White v. Colvin

Filing 22

MEMORANDUM OPINION and ORDER entered. After considering 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 more fully set out in Order. Signed by Magistrate Judge Bert W. Milling, Jr on 3/9/2015. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TERRY WHITE,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

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CIVIL ACTION 14-0341-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 denying 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 judgment in accordance with 28 U.S.C. §
636(c) and Fed.R.Civ.P. 73 (see Doc. 21).
waived in this action (Doc. 19).

Oral argument was

After considering 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).

Substantial

evidence 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, White was fortyeight years old, had completed an eleventh-grade special
education (Tr. 35, 54) and had previous work experience as a
construction worker (Doc. 13).

Plaintiff alleges disability due

to depression, hypertension, mental retardation, lumbar
degenerative disc disease, prostatic hypertrophy, post-fracture
left leg, poor hearing in left ear, weakness in the left hand,
obesity, pain disorder, and somatoform disorder (Doc. 13).
The Plaintiff applied for SSI and disability benefits on
July 6 and 13, 2011, respectively, asserting a disability onset
date of December 24, 2008 (Tr. 173-85; see also Tr. 24).

An

Administrative Law Judge (ALJ) denied benefits, determining that
although White could not now perform his past relevant work,
there were specific light-work jobs that he could do (Tr. 2439).

Plaintiff requested review of the hearing decision (Tr.

15-20), but the Appeals Council denied it (Tr. 1-6).

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

Specifically, White alleges

(1) He meets the requirements of Listing 12.05C; (2) the

ALJ’s residual functional capacity (hereinafter RFC) evaluation
is flawed because it does not take into consideration the
combination of his impairments; (3) the ALJ failed to complete a
Psychiatric Review Technique Form (hereinafter PRTF) in his
analysis; and (4) the ALJ relied on mistaken testimony from the
vocational expert (hereinafter VE) (Doc. 14).
responded to—and denies—these claims (Doc. 15).

Defendant has
A summary of

the relevant record evidence follows.
On June 19, 2005, White was admitted to UAB Hospital
following his involvement, as a pedestrian, in a motor vehicle
accident; he was admitted with third-degree burns of the left
lateral thigh and leg and fourth and fifth right fingers (Tr.
258-66).

Plaintiff was discharged on July 12 following pin

placement in his left femur, skin grafts, and wound, physical,
and occupational therapy; he was stable, but restricted from
heavy lifting and strenuous exercise.
Six years later, on August 22, 2011, Dr. Stephen J.
Robidoux, a Family Practitioner, examined Plaintiff who stated
that he had worked through 2008 at which time he was laid off
(Tr. 268-72).

The Doctor noted that he was an alert, obese—but

very muscular—man, in no distress; Plaintiff exhibited normal

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heel and toe, unaided gait and was able to squat and rise.
After providing range of motion (hereinafter ROM) measurements
for White’s neck, back, and all extremities, Dr. Robidoux
diagnosed hypertension and found as follows:

“He related a

vague history of back, arm and ear problem that has not required
medical evaluation of treatment. . . . I find no limitations for
his age to sitting, standing, walking, lifting, carrying,
climbing, bending, stooping, crawling, handling objects, using
hand and foot controls or travel” (Tr. 271).
On August 30, 2011, Psychologist Nina E. Tocci provided a
mental evaluation at the request of the Social Security
Administration, finding Plaintiff normal, stable, with
appropriate affect, and oriented in four spheres (Tr. 274-77).
He had fair attention, scattered concentration, and demonstrated
a good fund of information, comprehension, and thought content
appropriate to mood and circumstance; White showed fair social
judgment and some insight into his behavior.

Tocci concluded

that Plaintiff was functioning within the average range of
intellectual ability.

The Psychologist diagnosed pain disorder,

assigned a GAF score of 70,1 and indicated a fair progress for
the Claimant.

Tocci indicated that some of White’s “responses

1A GAF score between 61 and 70 indicates “[s]ome symptoms OR some

difficulty in social, occupational, or school functioning, but
generally functioning pretty well, has some meaningful interpersonal
relationships.” See
https://depts.washington.edu/washinst/Resources/CGAS/GAF%20Index.htm

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appeared deliberately contrived and he tended to exaggerate the
pain” (Tr. 276).

