Hethcox v. Colvin

Filing 22

MEMORANDUM OPINION AND ORDER entered. Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as more fully set out in Order. Signed by Magistrate Judge Bert W. Milling, Jr on 2/9/2015. (clr)

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

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

CIVIL ACTION 14-0274-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling which denied claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 12).
The parties filed written consent and this action has been
referred to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 20).
argument was waived in this action (Doc. 21).

Oral

Upon

consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be AFFIRMED and that this action be DISMISSED.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and

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Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires “that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance.”

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205 (D.
Md. 1982).
At the time of the administrative hearing, Plaintiff was
forty-seven years old, had completed an eighth-grade education
(Tr. 79), and had previous work experience as a cashier (Tr.
91).

In claiming benefits, Plaintiff alleges disability due to

moderate intellectual disability, arthritis, degenerative disc
disease of the cervical spine with chronic neck pain status post
anterior fusion, fibromyalgia, myofascial pain syndrome,
bursitis of the knees and hips, tendonitis of the shoulders,
gastroesophageal reflux disease, episode of lumbar L5 strain,
episode of prurigo nodularis, pain disorder with depression and
anxiety, and obsessive compulsive personality (Doc. 13).
The Plaintiff filed protective applications for disability
benefits and SSI on October 25, 2010 (Tr. 160-70; see also Tr.
61).

Benefits were denied following a hearing by an

Administrative Law Judge (ALJ) who determined that Hethcox could

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perform her past work as a cashier as well as other specified
light jobs (Tr. 61-71).

Plaintiff requested review of the

hearing decision (Tr. 32) by the Appeals Council, but it was
denied (Tr. 1-6).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
alleges that:

Specifically, Hethcox

(1) The ALJ’s residual functional capacity

(hereinafter RFC) is vague and insufficient; (2) the ALJ did not
fully develop the record; (3) the Appeals Council did not
properly review evidence submitted to it; and (4) the Appeals
Council erred in not finding that she meets the requirements of
Listing 12.05C (Doc. 12).

Defendant has responded to—and

denies—these claims (Doc. 16).

The relevant record evidence

will now be summarized.1
On January 12, 2010, Dr. Walid W. Freij, Neurologist,
examined Hethcox for pain in her fingers, especially on the
right; there was swelling and redness in the fingers on the
right side, though she was tender all over, basically (Tr. 26061).

An electrodiagnostic study revealed evidence of left

lateral plantar neuropathy without evidence of denervation; the
diagnosis was arthritis, fibromyalgia, and peripheral

1The Court notes that even though the ALJ stated that Plaintiff’s

alleged disability date was January 1, 2010 (Tr. 61), Hethcox asserted
the date was May 1, 2010 (Tr. 160, 164; see also Doc. 13). As such,
the Court will herein review only the evidence after January 1, 2010
that is relevant to the claims brought in this action.

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neuropathy.

Freij continued her prescriptions for Lyrica2 and

Naproxen3 and added Cymbalta4 to her regimen and told her to
return in six months.
On March 25, 2010, Hethcox underwent an MRI of the cervical
spine that showed prominent diffuse disk protrusion,
particularly severe on the left at C6-7, causing both
neuroforamen stenosis on the left and diffuse spinal stenosis
(Tr. 281).

On April 14, Plaintiff was seen at the Selma Doctors

Clinic for neck pain; the exam was essentially normal, though a
mitral heart click was heard (Tr. 267).

Trazodone,5 Ultracet,6

and Soma7 were prescribed; Savella8 was continued.
On May 7, Hethcox underwent a C6-C7 anterior cervical
discectomy for left radiculopathy, severe cervical stenosis with
cervical myelopathy (Tr. 319-21; see generally Tr. 303-21).

2Lyrica is used for the management of neuropathic pain.

On

Physician's Desk Reference 2517 (62nd ed. 2008).
3Naproxyn, “is a nonsteroidal anti-inflammatory drug with

analgesic and antipyretic properties” used, inter alia, for the relief
of mild to moderate pain. Physician's Desk Reference 2458 (52nd ed.
1998).
4Cymbalta is used in the treatment of major depressive disorder.

Physician's Desk Reference 1791-93 (62nd ed. 2008).
5Trazodone is used for the treatment of depression.

