Quartermaine v. Astrue

Filing 23

MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. Sec. 405(g) for further proceedings not inconsistent with this decision. Signed by Magistrate Judge William E. Cassady on 12/14/2011. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION

CARMEN QUARTERMAINE,
Plaintiff,

:
:

vs.

:

MICHAEL J. ASTRUE,
Commissioner of Social Security,

CA 11-0142-C

:
:

Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. § 405(g), seeking judicial review
of a final decision of the Commissioner of Social Security denying her claim for a period
of disability and disability insurance benefits. The parties have consented to the exercise
of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. 636(c), for all proceedings
in this Court. (Docs. 21 & 22 (“In accordance with the provisions of 28 U.S.C. 636(c) and
Fed.R.Civ.P. 73, the parties in this case consent to have a United States Magistrate Judge
conduct any and all proceedings in this case, . . . order the entry of a final judgment, and
conduct all post-judgment proceedings.”).) Upon consideration of the administrative
record, plaintiff’s brief, the Commissioner’s brief, and the arguments of the parties at
the November 17, 2011 hearing before the Magistrate Judge, it is determined that the

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Commissioner’s decision denying plaintiff benefits should be reversed and remanded
for further proceedings not inconsistent with this decision.1
Plaintiff alleges disability due to diabetes mellitus, peripheral neuropathy
(bilateral-lower extremities), myasthenia gravis, diabetic retinopathy, decreased visual
acuity, and migraine headaches. The Administrative Law Judge (ALJ) made the
following relevant findings:
1.
The claimant last met the insured status requirements of the
Social Security Act on December 31, 2007.
2.
The claimant did not engage in substantial gainful activity
during the period from her alleged disability onset date of January 1,
2005 through her date last insured of December 31, 2007 (20 CFR
404.1571 et seq.).
3.
Through the date last insured, the claimant had the following
severe impairments: decreased visual acuity, diabetes mellitus, diabetic
retinopathy, peripheral neuropathy, headaches, and obesity. She also
had the following non-severe impairments: restless leg syndrome and
adjustment disorder with depressed mood (20 CFR 404.1520(c)).
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4.
Through the date last insured, the claimant did not have an
impairment or combination of impairments that met or medically
equaled one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
The claimant’s impairment of diabetes is analyzed under listing 9.08. To
be found disabled, the claimant would be required to demonstrate that
her impairment has resulted in: (A) neuropathy so severe as to cause
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 21 & 22 (“An appeal from a
judgment entered by a Magistrate Judge shall be taken directly to the United States Court of
Appeals for this judicial circuit in the same manner as an appeal from any other judgment of
this district court.”))
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sustained disturbance of gross and dexterous movements of gait and
station; or (B) acidosis occurring once every two months as documented
by blood chemical tests; or (C) retinitis proliferans resulting in visual
efficiency or visual field loss of the severity specified in listings 2.02, 2.03,
or 2.04. Although there was some evidence of neuropathy, it was
generally mild. In addition, there is evidence of retinopathy but it does not
reach the levels specified in listing 2.02, 2.03 or 2.04. There was no
objective medical evidence of significant and persistent disorganization of
motor functioning, resulting in sustained disturbance of gross and
dexterous movements, or gait and station. Furthermore, the record did not
document acidosis occurring as often as required of this medical listing.
The claimant’s impairments of decreased visual acuity and diabetic
retinopathy are analyzed under listing 2.02. To be found disabled, the
claimant would be required to demonstrate that her remaining vision in
the better eye after best correction is 20/200 or less. There is not any
objective medical evidence that indicates the claimant meets this
requirement. Therefore, the claimant does not meet the criteria necessary
to meet this medical listing.
Because the claimant’s severe impairments have not been shown to
impose limitations as mentioned in the listings, she does not have an
impairment or combination of impairments that meets or medically equals
one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1525, 404.1526 []).
5.
After careful consideration of the entire record, the undersigned
finds that, through the date last insured, the claimant had the residual
functional capacity (RFC) to perform a range of light work as defined in
20 CFR 404.1567(b). The claimant has a RFC consistent with Exhibit 18F
with the following additional limitations: lift and carry reduced to 20
pounds occasionally and less than 10 pound[s] frequently; stand and
walk 6 hours out of an 8-hour work day; sit for 6 hours out of an 8-hour
work day; sit/stand option added; limited use of bilateral lower
extremities for the operation of foot controls to no more than 2 hours out
of an 8-hour work day; unlimited use of upper extremities with the only
limitation being the lift and carry limitation; frequently able to climb
ramps and stairs; frequently able to perform all the other postural
limitations – balancing, stooping, kneeling, crouching, and crawling;
never climb[] ropes or scaffolds; no manipulative limitations; limited
near and far acuity with respect to basically monocular vision for safety
issues; no communicative limitations; avoid reading small print; avoid
hazardous machinery, unprotected heights and environment free of trip
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hazards; no operation of automotive equipment; mild to moderate pain
limitation; and no psychological limitations.
In making this finding, the undersigned has considered all symptoms and
the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence, based
on the requirements of 20 CFR 404.1529 and SSRs 96-4p and 96-7p. The
undersigned has also considered opinion evidence in accordance with the
requirements of 20 CFR 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.
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The claimant also has migraine headaches for which she first sought
treatment in February 2007 from Dr. James D. Geyer, a treating physician.
In July 2007, she was admitted to DCH Regional Medical Center with
headaches and vision loss in the left eye. While in the hospital, she had a
CT head scan, cranial MRI and brain MRI, all of which were normal. The
claimant stated that Midrin was effective in controlling her headaches if
taken at onset. She was given medications during her stay and after
showing improvement was released from the hospital with a prescription
for Midrin (Exhibit 6F).
The claimant sought further treatment from Alabama Neurology & Sleep
Medicine from October 2007 to October 2008. During these visits the
migraines were characterized as severe with blurry vision; however, the
claimant stated consistently that the medications Elavil, Midrin and
Topomax did provide her relief (Exhibit 10F and 28F).
In addition, due to the diabetes, the claimant has peripheral neuropathy in
her feet and legs. In July 2007 the claimant sought treatment with Dr.
Geyer. He noted in his physical exam that she was positive for
neuropathic changes in her feet and that her left and right toes were down
going. He noted no clubbing or cyanosis. She was prescribed Elavil 100mg
(Exhibits 6F and 7F). In her August 2007 and October 2007 follow-up visits
with Dr. Geyer, he noted her condition was moderate. Her physical
examinations during these visits were unremarkable. She was prescribed
Lyrica 50mg (Exhibit 9F).
On September 29, 2008, the claimant was taken to the DCH Regional
Medical Center Emergency Room for acute pain in her left lower
extremities. She was treated for pain and released the same day (Exhibit
23F).

