental, or communicative limitations.

he

He

visual,

(Id. at 348-49).

Dr. Ewing completed a Mental RFC Questionnaire on July 29,
2009, wherein he opined that Plaintiff has marked restrictions
of activities of daily living, an extreme degree of difficulty
in

maintaining

concentration,

social

functioning,

persistence,

or

pace

constant

deficiencies

resulting

in

failure

of
to

complete tasks in a timely and appropriate manner, and that
Plaintiff

would

experience

four

or

more

episodes

of

decompensation in a work or work-like setting which cause the
individual

to

withdraw

from

that
13

situation

or

to

experience

exacerbation of signs and symptoms for a period lasting at least
two weeks.
1.

Whether the ALJ erred in adopting the conclusions
of a non-acceptable state agency medical source
to support his RFC assessment and by not
ordering a consultative exam?

In
giving

(Id. at 473-74).

his

brief,

significant

Plaintiff
weight

to

asserts
the

that

opinions

the

ALJ

erred

provided

by

in

State

Agency disability examiner, Phillip Lambert, in a physical RFC
assessment

because

Mr.

Lambert

is

not

an

acceptable

medical

source. Plaintiff further contends that the ALJ erred because he
did not rely on any medical evidence in determining Plaintiff’s
RFC.
In response, the Commissioner asserts that the ALJ did not
adopt the opinions contained in the assessment prepared by Mr.
Lambert,

and

that

in

referencing

the

opinions

of

physicians

employed by the State Disability Determination Services, the ALJ
was

actually

referring

psychologist, Dr. Hinton.

to

the

opinion

of

State

Agency

According to Defendant, it is clear

that the ALJ did not rely on the opinions of Mr. Lambert because
Mr.

Lambert

opined

that

Plaintiff

could

perform

medium

work

whereas the ALJ placed Plaintiff’s RFC range at the light level,
and in any event, RFC determinations are within the province of
the ALJ and are based on all relevant evidence and not just
14

medical evidence.
The

relevant

portion

of

the

ALJ’s

opinion

reads

in

pertinent part:
Finally, the conclusions reached by the
physicians employed by the State Disability
Determination Services also supported the
finding of ‘not disabled.’ Although those
physicians were non-examining, and therefore
their opinions do not as a general matter
deserve as much weight as those of examining
or treating physicians, those opinions do
deserve some weight, particularly in a case
like this in which there exist a number of
other reasons to reach similar conclusions
(as explained throughout this decision).
(Tr. 27).
“Residual

functional

capacity,

or

RFC,

is

a

medical

assessment of what the claimant can do in a work setting despite
any mental, physical or environmental limitations caused by the
claimant’s
416.945(a).”
(11th

Cir.

impairments

and

related

symptoms.

20

C.F.R.

§

Peeler v. Astrue, 400 Fed. Appx. 492, 494 n.2
2010).

The

assessment

considers

the

claimant’s

ability to lift weight, sit, stand, push, and pull, among other
tasks.

20

C.F.R.

§

404-1545(b).

The

responsibility

for

determining a plaintiff’s RFC lies with the ALJ and is based on
all of the evidence of record.

See Phillips v. Barnhart, 357

F.3d 1232, 1238 (11th Cir. 2004) (ALJ has duty to assess the
residual functional capacity on the basis of all the relevant
15

credible evidence of record); 20 C.F.R. §§ 404.1546, 416.946
(responsibility for determining a claimant’s residual functional
capacity lies with the ALJ). See also Foxx v. Astrue, 2009 U.S.
Dist.

LEXIS

80307,

*17

(S.D.

Ala.

Sept.

3,

2009)(“The

RFC

assessment must be based on all of the relevant evidence in the
case

such

as:

medical

history,

medical

signs

and

laboratory

findings, the effects of treatment, reports of daily activities,
lay

evidence,

recorded

statements.”), citing
Astrue,

observations,

and

medical

source

SSR 96-8p, 1996 SSR LEXIS 5; Harris v.