Physician's
Desk Reference 518 (52nd ed. 1998).
6Ultracet is made up of acetaminophen and tramadol and is used

for the short-term (5 days or less) management of pain. See
http://health.yahoo.com/drug/d04766A1#d04766a1-whatis
7Soma is a muscle relaxer used “for the relief of discomfort

associated with acute, painful musculoskeletal conditions,” the
effects of which last four-to-six hours. Physician's Desk Reference
2968 (52nd ed. 1998).
8Savella is used in the treatment of fibromyalgia.

See
http://www.drugs.com/savella.html

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July 16, 2010, fusion changes were noted in an MRI of the
cervical spine; there was no apparent spinal stenosis (Tr. 315);
an MRI of the lumbar spine demonstrated mild desiccation at L4L5 with mild facet degenerative changes in the lower lumbar
spine (Tr. 314).

On September 21, Dr. Walter G. Haynes, III,

Neurosurgeon, examined Hethcox for complaints of swelling in the
left side of her neck, numbness in her left arm, and tingling
between her shoulder blades; radiographs revealed “ongoing
fusion at C6-7 which [was] quite surprising considering [she
was] still continuing her tobacco habit” after having been urged
to quit (Tr. 304).

The Doctor noted some palpable paravertebral

spasm on the left side of her neck as well as a possible lima
anteriorly on the left side; Plaintiff had 5/5 strength
bilaterally in her upper extremity muscles groups and her
reflexes were intact and symmetrical.
On December 29, 2010, Gregory Parker, a non-examining
physician with the Social Security Administration (hereinafter
SSA), completed a physical residual functional capacity
(hereinafter RFC) assessment, finding that Hethcox was capable
of lifting and carrying twenty pounds occasionally and ten
pounds frequently (Tr. 322-29).

She was capable of sitting for

six and standing and/or walking for about six hours during an
eight-hour workday; she would have no problem with pushing
and/or pulling of foot or hand controls.

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Plaintiff had no

postural, manipulative, visual, communicative, or environmental
limitations.
On January 24, 2011, Psychologist Donald W. Blanton
examined Hethcox, finding her thoughts and conversation logical,
associations intact, and affect flat, but appropriate (Tr. 33133).

Plaintiff complained of anxiety and restlessness; she was

depressed.

Blanton noted that “[s]he appeared to have a slight

psychomotor retardation” (Tr. 332); intelligence was estimated
to be below average.

Hethcox was obsessed with her pain.

Insight was limited and judgment was fair.

The Psychologist’s

impression was pain disorder with anxiety and depression,
obsessive compulsive personality, orthopedic problems and a
history of burns, financial problems, and a GAF of 60.9
On February 17, 2011, Joanna Koulianos, Ph.D., a nonexamining Psychologist with the SSA, completed a Psychiatric
Review Technique form that indicated that Hethcox suffered from
depression, anxiety, a pain disorder, and obsessive compulsive
personality (Tr. 334-47).

The Psychologist suggested that

Plaintiff suffered mild restriction of activities of daily
living, moderate difficulties in maintaining social functioning,

9Error!
 Main
 Document
 Only.“A GAF score between 51-60 indicates

“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).” American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders, 32 (4th ed. 1994).

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and moderate difficulties in maintaining concentration,
persistence, or pace.

Koulianos also completed a mental RFC in

which she indicated that Hethcox was moderately limited in her
ability to do the following:

understand, remember, and carry

out detailed instructions; maintain attention and concentration
for extended periods; interact appropriately with the general
public; accept instructions and respond appropriately to
criticism from supervisors; and respond appropriately to changes
in the work setting (Tr. 348-51).

The Psychologist went on to

find that Plaintiff was able to understand, remember, and carry
out short and simple instructions; she could concentrate and
attend for reasonable periods of time.

Hethcox’s contact with

the general public should not be a regular job duty.

Corrective

action from her supervisor should be simple and supportive.
Finally, Koulianos noted that any changes in the work
environment or work expectations should be introduced gradually.
On March 8, 2011, Plaintiff was examined at the Selma
Doctors Clinic for complaints of burning in her legs; the
examination was normal though there was neuropathy in the legs
(Tr. 367).

Range of Motion (hereinafter ROM) measurements were

normal; no tenderness was noted.

