Terrell v. Colvin
Filing
23
Order entered that the decision of the Commissioner of Social Security denying Plaintiff's claim for supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 1/26/2015. (mjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ANNIE TERRELL,
*
*
Plaintiff,
*
*
vs.
*
*
CAROLYN W. COLVIN,
*
Commissioner of Social Security,*
*
Defendant.
*
CIVIL ACTION NO. 13-00357-B
ORDER
Plaintiff
Annie
Terrell
(hereinafter
“Plaintiff”)
brings
this action seeking judicial review of a final decision of the
Commissioner
supplemental
of
Social
security
Security
income
under
denying
Title
Security Act, 42 U.S.C. §§ 1381, et seq.
her
XVI
of
claim
the
for
Social
On November 12, 2014,
the parties consented to have the undersigned conduct any and
all proceedings in this case.
(Doc. 20).
Thus, the action was
referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73.
Upon careful consideration
of the administrative record and the memoranda of the parties,
it is hereby ORDERED that the decision of the Commissioner be
AFFIRMED.
I.
Procedural History
Plaintiff
protectively
filed
an
application
for
supplemental
security
income
on
July
29,
2010.
(Tr.
Plaintiff alleged that she had been disabled since
2010,
due
arthritis,
to
nerve
and
problems
high
blood
(anxiety
and
pressure.
panic
(Id.
155).
July 29,
disorder),
at
155,
159).
Plaintiff’s applications were denied and upon timely request,
she was granted an administrative hearing before Administrative
Law Judge Thomas M. Muth II (hereinafter “ALJ”) on September 21,
2011.
(Id. at 43).
Plaintiff attended the hearing with her
counsel and provided testimony related to her claims.
44).
A
medical
expert
and
a
vocational
expert
appeared at the hearing and provided testimony.
(Id. at
(“VE”)
also
(Id. at 55,
58).
On
November
25,
2011,
the
ALJ
issued
an
decision finding that Plaintiff is not disabled.
On
May
18,
2012,
and
June
4,
2012,
unfavorable
(Id. at 36).
Plaintiff
additional medical evidence to the Appeals Council.
submitted
The Appeals
Council considered said evidence before denying review on May
25, 2013.
dated
(Id. at 1-2, 5, 8, 514).
November
Commissioner.
25,
2011
Having
became
exhausted
the
her
Thus, the ALJ’s decision
final
decision
administrative
Plaintiff timely filed the present civil action.
of
the
remedies,
(Doc. 1).
The
parties waived oral argument (Doc. 19) and agree that this case
is now ripe for judicial review and is properly before this
Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
2
II.
Issues on Appeal
A.
Whether the ALJ erred in failing to
fully develop the evidence related to
Plaintiff’s mental retardation claim?
B.
Whether the ALJ erred in failing to
properly consider all the Plaintiff’s
impairments in posing a hypothetical to
the Vocational Expert?
C.
Whether the
failing
to
additional
Plaintiff?
Appeals Council erred in
adequately
examine
the
evidence
submitted
by
III. Factual Background
Plaintiff was born on March 23, 1966, and was forty-five
years
of
age
at
the
September 21, 2011.
time
of
her
(Tr. 43, 45).
administrative
hearing
on
Plaintiff testified that she
completed the twelfth grade in high school, and that she was
assigned special education classes.
from
high
school
Graduation Exam.
because
she
Plaintiff did not graduate
could
not
She did not obtain her GED.
pass
the
Alabama
(Id. at 45, 51).
Plaintiff testified that she last worked as a babysitter
from 2006 to 2009 and that she also worked for Alabama Catfish
in 2000 and 2002 as a packer and on the filet line.
46).
(Id. at 45-
She testified that she can no longer work because she has
3
a “nerve problem and back problems.”1
(Id. at 47).
Plaintiff reported that she lives with her four children,
ages 23, 19, 17, and 12.
(Id. at 49).
She handles her own
finances and banking and can count change; she cooks, performs
housekeeping duties (cleaning, laundry, and ironing) and grocery
shops, with some assistance from her daughter.
68).
to
(Id. at 49, 167-
In her Function Report, Plaintiff stated that she is able
finish
what
she
starts;
she
follows
written
instructions
“well;” she follows spoken instructions “well;” and she gets
along with authority figures “well.”
(Id. at 170-71).
Plaintiff testified that her average day begins around 6:30
a.m. when she wakes her son for school and begins her housework.
(Id.
at
(Id.).
house
50).
She
frequently
rests
and
watches
television.
Plaintiff testified that she does not go out of the
often
because
of
her
church on a regular basis.
spells about twice a week.
nerves,
although
she
does
go
to
She stated that she has crying
(Id. at 53-54, 169).
Plaintiff has
never had a driver’s license and has never learned to drive
because of problems with her nerves.
Plaintiff
listed
her
(Id. at 52).
medications
1
as
Citalopram
(for
Plaintiff stated that she had to stop babysitting in 2009
because it “was getting on [her] nerves.” (Tr. 47). Plaintiff
also testified that she has arthritis in her lower back, which
causes her pain every day. (Id. at 47). She takes Naproxen and
Ultram for pain, which helps “a little bit.” (Id. at 48).
4
anxiety),
Diclofenac
(for
arthritis),
Hyzan
(for
high
blood
pressure and fluid retention), and Propranolol (for high blood
pressure).
(Tr.
medications.
IV.
162).
She
has
no
side
effects
from
her
(Id.).
Analysis
A.
Standard of Review
In reviewing claims brought under the Act, this Court’s
role
is
a
limited
determining
1)
one.
whether
The
the
Court’s
decision
review
of
the
is
limited
to
Secretary
is
supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).
2
Martin v. Sullivan, 894 F.2d
A court may not decide the facts
anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.
1986).
The
Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s
findings
of
fact
affirmed if they are based upon substantial evidence.
must
be
Brown v.
Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,
703
F.2d
1233,
1239
(11th
Cir.
1983)
(holding
substantial evidence is defined as “more than a scintilla, but
less
than
a
preponderance”
and
consists
of
“such
relevant
evidence as a reasonable person would accept as adequate to
support
a
conclusion.”).
In
determining
2
whether
substantial
This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).
5
evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.
Chester v. Bowen, 792 F. 2d 129, 131
(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
B.
Discussion
An individual who applies for Social Security disability
benefits
must
prove
404.1512, 416.912.
his
or
her
disability.
20
C.F.R.
§§
Disability is defined as the “inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”
42
U.S.C.
§§
404.1505(a),
416.905(a).
provide
five-step
a
423(d)(1)(A);
The
see
Social
sequential
also
20
Security
evaluation
§§
regulations
process
determining if a claimant has proven his disability. 3
3
C.F.R.
for
20 C.F.R.
The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
or
equals
a
listed
impairment,
then
the
claimant
is
automatically found disabled regardless of age, education, or
work experience.
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the
6
§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since July 29,
2010,
the
alleged
onset
date,
and
that
she
has
the
severe
impairments of degenerative joint disease of the lumbar spine,
carpal
tunnel
syndrome,
osteoarthritis,
obesity,
anxiety
disorder, panic disorder, and right knee and right shoulder pain
of uncertain etiology.
Plaintiff
does
not
(Tr. 27).
have
an
The ALJ further found that
impairment
or
combination
of
impairments that meets or medically equals any of the listed
impairments contained in 20 C.F.R. Part 404, Subpart P, Appendix
1.
(Id.).
The
ALJ
concluded
that
Plaintiff
retains
the
residual
functional capacity (hereinafter “RFC”) to perform light work,
“except [that] she can frequently lift and/or carry 10 pounds
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.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
kind
of
substantial
gainful
employment
which
exists
in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history.
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
7
and
occasionally
frequently
use
lift
her
and/or
right
carry
upper
20
pounds[;]
extremity
for
[s]he
pushing
can
and/or
pulling; she can occasionally use her left upper extremity for
pushing and/or pulling; she can use her right lower extremity
for occasional pushing and/or pulling; and she can use her left
lower extremity for frequent pushing and/or pulling[;] [she] can
frequently
balance,
occasionally
stoop,
occasionally
kneel,
occasionally crouch, occasionally crawl, and occasionally climb
ramps
and
stairs[;]
[she]
cannot
climb
ladders,
ropes,
or
scaffolds[;] [s]he can frequently reach, bilaterally[;] [s]he
can frequently handle with the right hand, occasionally handle
with the left hand, perform unlimited fingering with the right
hand and perform frequent fingering with the left hand[;] [s]he
can perform unlimited feeling[;] [s]he is limited to work that
requires no more than occasional exposure to extreme heat and
occasional
exposure
to
extreme
cold,
and
that
avoids
all
exposure to unprotected heights and dangerous machinery[;] [she]
can perform simple, routine tasks involving no more than simple,
short
instructions
and
simple
work-related
decisions
with
infrequent and gradually introduced work place changes; she can
occasionally interact with the public and occasionally interact
with supervisors[;] [and] [s]he should be exposed to only a
small
number
of
familiar
coworkers
but
she
can
sustain
concentration and attention for two-hour periods with customary
8
breaks.”
(Id. at 30-31).
The ALJ also determined that while
Plaintiff’s medically determinable impairments could reasonably
be
expected
to
produce
the
alleged
symptoms,
her
statements
concerning the intensity, persistence and limiting effects of
the alleged symptoms were not credible to the extent that they
were inconsistent with the RFC.
Given
Plaintiff’s
RFC,
(Id. at 31).
the
ALJ
found
that
Plaintiff
is
unable to perform her past work as a day care worker/babysitter
or hand packer.
(Id. at 34).
However, utilizing the testimony
of a VE, the ALJ concluded that considering Plaintiff’s residual
functional capacity for a range of light work, as well as her
age,
education
existing
in
the
and
work
national
experience,
economy
that
there
are
Plaintiff
other
is
jobs
able
to
perform, such as “cleaner,” “machine tender,” and “assembler,”
all of which are classified as light and unskilled.
63).
(Id. at 35,
Thus, the ALJ concluded that Plaintiff is not disabled.
(Id.).
In determining that Plaintiff did not meet any Listing, the
ALJ made the following relevant findings:
The
severity
of
the
claimant’s
mental
impairments,
considered
singly
and
in
combination, do not meet or medically equal
the criteria of listing 12.06. In making
this finding, I have considered whether the
“paragraph B” criteria are satisfied. . . .
In activities of daily living, the claimant
has mild restriction. The claimant initially
9
reported that she attends to her personal
needs
independently,
enjoys
watching
television programs for two hours at a time,
prepares her own and, twice weekly, family
meals,
regularly
shops
for
groceries,
clothing, and other personal and family
needs, and leaves her home independently.
The claimant testified at her hearing in
September 2011 to providing a single-parent
home for her four children and performing
some household chores. Treatment records
from Cahaba Center for Mental Health show
that the claimant socializes with family
members,
participates
in
holidays,
and
maintains a household with three minor
children and one adult child. See Exhibits
4E; 11F; Hearing Testimony.
In social functioning, the claimant has
moderate difficulties. The claimant reported
that despite getting “nervous” around “too
many” people, she continues to shop in
public stores on a regular basis, requiring
only occasional help from her daughter.
Treatment records from Cahaba Center for
Mental Health show that in May 2010, the
claimant
reported
improvement
with
compliance to her medication regimen and
only experiencing “anxiety” when she was
upset.
In June 2010, the claimant reported
experiencing only occasional panic attacks
and said they were occurring “less often.”
