Williams v. Astrue

Filing 22

MEMORANDUM OPINION AND ORDER entered, Upon consideration of the administrative record, the memoranda of the parties, and oral argument, it is ORDERED that the decision of the Commissioner be REVERSED and REMANDED to the Social Security Administration for action not inconsistent with the Orders of this Court, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 5/2/2012. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CANDICE M. WILLIAMS,

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

CIVIL ACTION 11-0421-M

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling which denied claims for Child Disability Benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 15).
The parties filed written consent and this action has been
referred to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 21).
argument was heard on April 30, 2012.

Oral

Upon consideration of the

administrative record, the memoranda of the parties, and oral
argument, it is ORDERED that the decision of the Commissioner be
REVERSED and REMANDED to the Social Security Administration for
action not inconsistent with the Orders of this Court.
1

This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
evidence.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires "that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance."

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205
(D. Md. 1982).
At the time of the most recent administrative hearing,
Williams was twenty-three years old and had completed more than
a high school education (see Tr. 21).

In claiming benefits,

Plaintiff alleges disability due to HIV, depression, obesity,
and asthma (Doc. 15 Fact Sheet).
Williams filed separate applications for children’s
benefits and, at a later date, SSI; the applications were
consolidated for purposes of judicial efficiency (see Tr. 11).
Benefits were denied following a hearing by an Administrative
Law Judge (ALJ) who determined that although Williams had no
relevant past work experience, she was capable of performing a
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reduced range of light work (Tr. 11-23).

Plaintiff requested

review of the hearing decision (Tr. 6-7) by the Appeals Council,
but it was denied (Tr. 2-4).1
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
alleges that:

Specifically, Williams

(1) She is unable to perform a reduced range of

light work; (2) the ALJ did not properly consider the opinions
of an examining physician; and (3) the ALJ posed an incomplete
hypothetical question to the vocational expert (Doc. 15).
Defendant has responded to—and denies—these claims (Doc. 16).
Plaintiff first claims that she is unable to perform a
reduced range of light work.

More specifically, Williams argues

that because the ALJ found that she was limited to standing or
walking for only two hours out of an eight-hour day, a finding
which has no medical support, she does not meet the requirements
of light work.
The Court notes that light work is defined as follows:

Light work involves lifting no more
than 20 pounds at a time with frequent
lifting or carrying of objects weighing up
to 10 pounds. Even though the weight lifted
1

Williams has presented her claims to an ALJ on three separate
occasions, all resulting in the denial of benefits; the Appeals
Council, however, remanded the action back for further review on the
initial two appeals (see Doc. 15, pp. 1-2; cf. Doc. 16, pp. 1-2).

3

may be very little, a job is in this
category when it requires a good deal of
walking or standing, or when it involves
sitting most of the time with some pushing
and pulling of arm or leg controls. To be
considered capable of performing a full or
wide range of light work, you must have the
ability to do substantially all of these
activities. If someone can do light work,
we determine that he or she can also do
sedentary work, unless there are additional
limiting factors such as loss of fine
dexterity or inability to sit for long
periods of time.

20 C.F.R. § 1567(b) (2011).
The Court notes that on August 24, 2007, Dr. Michelle S.
Jackson examined Williams and completed a physical capacities
evaluation in which she indicated that she was capable of
standing and walking, separately, one-to-two hours at a time and
three-to-four hours out of an eight-hour day; the doctor also
indicated that Plaintiff could lift and carry less then ten
pounds constantly, ten-to-fifteen pounds frequently, and up to
twenty pounds on an occasional basis (Tr. 491; see generally Tr.
489-94).

Jackson examined Williams again on May 1, 2008 and

reached the same conclusions (Tr. 542-46).
The ALJ specifically found that Plaintiff had the residual
functional capacity (hereinafter RFC) to perform light work as
defined in the regulations “except that she can stand and walk
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no longer than two hours in an eight-hour work day” (Tr. 18).
The ALJ gave considerable weight to Jackson’s opinions in
reaching this conclusion though he restricted the RFC even more
than Jackson, trying to give Williams’s statements concerning
her limitations the benefit of the doubt (Tr. 20).

