Raine v. Astrue

Filing 22

MEMORANDUM OPINION AND ORDER entered, Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 4/19/2013. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TERRY A. RAINE, JR.,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commission of Social Security,1
Defendant.

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CIVIL ACTION 12-0529-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 disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 13).
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 waived in this action (Doc. 20).

Oral

Upon

consideration of the administrative record and the memoranda of

1Carolyn W. Colvin became the Commissioner of Social Security on

February 14, 2013. Pursuant to Fed.R.Civ.P. 25(d), Colvin is
substituted for Michael J. Astrue as Defendant in this action. No
further action needs to be taken as a result of this substitution.
U.S.C. § 405(g).

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the parties, it is ORDERED that the decision of the Commissioner
be AFFIRMED and that this action be DISMISSED.
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 administrative hearing, Plaintiff was
twenty-nine years old, had completed an eleventh-grade education
(Doc. 13 Fact Sheet), and had previous work experience as a
cook, boat detailer, and warehouse worker (Tr. 51-52).

In

claiming benefits, Plaintiff alleges disability due to bipolar
disorder, narcissistic personality disorder, and status post
open reduction internal fixation (ORIF) of the right ankle with
broken hardware (Doc. 13 Fact Sheet).
The Plaintiff filed applications for disability benefits
and SSI on July 16, 2008 (Tr. 177-83; see also Tr. 20).
Benefits were denied following a hearing by an Administrative

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Law Judge (ALJ) who determined that Raine met the requirements
of several of the Listing of Mental Impairments when his
substance use disorder was considered, but that he was not
disabled when he stopped abusing drugs (Tr. 20-37).

The ALJ

went on to find that Raine was not capable of returning to his
past relevant work, but that there were specific light work jobs
identified which he could perform.

Plaintiff requested review

of the hearing decision (Tr. 15) by the Appeals Council, but it
was denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Raine alleges

(1) The ALJ should have ordered a consultative orthopedic

examination; and (2) the ALJ posed incomplete hypothetical
questions to the vocational expert (hereinafter VE) (Doc. 13).
Defendant has responded to—and denies—these claims (Doc. 14).
Plaintiff first claims that the ALJ should have ordered a
consultative orthopedic examination of his right ankle (Doc. 13,
pp. 3-5).

Noting that there was little medical evidence

regarding this impairment, Raine asserts that the ALJ failed to
provide a full and fair record by not obtaining this extra
medical information.
The Eleventh Circuit Court of Appeals has required that "a
full and fair record" be developed by the ALJ even if the
claimant is represented by counsel.

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Cowart v. Schweiker, 662

F.2d 731, 735 (11th Cir. 1981).

The Court further notes that

the social security regulations have the following to say about
obtaining a consultative examination:

We may purchase a consultative
examination to try to resolve an
inconsistency in the evidence, or when the
evidence as a whole is insufficient to allow
us to make a determination or decision on
your claim. Some examples of when we might
purchase a consultative examination to
secure needed medical evidence, such as
clinical findings, laboratory tests, a
diagnosis, or prognosis, include but are not
limited to:
(1) The additional evidence needed is
not contained in the records of your medical
sources;
(2) The evidence that may have been
available from your treating or other
medical sources cannot be obtained for
reasons beyond your control, such as death
or noncooperation of a medical source;
(3) Highly technical or specialized
medical evidence that we need is not
available from your treating or other
medical sources; or
(4) There is an indication of a change
in your condition that is likely to affect
your ability to work, but the current
severity of your impairment is not
established.

20 C.F.R. § 404.1519a (2012).
The evidence regarding Plaintiff’s ankle injury shows that,
on April 3-4, 2013, Raine was a patient at the University of
South Alabama Medical Center for a right ankle fracture
dislocation for which he underwent an ORIF with syndesmotic

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screw placement (Tr. 256-65).

He was discharged, able to walk

with crutches, with good rehabilitation potential and a good
prognosis.

He was given a prescription for Lortab2 and told to

keep his right lower extremity elevated for forty-eight hours.
During a physical examination eight years later at Searcy
Hospital, Raine’s right ankle pain was described as mildly
tender (Tr. 308; see generally Tr. 301-14).

Plaintiff underwent

an orthopedic examination; recommendations were for him to take
Ibuprofen on a PRN basis and reduce the walking when it hurt
(Tr. 302).

There was some mention of the possible removal of

the hardware (Tr. 302).

An x-ray showed the previous right

tibia fracture; no acute osteos fractures were identified (Tr.
303).

No physical restrictions or limitations were noted at the

time of his discharge (Tr. 301-05).
At the first evidentiary hearing, Raine testified that he
had hardware in his right ankle, but that the titanium screws
had broken and sometimes he had problems with it (Tr. 75-77).
At the second hearing, Plaintiff stated that his ankle was doing
good and that he had not had any problems with it (Tr. 60).
The ALJ discussed this evidence and then noted that Raine
had not sought any medical attention for his ankle since the
orthopedic examination in 2008 (Tr. 34).

The ALJ went on to

2Error! Main Document Only.Lortab is a semisynthetic

narcotic analgesic used for “the relief of moderate to moderately
severe pain.” Physician's Desk Reference 2926-27 (52nd ed. 1998).