She reported in August 2010 that she left
her home almost every day riding in a car
with someone else. She said she attended
church and needed no reminders or someone to
accompany her. She said she had no problems
getting along with family, friends, or
neighbors
and
provided
no
information
regarding changes in her social activities
since our condition began. See Exhibits 4E;
11F, Hearing Testimony.
With regard to concentration, persistence or
pace,
the
claimant
has
moderate
difficulties.
The
claimant
initially
indicated that her condition did not affect
10
her memory or ability to complete tasks,
concentrate,
understand,
or
follow
instructions
(Exhibit
4E
page
6).
Nevertheless, she testified to problems in
this area when she became nervous. She said
she was not able to pass the “exit exam”
from high school, which prevented her from
graduating with her class, or successfully
learn to drive a car even with taking a
driver’s education course.
Linda Duke,
Ph.D., consulting medical expert with the
Alabama
Disability
Determination
Service
opined in September 2010 that the claimant
was moderately limited in her ability to
carry out detailed instructions and maintain
attention and concentration for extended
periods (Exhibit 16F). The claimant reported
that she had no problems managing the
financial affairs of her family as well as
that there has been no change in her ability
to handle money since her condition began
(Exhibit 4E).
As for episodes of decompensation, the
claimant has experienced no episodes of
decompensation, which have been of extended
duration. The claimant has required neither
inpatient hospital treatment nor ongoing
and/or intensive mental health counseling or
other treatment modalities.
Because the claimant’s mental impairments do
not cause at least two “marked” limitations
or one “marked” limitation and “repeated”
episodes of decompensation, each of extended
duration, the “paragraph B” criteria are not
satisfied.
(Tr. 29-30). 4
Further, in assessing Plaintiff’s RFC, the ALJ
4
The ALJ further found that the “paragraph C” criteria were not
met, noting that “[t]he claimant testified that she grocery
shops for her family, regularly shops in stores, and babysits
outside of her own home for a friend.
In August 2010, the
claimant reported that she leaves her house almost every day
11
made the following relevant findings:
The claimant initially alleged her ability
to perform work activity on a sustained
basis was limited because of a “nerve
problem”
“arthritis,”
and
“high
blood
pressure.”
She said that, while her
condition did not cause her to make changes
in her work activity, she stopped working on
July 29, 2010 because of her condition(s). .
. .
Treatment records from Cahaba Center for
Mental Health show that the claimant carries
the
diagnoses
of
panic
disorder
and
generalized
anxiety
disorder
features
(Exhibit 11 F).
These records further show
that the claimant reported improvement with
compliance to an appropriate medication
regimen. There is no indication of adverse
medication side effects and Timothy S.
Baltz, M.D., the claimant’s psychiatrist,
offered no opinion regarding functional
restrictions.
As for the opinion evidence, . . . [t]he
mental RFC as expressed in the assessment by
Dr. Duke is consistent with the other
credible medical evidence of record and,
therefore, merits significant weight.
See
Exhibit 16F.
The opinion expressed in the PRT form by Dr.
Duke is consistent with the other credible
medical evidence of record and, therefore,
also merits significant weight. See Exhibit
12F.
The opinion of Dr. Robidoux concerning the
claimant’s limitations as expressed in his
examination
narrative
report,
which
is
identified as Exhibit 13F, is consistent
with the described examination findings and
riding in a car and that she is able to leave her home without
having anyone to accompany her.” (Tr. 30).
12
other
treatment
evidence.
Therefore,
significant weight is assigned to this
opinion, as well.
Although
the
claimant
has
described
restricted daily activities, two factors
weigh against considering these allegations
to be strong evidence in favor of finding
the claimant disabled. First, allegedly
limited
daily
activities
cannot
be
objectively verified with any reasonable
degree of certainty. Secondly, even if the
claimant’s daily activities were truly as
limited as alleged, it is difficult to
attribute that degree of limitation to the
claimant’s medical condition, as opposed to
other volitional reasons, in view of the
relatively weak medical evidence and other
factors discussed in this decision. . . .
In
sum,
the
above
residual
functional
capacity assessment is supported by opinion
evidence, the claimant’s reported daily
activities,
radiographic
evidence,
the
conservative nature of treatment offered,
the
claimant’s
favorable
response
to
conservative treatment measures, and the
lack of functional restrictions by any
treating and/or examining medical source.
(Tr. 30-34).
Following
the
ALJ’s
determination
on
November
25,
2011,
that Plaintiff was not disabled, Plaintiff submitted additional
evidence to the Appeals Council consisting of medical records
from Bryan Whitfield Memorial Hospital dated April 12, 2012,
through April 20, 2012, related to treatment for her right knee
and medical records from the Holifield Clinic dated January 14,
2003, through November 8, 2011, documenting telephone encounters
between Plaintiff and staff at the Holifield
13
Clinic.
(Id. at
9-15, 514-18).
The Appeals Council found that the additional
evidence did not affect the decision about whether Plaintiff was
disabled on or before
November 25, 2011, and denied review.
(Id. at 2).
The
Court
now
considers
the
foregoing
in
light
of
the
record in this case and the issues on appeal.
1.
Issues
a. Whether the ALJ erred in failing to
fully develop the evidence related
to Plaintiff’s mental retardation
claim?
Plaintiff argues that the ALJ erred in failing to consider
her mental retardation in determining whether she is disabled
and
that
he
erred
in
failing
to
fully
develop
the
evidence
related to this alleged impairment because he did not order a
consultative mental examination and I.Q. testing.
2-7).
(Doc. 13 at
Plaintiff maintains that there was evidence before the
ALJ indicating that she is mentally retarded, such as: evidence
that she was in special education classes in school; a report
dated April 3, 2006, from psychologist Dr. Richard S. Reynolds,
Ph.D.,
a
consultative
examiner
in
Plaintiff’s
previous
application for benefits, who noted that Plaintiff had “mental
retardation
per
history”
(id.
at
2;
Tr.
