Boggs v. Colvin

Filing 18

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 Order. Signed by Magistrate Judge Bert W. Milling, Jr on 5/23/2014. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GWENDOLYN BOGGS,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

CIVIL ACTION 13-0515-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, 11).
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. 15).
argument was waived in this action (Doc. 17).

Oral

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.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and

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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
fifty-two years old, had completed a high school education (Tr.
42), and had previous work experience as a file clerk and a
medical records clerk (Tr. 44).

In claiming benefits, Boggs

alleges disability due to degenerative disc disease of the
lumbar spine, myofascitis, diabetes mellitus, myositis pain, and
headaches (Doc. 11 Fact Sheet).
The Plaintiff filed protective applications for disability
benefits and SSI on November 23, 2010 (Tr. 156-63; see also Tr.
22).

Benefits were denied following a hearing by an

Administrative Law Judge (ALJ) who determined that although
Boggs had severe impairments, she was capable of performing her
past relevant work as a file clerk and medical records clerk
(Tr. 22-31).

Plaintiff requested review of the hearing decision

(Tr. 14-15) by the Appeals Council, but it was denied (Tr. 1-5).

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Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Boggs alleges

(1) The ALJ did not pose complete hypothetical questions

to the vocational expert (hereinafter VE); and (2) the ALJ did
not make specific findings of fact as to the demands of her past
work (Doc. 11).
claims (Doc. 12).

Defendant has responded to—and denies—these
The Court notes that, because of the nature

of the claims raised in this action, it will be unnecessary to
summarize the medical evidence herein.
Plaintiff’s first claim is that the ALJ did not pose
complete hypothetical questions to the VE.

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 VE 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).
One component of Boggs’s claim is that the ALJ did not
include all of her mental impairments in the hypothetical (Doc.
11, p. 5).

The Court finds that the ALJ did not include any

mental impairments in his questions to the VE (Tr. 61-69).
However, the ALJ specifically found that Plaintiff had no mental
impairments (Tr. 25).

At most, the ALJ found that Boggs had

mild limitation in her ability to concentrate (Tr. 26).
ALJ’s finding of only a mild limitation, along with the

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The

determination that she suffered no episodes of decompensation,
was the basis for his conclusion that Boggs had no severe mental
impairments (Tr. 26).
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 claimant’s ability to work or include that
limitation as part of the hypothetical question to the VE.

The

Court finds that Winschel is not applicable here as Boggs’s
limitation was found to be only mild.
Plaintiff also asserts that the first hypothetical was
confusing in that the VE asked a question that was not,
apparently, answered by the ALJ.

Boggs goes on to assert that

the responses given by the VE to the first and third
hypothetical questions were inconsistent with each other.
The Court notes that although the VE questioned the ALJ as
to whether or not “simple, routine” tasks were included in the
first hypothetical question and that there is no evidence in the
record as to how the ALJ specifically answered, it is apparent
that the question was answered to the VE’s satisfaction (see Tr.
62).

Nevertheless, the Court finds that the only response that

the ALJ could have given that would make sense, in context, is

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an affirmative answer.

A negative response by the ALJ would

have meant that the hypothetical question would have been as
follows:

Assuming a person of Plaintiff’s vocational profile

who is able to do light work with these additional restrictions
[see restrictions in actual hypothetical at Tr. 61-62], can
Boggs still perform any of her past work if you do not take into
account the simple routine tasks associated with those jobs?
The Court cannot envision any circumstance in which such a
question would be reasonable or even answerable.

Presumably, if

the non-simple, non-routine tasks of a job could be performed,
then the simple, routine tasks could be performed as well.
Likewise, the Court finds no merit in Plaintiff’s argument
that the VE’s answers to the first and third hypothetical
questions are inconsistent.

In the third hypothetical, the ALJ

questioned whether Plaintiff would be able to do the past work
contemplated in the answer to the first hypothetical in addition
to “simple one- and two-step instructions and [the individual
would be] able to understand and carry out detailed but
uninvolved written or oral instructions involving a few concrete
variables” (Tr. 67) (emphasis added).
67).

