Allen v. Colvin

Filing 18

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner be AFFIRMED and this action be DISMISSED. Signed by Magistrate Judge Katherine P. Nelson on 2/10/2017. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LATIA ZARITA ALLEN
Plaintiff,
v.
CAROLYN W. COLVIN,
Social Security Commissioner
Defendant.

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) CIVIL ACTION NO. 16-359-N
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MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g) Plaintiff, Latia Zarita Allen (“Allen” or
“Plaintiff”) seeks judicial review of an adverse social security ruling denying claims
for Supplemental Security Income (SSI) (Docs. 1, 12).

With the consent of the

parties, the Court has designated the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in this civil action, in accordance with
28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73.
(See Docs. 15, 17).

Oral argument was heard on February 2, 2017.

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.
PROCEDURAL BACKGROUND
Plaintiff protectively applied for SSI on February 24, 2005, asserting a
disability onset date of October 1, 2001. (Tr. at 69, 176-78).

Plaintiff was

awarded benefits as a child, but when she reached eighteen, her benefits had

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to be redetermined as an adult. (TR. at 27). On October 14, 2013, it was
determined that Plaintiff was no longer disabled as of October 1, 2013. (TR.
at 88-89). Plaintiff filed a Request for Reconsideration on October 11, 2013,
and attended a disability hearing on October 8, 2014. (TR. at 92, 99-110).
The hearing officer upheld the termination of Plaintiff’s benefits in a decision
dated March 10, 2014.

(TR. at 115-18).

Plaintiff appealed the hearing

officer’s decision and attended two hearings before an ALJ on June 16, 2014
and August 19, 2014. (TR. 42-68).
At the time of the administrative hearing, Plaintiff was nineteen years
old, was in the ninth grade, and had no previous work experience. (Doc. 12;
Fact Sheet). Plaintiff alleges she is disabled due to intellectual disability and
anxiety. (Id). On October 24, 2014, an Administrative Law Judge (“ALJ”)
denied benefits after determining that Plaintiff did not meet disability listing
requirements of 12.05. (Tr. at 24-41).

Plaintiff requested review of the

hearing decision, but the Appeals Council denied the request. (Tr. 1-7).
Plaintiff claims that the ALJ committed reversible error in (1) failing
to find that Plaintiff met the listing requirement of 12.05C and (2) failing to
fully develop the record. (Doc. 12 at 2). Defendant has responded to—and
denies—these claims. (Doc. 13).
STANDARD OF REVIEW
“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is ‘ “supported by substantial evidence and based on

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proper legal standards. Substantial evidence is more than a scintilla and is
such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” ’ ” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011) (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004) (per curiam) (internal citation omitted) (quoting
Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997))). However, the
Court “ ‘may not decide the facts anew, reweigh the evidence, or substitute
our judgment for that of the [Commissioner].’ ” Winschel, 631 F.3d at 1178
(quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)
(alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983))). “ ‘Even if the evidence preponderates against the
[Commissioner]’s factual findings, we must affirm if the decision reached is
supported by substantial evidence.’ ”

Ingram, 496 F.3d at 1260 (quoting

Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
“Yet, within this narrowly circumscribed role, [courts] do not act as
automatons. [The court] must scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial
evidence[.]” Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted).
See also Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam)
(“We are neither to conduct a de novo proceeding, nor to rubber stamp the
administrative decisions that come before us. Rather, our function is to
ensure that the decision was based on a reasonable and consistently applied

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standard, and was carefully considered in light of all the relevant facts.”). “In
determining whether substantial evidence exists, [a court] must…tak[e] into
account evidence favorable as well as unfavorable to the [Commissioner’s]
decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
Although the “claimant bears the burden of demonstrating the
inability to return to [his or] her past relevant work, the Commissioner of
Social Security has an obligation to develop a full and fair record.” Shnorr v.
Bowen, 816 F.2d 578, 581 (11th Cir. 1987). See also Ellison v. Barnhart, 355
F.3d 1272, 1276 (11th Cir. 2003) (per curiam) (“It is well-established that the
ALJ has a basic duty to develop a full and fair record. Nevertheless, the
claimant bears the burden of proving that he is disabled, and, consequently,
he is responsible for producing evidence in support of his claim.” (citations
omitted)).