322-24);
and
the
testimony of Dr. Calvin R. Johns, M.D., the medical expert at
Plaintiff’s
hearing,
that
Plaintiff
14
“has
some
psychiatric
disorders, anxiety, mental retardation, [and] panic attacks. . .
.”
(Tr.
56).
Plaintiff
argues
that
because
of
the
ALJ’s
failure to consider her mental retardation and failure to order
a consultative mental examination and I.Q. testing to determine
the degree of her mental retardation impairment, his decision is
not supported by substantial evidence.
(Doc. 13 at 4-7).
The Commissioner counters that the ALJ properly declined to
consider
Plaintiff’s
alleged
mental
retardation
because Plaintiff never alleged before the ALJ
impairment
that she was
disabled as a result of mental retardation 5 and because, in any
event, there is insufficient evidence to establish that mental
retardation
case.
was
a
medically
(Doc. 17 at 6, 8).
determinable
impairment
in
this
The Commissioner further counters
that Dr. Reynolds’ notation in his report that Plaintiff had
“mental retardation per history” is not a diagnosis but, rather,
is
merely
evidenced
a
by
recitation
Dr.
of
Reynolds’
Plaintiff’s
opinion
reported
that
history,
Plaintiff’s
status is normal and intact and that she is employable.
7).
Likewise,
the
Commissioner
maintains
that
Dr.
as
mental
(Id. at
Johns’
statement at the hearing that Plaintiff’s impairments included
5
It appears that Plaintiff asserted mental retardation as a
basis for her disability claim for the first time before the
Appeals Council.
(Tr. 18-19).
However, Plaintiff did not
submit
any
additional
evidence
related
to
this
alleged
impairment.
15
mental
retardation
was
merely
a
reference
to
Dr.
Reynolds’
reported history, as there is no diagnosis of mental retardation
or even a suggestion of mental retardation anywhere else in the
record.
(Id. at 8).
Having carefully reviewed the record in
this case, the Court finds no error with regard to this claim.
As
a
preliminary
matter,
the
Court
notes
that
the
Commissioner is correct that Plaintiff, who was represented by
an
attorney,
did
not
allege
in
her
application
that
she
is
impaired as a result of mental retardation, nor did she assert
before
the
ALJ
retardation.
that
she
is
impaired
as
a
result
of
mental
In her application, Plaintiff stated that she is
disabled as a result of a nerve problem, arthritis, and high
blood
pressure.
(Id.
testified
that
she
problems.
(Id. at 47).
at
cannot
159).
work
At
her
because
hearing,
of
nerve
Plaintiff
and
back
After Dr. Johns, the medical expert at
the hearing, listed mental retardation as one of Plaintiff’s
psychological disorders (along with anxiety and panic attacks),
Plaintiff’s attorney asked him generally about whether he had an
opinion about Plaintiff’s limitations based on her physical and
mental impairments, and Dr. Johns declined to offer any opinion
related
to
her
mental
impairments.
(Id.
at
57,
130-31).
Despite Dr. Johns’ reference to “mental retardation,” neither
Plaintiff
nor
her
attorney
asserted
that
she
was
mentally
retarded or that she was basing her claim for disability on
16
mental retardation.
Consequently, it is not surprising that the
ALJ’s opinion is silent on the subject of mental retardation.
It is well established that a hearing before an ALJ in
social security cases is inquisitorial and not adversarial.
A
claimant bears the burden of proving disability and of producing
evidence in support of her claim, while the ALJ has “a basic
duty to develop a full and fair record.”
Ellison v. Barnhart,
355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam); see also
Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1269
(11th
Cir.
2007).
This
duty
to
develop
the
record
whether or not the claimant is represented by counsel.
exists
Brown v.
Shalala, 44 F.3d 931, 934 (11th Cir. 1995).
42 U.S.C. 421(h) provides that “in any case where there is
evidence which indicates the existence of a mental impairment,”
a determination that a claimant is not disabled “shall be made
only if the Commissioner . . . has made every reasonable effort
to ensure that a qualified psychiatrist or psychologist” has
offered an opinion or reviewed the record.
McCall
v.
Bowen,
846
F.2d
1317,
1320
Id.
(11th
Cir.
Likewise, in
1988),
the
Eleventh Circuit stated that where there is evidence indicating
the
existence
of
a
mental
impairment,
the
Commissioner
may
determine that the claimant is not under a disability only if
the Commissioner has made “every reasonable effort to obtain the
opinion
of
a
qualified
psychiatrist
17
or
psychologist.”
Id.
(quoting 42 U.S.C. § 421(h) (internal quotation marks omitted).
Later, in Sneed v. Barnhart, 214 F. Appx. 883, 886 (11th Cir.
2006) (unpublished), a panel of the Eleventh Circuit stated that
“McCall interprets § 421(h) [to] require[] an ALJ to order a
psychological consultation where there is evidence of a mental
impairment.”
Id.
However, the ALJ is not required to order a consultative
examination
where
the
record
contains
permit the ALJ’s RFC determination.
sufficient
evidence
to
Ingram, 496 F.3d at 1269
(“The administrative law judge has a duty to develop the record
where appropriate but is not required to order a consultative
examination as long as the record contains sufficient evidence
for
the
administrative
law
judge
to
make
an
informed
decision.”); see also Good v. Astrue, 240 Fed. Appx. 399, 404
(11th
Cir.
additional
2007)
(unpublished)
consultative
(“the
examination
sufficient for a decision.”).
ALJ
need
where
not
the
order
record
an
was
Furthermore, “an administrative
law judge is under no obligation to investigate a claim not
presented at the time of the application for benefits and not
offered at the hearing as a basis for disability.”
Street v.
Barnhart, 133 Fed. Appx. 621, 627 (11th Cir. 2005).