The VE answered no (Tr.

The ALJ was asking if Boggs was capable of performing work

beyond the requirements of her past work, not whether she could
perform “simple one- and two-step instructions” within the
framework of her responsibilities as defined for those jobs.

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This claim is without merit.
Boggs’s second claim is that the ALJ did not make specific
findings of fact as to the demands of her past work (Doc. 11,
pp. 6-7).

The Court notes that Plaintiff has the burden of

proving that she cannot perform her past relevant work.

Macia

v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987) (citing Sryock v.
Heckler, 764 F.2d 834, 835 (11th Cir. 1985)).

With regard to a

claimant’s past work, the Eleventh Circuit Court of Appeals has
held that
[a]lthough a claimant bears the burden
of demonstrating an inability to return to
his past relevant work, the Secretary has an
obligation to develop a full and fair
record. Nelms v. Bowen, 803 F.2d 1164, 1165
(11th Cir. 1986); Cowart v. Schweiker, 662
F.2d 731, 735 (11th Cir. 1981). Where there
is no evidence of the physical requirements
and demands of the claimant’s past work and
no detailed description of the required
duties was solicited or proffered, the
Secretary cannot properly determine whether
the claimant has the residual functional
capacity to perform his past relevant work.
Nelms, 803 F.2d at 1164.
Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987).
The Court notes that, in a form completed for the Social
Security Administration (hereinafter SSA), Plaintiff indicated
that in her job as a medical records clerk she used machines,
tools, and equipment that required technical knowledge and
skills; she did not have to complete reports (Tr. 180).

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Boggs

indicated that she spent an hour day performing each of the
following physical activities:

walking, standing, sitting,

stooping, kneeling, crouching, handling large objects, and
reaching (Tr.181).

Her job, essentially, was to lift and carry

files to the file room everyday; she indicated that she
frequently lifted up to twenty-five pounds (Tr. 181).
did not supervise other people (Tr. 181).

Plaintiff

In a Work History

form completed for the SSA, Boggs stated that her work as a file
clerk was to streamline-print patient record files and carry
them to where they needed to go; her full-day work required
walking, standing, climbing, stooping, and crouching, with some
sitting (Tr. 194).

She frequently lifted ten pounds, with the

heaviest amount reaching twenty pounds; she had to use machines,
tools, and equipment and the work required technical knowledge
and skills (Tr. 194).

In a second job as file clerk, Plaintiff

had the same duties and responsibilities, though she also had to
kneel, handle objects, and write reports (Tr. 196).

In this

same report, Boggs described her work as a medical records clerk
as requiring the same physical activities and responsibilities
as the second of the two file clerk positions (Tr. 195).

In a

second job as a medical records clerk, Plaintiff indicated that
she did the same work as in the first medical records clerk job
but that she had to frequently lift twenty-five pounds (Tr.
197).

In her testimony at the evidentiary hearing, Boggs stated

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that her job required assisting the physician by posting
dictation, faxing, and answering the phone (Tr. 45).
At the evidentiary hearing, the VE stated that one of
Plaintiff’s past jobs was as a file clerk and that its
classification in the Dictionary of Occupational Titles was
206.387-034 (Tr. 61).1

The VE stated that Boggs’s other job was

as a medical record clerk and that its classification was
245.362-010 (Tr. 61).2
The Court finds that the ALJ had sufficient information
about Plaintiff’s previous work duties and responsibilities to
have made the determination that she was capable of returning to
those jobs based on her residual functional capacity.

The Court

finds that the requirements of Schnorr have been satisfied.
Boggs’s claim otherwise is without merit.
Plaintiff has raised two claims in bringing this
action.

Both 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

1See http://www.occupationalinfo.org/20/206387034.html

2See http://www.occupationalinfo.org/24/245362010.html

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entered by separate Order.
DONE this 23rd day of May, 2014.

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

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