“This is an onerous task, as the ALJ must scrupulously and

conscientiously probe into, inquire of, and explore for all relevant facts. In
determining whether a claimant is disabled, the ALJ must consider the
evidence as a whole.” Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267
(11th Cir. 2015) (per curiam) (citation and quotation omitted).
Where, as here, the ALJ denied benefits and the Appeals Council
denied review of that decision, the Court “review[s] the ALJ’s decision as the
Commissioner’s final decision.” Doughty, 245 F.3d at 1278. “[W]hen the
[Appeals Council] has denied review, [the Court] will look only to the
evidence actually presented to the ALJ in determining whether the ALJ’s

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decision is supported by substantial evidence.” Falge v. Apfel, 150 F.3d 1320,
1323 (11th Cir. 1998).
DISCUSSION
Allen takes issue with the fact that the ALJ did not find that she met
the listing requirements of 12.05C. More specifically, Plaintiff contends that
her anxiety should have satisfied the second prong of 12.05C which requires
“a physical or other mental impairment imposing an additional and
significant work related limitation of function”.

(Doc. 12 at 2).

Plaintiff

additionally claims that the ALJ failed to fully develop the record by not
obtaining updated records. Id. Because Plaintiff argues that the ALJ’s error
relating to the listing requirement of 12.05C is based, in part, on the ALJ’s
failure to fully develop the record, this Court will first address whether the
ALJ erred in not obtaining additional records.
A.

Failure to Develop the Record

Plaintiff argues that the record before the ALJ was devoid of any
treatment notes after 2012, two years prior to the date of the decision and
was, therefore, incomplete.1 (Doc. 12 at 4). Of note, Plaintiff does not assert
that there was a lack of substantial evidence before the ALJ. Instead, she
asserts that the ALJ did not have two additional records which would have or
should have impacted the ALJ’s decision and, therefore, the ALJ’s failure to

At the hearing, Plaintiff’s counsel indicated that the record before the ALJ, in fact, included
the very documents that Plaintiff, in her brief, argued were erroneously not obtained by the
ALJ. Nevertheless, because the issue was raised in her brief and for the sake of clarity, the
undersigned will still address this alleged error.

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obtain those records was in error.
It is well-established that the ALJ has a basic duty to develop a full
and fair record. 20 C.F.R. § 416.912(d). “Nevertheless, the claimant bears the
burden of proving that he is disabled, and, consequently, he is responsible for
producing evidence in support of his claim.” Ellison v. Barnhart, 355 F.3d
1272, 1276 (11th Cir. 2003); See 20 C.F.R. § 416.912(a) (stating that
“[claimant] must furnish medical and other evidence that we can use to reach
conclusions about your medical impairment(s)”); 20 C.F.R. § 416.912(c)
(stating “[y]our responsibility. You must provide medical evidence showing
that you have an impairment(s) and how severe it is during the time you say
you are disabled”).
As an initial matter, the ALJ was required to develop Plaintiff's
medical history for the 12 months prior to her filing, not prior to the decision
being rendered as Plaintiff suggests.

See 20 C.F.R. § 416.912(d).

Nevertheless, Plaintiff contends that the ALJ should have obtained the
AltaPointe Health Systems records because they “show that the Plaintiff has
long-standing mental health treatment and continues to have problems with
anxiety” and because they show that Plaintiff was formally diagnosed with
anxiety. (Doc. 12 a t 3). Those records also “reflect the Plaintiff’s history of
attending the Lemoyne School (an alternative school program run by
AltaPointe Health Systems) and POINTE Academy (an alternative school
setting).” Id. Plaintiff also asserts that the ALJ should have obtained the

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“Individualized Education Program (IEP) for the 2014/2015 school year
[because it] shows severe problems.”

Id.

Plaintiff argues that “[t]hese

additional records support a finding that the Plaintiff has had trouble
adjusting in a school setting and that her additional diagnoses have
adversely affected her performance, thus meeting the second prong of Listing
12.05C.” Id.
Plaintiff’s argument fails to acknowledge the information considered
by the ALJ from 2012 to 2014, including the evaluations of two physicians in
2013, school records from 2014, and Plaintiff’s and her mother’s own
testimony in 2014, such that lack of further development of the record was in
error. At the hearing, Plaintiff’s mother testified that there were only two or
three visits regarding counseling sessions missing from the Lemoyne Center2
records that were reviewed by the ALJ prior to the hearing. (TR. at 64-66).
Plaintiff also testified that she had not sought any additional treatment since
the counseling sessions at Lemoyne, including any emergent care and that
she had not taken any medication since she turned eighteen. (TR. at 55-56).
Moreover, it is evident that the ALJ considered the contents of the Lemoyne
records, as described by Plaintiff and her mother, even if the records,
themselves, were not part of the record. (See Tr. at 29) (“ The Administrative
Law judge recognizes that the claimant was diagnosed with anxiety and
attended two counseling sessions […]. However, there is no evidence that she
has sought any assistance […] with regard to complaints of anxiety. The

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The Lemoyne records are contained within the AltaPointe Health Systems records.