In this case, Plaintiff’s claim fails for several reasons.
First, as stated, Plaintiff did not allege in her application or
at
the
hearing
that
she
is
disabled
18
as
a
result
of
mental
retardation.
Thus,
the
ALJ
was
under
no
obligation
to
investigate that alleged impairment.
See Street, 133 Fed. Appx.
at
did
627
(11th
Cir.
2005)
(“Street
not
list
any
mental
impairment or intellectual functioning issues in his application
for SSI benefits, nor did he testify at his hearing that he
suffered from any intellectual or mental impairments that would
prevent him from working.
This failure alone could dispose of
his
been
claim,
as
it
has
persuasively
held
that
an
administrative law judge is under no obligation to investigate a
claim not presented at the time of the application for benefits
and not offered at the hearing as a basis for disability.”)
(citations and internal quotation marks omitted); see also 20
C.F.R. § 416.912(c) (the burden is on the claimant to provide
medical evidence showing that he or she has an impairment and
showing how severe the impairment is during the time of alleged
disability).
Moreover, even if Plaintiff had alleged mental retardation
in
her
application
evidence
case.
supporting
or
a
at
the
finding
hearing,
of
mental
there
is
no
retardation
medical
in
this
Thus, the ALJ had no duty to develop the record with
regard to this alleged impairment.
In order to be considered
for the purposes of disability, an impairment “must result from
anatomical, physiological, or psychological abnormalities which
can be shown by medically acceptable clinical and laboratory
19
diagnostic
mental
techniques.”
impairment
must
20
C.F.R.
be
§
416.908.
established
by
“A
physical
medical
or
evidence
consisting of signs, symptoms, and laboratory findings, not only
by [a claimant’s] statement of symptoms.” Id.
While
education
it
is
classes
undisputed
in
that
school,
that
Plaintiff
she
had
was
in
failing
special
or
near
failing grades in most subjects throughout high school, that she
failed the math, language, and reading portions of the Alabama
High School Graduation Exam, and that Dr. Reynolds noted in his
consultative
report
dated
April
3,
2006,
that
Plaintiff
had
“mental retardation per history” 6 (id. at 151-52, 322), no where
in the record is there a diagnosis of mental retardation, nor is
there medical evidence of any kind indicating that Plaintiff
actually suffers from mental retardation.
Indeed, as discussed
further herein, not even Plaintiff’s treating psychiatrist, Dr.
Timothy Baltz, M.D., ever diagnosed her with mental retardation,
nor did Dr. Baltz ever indicate the possibility that Plaintiff
suffers from mental retardation.
Given
the
fact
that
(Id. at 441-55).
Plaintiff
did
not
allege
mental
retardation in her application or at the hearing and given the
6
Dr. Reynolds conducted a consultative examination of Plaintiff
in April 2006 in connection with a prior application for
disability.
Dr. Reynolds’ single statement noting “mental
retardation by history” is the only reference to this condition
anywhere in the Plaintiff’s medical records.
20
dearth
of
evidence
retardation,
the
indicating
ALJ
had
no
the
existence
obligation
to
of
mental
consider
this
impairment or to order a consultative mental examination under
42
U.S.C.
421(h)
to
alleged impairment. 7
develop
the
record
with
regard
to
this
See Robinson v. Astrue, 2009 WL 700414, *5
(M.D. Ga. Mar. 13, 2009) aff'd, 365 Fed. Appx. 993 (11th Cir.
2010) (“As the Regulations state, the burden of proving that [a
claimant] is disabled is on the Claimant. . . . That means that
[i]n an action seeking disability benefits, the burden is upon
the claimant to demonstrate existence of a disability as defined
by the Social Security Act. . . . It is, therefore, not the
responsibility of the ALJ to analyze each and every impairment
listed by the claimant in her medical records to determine if
that impairment causes or contributes to a claimant’s inability
to work. It is the sole responsibility of the claimant to do so.
To require that the ALJ address every impairment mentioned in a
claimant’s
medical
records
to
determine
its
severity
would
remove the burden from the Claimant and place it squarely on the
7
With respect to Plaintiff’s claim that the ALJ erred in failing
to order I.Q. testing, Plaintiff is correct that standardized
intelligence tests are required in order determine whether a
claimant meets certain mental retardation listings, such as
Listing 12.05C.
See 20 C.F.R., Pt. 404, subpt. P, App. 1, §
12.00D(6)(b).
However, no such testing was required in this
case because the record simply does not contain any credible
evidence of mental retardation that met the threshold criteria
of
being
a
medically
determinable
impairment
under
the
regulations.
21
shoulders
of
the
Commissioner.”)
(citations
and
internal
quotation marks omitted).
In addition, even if Plaintiff’s alleged mental retardation
was a medically determinable impairment in this case, the record
contains the 2006 consultative report of Dr. Richard Reynolds,
Ph.D., in which he found that, despite Plaintiff’s purported
“mental
retardation
per
history,”
her
essentially normal and intact, and she
mental
status
was employable.
was
Dr.
Reynolds noted in his report that Plaintiff had been in special
education classes in school, and he indicated that her school
records should be used to assist in determining her cognitive
function.
(Id. at 322-24).
Notwithstanding, upon examining
Plaintiff, he concluded that her mental status was essentially
normal, with the exception that her mood was “nervous.”
323).
(Id. at
He found that her “[t]hought associations were tight;”
her “[t]hought content was logical;” her “affect was appropriate
to content of thought and conversation;” and her “[j]udgment,
insight, and decision-making abilities appear intact for level
of intellectual functioning.”
evaluator’s
opinion
the
(Id.).
claimant’s
He concluded: “In this
ability
to
understand,
carryout, to remember instructions, and to respond appropriately
to
supervision,
setting
is
co
intact.
workers,
Ms.
[and]
Terrell
work
pressures
reports
some
anxiety, but appears employable.” (Id. at 324).
