HART v. ASTRUE
Filing
15
ORDER re 1 Complaint filed by DEBORAH L HART: Decision of the Commissioner is AFFIRMED. Clerk is directed to enter final judgment and close the file. Signed by MAGISTRATE JUDGE GARY R JONES on 1/23/2013. (jws)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
DEBORAH LYNN HART,
Plaintiff,
v.
CASE NO. 1:12-cv-74-GRJ
MICHAEL J ASTRUE, Commissioner
of Social Security,
Defendant.
_____________________________/
ORDER
Plaintiff appeals to this Court from a final decision of the Commissioner of Social
Security (the “Commissioner”) denying Plaintiff’s applications for disability insurance
benefits and supplemental security income pursuant to Titles II and XVI of the Social
Security Act (the Act). (Doc. 1.) The Commissioner has answered, and both parties
have filed briefs outlining their respective positions. (Docs. 7, 11, 14.) The parties have
consented to have the undersigned U.S. Magistrate Judge conduct all proceedings in
this case. (Docs. 8, 10.) For the reasons discussed below, the Commissioner’s
decision is due to be AFFIRMED.
I. PROCEDURAL HISTORY
Plaintiff filed applications for disability insurance benefits under Title II of the
Social Security Act (the “Act”) and supplemental security income benefits under Title
XVI of the Act on November 23, 2007 alleging a disability beginning May 30, 2007 due
to cancer, hysterectomy, legs, pelvis, and mental health problems. (R. 16, 172.)
Plaintiff was 43 years old at the time of her alleged onset of disability, has a GED, and
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previously worked as a meat wrapper/hand packager. (R. 23, 57, 173, 186, 189.)
Plaintiff’s applications were denied initially and upon reconsideration. (R. 16, 65-68.)
An administrative hearing was held before an Administrative Law Judge (“ALJ”) on June
18, 2010. (R. 30-61.) On July 28, 2010, the ALJ issued a written decision finding that
Plaintiff was not disabled. (R. 13-29.) The Appeals Council denied Plaintiff’s request
for review on February 8, 2012. (R. 1-4.) Plaintiff then filed her Complaint in this case
on April 9, 2012. (Doc. 1.)
II. STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial
evidence.1 Substantial evidence is more than a scintilla, i.e., the evidence must do more
than merely create a suspicion of the existence of a fact, and must include such
relevant evidence as a reasonable person would accept as adequate to support the
conclusion.2
Where the Commissioner's decision is supported by substantial evidence, the
district court will affirm, even if the reviewer would have reached a contrary result as
finder of fact, and even if the reviewer finds that the evidence preponderates against
the Commissioner's decision.3 The district court must view the evidence as a whole,
1
See 42 U.S.C. § 405(g) (2000).
2
Foote v. Chater, 67 F.3d 1553, 1560 (11 th Cir. 1995) (citing W alden v. Schweiker, 672 F.2d 835,
838 (11 Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842
(1971)); accord, Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11 th Cir. 1991).
th
3
Edwards, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11 th Cir. 1991).
Case No. 1:12-cv-74-GRJ
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taking into account evidence favorable as well as unfavorable to the decision.4
However, the district court will reverse the Commissioner's decision on plenary review if
the decision applies incorrect law, or if the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner properly applied the law.5
The law defines disability as the inability to do any substantial gainful activity by
reason of any medically determinable physical or mental impairment that can be
expected to result in death, or has lasted or can be expected to last for a continuous
period of not less than twelve months.6 The impairment must be severe, making
Plaintiff unable to do his previous work, or any other substantial gainful activity which
exists in the national economy.7
The ALJ must follow five steps in evaluating a claim of disability.8 First, if a
claimant is working at a substantial gainful activity, he is not disabled.9 Second, if a
claimant does not have any impairment or combination of impairments which
significantly limit his physical or mental ability to do basic work activities, then he does
4
Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11 th Cir. 1992) (holding
that the court m ust scrutinize the entire record to determ ine reasonableness of factual findings); Parker v.
Bowen, 793 F.2d 1177 (11th Cir. 1986) (finding that the court also m ust consider evidence detracting from
evidence on which the Com m issioner relied).
5
Keeton v. Dep’t Health and Hum an Servs., 21 F.3d 1064, 1066 (11 th Cir. 1994).
6
42 U.S.C. §§ 416(i), 423(d)(1); 20 C.F.R. § 404.1505 (2005) (All further references to 20 C.F.R.
will be to the 2005 version unless otherwise specified.).