At the

evidentiary hearing, in his second question to the vocational
expert (hereinafter VE), the ALJ proposed an individual who was
limited to more than two hours of standing and walking in an
eight-hour day but who could still perform eight hours of an
eight-hour day; this built on the first hypothetical question in
which the individual could lift or carry twenty pounds
occasionally and fifteen pounds frequently (Tr. 706-08).

The VE

answered that the individual could perform the job of bench
assembler, a sedentary unskilled position (Tr. 708).

The ALJ

specifically found, based on this testimony, that Plaintiff
could do this job (Tr. 22).
The Court finds substantial support for the ALJ’s
conclusion that Williams was capable of performing a reduced
range of light work although he more specifically found that she
could do the job of bench assembler, which is unskilled,
sedentary work.

As Plaintiff had no relevant past work, this

was a fifth-step decision; the ALJ specifically named jobs that
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Williams was capable of performing.

Although his RFC and the

specifically-named job do not fall into the same categorical
classification, the Court considers this to be, at most,
harmless error.

A review of the sedentary work GRID shows that

Plaintiff, with her particular vocational factors, would not
meet any rule finding disability.

See 20 C.F.R. Part 404,

Subpart P, Appendix 2, Table 1 (2011).

This claim is without

merit.
Williams next claims that the ALJ did not properly consider
the opinions of an examining physician.

Plaintiff specifically

references Theresa Miller, a Physician’s Assistant at the
University of South Alabama Family Specialty Clinic (Doc. 15,
pp. 4-8).

It should be noted that "although the opinion of an

examining physician is generally entitled to more weight than
the opinion of a non-examining physician, the ALJ is free to
reject the opinion of any physician when the evidence supports a
contrary conclusion."

Oldham v. Schweiker, 660 F.2d 1078, 1084

(5th Cir. 1981);2 see also 20 C.F.R. § 404.1527 (2011).
Williams specifically refers to a report completed by
Miller on July 21, 2008 in which she indicates that Plaintiff

2

The Eleventh Circuit, in the en banc decision Bonner v. City
of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as
precedent decisions of the former Fifth Circuit rendered prior to

6

has marked difficulties in maintaining social functioning (Tr.
572; see generally Tr. 570-74).

In her notes, Miller states

that Williams had complained of “agoraphobic-type symptoms” and
of being “fearful of being around others due to [her] diagnosis
& them [sic] discovering diagnosis” (Tr. 572).
The Court notes the following findings by the ALJ:

The claimant’s physician assistant, Ms.
Theresa Miller, noted no restrictions in
social functioning in her reports of October
27, 2005, August 1, 2006, or May 31, 2007
(Exhibits 3F, 10F, 13F). However, as noted
by the Appeals Council in its remand order,
on July 22, 2008, Ms. Miller indicated that
the claimant had a “marked” impairment in
social functioning (Exhibit 23F). The
Administrative Law Judge has considered this
opinion, in accordance with the requirements
of the remand order, but has given it very
little weight. This opinion appears to be
based entirely on the claimant’s statements
to Ms. Miller that she was experiencing
“agorophobic type symptoms” in that she was
fearful of being around others because she
was scared they would find out about her HIV
positive status (Exhibit 23F). No
agorophobic tendencies were noted during
either of Dr. Davis’s consultative
examinations (Exhibits 7F and Exhibit 20F).
In fact, the claimant was able to drive
herself to these examinations, and had no
difficulty expressing herself to Dr. Davis
(Id). Michelle Jackson, M.D. did not note
any agorophobic tendencies or complaints
following her consultative physical exam of
the claimant, which took place on May 1,
October 1, 1981.