Toradol10 was prescribed.

On

March 29, Hethcox was seen for back pain; the examination was

10Toradol is prescribed for short term (five days or less)

management of moderately severe acute pain that requires analgesia at
the opioid level. Physician's Desk Reference 2507-10 (52nd ed. 1998).

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normal (Tr. 366).
On May 19, 2011, Dr. Freij examined Hethcox and found
tenderness over all the muscles of the shoulder and back;
strength was 5/5 (Tr. 352-54).

His notes reported “a

rheumatologist who confirmed the diagnosis of fibromyalgia and
he thought she had shoulder pain also related to supraspinatous
tendinitis and knee pain because of bursitis and hip pain
because of trochanteric bursitis;” the Rheumatologist had also
strongly advised Plaintiff to quit smoking, but she had not.
prescribed Lortab.11

He

On July 20, 2011, Hethcox told Dr. Freij

that her medications were helping her feel better; his
examination revealed crepitation in the left and right knee (Tr.
353).

Motor power was 5/5; Nexium was added to her daily

prescriptions for Gastroesophageal reflux disease.

On November

29, the Neurosurgeon examined Plaintiff for swelling over the
Trapezius muscle on the left; he increased her medications and
prescribed a Butrans12 patch (Tr. 356).
On February 23, 2012, Plaintiff was seen at the Selma
Doctors Clinic for complaints of chronic back pain; though the
exam was normal, lumbosacral strain was diagnosed (Tr. 361).

11Error! Main Document Only.Lortab is a semisynthetic narcotic

analgesic used for “the relief of moderate to moderately severe pain.”
Physician's Desk Reference 2926-27 (52nd ed. 1998).
12A Butrans skin patch is an opioid pain medication used to treat

moderate to severe chronic pain around the clock. See
http://www.drugs.com/butrans.html

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On August 14, 2012, Dr. Oluyinka S. Adediji conducted a
musculoskeletal examination of Hethcox who was in no apparent
distress (Tr. 374-85).

The Doctor noted normal ROM throughout

though she had multiple tender spots on both sides of the spine,
shoulders, hips, arms, and legs; hand grip strength and
dexterity were normal.

Adediji’s assessment was chronic neck

pain and myofascial pain syndrome.

The Doctor also completed a

physical capacities evaluation indicating that Plaintiff was
capable of lifting and carrying ten pounds continuously, twenty
pounds frequently, and fifty pounds occasionally; she could sit
two, stand one, and walk one hour at a time and could sit for
six, stand for three, and walk for three hours during an eighthour day.

Hethcox was capable of using either hand to reach,

handle finger, feel, and push and pull frequently; she could
also use both feet for foot controls frequently.

Plaintiff

could climb, balance, stoop, kneel, crouch, and crawl
occasionally; she could work at unprotected heights, be around
moving mechanical parts, operate a motor vehicle, be exposed to
humidity and wetness, dust, odors, fumes, and pulmonary
irritants occasionally, but could never be exposed to extreme
cold or heat or vibrations.

This concludes the summary of the

evidence before the ALJ at the time of his decision.
In bringing this action, Plaintiff first claims that the
ALJ’s RFC determination is vague and insufficient (Doc. 12, pp.

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2-3).

The single specified objection for this claim is that the

ALJ did not identify what he meant in finding that she was “able
to concentrate and attend for reasonable periods of time” (Doc.
12, p. 2; cf. Tr. 65).

The Court notes that the ALJ is

responsible for determining a claimant’s RFC.
404.1546 (2014).

20 C.F.R. §

That decision cannot be based on “sit and

squirm” jurisprudence.
(11th Cir. 1984).

Wilson v. Heckler, 734 F.2d 513, 518

However, the Court also notes that the social

security regulations state that Plaintiff is responsible for
providing evidence from which the ALJ can make an RFC
determination.

20 C.F.R. § 404.1545(a)(3).

The ALJ’s determination was that Hethcox had the RFC to
perform light work.