2008 U.S. Dist. LEXIS 27514, *13 (M.D. Fla. Sept. 7,

2008) (“[T]he law judge, as the factfinder, does not need an
opinion

from

claimant’s

a

treating

functional

or

examining

limitation

in

doctor

order

to

concerning

make

a

a

finding

regarding a claimant’s residual functional capacity.”).
Contrary to Plaintiff’s contention, there is nothing in the
ALJ’s opinion that suggests that he believed Mr. Lambert to be a
medical

professional

of

any

sort.

In

his

physical

RFC

assessment, Mr. Lambert determined that Plaintiff is capable of
medium

6

work consisting of lifting and/or carrying 50 pounds

occasionally and 25 pounds frequently, standing and/or walking
6

“Medium work involves lifting no more than 50 pounds at a
time with frequent lifting or carrying of objects weighing up to
25 pounds. If someone can do medium work, we determine that he
or she can also do sedentary and light work.” 20 C.F.R. §
404.1567(c).
16

and sitting about 6 hours in an 8-hour workday, pushing and/or
pulling for an unlimited amount of time and that Plaintiff could
occasionally

climb

ladders/ropes/scaffolds,

ramps/stairs,

stoop, and frequently balance, kneel, crouch, and crawl.
ALJ

however

found

that

Plaintiff

can

perform

light

and
The
work

consisting of lifting and carrying twenty pounds occasionally
and ten pounds frequently, standing and/or walking and sitting
for six hours in an eight hour workday and that Plaintiff can
occasionally climb stairs, ramps, ladders, ropes, and scaffolds,
occasionally stoop, crouch, kneel, and crawl, and occasionally
reach in all directions with his non-dominant arm.

The ALJ’s

RFC determination is notably more restrictive than that of Mr.
Lambert, and this inconsistency belies any notion that the ALJ
relied on the assessment completed by Mr. Lambert or that he
gave it controlling or substantial weight.
While

the

undersigned

physical

RFC

assessment

record,

the

RFC

is

recognizes
the

established

only

by

the

that

such
ALJ

Mr.

Lambert’s

assessment
is

in

supported

the
by

substantial evidence.
For instance, Dr. Thead, who examined Plaintiff in December
2005, noted that Plaintiff’s range of motion was full and intact
without tenderness or limitation to dorsal and plantar flexion
at the ankles bilaterally, that Plaintiff’s gait was normal,
17

that Plaintiff could not touch his toes but could squat, and
that

Plaintiff

had

decreased

mobility

over

lumbar

tenderness of paravertebral lumbar musculature.
35).

spine

and

(Id. at 231-

Dr. Thead opined that Plaintiff would have no difficulty

performing work related physical activities.

(Id. at 234).

In

addition, the physicians at the VA Clinic likewise never opined
that

Plaintiff

was

incapable

of

work

activity.

Indeed,

the

doctors at the VA Clinic opined that some of Plaintiff’s mental
impairments were exaggerated or fabricated and that Plaintiff
could be malingering.

Moreover, when Plaintiff was examined on

November 20, 2007, by Scott Long, a physician’s assistant at the
VA, he was assessed

with low back strain, prescribed Toradol

and directed to refrain from heavy lifting for one week. (Id. at
285).

Moreover, the results of the radiological imaging of

Plaintiff’s
normal.

lumbar

spine

(Id. at 316).

on

the

same

date

were

essentially

Accordingly, the undersigned concludes

that substantial evidence supports the ALJ’s RFC assessment.7

7

To the extent Plaintiff argues the ALJ should have ordered
a consultative examination, his contention is without merit. The
ALJ is not required to order a consultative exam simply because
one is requested.
A consultative examination is appropriate
when the evidence as a whole, both medical and nonmedical, is
not sufficient to allow the ALJ to make a decision on the claim.
See Doughty v. Apfel, 245 F.3d 1274, 1280-81 (11th Cir. 2001);
see also 20 C.F.R. §§ 404.1519(a)(2) (“When we purchase a
consultative examination, we will use the report from the
consultative examination to try to resolve a conflict or
18

2.

Whether the ALJ erred by failing to consider a
prior Agency decision, which found that Plaintiff
cannot perform his past relevant work?

