Smith v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on August 14, 2013. (rw)
Smith v. Social Security Administration Commissioner
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CARLEN B. SMITH
CAROLYN W. COLVIN,1
Acting Commissioner of the Social Security Administration
Plaintiff, Carlen B. Smith, brought this action pursuant to 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security (Commissioner), ceasing her
entitlement to supplemental security income (SSI) benefits under Title XVI of the Social Security
Act (Act), 42 U.S.C. § 1382c(a)(3)(A), as of October 1, 2009.
Plaintiff was initially found disabled as of October 1, 1993, by the Social Security
Administration, due to meeting the listing for mild mental retardation. (Tr. 10, 43-44). Her
disability was determined to have continued in a determination dated July 1, 2001. (Tr. 12). This
is known as the “comparison point decision” or CPD. (Tr. 12). On October 8, 2009, Plaintiff
was notified that she no longer qualified for SSI. (Tr. 45-47). Contained in that notice was a
Carolyn W. Colvin, has been appointed to serve as acting Commissioner of Social Security, and is substituted as
Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
paragraph advising Plaintiff as follows:
You can have a lawyer, friend, or someone else help you. There
are groups that can help you find a lawyer or give you free legal
services if you qualify. There are also lawyers who do not charge
unless you win your appeal. Your local Social Security office has
a list of groups that can help you with your appeal.
If you get someone to help you, you should let us know. If you hire
someone, we must approve the fee before he or she can collect it.
Plaintiff attained the age of 18, in 2008. A Plaintiff’s childhood award is to be
redetermined when he or she reaches age 18 by applying the criteria used in determining initial
eligibility for individuals who are age 18 or older. 42 U.S.C. § 1382c(a)(3)(H)(iii), 20 C.F.R. §
416.987(b). The regulations provide that the claimant may be found not now disabled even
though he or she was previously found disabled. 20 C.F.R. § 416.987(a)(2).
The Social Security Administration conducted a redetermination review, in which it
found that Plaintiff’s health had improved since the CPD in July 2001, and Plaintiff was no
longer disabled as of October 1, 2009. (Tr. 45). Plaintiff requested a reconsideration of the
cessation of benefits, but failed to appear before the disability hearing officer. (Tr. 53-54). On
December 6, 2010, the disability hearing officer upheld the cessation of benefits. (Tr. 53-60).
Plaintiff then requested a hearing by an ALJ. (Tr. 63-66).
On May 12, 2011, a hearing was held before an ALJ. (Tr. 20-42). At that hearing,
Plaintiff was not represented by counsel. On July 27, 2011, the ALJ issued an unfavorable
decision, determining that at the time of the CPD, Plaintiff had the following medically
determinable impairments: mental retardation and speech and language delays. (Tr. 12). He
further held that the medical evidence established that, as of October 1, 2009, Plaintiff had the
following medically determinable impairments: personality disorder and mood disorder. (Tr.
12). However, the ALJ further found that since October 1, 2009, Plaintiff did not have an
impairment or combination of impairments that met or equaled the level of severity of any
impairment listed in the Listing of Impairments found in Appendix I, Subpart P, Regulation No.
4. (Tr. 12-13). The ALJ found that beginning on October 1, 2009, based on the current
impairments, Plaintiff had the residual functional capacity (RFC) to:
perform a full range of work at all exertional levels but with the following
nonexertional limitations: the claimant can understand, remember, and
carry out simple, routine, and repetitive tasks. The claimant can respond
appropriately to usual work situations and can interact appropriately with
supervisors. The claimant can have incidental contact with co-workers
but no contact with the general public.
With the help of a vocational expert (VE), the ALJ determined that Plaintiff had no past
relevant work, but that beginning on October 1, 2009, there were jobs Plaintiff would be able to
perform, such as production worker, e.g. bench assembler; house cleaners and maids, e.g.
laundry worker; and meat cutter, e.g. eviscerator. (Tr. 18-19).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied the request on June 2, 2012. (Tr. 1-3). Subsequently, Plaintiff filed this action. (Doc. 1).
This case is before the undersigned pursuant to the consent of the parties. (Doc. 5). Both parties
have filed appeal briefs, and the case is now ready for decision. (Docs. 12, 13).
The Court has reviewed the entire transcript. The complete set of facts and arguments are
presented in the parties’ briefs, and are repeated here only to the extent necessary.
A Social Security claimant has a continuing burden to demonstrate that she is disabled,
and courts should draw no inference from the fact that a claimant was previously granted
benefits. See Nelson v. Sullivan, 946 F.2d 1314, 1315 (8th Cir. 1991). Once the claimant meets
this initial responsibility, however, the burden shifts to the Commissioner to demonstrate that
the claimant is not disabled. Lewis v. Heckler, 808 F.2d 1293, 1297 (8th Cir. 1987).