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On October 5, 2008, she was once again admitted to DCH Regional
Medical Center due to leg weakness. Upon admission, the claimant rated
her pain as 8, on a 1-10 scale, and she was unable to walk. The physical
examination revealed no clubbing, cyanosis or edema. She had diffuse
giveaway weakness on direct strength testing, but no definite true
weakness. Deep tendon reflexes were absent but her strength was 4+/5,
which is normal. Her toes were down going. The claimant’s condition
improved and she was discharged on October 6, 2008 when she was able
to ambulate (Exhibit 23F).
On October 15, 2008, the claimant completed an Application for Disability
Access Parking Privileges in order to obtain a disability access placard.
This application was signed by Dr. Geyer and it was marked that the
claimant cannot walk two hundred feet without stopping to rest (Exhibit
27F). This is not consistent with her medical records and daily activities.
The claimant was again admitted to the hospital on November 13, 2008 for
leg weakness. The claimant rated her pain as 8, on a 1-10 scale. There were
no outward signs of peripheral disease on exam. The claimant was treated
for pain during her stay and was discharged on November 14, 2008 after
showing improvement (Exhibit 23F).
On February 15, 2009 the claimant once again returned to the DCH
Regional Medical Center Emergency Room with lower extremity swelling
and pain. The claimant rated her pain as 7, on a 1-10 scale. On February
16, 2009 she was given a lower extremity venous evaluation. The results
were normal and there was no evidence of deep venous thrombosis. The
claimant was released on February 16, 2009 (Exhibit 23F).
The claimant also sought treatment for peripheral neuropathy from Dr.
Tohee J. Kamal on April 29, 2009. Her physical examination was
unremarkable, but she did have acute edema in extremities and sensation
to microfilament was reduced in both feet. She was given an assessment
plan in order to control her diabetes and peripheral neuropathy (Exhibit
22F).
Furthermore, due to her diabetes, the claimant has essentially monocular
vision and diabetic retinopathy. She has been in treatment with
Tuscaloosa Ophthalmology since 2004 and with Medical Surgical Eye
Care since [] 2009. Throughout the claimant’s eye treatment she has
complained of blurry vision and black spots/shadows. She has had
various laser surgeries for cataracts and blurry vision. She has had ptosis
since birth, but no limitations are noted due to this condition. Although
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the medical record showed that the claimant’s vision had consistently
decreased over the years, her vision had been consistently recorded
around 20/40 with corrective lens. At one of her most recent eye exams
dated May 7, 2009 her vision was 20/40 with corrective lens. In addition,
she stated during this exam that she could see better in her glasses
(Exhibits 1F, 11F, 22F and 25F).
Great weight is given to the Residual Functional Capacity Assessment
(RFC) from the state agency. Although the disability examiner, C. Lee
Waldup, is not a physician, he thoroughly reviewed the claimant’s
medical record and his opinion is consistent with the findings in that
record. Furthermore, the RFC was completed with input from several state
agency physicians (Exhibits 13F, 19F and 20F). However, the undersigned
does find that, in light of the claimant’s impairments in combination, she
has more limitations than those listed in the RFC. The additional
limitations are reflected in the RFC listed above and are taken into account
in determining the claimant’s abilities (Exhibit 18F).
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6.
Through the date last insured, the claimant was capable of
performing past relevant work as a unit clerk. This work did not require
the performance of work-related activities precluded by the claimant’s
residual functional capacity (20 CFR 404.1565).
The claimant has admitted certain abilities, as previously described, which
provide support for part of the residual functional capacity conclusion in
this decision.
The claimant worked as a unit clerk which is a light, semi-skilled job. The
vocational expert testified that the claimant’s job as a unit clerk is a light
semi-skilled job as described in the Dictionary of Occupational Titles.
Assuming the claimant’s residual functional capacity as assessed by the
undersigned, the vocational expert testified that a person with the
claimant’s same education, past relevant work and RFC would be able to
perform the requirements of this job.
Therefore, in comparing the claimant’s residual functional capacity with
the physical and mental demands of the work as a unit clerk, the
undersigned, based on the vocational expert’s testimony, finds that the
claimant is able to perform this work as actually and generally performed.