22
in
a
symptoms
work
of
In addition to Dr. Reynolds’ opinions, the record contains
the treatment notes of Plaintiff’s treating psychiatrist, Dr.
Baltz, who treated Plaintiff from April 2008 to June 2010 for
panic
disorder
document
that
and
anxiety.
Plaintiff
did
Dr.
not
Baltz’s
graduate
treatment
from
high
notes
school
because she was unable to pass the exit examination and that she
quit
her
job
because
of
anxiety.
(Id. at
444,
447).
Dr.
Baltz’s treatment notes further reflect that Plaintiff was a
single mom, with four children at home, and a limited income,
and that she suffered from panic disorder and anxiety. 8 (Id. at
444-50).
Nowhere in Dr. Baltz’s treatment notes is there any
reference to mental retardation, nor is there any indication
that Plaintiff’s panic disorder and anxiety were disabling in
nature.
(Id. at 441-55).
Dr. Baltz treated Plaintiff’s panic
8
Dr. Baltz regularly assigned Plaintiff a GAF of 60. (Tr. 44654). GAF (Global Assessment of Functioning) is a numeric scale
(0 through 100) used by mental health clinicians that measures a
patient’s
overall
level
of
psychological,
social,
and
occupational functioning on a hypothetical continuum.
A GAF
score of 41-50 indicates serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) or
serious social dysfunction (e.g., no friends, unable to keep a
job).
A GAF score of 51-60 suggests moderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic attacks)
or moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-workers).
A GAF score of 61-70 is indicative of mild symptoms (e.g.,
depressed mood and mild insomnia) or some difficulty in social,
occupational, or school functioning (e.g., occasional truancy,
or theft within the household), but generally functioning pretty
well, has some meaningful interpersonal relationships.
See
http://www.gafscore. com.
23
disorder and anxiety with medication, 9 and his treatment notes
consistently
reflect
improvement
in
Plaintiff’s
condition.
(Id.).
In addition to evidence provided by Dr. Reynolds and Dr.
Baltz,
the
record
contains
Psychiatric
Review
Technique
the
form
reviewer, Dr. Linda Duke, Ph.D.
Mental
RFC
completed
assessment
by
State
and
Agency
On September 8, 2010, Dr. Duke
completed the Psychiatric Review Technique form and opined that
Plaintiff had only “mild” restrictions in activities of daily
living,
“moderate”
difficulties
in
maintaining
social
functioning and in maintaining concentration, persistence, or
pace, and no episodes of decompensation.
(Id. at 466).
In her
Mental RFC assessment, Dr. Duke likewise indicated no more than
“moderate”
remember,
maintain
limitations
and
carry
attention
in
out
and
Plaintiff’s
detailed
ability
to
instructions,
concentration
for
understand,
ability
extended
to
periods,
ability to complete a normal work day and work week without
interruptions from psychologically based symptoms, ability to
perform at a consistent pace, ability to interact appropriately
with
the
general
public,
ability
to
accept
instructions
and
respond appropriately to criticism from supervisors, and ability
to respond appropriately to changes in the work setting.
(Id.
9
(Tr.
Plaintiff reported no side effects from her medications.
446-54).
24
at 477-78).
Dr. Duke opined that Plaintiff has the ability to
understand,
remember,
and
carry
out
short
and
simple
instructions and that she can attend and concentrate for two
hour periods.10
(Id. at 479).
The Eleventh Circuit has held that an ALJ is “required to
consider the opinions of non-examining state agency medical and
psychological
physicians
and
consultants
because
psychologists
who
Security disability evaluation.’”
they
are
‘are
also
highly
experts
Milner v. Barnhart,
qualified
in
Social
275 Fed.
Appx. 947, 948 (11th Cir. 2008) (unpublished) (citing 20 C.F.R.
§ 404.1527(f)(2)(i)).
“The ALJ may rely on opinions of non-
10
The record also contains a Psychiatric Review Technique and
Mental
RFC
assessment
forms
completed
by
State
Agency
psychologist Dr. Larry Dennis, Ph.D. on
June 26, 2008.
(Tr.
421-37).
Although the ALJ did not rely on Dr. Dennis’
assessments, which were completed in connection with Plaintiff’s
prior application for benefits, Plaintiff argues in her brief
that the ALJ should have relied on Dr. Dennis’ statement that
she could work for only “two hours over [an] eight hour day”
(id. at 437) and that the ALJ should have interpreted that
statement to mean that she could only work for a total of two
hours in an eight hour work day.
Having reviewed Dr. Dennis’
assessments at length, the Court finds that the reasonable
interpretation of Dr. Dennis’ statement is that Plaintiff could
work for two hour intervals in an eight hour work day.
This
interpretation is consistent with Dr. Dennis’ overall findings
and conclusions, as well as the remaining record evidence in
this case.
(Id. at 437). Moreover, Plaintiff’s interpretation
of Dr. Dennis’ opinion is inconsistent with the findings of her
examining sources, Dr. Reynolds and Dr. Baltz, and thus could
not be relied upon by the ALJ in any event.
See Milner v.
Barnhart,
275
Fed.
Appx.
947,
948
(11th
Cir.
2008)
(unpublished) (“The ALJ may rely on opinions of non-examining
sources when they do not conflict with those of examining
sources.”).
25
examining
sources
when
examining sources.”
they
do
not
conflict
with
those
of
Id. (citing Edwards v. Sullivan, 937 F.2d
580, 584-85 (11th Cir. 1991)).
In this case, the opinions of
Dr. Duke do not conflict with the opinions of any examining
sources.
Thus,
the
significant weight.