“When benefits have been denied based on a determination that a claimant’s disability
has ceased, the issue is whether the claimant’s medical impairments have improved to the point
where he is able to perform substantial gainful activity.” Delph v. Astrue, 538 F.3d 940, 945 (8th
Cir. 2008). “This ‘medical improvement’ standard requires the Commissioner to compare a
claimant’s current condition with the condition existing at the time the claimant was found
disabled and awarded benefits.” Id. “The continuing disability review process involves a
sequential analysis prescribed in 20 C.F.R. § 404.1594(f).” Id. 2
Plaintiff raises the following issues on appeal: 1) Whether Plaintiff was given adequate
notice of her right to representation; 2) Whether substantial evidence supports the ALJ’s finding
that Plaintiff’s impairments medically improved as of October 1, 2009; 3) Whether substantial
The steps are as follows: 1)whether the claimant is currently engaging in substantial gainful activity; (2)
if not, whether the disability continues because the claimant’s impairments meet or equal the severity of a listed
impairment, (3) If not, whether there has been medical improvement, (4) if there has been a medical
improvement, whether it is related to the claimant’s ability to work, (5) if there has been no medical improvement
or if the medical improvement is not related to the claimant’s ability to work, whether any exception to medical
improvement applies, (6) if there is medical improvement and it is shown to be related to the claimant’;s ability to
work, whether all of the claimant’s current impairments in combination are severe, (7) if the current impairment
or combination of impairments is severe, whether the claimant has the residual functional capacity to perform any
of this past relevant work activity, and (8) if the claimant is unable to do work performed in the past whether the
claimant can perform other work. Delph, 538 F.3d at 945-946; citing 20 C.F.R. § 404.1594(f).
evidence supports the ALJ’s RFC determination.
Adequate Notice of Right to Representation:
Plaintiff argues that the ALJ committed legal error by failing to comply with the Social
Security Administration Hearings, Appeals and Litigation Law Manual (HALLEX)3 by taking
Plaintiff’s testimony before advising Plaintiff of her right to counsel.
Approximately half way through the hearing, the ALJ stated:
Q. – I see you’re here today without an attorney, I know our letter talked
to you – that set up this hearing talked to you about an attorney, we can
– we can do it one of three ways, we can continue to visit with today and
I’ll get some more information from you and if you decide to get an
attorney we’ll stop and kind of regroup and basically allow the attorney
to participate in the case, or we can just stop right now and not do
anything else until you get an attorney –
Q. – if you want to get an attorney, or we can just proceed without one
and you can tell me that you’re not interested in getting one and you want
to represent yourself –
Q. –Okay? Have you – did you realize that we’d be talking about this part
of if before you came in here? I mean our letter said that, about the
attorney, so you probably know you could have one if you wanted one, is
A. Well, I never knew how to get one–
A. –so I’m – I’m new to all this so –
Q. Okay, my recommendation would be, that since we’re here, court
reporter, me, you, we can continue to talk about this and if you –
Q. – and I won’t make a decision right away because there maybe some
more records I need to get, we’ll find out about that –
Q. – but we can continue to visit today about this and if you decide to get
an attorney that attorney will contact me, we’ll kind of put everything on
“Hallex provides procedural guidance for processing and adjudicating slaims at the hearing and Appeals Council
levels.” Elllis v. Astrue, No.06-3357-01-S-RED, 2008 WL 351687, n.2 (E.D.Mo. Sept. 25, 2008).
Q. – until we can, the three of use, then can then get together, is that acceptable
A. Yeah –
Q. –to you to do that?
Q. Okay, that way we can at least spend our time wisely today.
The Eighth Circuit has not specifically ruled on the effect of a violation of HALLEX.
However, in Elllis v. Astrue, No.06-3357-01-S-RED, 2008 WL 351687 (E.D.Mo. Sept. 25,
2008), the Court addressed this issue:
While the Eighth Circuit has not specifically ruled on the effect of a
violation of HALLEX, other Circuits have. The Ninth Circuit believes
that HALLEX is an internal manual with no legal force. (Citations
omitted). The Fifth Circuit held in Newton v. Apfel, 209 F.3d 446 (5th
Cir. 2000), that although HALLEX does not carry the authority of
law,”’where the rights of individuals are affected, an agency must follow
its own procedures, even where the internal procedures are more rigorous
than otherwise would be required,’” and should prejudice result from a
violation of an agency’s internal rules, the result cannot stand. (Footnote
and citations omitted).