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7.
The claimant was not under a disability, as defined in the Social
Security Act, at any time from January 1, 2005, the alleged onset date,
through December 31, 2007, the date last insured (20 CFR 404.1520(f)).
(Tr. 15, 16-17, 19- 21 & 22-23 (some emphasis supplied).) The Appeals Council affirmed
the ALJ’s decision (Tr. 1-3) and thus, the hearing decision became the final decision of
the Commissioner of Social Security.
DISCUSSION
In all Social Security cases, the claimant bears the burden of proving that she is
unable to perform her previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the examiner must consider the
following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of
examining physicians; (3) evidence of pain; and (4) the claimant’s age, education and
work history. Id. at 1005. Once the claimant meets this burden, it becomes the
Commissioner’s burden to prove that the claimant is capable, given her age, education
and work history, of engaging in another kind of substantial gainful employment which
exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that she can perform her past relevant
work as a unit clerk, is supported by substantial evidence. Substantial evidence is
defined as more than a scintilla and means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91
S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In determining whether substantial evidence exists,
we must view the record as a whole, taking into account evidence favorable as well as
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unfavorable to the [Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th
Cir. 1986).2
In this case, the plaintiff contends that the ALJ made the following errors: (1) he
failed to properly consider the applicability of Listing 9.08(A); and (2) he erred in
relying upon and giving great weight to a non-medical source opinion in arriving at his
conclusion regarding her RFC. Because the undersigned agrees with the plaintiff that
the ALJ improperly gave great weight to the RFC determination of a disability examiner
and improperly relied upon that determination in reaching his conclusion regarding the
claimant’s RFC, there is no need to address the specifics of the other assignment of error
raised by Quartermaine. See Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985)
(“Because the ‘misuse of the expert’s testimony alone warrants a reversal,’ we do not
consider the appellant’s other claims.”).
Although the claimant bears the burden of demonstrating the inability to return
to her past relevant work, the Commissioner of Social Security has an obligation to
develop a full and fair record. Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987)
(citations omitted). To this end, because § 404.1520(f) of the Commissioner’s regulations
requires a review and consideration of a plaintiff's residual functional capacity and the
physical and mental demands of the past work before a determination can be made that
the plaintiff can perform her past relevant work, see id. (“If we cannot make a