In conclusion, the Psychologist stated that

“[h]is issues appear to be orthopedic in nature and therefore
his ability to work would need to be determined by a physician.
Other than the experience of pain, he does not appear to have
other mental health issues that would interfere with his ability
to work” (Tr. 276).
On September 28, 2011, an x-ray noted “[d]egenerative
changes [] present at multiple levels in the lumbar spine,
involving the right sacroiliac joint” (Tr. 301).
White was seen on September 23 and November 18, 2011 at the
Choctaw Urgent Care for complaints of left leg and longstanding,
intermittent back pain that he rated at a level eight on a tenpoint scale (Tr. 280-84).

On the first exam, he experienced

back stiffness and pain in his back bending laterally, forward,
and in rotation; gait was normal and Plaintiff had the ability
to change positions smoothly.

There was no increased lumbar

lordosis, though there was sacroiliac joint and paraspinal
muscle tenderness.

Uncontrolled, chronic back pain and

hypertension were diagnosed; ordinary activity was recommended.
Ultram2 was prescribed.

At the November examination, White

stated that the medication was helping his pain; the attending

2Ultram is an analgesic “indicated for the management of moderate

to moderately severe pain.”
2000).

Physician's Desk Reference 2218 (54th ed.

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doctor noted that his impairments were now controlled (Tr. 283).
On January 9, 2013, Psychologist Donald W. Blanton examined
White for complaints of back, left shoulder, and left leg pain
though he indicated he had anxiety and depression since his
brother killed his mother (Tr. 287-92).

The Psychologist noted

that thoughts and conversation were logical; associations were
intact.

Affect was flat and appropriate and no confusion was

noted; no psychomotor retardation was noted.

White was alert

and oriented in four spheres; judgment was good for work and
financial decision-making.

Blanton administered the Wechsler

Adult Intelligence Scale, Fourth Edition (hereinafter WAIS-IV),
on which Plaintiff scored a verbal IQ of 63, a perceptual
reasoning IQ of 71, a working memory IQ of 69, a processing
speed IQ of 74, and a full scale IQ score of 63; this was
indicated to be in the mild range of mental retardation.

White

also completed the Wide Range Achievement Test, Revised Third
Edition, indicating a reading and spelling ability of second
grade and math comprehension at the fourth-grade level.

Blanton

did not administer the Minnesota Multiphasic Personality
Inventory because of Plaintiff’s “combination of [] poor
intellect and poor reading ability” (Tr. 288).
Inventory indicated moderate depression.

The Beck

The Psychologist

indicated that the WAIS scores were a valid assessment of
White’s intellectual functioning, noting that the academic

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achievement test found him functionally illiterate.

Blanton

indicated that he demonstrated “deficits in adaptive functioning
manifested prior to age 22 due to his mental retardation in the
following areas:

communication, work, use of community

resources, functional academic skills;” he assigned a GAF score
of 503 (Tr. 288).

The Psychologist also completed a mental

medical source opinion indicating that White was mildly limited
in his ability to understand, remember, and carry out simple
instructions, respond appropriately to customers, and use
judgment in simple, one- or two-step work-related decisions; he
was moderately limited in responding appropriately to
supervision and co-workers, dealing with changes in his routine,
maintaining attention, concentration or pace for two-hour
periods, and maintaining daily activities; and was markedly
limited in his ability to understand, remember, carry out, and
use judgment in detailed or complex instructions and respond to
customary work pressures (Tr. 291-92).

Blanton found that

Plaintiff’s personal habits and interests would mildly
deteriorate, that White had been depressed for a year, that his
pain was real, and that work stress would cause his condition to
deteriorate; however, he could manage his own benefits.

3A GAF score between 41 and 50 indicates “[s]ome impairment in

reality testing or communication OR major impairment in several areas,
such as work or school, family relations, judgment, thinking, or
mood.” See
https://depts.washington.edu/washinst/Resources/CGAS/GAF%20Index.htm

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On April 4, 2012, Dr. Katherine Hensleigh examined
Plaintiff for complaints of back pain and nervousness, finding
abdominal tenderness and lumbar muscle spasm with moderate pain
on motion (Tr. 295-97).

Tramadol4 was prescribed.

The ALJ faithfully summarized the evidence before him,5
finding that White could perform specific light jobs; in
reaching that decision, he weighted greatly the reports of
Psychologist Tocci and Doctor Robidoux, credited the VE’s
testimony, and dismissed Blanton’s opinions (Tr. 37-39).

The

ALJ gave no credit to Plaintiff’s testimony of pain and
limitation (Tr. 36-37), a finding gone unchallenged (Doc. 14).
This concludes the Court’s review of the evidence.
White first claims that he meets the requirements of
Listing 12.05C (Doc. 14, pp. 2-5).