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Claimant testified that she has not pursued additional treatment, and the
evidence indicates that claimant has not required any emergent care or
hospital care for anxiety.”) As a result, there is no indication that the ALJ
erred by failing to develop the record.
Further, the records Plaintiff contends should have been obtained by
the ALJ were submitted to the Appeals Counsel and in making its decision
the Appeals Counsel stated “[w]e considered the records from Williamson
High School dated March 14, 2014 (11 pages) and the LeMoyne Center dated
February 22, 2007 through August 8, 2014 (16 pages).

However, these

documents are not new because they are exact copies of exhibits 20E and
13F.” (TR. at 2).

As a result, even if the ALJ failed to fully develop the

record, Plaintiff was not prejudiced. See Hethcox v. Comm'r of Soc. Sec., 638
Fed.Appx. 833, (11th Cir. 2015).3 Based on the above, the ALJ did not err by
failing to obtain the documents cited by Plaintiff and Plaintiff’s argument is
without merit.
B.

The 12.05C Listing Requirements

Plaintiff additionally contends that that ALJ erred by failing to
determine that Plaintiff met the listing requirements of 12.05C.

At step

In Hethcox, the Court stated, “[e]ven if ALJ failed to fully develop the record, by not
ordering a consultative examination to determine if disability insurance benefits (DIB) and
supplemental security income (SSI) claimant had a mental impairment, claimant was not
prejudiced; claimant cured any deficiencies in the record by appealing ALJ's denial of
benefits, and then filing with the Appeals Council her educational records and the results of
a second evaluation with physician, which included a diagnosis of mild mental retardation
and an IQ score of 67. By doing so, Hethcox cured any deficiencies in the record. We affirm
the district court's judgment that the ALJ fulfilled his duty to fully and fairly develop the
record.” Hethcox, 638 Fed. Appx. at 835.

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three of the sequential evaluation process the ALJ found that Allen did not
have an impairment or combination of impairments that met or equaled the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (TR. at 29-31). The ALJ then determined Plaintiff’s residual
functional capacity (RFC) and found she could perform a full range of work at
all exertional levels but with a number of nonexertional limitations. (Tr. 3135).
Listing 12.05C states as follows:
Intellectual disability refers to a significantly subaverage
general intellectual functioning with deficits in adaptive
functioning initially manifested during the development
period; i.e., the evidence demonstrates or supports onset
of the impairment before age 22.
The required level of severity for this disorder is met
when the requirements in A, B, C, or D are satisfied.
…
C. 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 12.05 (2016).

“In

determining the second prong of subparagraph C, the ALJ must assess ‘the
degree of functional limitation the additional impairment(s) imposes to
determine if it significantly limits [a claimant's] physical or mental ability to
do basic work activities, i.e., is a' severe' impairment(s), as defined in § §
404.1520(c) and 416.920(c).’” Jones v. Astrue, 2012 WL 5305142 *4 (M.D. Ala.

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October 25, 2012) quoting 20 C.F.R., pt. 404, subpt. P, app. 1, § 12.00A para.
4.
There is no dispute that Plaintiff had a valid full scale IQ score of 60
and, therefore, met the first prong of 12.05C. (Doc. 12 at 2; Doc. 13 at 6; TR.
at 30). As a result, the only issue before this Court is whether there was
substantial evidence in the record for the ALJ to determine that Plaintiff’s
anxiety did not satisfy the second part of 12.05C, which requires “a physical
or other mental impairment imposing an additional and significant workrelated limitation of function”. With regard to Part 12.05C, the ALJ stated as
follows:
In terms of the requirements in paragraph C, the requirements are not
fullfilled as the claimant does not have a physical or other mental
impairment imposing an additional and significant work-related
limitation of function. The claimant has not alleged any physical
impairments, and the claimant’s alleged anxiety does not result in
additional and significant limitation of function. This finding is
consistent with the consultative examiner’s report which revealed that
the claimant did not meet the criteria for any mental health disorder
except in the area of intellectual functioning (Exhibit 7F). This finding
is also consistent with the opinion of the state Disability
Determination Services psychologist who also did not find any mental
disorder except in the area of intellectual functioning (Exhibits 8F and
9F).
(TR at 30.)