This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
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determination or decision at the first three steps of the sequential evaluation process,
we will compare our residual functional capacity assessment, which we made under
paragraph (e) of this section, with the physical and mental demands of your past
relevant work. . . . If you can still do this kind of work, we will find that you are not
disabled.”); compare id. with 20 C.F.R. § 404.1520(e) (“If your impairment(s) does not
meet or equal a listed impairment, we will assess and make a finding about your
residual functional capacity based on all the relevant medical and other evidence in
your case record[.] . . . We use our residual functional capacity assessment at the fourth
step of the sequential evaluation process to determine if you can do your past relevant
work[.]”), an ALJ’s RFC determination must be supported by substantial evidence. See
Moore v. Barnhart, 405 F.3d 1208, 1213 (11th Cir. 2005) (“[W]e find that the ALJ’s
determination that Moore retained sufficient RFC to perform some of her past relevant
work was supported by substantial evidence.”). The ALJ makes this RFC determination
by considering the claimant’s ability “to meet the physical, mental, sensory, and other
requirements of work[.]” 20 C.F.R. § 404.1545(a)(4); compare id. with § 404.1545(b)
(“Physical abilities. . . . A limited ability to perform certain physical demands of work
activity, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other
physical functions (including manipulative or postural functions, such as reaching,
handling, stooping or crouching), may reduce your ability to do past work and other
work.”) and § 404.1545(d) (“Some medically determinable impairment(s), such as . . .
impairment(s) of vision, . . . and impairment(s) which impose environmental

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restrictions, may cause limitations and restrictions which affect other work-related
abilities.”).
In attempting to establish plaintiff’s residual functional capacity and determine
whether plaintiff retains the RFC to perform her past relevant work as a unit clerk, the
ALJ gave “great weight” to the residual functional capacity assessment completed by
disability examiner, C. Lee Waldrup (Tr. 21 (emphasis supplied)). Accordance of “great
weight” to Waldrup’s assessment constitutes an error of law since an RFC assessment
completed by a disability examiner is entitled to no weight. Compare Traylor v. Astrue,
2010 WL 920114, *5 (M.D. Ala. Mar. 11, 2010) (“The referenced opinion, however, is not
that of a physician; it is the opinion of the DDS disability examiner, Karen Wiggins. Her
opinion is not, as the Appeals Council apparently believed, entitled to consideration as
an expert medical opinion.” (internal citation omitted)); Casey v. Astrue, 2008 WL
2509030, *4 n.3 (S.D. Ala. June 19, 2008) (“[A]n RFC assessment completed by a
disability specialist is entitled to no weight.”); and Bolton v. Astrue, 2008 WL 2038513, *4
(M.D.Fla. May 12, 2008) (“‘An SDM is not a medical professional of any stripe, and’ a
finding from such an individual is ‘entitled to no weight as a medical opinion, nor to
consideration as evidence from other non-medical sources.’”) with 20 C.F.R. §
404.1513(c) (2011) (“At the administrative law judge and Appeals Council levels, and at
the reviewing official, administrative law judge, and Decision Review Board levels in
claims adjudicated under the procedures in part 405 of this chapter, we will consider
residual functional capacity assessments made by State agency medical and
psychological consultants, medical and psychological experts . . ., and other program
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physicians and psychologists to be ‘statements about what you can still do’ made by
non-examining physicians and psychologists based on their review of the evidence in
the case record.”) & (d)(1)-(4) (describing evidence that may be used from other
acceptable medical and non-medical sources but never identifying disability specialists
as an acceptable non-medical source); cf. Swindle v. Sullivan, 914 F.2d 222, 226 n.3 (11th
Cir. 1990) (the opinion of a non-examining, reviewing physician “is entitled to little
weight and taken alone does not constitute substantial evidence to support an
administrative decision.”). In the absence of Waldrup’s RFC assessment, the ALJ’s RFC
assessment and conclusion that plaintiff can perform her past work as a unit clerk is not
supported by substantial evidence, inasmuch as the numerous findings made by
Waldrup informed not only the ALJ’s RFC determination but, as well, the testimony of
the vocational expert (“VE”) and the ALJ’s determination that plaintiff’s RFC allows her
to return to her past relevant work as a unit clerk. Compare Tr. 17 (“After careful
consideration of the entire record, the undersigned finds that, through the date last
insured, the claimant had the residual functional capacity (RFC) to perform a range of
light work as defined in 20 CFR 404.1567(b). The claimant has a RFC consistent with
Exhibit 18F with the following additional limitations: . . . frequently able to climb
ramps and stairs; frequently able to perform all the other postural limitations –
balancing, stooping, kneeling, crouching and crawling; never climb ropes or
scaffolds; no manipulative limitations; limited near and far acuity with respect to
basically monocular vision for safety issues; no communicative limitations; avoid
reading small print; avoid hazardous machinery, unprotected heights and
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environment free of trip hazards; [and] no operation of automotive equipment[.]”
(some emphasis supplied)) and Tr. 73-74 (VE’s testimony that plaintiff could perform
her past job as a unit clerk, when posed a hypothetical by the ALJ that included all of
the above postural, manipulative, visual, communicative, and environmental noted by
the ALJ, and as contained in Exhibit 18F) with Tr. 371-376 (relevant pages of RFC
assessment by Waldrup which contain postural, manipulative, visual, communicative,
and environmental limitations identical to those found by the ALJ).3 In this regard, the
Commissioner cannot be heard to argue that this Court can look to the “input” from
several state agency physicians underlying Waldrup’s assessment (see Tr. 21 (ALJ
notation that Waldrup’s assessment was due great weight, in part, because it “was
completed with input from several state agency physicians.”)) as support for the ALJ’s
ultimate RFC assessment, given Waldrup’s failure to include in his assessment, and the
ALJ in his hypothetical posed to the VE and upon which the ALJ relies to find that
plaintiff can perform her past relevant work as a unit clerk, all of the limitations found
by the agency physicians (compare Tr. 378 (physical summary by Drs. Callins & Kerr)