ALJ
properly
(Tr. 33).
afforded
those
opinions
Based on the evidence discussed
above, the ALJ complied with his duty under 42 U.S.C. § 421(h)
to make “every reasonable effort to ensure that a qualified
psychiatrist
Plaintiff’s
or
psychologist,”
mental
offered
impairments
an
opinion
(including
her
on
alleged
all
of
mental
retardation) or reviewed the record related to all of her mental
impairments before determining that Plaintiff was not disabled.
Having
reviewed
the
record
at
length,
the
undersigned
further finds that the ALJ’s mental RFC assessment in this case
is
supported
by
substantial
evidence.
In
addition
to
the
evidence discussed above, Plaintiff testified at her hearing and
stated
in
her
Disability
Report
that
she
worked
for
a
fish
processing factory as a packer and on the filet line in 2000 and
2002 until she quit because of nerve problems, arthritis, and
high blood pressure.
reported that she
handle
a
savings
(Id. at 45-47, 159).
In addition, she
can read, write, pay bills, count change,
account,
and
use
a
check
book;
she
cooks,
performs housekeeping (cleaning, laundry, and ironing) and shops
for groceries with assistance from her daughter. (Id. at 49,
26
158, 167-68).
She also reported that she is able to finish what
she starts; she follows written instructions “well;” she follows
spoken instructions “well;” and she gets along with authority
figures “well.”
(Id. at 170-71).
This evidence, along with the
opinion evidence discussed above, supports the ALJ’s mental RFC
assessment that Plaintiff can perform
a range of light
work
limited to “simple, routine tasks involving no more than simple,
short
instructions
and
infrequent
and
occasional
interaction
simple
gradually
work-related
introduced
with
the
work
public
decisions
place
and
with
changes;”
occasional
interaction with supervisors; exposure to only a small number of
familiar
coworkers;
and
requiring
her
only
to
sustain
concentration and attention for two-hour periods with customary
breaks.
(Id. at 31).
In sum, the ALJ’s decision reflects that he had before him
sufficient evidence upon which to make his RFC determination,
that he thoroughly examined all of the record evidence, and that
his determination that Plaintiff can perform a range of light
work, with the stated restrictions, is supported by substantial
evidence.
Indeed, there is no evidence suggesting limitations
in excess of those in the RFC.
Accordingly, Plaintiff’s claims
that the ALJ erred in failing to fully develop the evidence
related to her alleged mental retardation impairment and that
27
the
ALJ’s
RFC
assessment
is
not
supported
by
substantial
evidence are without merit.
b. Whether the ALJ erred in failing to
properly consider all of Plaintiff’s
impairments in posing a hypothetical
to the Vocational Expert?
Plaintiff argues that the vocational expert’s testimony is
not
supported
hypothetical
by
substantial
question
did
evidence
not
because
account
impairments, namely, mental retardation.
for
the
all
ALJ’s
of
her
(Doc. 13 at 7).
The
Commissioner counters that the ALJ was not required to include
any
limitations
in
his
hypothetical
question
that
were
not
supported by the record, such as her alleged mental retardation.
(Doc. 17 at 11).
“In order for a VE’s testimony to constitute substantial
evidence,
the
ALJ
must
pose
a
hypothetical
question
which
comprises all of the claimant’s impairments.”
Moreno v. Astrue,
366
(citing
Fed.
Appx.
23,
29
(11th
Cir.
2010)
Vega
v.
Commissioner of Soc. Sec., 265 F.3d 1214, 1220 (11th Cir. 2001).
“However, the ALJ is not required to include findings in the
hypothetical that the ALJ has found to be unsupported.”
Id.
(citations omitted) (“The ALJ did not err by failing to include
[the claimant’s] subjective symptoms in his hypothetical to the
VE because the ALJ was not required to include limitations that
it found to be unsupported.”); see also Stremba v. Barnhart, 171
28
Fed. Appx. 936, 939 (3d Cir. 2006) (“‘all impairments’ means
only those that are medically established. . . . Limitations
that are medically supported but are also contradicted by other
evidence in the record may or may not be found credible. . . .
Of course, credibility determinations are to be made by the
ALJ.”)
(citing
20
CFR
§
404.1527)
(citations
and
internal
quotation marks omitted).
Having already determined, for the reasons set forth above
with respect to Issue One, that a finding of mental retardation
is unsupported by the record in this case, and to the contrary,
that Plaintiff’s claim of mental retardation is contradicted by
other credible evidence in the record, the ALJ did not err in
failing to pose a hypothetical to the VE which included such
limitations.11
Therefore, Plaintiff’s claim is without merit.
c. Whether the Appeals Council erred in
failing to adequately examine the
11
The Court further notes, as the Eleventh Circuit noted in
Street, 133 Fed. Appx. at 627-28, that this alleged error, i.e.,
posing an inadequate hypothetical question to the VE, could
easily have been corrected at the hearing if Plaintiff or her
attorney had put the ALJ on notice of the deficiency, if indeed
one existed based on the record evidence. As in Street,
Plaintiff failed to do that and now seeks to have this Court
reverse and remand despite the fact that, whatever the evidence
of Plaintiff’s alleged mental retardation, that evidence existed
at the time of the hearing.
As discussed above, Plaintiff
failed to present sufficient evidence to the ALJ that would have
put him on notice of this alleged mental limitation on her
ability to function.
Therefore, the ALJ’s question properly
cited the limitations that Plaintiff faced based on the record
evidence and the testimony at her hearing.
29
additional
Plaintiff?
evidence
submitted
by
Last, Plaintiff argues that the Appeals Council failed to
adequately examine the additional evidence that she submitted
after the ALJ issued his decision on November 25, 2011.
13 at 8).
(Doc.
Plaintiff argues that the new evidence, namely, an
MRI of her right knee taken on April 20, 2012, is not cumulative
and should have been considered by the Appeals Council because
it explains the origin of her right knee pain, which the ALJ
found to be of “uncertain etiology.” (Tr. 27; Doc. 13 at 9-11).