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2008 (Exhibit 21F). The claimant also did
not report significant agorophobic
tendencies when she completed her daily
activities questionnaire on January 30, 2008
(Exhibit 14E). Instead, she reported that
half the time she likes to be by herself and
that the other half the time she wants to be
with other people (Id). She further
reported that she is able to go out of the
home when she feels good, and that she
visits with family and friends (Id).
Although the claimant has depression and a
fear of other people finding out about her
HIV positive status, the Administrative Law
Judge finds that, at most, she is moderately
impaired in social functioning.

(Tr. 16).
Although Williams asserts that “the weight of the evidence
supports [Miller’s] findings including the opinions of treating
physicians” (Doc. 15, p. 7), Plaintiff has failed to point to
any other evidence of record which supports a finding that she
has marked difficulty in maintaining social functioning.

In

spite of this assertion, the ALJ correctly points out that
Miller’s finding was unsupported by the examination notes of
either Dr. Jackson (Tr. 489-94, 542-46) or Psychologist Davis
(Tr. 311-15, 537-41).

Just as important, the ALJ specifically

notes that Miller’s conclusion is based on Williams’s own
statements (Tr. 16; cf. Tr. 572).

Finally, although it did not

seem to be the reason the ALJ discounted her conclusions,
8

Plaintiff admits that Miller is an “other source” and not an
acceptable medical source under the regulations (see Doc. 15, p.
5; see also 20 C.F.R. § 416.913(d)(1) (2011)).

The ALJ,

nevertheless, reported Miller’s findings and discounted them as
unsupported by the evidence.

The Court finds substantial

support for that conclusion.
Williams’s final claim is that the ALJ posed an incomplete
hypothetical question to the VE.

Specifically, Plaintiff has

asserted that the hypothetical failed to “include Plaintiff’s
mild to moderate difficulties in concentration, persistence, or
pace” (Doc. 15, p. 8).
The Eleventh Circuit Court of Appeals has held that an
ALJ's failure to include severe impairments suffered by a
claimant in a hypothetical question to a vocational expert to be
reversible error where the ALJ relied on that expert's testimony
in reaching a disability decision.
1561 (11th Cir. 1985).

Pendley v. Heckler, 767 F.2d

More recently, in Winschel v.

Commissioner of Social Security, 631 F.3d 1176, 1181 (11th cir.
2011), the Eleventh Circuit Court of Appeals held that, after
determining that a claimant had a moderate limitation in
maintaining concentration, persistence, or pace, an ALJ had to
either determine that the limitation would not affect the
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claimant’s ability to work or include that limitation as part of
the hypothetical question to the VE.
In this action, the ALJ specifically found, after reviewing
the evidence, that it supported a “progressively increased
limitation that has ranged from mild to moderate during the
relevant period” in concentration, persistence, or pace (Tr.
17).

The ALJ went on to find that these “paragraph B”

limitations were not a residual functional capacity assessment
but were “used to rate the severity of mental impairments at
steps 2 and 3 of the sequential evaluation process” (Tr. 17);
Winschel indicated that no distinction was to be made.
Winschel, 631 F.3d at 1180.
Though concluding that Plaintiff’s impairments did not meet
the Listing requirements, nowhere in the opinion did the ALJ
reach a finding, either implicitly or otherwise, that this
limitation would not affect Williams’s ability to work.
Furthermore, the ALJ did not include this limitation as part of
the hypothetical questions posed to the VE (see Tr. 706-08).

As

such, the Court finds that Plaintiff’s claim has merit as the
ALJ has not satisfied the ruling in Winschel.
Based on review of the entire record, the Court finds that
the Commissioner's decision is not supported by substantial evi10

dence.

Therefore, it is ORDERED that the action be REVERSED and

REMANDED to the Social Security Administration for further
administrative proceedings consistent with this opinion, to
include, at a minimum, a supplemental hearing for the gathering
of evidence as to whether Plaintiff has the ability to work with
her mild to moderate difficulties in concentration, persistence,
or pace.

Judgment will be entered by separate Order.

DONE this 2nd day of May, 2012.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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