The introductory notes to

Section 12.05 state that “[m]ental retardation refers to a
significantly subaverage general intellectual functioning with
deficits in adaptive behavior initially manifested during the
development period; i.e., the evidence demonstrates or supports
onset of the impairment before age 22.”

20 C.F.R. Part 404,

Subpart P, Appendix 1, Listing 12.05 (2014). Subsection C

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Tramadol “is indicated for the management of moderate to
moderately severe chronic pain in adults who require around-the-clock
treatment of their pain for an extended period of time.” Physician's
Desk Reference 2520 (66th ed. 2012).
5The evidence at Tr. 302-27 was submitted to the Appeals Council

on June 18, 2013, after the ALJ’s determination was entered (Tr. 6).
As White raises no claim regarding that evidence (Doc. 14), it will
not be summarized herein.

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requires "[a] valid verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental impairment imposing an
additional and significant work-related limitation of function."
20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 12.05C
(2014).
On the WAIS-IV, White scored a full scale IQ score of 63;
the ALJ discounted the score, but considered his special
education, his ability to live alone, maintain his financial
affairs, and work at several different jobs consistently for
most of his life, quitting only because the railroad closed (Tr.
35).

He cited Psychologist Tocci’s exam, noting White’s own

description of his daily activities and finding that Plaintiff
functioned with average intelligence (Tr. 36).

The ALJ cited

Robidoux’s physical exam, finding only hypertension (Tr. 37).
After considering these things, the ALJ found that White
“does not have significant limitations in adaptive functioning”
(Tr. 29).

The Court agrees: the record evidence does not

support a finding of disability based on 12.05C.
In reaching his determination, the ALJ discredited
Blanton’s conclusions as inconsistent with the other evidence;
the Court finds substantial support for that conclusion.

The

ALJ further discounted Blanton’s report as bought and paid for,
on the advice of a lawyer, in search of a disability claim (see
Tr. 37).

The Court reminds Defendant that social security

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regulations require White to provide evidence of impairment.

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C.F.R. § 404.1545(a)(3).
In summary, the ALJ credited White’s daily activities as
demonstrating an ability to work and care for himself.

As such,

his assertion of lifelong mental retardation could not be
supported.
The Court agrees with this conclusion.

White has not

demonstrated, in this medical record, that he suffers “deficits
in adaptive behavior” in the present, much less that they became
manifest before he was twenty-two.

Plaintiff’s claim otherwise

is without merit.
White next alleges that the ALJ’s RFC evaluation is flawed
because it does not consider the combination of his impairments
(Doc. 14, pp. 6-7).

Plaintiff charges the ALJ with failing to

properly represent his severe impairments of--depression,
anxiety, chronic pain disorder, and inability to read—in either
the RFC or his questions to the VE.
The Court notes that the ALJ is responsible for determining
a claimant’s RFC.

20 C.F.R. § 404.1546 (2013).

That decision

cannot be based on “sit and squirm” jurisprudence.

Wilson v.

Heckler, 734 F.2d 513, 518 (11th Cir. 1984).
In the decision, the ALJ found Plaintiff’s RFC to be as
follows:

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[He] can perform light work as defined in 20
C.F.R. §§ 404.1567(b)6 and 416.957(b) except
with the following limitations: He is able
to lift, carry, push and pull 20 pounds
occasionally and 10 pounds frequently. He
can sit and stand for 6 hours in an 8-hour
work day but would require a sit/stand
option to relieve pain and discomfort. He
can frequently climb ramps and stairs but
never climb ladders or scaffolds. He is
able to frequently balance, stoop, kneel,
crouch, and crawl. He should never be
exposed to unprotected heights, dangerous
machinery, dangerous tools, hazardous
processes, or operate a motor vehicle. He
could occasionally operate non-dangerous
moving mechanical parts and would be limited
to understanding oral instructions and
performing only routine and repetitive
tasks. Any time off task by the claimant
would be accommodated by normal workday
breaks.
(Tr. 30).
The Court notes, initially, that "the Secretary shall
consider the combined effect of all of the individual's
impairments without regard to whether any such impairment, if
considered separately, would be of such severity."
423(d)(2)C).

42 U.S.C. §

The Eleventh Circuit Court of Appeals has noted

6“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 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.”