Plaintiff alleges, in a footnote, that the ALJ erred by
failing to consider a prior decision by the Agency that he is
unable to perform his PRW and cites 20 C.F.R. § 404.953 in
support.
final

Defendant suggests that consideration of the prior

decision

denying

Plaintiff

benefits

would

amount

to

reopening the prior denial, and that the Court does not have
jurisdiction to review the Commissioner’s prior denial.
Here,

the

ALJ

observed

that

the

denials

of

Plaintiff’s

applications for benefits dated December 2, 2003, and November
26,

2007,

were

final,

binding,

and

administratively

res

judicata. The ALJ further noted that “[a]ny reference in this
decision to evidence prior to November 26, 2007 has been made
for

historical

and

continuity

purposes.

There

has

been

no

implicit or explicit finding of reopening of the prior denials.”
(Tr. 18).
ambiguity if one exists.
We will also use a consultative
examination to secure needed medical evidence the file does not
contain such as clinical findings, laboratory tests, a diagnosis
or prognosis necessary for decision.”), 404.1519a(b) (“A
consultative examination may be purchased when the evidence as a
whole, both medical and nonmedical, is not sufficient to support
a decision on your claim.”); Jones v. Bowen, 829 F.2d 524, 526
(5th Cir. 1985). Here, the ALJ had no reason to order a
consultative examination because sufficient evidence was present
in the record for the ALJ to make a disability determination.
19

Generally, “[a] final decision by the [Commissioner] will
be deemed reopened if it is reconsidered on the merits to any
extent and at any administrative level.” Cherry v. Heckler, 760
F.2d

1186,

1189

(11th

Cir.

1985)

(internal

quotation

marks

omitted, emphasis added). Inasmuch as the first adjudication has
been given res judicata effect, typically, the medical evidence
from the previous application is not reevaluated. Robbins v.
Sec’y of Health and Human Servs., 895 F.2d 1223, 1224 (8th Cir.
1990). An exception is made where the prior medical evidence
“serves

as

a

background

for

new

and

additional

evidence

of

deteriorating mental or physical conditions occurring after the
prior proceeding.” Id. Thus, regardless of the preclusive effect
of the prior proceeding, in this case, the ALJ was permitted to
use information gleaned from the prior decision “for historical
and continuity purposes” without reopening the previous action.
That said, the question before the Court is whether the
findings
Plaintiff

in

the

cannot

prior
return

final
to

administrative

his

PRW,

was

deciding Plaintiff’s instant applications.

decision,

binding
In

on

the

McKinzie

that
ALJ
v.

Comm’r of Soc. Sec., 362 Fed. Appx. 71, 73 (11th Cir. Jan. 21,
2010), a panel of the Eleventh Circuit addressed the issue of
whether

administrative

res

judicata

precluded

an

ALJ

from

rejecting a prior ALJ’s finding that the claimant could not use
20

her

arms

or

hands

repetitively.

The

Court

observed

that

“[a]dministrative res judicata applies when the agency has

made

a ‘previous determination or decision ... about [a claimant’s]
rights on the same facts and on the same issue or issues, and
this previous determination or decision [had] become final by
either

administrative

or

judicial

action.’

20

C.F.R.

§

404.957(c)(1); see also Cash v. Barnhart, 327 F.3d 1252, 1255
(11th Cir. 2003).”
in

McKinzie

McKinzie, 362 Fed. Appx. at 73.

concluded

that

because

the

The Court

plaintiff’s

current

application involved a different time interval, the ALJ did not
err in declining to give preclusive effect to findings, made by
another ALJ in a prior administrative determination, that the
claimant could not use her arms or hands repetitively. See also
Luckey

v.

Astrue,

2009)(“Because

the

331

Fed.

factual

Appx.

time

period

634,
for

638

(11th

Cir.

[the

claimant]’s

current application is different from her previous application,
administrative

res

judicata

does

not

apply.”);

Crawford

v.