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find that Plaintiff was “capable of performing light work with
occasional climbing of ramps/stairs occasionally but that would
not require climbing ropes/ladders/scaffolding” (Tr. 34).
The Court finds that the ALJ was not obligated to order a
consultative examination under the language of the regulation.
The Court first notes that there was no inconsistency in the
evidence; Plaintiff had a fractured ankle that was surgically
repaired in 2000.

An orthopedic examination in 2008 resulted in

no limitations or restrictions being noted or imposed; there was
no medication prescribed for pain or discomfort.

Raine has

sought no treatment since 2008 and last reported that his ankle
was doing well.

The Court finds no merit in Plaintiff’s

argument that the ALJ should have ordered a consultative
examination.
Raine next claims that the ALJ posed incomplete
hypothetical questions to the VE at the evidentiary hearing
(Doc. 13, pp. 6-7).

More specifically, Plaintiff asserts that

the ALJ “erred by failing to be specific regarding [his] ability
to walk, sit, stand, use his arms for repetitive movements such
as pushing and pulling of arm controls, use his legs for pushing
of leg controls, or engage in postural and environmental factors
in her questions posed to the vocational expert” (Doc. 13, p.
6).

Raine goes on to claim that the ALJ erred in “failing to

include questions regarding the Plaintiff’s mental residual

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functional capacity until hypothetical three” (id.).

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.

Pendley v. Heckler, 767 F.2d

1561 (11th Cir. 1985).
In her decision, the ALJ held that Plaintiff’s residual
functional capacity was as follows:
[Raine can] perform less than the full range
of light work as defined in 20 C.F.R.
404.1567(b) and 416.957(b), in function by
function terms (SSRs 83-10 and 06-8p), with
certain non-exertional restrictions
associated with that level of exertion. The
claimant’s specific physical capabilities
during the period of adjudication have been
the ability climb [sic] ramps/stairs
occasionally and work in a job that would
not require climbing ropes/ladders/
scaffolding. The claimant’s specific mental
capabilities during the period of
adjudication have been the ability to
understand, remember and carry short [sic]
simple instructions; attend and maintain
concentration for 2 hours; have brief
superficial contact with the public; work
independently but in close proximity with
others; and adapt to minimal changes in the
work setting. The claimant could work in a
job with supportive nonconfrontational
supervision.
(Tr. 29).
At the evidentiary hearing, the ALJ’s dialogue with the VE

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was as follows:
Q. Ms. Bethune, I’m going to ask you a
hypothetical question, please. If you were
to assume an individual that’s the same age
as Mr. Raine, has the same education, the
same work background. This individual would
be limited to a full range of medium work.
The individual, however, would be precluded
from climbing ropes, ladders, or
scaffolding. This individual could
occasionally climb ramps and stairs.
***
Q. This individual could understand,
remember, and carry out short, simple
instructions. This individual could attend
and maintain concentration for two hours at
a time. This individual could have brief
superficial contact with the public. This
individual would require supportive nonconfrontational supervision. This
individual could work in close proximity
with coworkers, but would need to work
independently. This individual could adapt
to minimal changes in the work setting.
Based on this hypothetical question, could
such an individual perform any of the work
that Mr. Raine has previously performed?
A. Should be able to do the detailer
work as well as the warehouse work.
Q. I’m going to ask you a second
hypothetical, please. This hypothetical,
the only change is going to be that the
individual would be limited to performing a
full range of light work as opposed to
medium work. The remainder of the
hypothetical would remain the same. Could
such an individual perform any of the work
that Mr. Raine has previously performed,
based on this hypothetical?
A.

No, Ma’am.

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Q. Could you identify any occupations
in the national economy such an individual
could perform?
A. Yes, Ma’am. Could do work such as
housekeeper cleaner. That’s light and
unskilled. And in the national economy
there’s over one million of those jobs.
Could also do production assembler work.
That’s also light and unskilled. And in the
national economy there’s approximately
333,000. Could also do garment folder.
That’s light and unskilled. And in the
national economy there’s approximately
400,000. Those are examples.
Q. I’m going to ask you a third
hypothetical. Ask you to again take
hypothetical number two. However, this time
the individual would only be able to
maintain attention and concentration for up
to one hour at a time. Could such an
individual perform any of Mr. Raine’s past
work?
A.

No, ma’am.

Q. Could you identify any occupations
in the national economy such an individual
could perform.
A.

No, ma’am.

Q. Is your testimony consistent with
the [Dictionary of Occupational Titles]?
A.

Yes, ma’am.

(Tr. 62-64).
The Court has reviewed the ALJ’s findings and compared them
to the questions posed to the VE and finds no inconsistency
there.

The Court further notes that the ALJ held that Raine

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could perform light work while going on to explicitly list
limitations that reduced his ability to perform the full range
of light work; this listing of exclusionary functions implicitly
left intact Raine’s ability to perform everything not listed at
the ability level of someone who could perform light work.

The

Court finds no error in the way the ALJ posed questions to the
VE.

The Court further finds that it was not necessary for the

ALJ to specifically state the amount of time that Plaintiff
could sit, stand, walk, etc. in her questions to the VE in this
particular circumstance as no limitations in those exertional
capacities were demonstrated or found.

Plaintiff’s claims

otherwise are without merit.
Upon consideration of the entire record, the Court finds
"such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion."

Perales, 402 U.S. at 401.

Therefore, it is ORDERED that the Secretary's decision be
AFFIRMED, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir.
1980), and that this action be DISMISSED.

Judgment will be

entered by separate Order.
DONE this 19th day of April, 2013.

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

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