This Court believes that the Eighth Circuit would hold that HALLEX
does not have the force of law. Cf. Shontos v. Barnhart, 328 F.3d 418,
424 n.7 (8th Cir. 2003)(the Social Security Administration’s Program
Operations Manual System (POMS) guidelines do not have legal force
and do not bind the Commissioner; still, an ALJ should consider them).
Ellis, 2008 WL 351687 at *15-16; See also Lovett v. Astrue, No. 4:11 CV 1271 RWS, 2012 WL
3064272 (Remand is only necessary where the ALJ’s error jeopardizes the existence of
substantial evidence to support the ALJ’s decision, or where the ALJ applies the wrong legal
standard). The undersigned believes that the Eighth Circuit would hold that HALLEX does not
have the force of law.
In addition, as indicated earlier in this opinion, the October 8, 2009 notice sent to
Michelle Lynn Smith for Carlen Breunder Smith advised that Plaintiff could have a lawyer,
friend, or someone else help her. (Tr. 45-47). In the Notice of Reconsideration sent to Plaintiff
dated December 6, 2010, Plaintiff was advised of her right to a lawyer. (Tr. 62). Finally, in a
letter to Plaintiff dated February 10, 2011, from the SSA, in response to Plaintiff’s request for
a hearing before an ALJ, Plaintiff was advised as follows:
You may choose to be represented by a lawyer or other person. A
representative can help you get evidence, prepare for the hearing, and
present your case at the hearing. If you decide to have a representative,
you should find one immediately so that he or she can start preparing your
Some private lawyers charge a fee only if you receive benefits. Some
organizations may be able to represent you free of charge. Your
representative may not charge or receive any fee unless we approve it. We
are enclosing a list of groups that can help you find a representative.
(Tr. 65). The Eighth Circuit has held that such notice is sufficient to advise a claimant of her
right to counsel. Huddle v. Barnhart, 143 Fed. Appx. 721, 722 (8th Cir. 2005); see Wingert v.
Bowen, 894 F.2d 296, 298 (8th Cir. 1990)(notice of hearing properly advised claimant of right
Based upon the foregoing, as well as those reasons given in Defendant’s well-stated brief,
the Court finds there is substantial evidence to support the fact that Plaintiff received adequate
notice of her right to counsel.
RFC is the most a person can do despite that person’s limitations.
§404.1545(a)(1). It is assessed using all relevant evidence in the record. Id. This includes
medical records, observations of treating physicians and others, and the claimant’s own
description of her limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005);
Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). Limitations resulting from
symptoms such as pain are also factored into the assessment. 20 C.F.R. § 404.1545(a)(3). The
Eighth Circuit has held that a “claimant’s residual functional capacity is a medical question.”
Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Therefore, an ALJ’s determination
concerning a claimant’s RFC must be supported by medical evidence that addresses the
claimant’s ability to function in the workplace.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir.
2003). “The ALJ is [also] required to set forth specifically a claimant’s limitations and to
determine how those limitations affect his RFC.” Id.
The ALJ found that beginning on October 1, 2009, based on the current impairments,
Plaintiff had the RFC to perform a full range of work at all exertional levels with certain
limitations. (Tr. 14-16). The ALJ addressed Plaintiff’s activities of daily living, her social
functioning, concentration, persistence or pace, and the fact that Plaintiff had no episodes of
decompensation. (Tr. 12-13). He also addressed the medical records, noting the Intellectual
Assessment of Keith Norwood, P.E., and the Mental Diagnostic Evaluation of Dr. Robert L.
Spray, Jr., Ph.D, PA, Psychologist (Tr. 15). He also addressed the treatment records of Western
Arkansas Counseling & Guidance Center, and found that the severity of Plaintiff’s alleged
limitations was not supported by the record. (Tr. 16). The ALJ reported:
The claimant alleges that she cannot work because she is unable to cope
with the pressure of working with others; however, it appears the
claimant is able to be around others when it suits her. (Exhibit 7F/3). The
claimant was able to attend and graduate from a public high school. She
was able to initiate and sustain a relationship with her child’s father for
approximately one year. (Exhibit 3F/4.) She also has a 2-year old child,
for whom she is the sole provider. Based upon the claimant’s assertions,
the medical opinions, and her demonstrated ability to interact with others;
the undersigned finds that the claimant’s residual functional capacity
should include work which will require her to interact with supervisors,
but will require only incidental contact with co-workers, and no contact
with the general public.
At the time of Plaintiff’s hearing before the ALJ, she had been working part-time at Tips
Insurance since October 2010. (Tr. 25-29). See Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir.