Astrue, 2010 U.S. Dist. LEXIS 14118, *20-25 (S.D. Ala. Jan. 29,
2010) (finding that a prior unfavorable decision which provided
that the plaintiff’s RFC include a sit/stand option was not
binding

in

subsequent

proceedings

involving

an

unadjudicated

time period).
In the case at hand, the finding by the ALJ in the prior
21

final

administrative

Plaintiff

cannot

decision,

perform

dated

his

past

November

26,

relevant

2007,
work

that
as

a

cleaner/housekeeper, was not binding on the ALJ who issued the
decision in the instant case because the prior case covered the
period from December 6, 2003, through the date of that decision,
November 26, 2007, whereas the focus in this decision was on the
period November 27, 2007, and forward. Thus, the ALJ did not err
in declining to give preclusive effect to the prior finding that
Plaintiff was not able to return to his PRW.
3.

Whether the ALJ erred by presenting an incomplete
hypothetical to the VE, and in finding that
Plaintiff can return to his PRW?

Plaintiff contends that the ALJ failed to pose a complete
hypothetical

to

the

VE

because

in

the

first

hypothetical

propounded to the VE, the ALJ did not include the restriction
that Plaintiff can occasionally reach in all directions with his
non-dominant right hand. Plaintiff further contends that the ALJ
erred in finding that Plaintiff can perform his past work as
cleaner/housekeeper

because

the

Dictionary

of

Occupational

Titles (“DOT”) provides that reaching and handling are performed
frequently, or 1/3 to 2/3 of the time, in that occupation, but
the ALJ specifically found that he can only occasionally reach
in all directions with his non-dominant right hand.

Plaintiff

also suggests that he should be found disabled under Rule 201.12
22

of the Grids.
hypothetical

According to Plaintiff, the VE, in response to a
that

included

Plaintiff’s

reaching

limited Plaintiff to sedentary work, and

restriction,

Rule 201.12 of the

Grids directs a finding of disabled for an individual who is his
same

age,

has

the

same

education

and

work

history,

but

no

transferrable skills and who can only perform sedentary work.
The

Commissioner

argues

that

the

(“DOT”)

does

not

differentiate between right and left extremity reaching and that
Plaintiff’s limitation to no more than occasional reaching in
all directions with his non-dominant right arm does not mean
that Plaintiff could not engage in frequent reaching with his
dominant

left

arm

and

thus

perform

his

past

work

as

cleaner/housekeeper. In other words, the Commissioner contends
that bilateral hand use is not needed to perform the job of
cleaner/housekeeper, and that Plaintiff may be able to utilize
his dominant left hand to

perform the frequent reaching and

handling as required by the cleaner/housekeeper position.
The law is clear that “[i]n 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.” Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d
1253, 1270 (llth Cir. 2007)(quotation omitted). The ALJ is not
required

to

include

findings

in
23

the

hypothetical

that

he

properly finds are unsupported. See Crawford v. Comm’r of Soc.
Sec., 363 F.3d 1155, 1161 (llth Cir. 2004).
The

record

reflects

hypotheticals to the VE.
hypothetical

posed

to

that

the

ALJ

presented

three

Plaintiff is correct that in the first
the

VE,

the

ALJ

did

not

include

the

restriction that limits Plaintiff to no more than occasional
reaching

in

all

directions

with

his

non-dominant

right

arm.

Plus, the first hypothetical was based on the assessment by
Phillip Lambert, the single decision maker. As noted supra, this
assessment was implicitly rejected by the ALJ because in it, Mr.
Lambert

concluded

that

Plaintiff

could

perform

work

at

the

medium level, whereas the ALJ determined that Plaintiff could
perform a range of light work.

Thus, the VE’s testimony in

regards to this hypothetical is of no moment because it is clear
that the ALJ did not rely upon it in reaching his decision.
In the second hypothetical presented to the VE, the ALJ
asked the VE to assume an individual of similar age, education
and prior work history as Plaintiff, and to assume that the
individual

could

lift

20

pounds

occasionally

and

ten

pounds

frequently; could sit, stand, or walk six hours out of an eight
hour work day; could occasionally climb stairs, ramps, ladders,
or scaffolds, balance, stoop, kneel, crouch, or crawl; and is
capable of understanding, remembering, carrying out short simple
24

instructions, and working in jobs dealing with things rather
than

people

but

with

interpersonal interaction.

only

occasional

conversations

and

While the VE testified that such an

individual could return to his past relevant work, this second
hypothetical did not include Plaintiff’s restriction on reaching
with his non-dominant right hand; thus, to the extent that the
ALJ relied upon the VE’s response to this hypothetical to find
that Plaintiff could return to his PRW, the ALJ erred because
the VE’s response was based on an incomplete hypothetical.