7
42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.
8
20 C.F.R. §§ 404.1520, 416.920. The claim ant has the burden of proving the existence of a
disability as defined by the Social Security Act. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11 th Cir. 1991).
9
20 C.F.R. § 404.1520(b).
Case No. 1:12-cv-74-GRJ
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not have a severe impairment and is not disabled.10 Third, if a claimant's impairments
meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is
disabled.11 Fourth, if a claimant's impairments do not prevent him from doing past
relevant work, he is not disabled.12 Fifth, if a claimant's impairments (considering his
residual functional capacity (“RFC”), age, education, and past work) prevent him from
doing other work that exists in the national economy, then he is disabled.13
The burden of proof regarding the plaintiff’s inability to perform past relevant
work initially lies with the plaintiff.14 The burden then temporarily shifts to the
Commissioner to demonstrate that “other work” which the claimant can perform
currently exists in the national economy.15 The Commissioner may satisfy this burden
by pointing to the Medical-Vocational Guidelines (the “Grids”) for a conclusive
10
20 C.F.R. § 404.1520(c).
11
20 C.F.R. § 404.1520(d).
12
20 C.F.R. § 404.1520(e).
13
20 C.F.R. § 404.1520(f).
14
W alker v. Bowen, 826 F.2d 996, 1002 (11th Cir. 1987); see also Doughty v. Apfel, 245 F.
3d 1274, 1278 (11 th Cir. 2001).
15
Doughty, 245 F.3d at 1278 n.2. In Doughty the court explained this burden shifting as follows:
In practice, the burden tem porarily shifts at step five to the Com m issioner. The
Com m issioner m ust produce evidence that there is other work available in significant
num bers in the national econom y that the claim ant has the capacity to perform . In order
to be considered disabled, the claim ant m ust then prove that he is unable to perform the
jobs that the Com m issioner lists. The tem porary shifting of the burden to the Com m issioner
was initiated by the courts, and is not specifically provided for in the statutes or
regulations.) (Internal citations om itted).
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determination that a claimant is disabled or not disabled.16
However, the ALJ should not exclusively rely on the Grids when “the claimant
has a non-exertional impairment which significantly limits his or her basic work skills or
when the claimant cannot perform a full range of employment at the appropriate level of
exertion.”17 In a situation where both exertional and non-exertional impairments are
found, the ALJ is obligated to make specific findings as to whether they preclude a wide
range of employment.18
The ALJ may use the Grids as a framework to evaluate vocational factors so
long as he introduces independent evidence of the existence of jobs in the national
economy that the claimant can perform.19 Such independent evidence may be
introduced by a Vocational Expert’s (“VE”) testimony, but this is not the exclusive
means of introducing such evidence.20 Only after the Commissioner meets this burden
does the burden shift back to the claimant to show that he or she is not capable of
performing the “other work” as set forth by the Commissioner.
III. SUMMARY OF THE RECORD
Because Plaintiff’s challenge on appeal pertains only to her mental impairments,
16
W alker, 826 F.2d at 1002 (“[T]he grids m ay com e into play once the burden has shifted to the
Com m issioner to show that the claim ant can perform other work.”).
17
W olfe v. Chater, 86 F.3d 1072, 1077 (11th Cir. 1996). See Jones v. Apfel, 190 F.3d 1224, 1229
(11 Cir. 1999); W alker, 826 F.2d at 1003 (“The grids m ay be used only when each variable on the
appropriate grid accurately describes the claim ant’s situation.”).
th
18
W alker, 826 F.2d at 1003.
19
W olfe, 86 F.3d at 1077-78.
20
See id.
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the summary of the record will focus on those impairments.
A.
Medical Records
As the ALJ’s step two finding demonstrates, Plaintiff suffers from lumbar spine
disorder, knee disorder, hip disorder, and affective disorder. (R. 18.) She also had a
previous ear surgery with residual hearing loss as well as a history of cervical cancer.
(R. 19.) Plaintiff was treated for her mental impairments primarily at Meridian
Behavioral Healthcare. She also underwent consultative psychological examinations
and her records were reviewed by various state agency experts.
Dr. Andres Nazario performed a consultative psychological examination on
August 9, 2006. Dr. Nazario opined that Plaintiff met the criteria for alcohol and
cannabis dependence as well as bipolar disorder. She appeared able to concentrate;
understand and follow directions; and interact appropriately with others. (R. 339-44.)