Thus, the ALJ’s assignment of great weight to Waldrup’s RFC assessment is not,
as the defendant argues, mere harmless error (see Doc. 19, at 10 & 11-13). In particular, as
specifically pointed out in this opinion, the defendant incorrectly argues that the portions of
Waldrup’s assessment that were accepted by the ALJ and the remaining evidence in the record
do not conflict. Indeed, Waldrup’s specific, yet conclusory, rejection of the limitation regarding
the handling of objects (see Tr. 375)—found not only by a state agency optometrist, Rose Betz
(Tr. 348), but, as well, by two state agency physicians, Drs. Callins and Kerr (Tr. 378)—cannot
withstand scrutiny since reviewing physicians and a person who deals daily with vision
problems, in the undersigned’s opinion, would have a much better idea of how such problems
would impact an individual’s ability to handle objects than would a disability examiner
conducting a document review.
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with Tr. 17 & 72-74) (ALJ’s specific RFC assessment which was incorporated into the
hypothetical posed to the VE) and Tr. 371-376 (Waldrup’s pertinent RFC findings)).
More to the point, if it be incumbent upon this Court to consider this evidence, it would
also be incumbent upon this Court to consider the additional limitation recognized by a
state agency optometrist, Rose Betz, that plaintiff “would have difficulty handling
objects as she cannot see them clearly[,]” (Tr. 348), and incorporated into the physical
summary by Drs. Callins and Kerr (Tr. 378), thereby begging the question of whether
the VE would have indicated plaintiff could perform her past job of unit clerk had this
additional limitation been part of the hypothetical posed to the VE (compare Tr. 158
(plaintiff’s description of her past relevant work as a unit clerk was that it required
writing, typing, or handling small objects 6 to 8 hours a day; she had to translate
physician orders, chart vital signs, order blood work and x-rays, schedule surgeries, and
run errands to the pharmacy or SPD) with DOT 245.362-014 (“Prepares and compiles
records in nursing unit of hospital or medical facility: Records name of patient, address,
and name of attending physician to prepare medical records on new patients. Copies
information, such as patient’s temperature, pulse rate, and blood pressure from nurses’
records onto patient’s medical records. Records information, such as physicians’ orders
and instructions, dietary requirements, and medication information, on patient charts
and medical records. Keeps file of medical records on patients in unit. Prepares notice
of patient’s discharge to inform business office. Requisitions supplies designated by
nursing staff. Answers telephone and intercom calls and provides information or relays
messages to patients and medical staff. Directs visitors to patients’ rooms. Distributes
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mail, newspapers, and flowers to patients. Compiles census of patients. . . . May
transport patients in wheelchair or conveyance to locations within facility. May key
patient information into computer.”)). Accordingly, this cause is due to be remanded to
the Commissioner of Social Security for further consideration of plaintiff’s proper RFC
and her ability, at the fourth step of the sequential evaluation process, to perform the
requirements of her past relevant work, or, alternatively, her ability, at the fifth step of
the sequential evaluation process, to perform other work existing in substantial
numbers in the national economy.
CONCLUSION
It is ORDERED that the decision of the Commissioner of Social Security denying
plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. '
405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), for
further proceedings not inconsistent with this decision. The remand pursuant to
sentence four of § 405(g) makes the plaintiff a prevailing party for purposes of the Equal
Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625,
125 L.Ed.2d 239 (1993), and terminates this Court’s jurisdiction over this matter.
DONE and ORDERED this the 14th day of December, 2011.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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