According to Plaintiff, the MRI “may well have persuaded the ALJ
in this case to reverse his decision.” 12
(Doc. 13 at 10; Tr. 8-
16).
The Commissioner counters that the new evidence related to
the April 20, 2012, MRI of Plaintiff’s right knee is immaterial
and was properly rejected by the Appeals Council because it does
not relate to the period in question. 13
(Doc. 17 at 12).
The
Commissioner further argues that the new evidence, in any event,
12
As stated above, the record also shows that Plaintiff
submitted records to the Appeals Council from the Holifield
Clinic dated January 14, 2003, through November 8, 2011, which
appear to document telephone conversations with Plaintiff
regarding prescription refills, treatment plans, etc. (Tr. 51518). Plaintiff makes no argument related to these records.
13
The Appeals Council found that the new evidence related to a
time period after the ALJ had decided the case and, thus, did
not affect the ALJ’s decision about whether Plaintiff was
disabled during the period in question. (Tr. 2).
30
does not undermine the ALJ’s finding of no disability.
Having
carefully reviewed the record in this case, the Court agrees
that the Appeals Council did not err in finding that Plaintiff’s
new evidence, namely, the April 20, 2012, MRI of Plaintiff’s
right
knee,
did
not
provide
a
basis
for
changing
the
ALJ’s
decision.
“With a few exceptions, the claimant is allowed to present
new evidence at each stage of [the] administrative process.”
Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1261
(11th
Cir.
2007).
“The
Appeals
Council
must
consider
new,
material, and chronologically relevant evidence and must review
the case if ‘the administrative law judge’s action, findings, or
conclusion is contrary to the weight of the evidence currently
of record.’” Id. (quoting 20 C.F.R. § 404.970(b)). “[W]hen a
claimant properly presents new evidence to the Appeals Council,
a
reviewing
renders
the
court
denial
must
consider
whether
that
of
benefits
erroneous.”
new
Id.
evidence
at
1262.
Evidence is material if it is “relevant and probative so that
there
is
a
reasonable
administrative outcome.”
possibility
that
it
would
change
the
Caulder v. Bowen, 791 F. 2d 872, 877
(llth Cir. 1986).
In this case, Plaintiff properly submitted the April 20,
2012, MRI to the Appeals Council, as it was generated after the
ALJ’s decision dated November 25, 2011.
31
As Plaintiff points
out,
the
anterior
edema”
MRI
shows
cruciate
in
the
a
“[q]uestionable
ligament”
right
(“ACL”)
knee.
(Id.
partial
and
at
“a
11)
tear
small
of
the
amount
(emphasis
of
added).
According to Plaintiff, this evidence offers an explanation for
her right knee pain during the period in question and, thus, it
warranted review by the Appeals Council.
Setting aside the facts that the MRI in question was taken
five
months
after
the
ALJ’s
decision
and
shows
only
a
“questionable” partial tear of Plaintiff’s ACL (id.), the record
reflects that another MRI of Plaintiff’s right knee was taken in
June 2011, five months before the ALJ’s decision, in response to
Plaintiff’s contemporaneous complaints of knee pain.
indicated
that
Plaintiff’s
anterior
cruciate
ligament
“probably intact” and that her knee was normal.
505).
That MRI
was
(Id. at 501,
This evidence makes it unlikely that the questionable,
partial tear in Plaintiff’s ACL, revealed in the later MRI,
explains the origin of Plaintiff’s knee pain during the period
in question.
That being said, even assuming that the April 2012 MRI was
probative
of
the
period
in
question
and
did
provide
an
explanation of the source of Plaintiff’s right knee pain during
the period in question, Plaintiff has failed to establish
reasonable
changed
the
possibility
that
administrative
the
April
outcome
32
had
2012
the
MRI
would
Appeals
a
have
Council
granted review.
the
record
Indeed, nothing in the MRI or anywhere else in
suggests
that
Plaintiff’s
right
knee
pain
is
disabling.14
As
the
ALJ
found,
consultative
physician,
Dr.
Stephen
Robidoux, M.D., examined Plaintiff on September 13, 2010, and
found no limitations resulting from the problems with her knee.
(Id. at 473-74).
Dr. Robidoux noted that Plaintiff was “in no
acute distress with normal unaided gait.”
(Id. at 472).
Her
physical examination revealed normal flexion and extension and
full range of motion of both knees.
(Id. at 473).
Dr. Robidoux
concluded: “Ms. Terrell presents with the common problems most
people face in the[ir] 40’s.
obesity.
Hypertension, osteoarthritis and
. . . She is able to do all the activities of daily
living and on physical exam I find no limitations for people her
age to sitting, standing, walking, lifting, carrying, handling
objects,
using
hand
talking or travel.”
and
foot
controls,
climbing,
listening,
(Id.).
Likewise, Plaintiff’s treating physician, Dr. Gerald Hodge,
M.D.,
who
treated
Plaintiff
from
2007
limitations related to her right knee.
14
to
2011,
noted
no
(Id. at 358-60, 482-
The ALJ did find Plaintiff’s right knee pain to be a severe
impairment and accounted for limitations caused by this
impairment in his RFC assessment, finding that Plaintiff could
only use her right lower extremity for pushing and pulling
occasionally and could only occasionally stoop, kneel, crouch,
crawl, and climb ramps and stairs. (Tr. 27, 30).
33
507).
Thus, even if the Appeals Council had granted review,
there is no reasonable possibility that the April 2012 MRI would
have changed the administrative outcome.
Therefore, Plaintiff’s
claim is without merit.
V.
Conclusion
For
the
reasons
set
forth
herein,
and
upon
careful
consideration of the administrative record and memoranda of the
parties,
it
is
hereby
ORDERED
that
the
decision
of
the
Commissioner of Social Security denying Plaintiff’s claim for
supplemental security income be AFFIRMED.
DONE this 26th day of January, 2015.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
34
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