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
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