The determination, more specifically, was

as follows:
The claimant can lift and carry twenty
pounds occasionally, and ten pounds
frequently. She can sit for two hours at a
time for a total of six hours in an eighthour workday. She can stand and walk for
one hour at a time for a total of three
hours each in an eight-hour workday. She
can frequently use both hands for reaching,
handling, fingering, feeling, and pushing
and pulling. She can operate foot controls
frequently bilaterally. She can
occasionally climb stairs and ramps,
ladders, and scaffolds, and balance, stoop,
kneel, crouch, and crawl. The claimant does
not require the use of a cane to ambulate
(Exhibit 12F Dr. Adediji fully credible
except that he allows for medium work and I
have limited her to light work). The

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claimant [] no limitation in her ability to
understand, remember, and carry out short
and simple instructions, or to perform
activities within a schedule. She is able
to concentrate and attend for reasonable
periods of time. Her contact with the
general public should not be a usual job
duty, and corrective actions from a
supervisor should be offered in a simple and
supportive manner. Changes in the work
environment or work expectations should be
introduced gradually (Exhibit 7F Dr.
Koulianos fully credible).
(Tr. 65).
The ALJ’s finding, in the sentence before the one about
which Plaintiff complains, is that Hethcox has unlimited
“ability to understand, remember, and carry out short and simple
instructions, or to perform activities within a schedule” (Tr.
65).

The ALJ’s statement that she can “concentrate and attend

for reasonable periods of time” is an extension of the preceding
sentence.

In any event, Plaintiff has brought forth no evidence

to demonstrate any limitation in her ability to concentrate and
stay on task.

The Court finds no merit in Plaintiff’s claim.

Hethcox next claims that the ALJ did not fully develop the
record.

More specifically, Plaintiff asserts that the

evidentiary record should have been expanded to include evidence
regarding her past relevant work duties as a cashier and her
cognitive functioning (Doc. 12, pp. 3-6).

The Eleventh Circuit

Court of Appeals has required that "a full and fair record" be

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developed by the Administrative Law Judge even if the claimant
is represented by counsel.

Cowart v. Schweiker, 662 F.2d 731,

735 (11th Cir. 1981).
In bringing this claim, Hethcox first asserts that the ALJ
did not gather evidence regarding the job duties she performed
as a cashier (Doc. 12, p. 3).

She points to the Vocational

Expert’s testimony that cashier work was light and semi-skilled
and was defined in the Dictionary of Occupational Titles
(hereinafter DOT) at section 211.462-014.13

Plaintiff objects to

the ALJ’s finding that she can do her past cashier work as the
DOT includes among those duties “balancing the cash register”
when there is no evidence that she ever did that (Doc. 12, p.
3).
The Court notes that the DOT actually says that cashiers
“[m]ay record daily transaction amounts from cash register to
balance cash drawer.”

It does not say that this duty must be

done to be considered a cashier.
In any event, the Court understands the ALJ’s finding to be
that she can now still perform her past work as she actually
performed it then.

The Court further finds that the ALJ’s RFC

determination would accommodate Hethcox’s ability to perform all
of the tasks involved with the DOT listing, even if she has to
learn them.

Ultimately, though, the ALJ found Plaintiff capable

13See http://www.occupationalinfo.org/21/211462014.html

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of performing other jobs existing in the national economy,
including garment folder, marker, ticket seller, production
assembler, and packer (Tr. 71).

Hethcox has not objected to the

ALJ’s finding concerning these jobs.

So, at most, the Court

finds that the ALJ has committed harmless error and that remand
of this action would be inappropriate.

See Reeves v. Heckler,

734 F.2d 519, 526 n.3 (11th Cir. 1984).
The second component of Plaintiff’s claim is that the ALJ
did not properly develop the record regarding her cognitive
functioning.

She points to her low level of education (ninth

grade), her own testimony of limitation, her semi-skilled work
history, and Psychologist Blanton’s findings that she had belowaverage intelligence and memory, limited insight, and fair
judgment as reasons why the ALJ should have sought more evidence
regarding her mental abilities (Doc. 12, pp. 4-5).
This claim is of no merit.

Though Blanton’s report found

Hethcox to have below-average intelligence, he does not indicate
any inability to work.

The ALJ’s RFC fairly recognizes

Plaintiff’s mental limitations, requiring that she perform only
semi-skilled work.