The

undersigned finds however that this error was not fatal because
the ALJ did not end his analysis at step four.

He continued to

step five of the analysis, and determined that assuming arguendo
that Plaintiff cannot return to his PRW, other jobs exist in
substantial numbers in the national economy that Plaintiff can
perform.
In the third hypothetical

presented to the VE, the ALJ

modified the second hypothetical to include a restriction to
sedentary work and to include the restriction that Plaintiff can
only occasionally reach in any direction with his right nondominant arm.
testified

that

In response to the third hypothetical, the VE
the

cleaner/housekeeper

individual

position

unskilled (§ 323.687-014).

the

could
DOT

not

return

classifies

as

to
light

the
and

The VE further testified that the
25

individual

could

perform

assembler,

sorter,

other

surveillance

jobs

such

systems

as

small

monitor,

products
and

tube

operator. (Id. at 68-72).
As

noted

supra,

Plaintiff

argues

that

because

the

jobs

identified were sedentary, Rule 201.12 of the Grids directs a
finding of disabled for an individual of who is his same age,
has the same education and work history, but no transferrable
skills and who can only perform sedentary work.
assertion is misplaced.

Plaintiff’s

The ALJ expressly observed:

If the claimant had the residual functional
capacity to perform the full range of light
work, a finding of “not disabled” would be
directed by Medical-Vocational Rule 202.13.
However, the claimant’s ability to perform
all or substantially all of the requirements
of this level of work has been impeded by
additional limitations.
To determine the
extent to which these limitations erode the
unskilled light occupational base, the [ALJ]
asked the vocational expert whether jobs
exist in the national
economy for an
individual
with
the
claimant’s
age,
education, work experience, and residual
functional capacity.
(Id. at 28).
The

Eleventh

Circuit

has

repeatedly

recognized

that

“[e]xclusive reliance on the grids is not appropriate either
when [1] [the] claimant is unable to perform a full range of
work at a given residual functional level or [2] when a claimant
has non-exertional impairments [i.e., impairments not related to
26

strength] that significantly limit basic work skills.”

Phillips

v. Barnhart, 357 F. 3d 1232, 1242 (llth Cir. 2004) (emphasis in
original).

In such cases, the claimant’s occupational base (the

number of jobs he is able to perform based on his RFC, age,
education and work experience) may be affected.
12,

1983

SSR

LEXIS

32

exertional

limitations

exertional

level

consult

vocational

a

in

(explaining
do

the

not

grids,

expert

to

that

when

coincide
the

a

adjudicator
the

claimant’s

a

with

determine

erosion in the occupational base.).

See S.S.R. 83-

particular

may

need

to

extent

of

any

Accordingly, in cases where

the occupational base may be affected, the ALJ is required to
make an individualized assessment and consult a VE to determine
whether there are jobs in the economy that the claimant can
perform.
In
perform

See Phillips, 357 F. 3d at 1242-43.
this
a

case,

range

the
of

ALJ

determined

light

work,

that

and

that

Plaintiff

could

non-exertional

limitations impeded his ability to perform a full range of light
work.

Having

determined

that

Plaintiff’s

light

occupational

base was impeded, the ALJ properly relied on the VE, as opposed
to the Grids, to determine the extent to which the limitations
eroded Plaintiff’s job base. The VE in turn identified a number
of jobs, some of which were classified by the DOT as “light”
which were actually performed at the sedentary level, which an
27

individual with Plaintiff’s age, education, work experience, and
residual functional capacity could perform.

Accordingly, the

ALJ did not err in finding that other jobs exist in significant
numbers in the national economy that the claimant can perform.
V.

Conclusion
For the reasons set forth, and upon careful consideration

of the administrative record and memoranda of the parties, it is
hereby ORDERED that the decision of the Commissioner of Social
Security, denying Plaintiff’s claim for a period of disability,
disability insurance benefits, and supplemental security income,
be AFFIRMED.
DONE this 21st day of September, 2012.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

28