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this instruction and further found that "[i]t is the duty of the
[ALJ] to make specific and well-articulated findings as to the
effect of the combination of impairments and to decide whether
the combined impairments cause the claimant to be disabled."
Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984); see also
Reeves v. Heckler, 734 F.2d 519 (11th Cir. 1984); Wiggins v.
Schweiker, 679 F.2d 1387 (11th Cir. 1982).
In his findings, the ALJ lists White's impairments and
concludes by saying that he “does not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Appendix 1, Subpart P" (Tr. 29).

Very similar language has been

upheld by the Eleventh Circuit Court of Appeals as sufficient
consideration of the effects of the combinations of a claimant's
impairments.

Jones v. Department of Health and Human Services,

941 F.2d 1529, 1533 (11th Cir. 1991) (the claimant does not have
“an impairment or combination of impairments listed in, or
medically equal to one listed in Appendix 1, Subpart P,
Regulations No. 4").
White has also argued that the ALJ ignored his depression,
anxiety, chronic pain disorder, and inability to read in the RFC
(Doc. 14, p. 7).

The ALJ found that these impairments were not

severe (Tr. 26-27).
In Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984),

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the Eleventh Circuit Court of Appeals held that "[a]n impairment
can be considered as not severe only if it is a slight
abnormality which has such a minimal effect on the individual
that it would not be expected to interfere with the individual's
ability to work, irrespective of age, education, or work
experience."

Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.

1984); Flynn v. Heckler, 768 F.2d 1273 (11th Cir. 1985); cf. 20
C.F.R. § 404.1521(a) (2004).7

The Court of Appeals has gone on

to say that "[t]he 'severity' of a medically ascertained
disability must be measured in terms of its effect upon ability
to work, and not simply in terms of deviation from purely
medical standards of bodily perfection or normality."

McCruter

v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).
Though White asserts that his depression, anxiety, chronic
pain disorder, and inability to read are severe, he fails to
point to evidence, under Brady or McCruter, demonstrating an
inability to work because of them.

As such, they are not severe

and the ALJ’s consideration of them, under Jones has been
satisfied.

The Court finds substantial support for the ALJ’s

RFC determination.8
Plaintiff’s third claim is that the ALJ failed to complete

 7"An impairment or combination of impairments is not severe if it
does not significantly limit your physical or mental ability to do
basic work activities."
8The Court also finds White’s claim that the ALJ failed to

present these impairments in proper hypotheticals to the VE meritless.

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a PRTF in his analysis (Doc. 14, pp. 8-11).

Though the form

itself was not appended, the Court finds that the ALJ set this
information out in his determination:

White had no limitations

in daily living activities or in concentration, persistence, or
pace, and had never experienced an episode of decompensation; he
had mild limitations in social functioning (Tr. 27).

The Court

finds that the ALJ has properly incorporated the PRTF analysis
required in Moore v. Barnhart, 405 F.3d 1208, 1214 (11th Cir.
2005) and met the obligations of 20 C.F.R. § 404.1520a.

White’s

claim that the unfiled form constitutes remand is without merit.
Finally, Plaintiff asserts that the ALJ relied on mistaken
testimony from the VE.

Specifically, White points to the VE’s

characterization of his past work as a scaffold builder rather
than construction worker (Doc. 14, pp. 9-11; cf. Tr. 37).
However, as pointed out by Defendant, this mistake, if in
fact it is a mistake, is at most harmless because it was a
characterization of previous work.

The ALJ found that Plaintiff

could not do his past work and moved on to the fifth step of the
evaluation analysis, finding specific light work jobs that he
could do.

As such, the error is insignificant.

Petitioner also asserts that the VE’s testimony is in error
in that it conflicts with the Dictionary of Occupational Titles
because that reference does not address whether occupations
include a sit/stand option (Doc. 14, p. 10).

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The Eleventh

Circuit Court of Appeals has specifically held “that when the
VE’s testimony conflicts with the DOT, the VE’s testimony
‘trumps’ the DOT.”

Jones v. Apfel, 190 F.3d 1224, 1229-30 (11th

Cir. 1999), cert. denied, 529 U.S. 1089 (2000).

The Jones Court

noted the DOT’s acknowledgement that it was not a comprehensive
source and should be supplemented with local job information.
Id.
Here, the ALJ offered a proper hypothetical question to the
VE and questioned him as to the effect of a sit-stand opinion
(Tr. 38, 75-79).

This Court has no reason to find the VE’s

testimony that White can perform the jobs of tagger, cloth
folder, and inspector unsupported by substantial evidence.
White has raised many claims in this action that are all
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."
at 401.

Perales, 402 U.S.

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 9th day of March, 2015.

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

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