2005)(holding that working after the onset of an impairment is some evidence of an ability to
work). In addition, Plaintiff received relatively conservative treatment for her allegedly disabling
mental disorder. In fact, no medications were prescribed to treat her alleged attention deficit
With respect to the weight given to the various medical opinions, the ALJ first noted that
Plaintiff’s credibility was diminished because there was evidence that she was less than fully
cooperative or put forth less than maximal effort during her consultative examinations. (Tr. 16).
Dr. Spray conducted a Mental Diagnostic Evaluation on June 16, 2009, and noted that Plaintiff
seemed aloof, she “fiddled with her cell phone off and on during the exam,” and was “detached
from the evaluation and seemed uninterested.” (Tr. 235). He thought “perhaps” Plaintiff was
functioning within the mentally retarded range, but also noted that Plaintiff was irritable and
poorly motivated to do much of anything. (Tr. 237). Dr. Spray reported that Plaintiff appeared
to be functioning in possibly the borderline range of intelligence, and that her lack of
involvement in the exam probably colored the assessment of cognitive functioning. (Tr. 237).
He concluded that she did not give adequate effort and only passive cooperation, and that
symptoms were difficult to evaluate because of her aloof and detached manner. (Tr. 238).
On September 19, 2009, Keith Norwood, M.S., conducted an Intellectual Assessment.
(Tr. 248-251). He noted that Plaintiff’s was “cooperative within limits but his effort on tasks was
poor,”4 and that Plaintiff took a nonchalant attitude toward testing. (Tr. 248). Mr. Norwood
reported that the given results were believed to underestimate Plaintiff’s level of functioning. (Tr.
248). He noted that Plaintiff terminated effort following minimal concentration and had no
motivation to succeed with any task and got discouraged easily. (Tr. 250). Mr. Norwood reported
that the obtained results were believed to be invalid because of Plaintiff’s poor effort on subtest
items, and that Plaintiff did not appear interested in completing tasks and would give up easily.
(Tr. 250). He concluded that the given data was not supportive of a diagnosis associated with
mental retardation. (Tr. 250).
The ALJ gave some, but not significant weight to the opinions of Dr. Spray and Mr.
Norwood, since both indicated that Plaintiff’s lack of motivation likely skewed the results of
their examinations. (Tr. 17). The ALJ also gave some, but not significant weight to the Mental
RFC Assessment and Psychiatric Review Technique form completed by Dr. Winston Brown,
based upon additional evidence received at the hearing level. (Tr. 17). In his assessments, Dr.
Brown found that Plaintiff was moderately limited in seven categories and not significantly
limited in twelve categories. (Tr. 258). He concluded that Plaintiff was able to perform work
where interpersonal contact was incidental to work performed, e.g. assembly work; where
complexity of tasks was learned and performed by rote, with few variables, and little judgment,
and where supervision required was simple, direct and concrete (unskilled). (Tr. 258). In his
The Court notes that throughout his assessment, Mr. Norwood referred to Plaintiff as a male.
Psychiatric Review Technique form, Dr. Brown found that Plaintiff had a mild degree of
limitation in restriction of activities of daily living, and a moderate degree of limitation in
difficulties in maintaining social functioning and difficulties in maintaining concentration,
persistence, or pace, and no episodes of decompensation, each of extended duration. (Tr. 270).
The ALJ gave little weight to the opinions expressed by the treating professionals at
Western Arkansas Counseling & Guidance Center, noting that the actual treatment visits had
been relatively infrequent, that Plaintiff was not prescribed any medication for her attentiondeficit hyperactivity disorder, and no reason was given as to why medication was not prescribed.
The ALJ gave significant weight to the opinions provided by Plaintiff’s teacher and
school officials. (Tr. 17). He found their opinions to be consistent with the record as a whole,
giving less weight to the school records dated 1997 and 2003, because additional evidence
received into the record at the hearing convinced him that Plaintiff’s limitations had changed
since that time. (Tr. 17). On April 13, 2009, Plaintiff’s teacher indicated that Plaintiff had no
problems acquiring and using information, attending and completing tasks, interacting and
relating with others, moving about and manipulating objects, or caring for herself. (Tr. 165-168).
Based upon the foregoing, as well as those reasons given in Defendant’s well-stated brief,
the Court finds there is substantial evidence to support the ALJ’s RFC assessment.
Accordingly, having carefully reviewed the record, the Court finds there is substantial
evidence to support the ALJ’s decision that Plaintiff’s disability ended on October 1, 2009, and
that Plaintiff has not become disabled again since that date, and thus the decision is hereby
affirmed. The undersigned further finds that Plaintiff’s Complaint should be, and is hereby,
dismissed with prejudice.
IT IS SO ORDERED this 14th day of August, 2013.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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