As for Plaintiff’s own testimony of

limitation, the ALJ rejected that evidence, finding it not
credible (Tr. 68); Hethcox has not challenged that finding in
this action.
The Court finds Plaintiff’s claim that the ALJ did not

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properly develop the record is without merit.
The next two claims raised are that the Appeals Council did
not properly review the evidence submitted to it and erred in
not finding that Hethcox meets the requirements of Listing
12.05C (Doc. 12, pp. 6-9).

These claims are based on evidence

submitted to the Appeals Council after the ALJ’s determination
had been entered.
Before examining that evidence, the Court notes that "[a]
reviewing court is limited to [the certified] record [of all of
the evidence formally considered by the Secretary] in examining
the evidence."
Cir. 1985).

Cherry v. Heckler, 760 F.2d 1186, 1193 (11th

However, “new evidence first submitted to the

Appeals Council is part of the administrative record that goes
to the district court for review when the Appeals Council
accepts the case for review as well as when the Council denies
review.”

Keeton v. Department of Health and Human Services, 21

F.3d 1064, 1067 (11th Cir. 1994).

Under Ingram v. Commissioner

of Social Security Administration, 496 F.3d 1253, 1264 (11th Cir.
2007), district courts are instructed to consider, if such a
claim is made, whether the Appeals Council properly considered
the newly-submitted evidence in light of the ALJ’s decision.

To

make that determination, the Court considers whether the
claimant “establish[ed] that:

(1) there is new, noncumulative

evidence; (2) the evidence is 'material,' that is, relevant and

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probative so that there is a reasonable possibility that it
would change the administrative result, and (3) there is good
cause for the failure to submit the evidence at the
administrative level."

Caulder v. Bowen, 791 F.2d 872, 877

(11th Cir. 1986).
The newly-submitted evidence is as follows:

educational

records (Tr. 245-53); records from Dr. Freij dated May 29 to
December 21, 2012 (Tr. 386-91); and examination results from
Psychologist Blanton from January 9, 2013 (Tr. 392-95).

In her

argument before the Court, Plaintiff only references the school
records and Blanton’s latest report (Doc. 12, pp. 6-9).

The

Court will review those records under Caulder.
The educational records date from 1980 to 1981 and
demonstrate that Hethcox was not a good student, had failing
grades, and received some special education classes (Tr. 24353).

This evidence fails to meet Caulder’s third prong,

however, because there has been no showing of good cause why
this evidence was not submitted to the ALJ.
Blanton’s report of January 9, 2013 included Hethcox’s
taking the Wechsler Adult Intelligence Scale, Fourth Edition, on
which she had a Full Scale IQ score of 67 (Tr. 392-95).

Blanton

noted that this placed her in the mild range of mental
retardation and found that this was a “valid assessment of her
current level of intellectual functioning” (Tr. 393).

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He did go

on to say, though, that he thought this was a lifelong condition
(Tr. 394).
The Court notes that an IQ score of 67 is one requirement
for meeting Listing 12.05C.

20 C.F.R. Part 404, Subpart P,

Appendix 1, Listing 12.05C (2014).

Hethcox has argued that the

IQ score, coupled with the educational records, demonstrate a
lifelong condition that should have been considered by the
Appeals Council (Doc. 12, pp. 6-9).
However, the Court notes that transcript records from the
evidentiary hearing demonstrate that neither Plaintiff nor her
attorney claimed mental retardation in discussing her
impairments (see Tr. 79-91).

The Court further notes that Dr.

Blanton in his first examination found Hethcox to have belowaverage intelligence (Tr. 332-33); this finding does not lead to
a conclusions of mental retardation.

Finally, the Court notes

that there is no evidence of mental retardation presented in the
evidence reviewed by the ALJ.

As such, the Court finds that

this evidence fails the second Caulder prong in that there is
not a reasonable possibility that it would change the
administrative result.

The Court finds no merit in Plaintiff’s

claims that the Appeals Council did not properly review the
evidence submitted to it and erred in not finding that Hethcox
meets the requirements of Listing 12.05C.
Hethcox has raised four different claims in bringing

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this action.

All are without merit.

Upon consideration of

the entire record, the Court finds "such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion."

Perales, 402 U.S. at 401.

Therefore, it is

ORDERED that the Secretary's decision be AFFIRMED, see
Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980),
AND that this action be DISMISSED.

Judgment will be

entered by separate Order.
DONE this 9th day of February, 2015.

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

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