In reviewing Plaintiff’s medical records, the ALJ noted the

limited treatment of Plaintiff for acute conditions, and not for any ongoing
chronic illnesses. (TR. at 32, 54-56).

The ALJ went on to summarize the

opinions of Lucile T. Williams, Psy.D. and Robert Estock, M.D. as follows:
As for the opinion evidence, the Administrative Law Judge gives
significant weight to the report from Lucille T. Williams, Psy.D., who

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evaluated the claimant on October 1, 2013 at the request of the Social
Security Administration. The administrative Law Judge notes that
the claimant was able to subtract serial threes from 20. She could
count backward from 20 to 1 and work problems in changemaking/simple arithmetic.
She could spell DOG forward and
backward. Recent and remote memory was intact. Thought processes
were grossly intact. No loose associations, tangential or circumstantial
thinking were noted.
The claimant did not appear confused.
Conversation was normal. No hallucinations or delusions were noted.
Insight and understanding of herself were good. Judgment was good.
The Administrative Law Judge specifically notes that Dr. Williams
found general activity level was age and task appropriate. The
claimant seemed socially confident and comfortable. She understood
instructions readily. She maintained good interest and effort. The
claimant’s approach to assessment tasks was methodical and orderly.
Dr. Williams diagnosed the claimant with mild mental retardation.
She did not find that the claimant met the criteria for any other
mental health diagnoses. The Administrative Law Judge notes that
Dr. William’s finding are consistent with the opinion of Dr. Estock, the
state agency psychiatrist and with her history of special education and
the results of her school testing (Exhibits 7-F, 10-F and 20-E).
The Administrative Law Judge assigns great weight to the report of
Robert Estock, M.D. the state agency psychiatrist. Dr. Estock noted
the claimant’s grade report for 2012-2014 shows the claimant is in
regular classes. She is not on any psychiatric medications and is not
receiving any medical or psychiatric treatment. Dr. Estock found
claimant would have moderate difficulty in activities of daily living;
maintaining social functioning and in concentration, persistence or
pace. Dr. Estock found the claimant is able to understand and
remember simple instructions; sustain attention and concentration for
two-hour periods to complete a regular workday at an acceptable pace
and attendance schedule. He found that contact with the public should
be brief and infrequent. He indicated she requires supervision, which
is direct, ongoing and non-confrontational. Dr. Estock further found
the claimant can adapt to workplace changes that are simple, well
explained and implemented gradually (Exhibits 8-F and 9-F).
(TR. at 34). The ALJ further relied on Plaintiff’s and her mother’s testimony
that Plaintiff had only attended two to three sessions for anxiety counseling,
had not sought any additional medical care, and was not taking any

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medication for anxiety. (TR. 29, 54-56, 64-66).
Plaintiff asserts that her anxiety was an “other mental impairment
imposing an additional and significant work-related limitation of function”.
In that regard, Plaintiff asserts that the ALJ failed to consider the IEP
Report for the 2014-15 school year and records from AltaPointe dated April
30, 2014. However, as discussed above, the information contained in the
AltaPointe records was provided to the ALJ via Plaintiff and her mother’s
testimony and was considered by the ALJ. Further, while these records may
contradict the ALJ’s determination, it does not make the determination the
result of an error as the record contained substantial evidence to support the
ALJ’s decision.
Despite, Plaintiff’s assertions to the contrary, this Court finds that
there was substantial evidence in the record and that the ALJ did not err by
determining that Plaintiff’s anxiety did not satisfy the second part of 12.05C.
Further, the ALJ’s explanation specifically articulated the reasoning behind
his decision in determining Plaintiff’s anxiety was insufficient.

As such,

Plaintiff’s assertion that the ALJ erred is without merit.
CONCLUSION
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." Richardson v. Perales, 402 U.S. 389, 401 (1971). Therefore, it is

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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
DISMMISSED. Judgment will be entered by separate Order.
DONE this 10th day of February 2017.

/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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