Dr. Janet Humphreys performed a consultative psychological examination of
Plaintiff on May 23, 2008. Plaintiff reported symptoms consistent with mood disorder
(not otherwise specified), posttraumatic stress disorder, panic disorder with
agoraphobia, sleepwalking disorder, and chronic pain. Dr. Humphreys opined that
Plaintiff had the ability to do work-related activities; “showed only mild impairment of
short-term memory during examination”; and “appeared capable of carrying out
complex instructions.” (R. 397-403.)
State agency experts Val Bee, Michael Zelenka, and Nancy Dinwoodie each
performed records reviews of Plaintiff’s mental impairments. All three state agency
experts opined in PRTs that Plaintiff had mild restriction in activities of daily living and
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moderate limitations in maintaining social functioning and concentration, persistence, or
pace. (R. 355, 418, 453.) The experts’ mental RFC assessments were as follows: Dr.
Bee opined that Plaintiff appeared to have adequate capacity for understanding and
memory but may exhibit occasional lapses in concentration and productivity. Plaintiff
appeared capable of well structured task activity with only limited, superficial social
demands (R. 369.) Dr. Zelenka opined that Plaintiff was vulnerable to moods that
might affect her functioning in a work setting, but “she retains adequate mental ability to
carry out simple instructions and to relate adequately to others in a routine work
setting.” (R. 406.) Dr. Dinwoodie opined that Plaintiff was capable of understanding
and following instructions; sustaining concentration for task completion; completing a
full work day and week; socially appropriate behavior; and using judgment to avoid
normal hazards. (R. 441.)
B.
Hearing Testimony
At her administrative hearing, Plaintiff testified that she last worked in 2007 as a
meat wrapper, but she stopped working due to her physical limitations. She described
her current inability to work as due mostly to her mental problems and because she
gets aggravated very easily. She also complained of auditory and visual hallucinations,
which worsened since she quit drinking six months prior. Plaintiff complained of having
problems completing tasks and “spacing out.” She testified that she takes the bus into
Gainesville 3-4 times a week for her appointments. She also goes to AA meetings
seven days a week. She and her mother do the household shopping. (R. 30-61.)
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C.
Findings of the ALJ
The ALJ found that Plaintiff could perform her past relevant work as a meat
wrapper/hand packager and was not disabled. At step three, the ALJ found that
Plaintiff had mild restrictions in activities of daily living; moderate difficulties in social
functioning, moderate difficulties with regard to concentration, persistence, or pace; and
no episodes of decompensation. (R. 19-20.) The ALJ determined that Plaintiff’s
mental RFC was as follows:
The claimant is limited to understanding and remembering simple on
[sic] and two-step instructions, carrying out simple decision-making and
only occasional changes in the work setting.
(R. 20.)
IV. Discussion
The issue raised by Plaintiff on appeal is whether the ALJ’s finding at step four
that Plaintiff can return to her past relevant work as a meat wrapper/hand packager is
supported by substantial evidence. Plaintiff argues that the ALJ’s hypothetical to the
VE did not include all of Plaintiff’s mental restrictions and therefore the step four finding
was not supported by substantial evidence. As discussed below, the ALJ did not err,
the ALJ’s decision was supported by substantial evidence and the Commissioner’s
decision is due to be affirmed.
A. The ALJ’s Step Four Finding was Supported by Substantial Evidence
Plaintiff challenges the hypothetical posed to the VE at step four on the grounds
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that the ALJ did not include the findings from the psychiatric review technique regarding
Plaintiff’s moderate difficulties in maintaining concentration, persistence, and pace and
moderate difficulties in social functioning. Specifically, Plaintiff argues that the
hypothetical did not adequately account for her moderate limitations in maintaining
concentration, persistence, or pace and did not include Dr. Bee’s finding that Plaintiff
may exhibit occasional lapses in concentration and productivity. (R. 367-69.) As a
result of these flaws, Plaintiff argues that the VE’s testimony cannot constitute
substantial evidence in support of the step four finding and therefore reversal and
remand is appropriate. (Doc. 11.)
At step four, the claimant bears the burden of demonstrating she cannot return to
her past relevant work.21 If a claimant's impairments do not prevent her from
performing past relevant work, she is not disabled.22 While the testimony of a
vocational expert is often relevant at step five - after the burden has shifted to the
Commissioner to prove that there are jobs that exist in significant numbers in the
national economy that an individual with Plaintiff's RFC could perform - there is no
requirement for an ALJ to use VE testimony to determine whether a claimant can
perform her past relevant work at step four.23 While the regulations provide that “the
21
Lucas v. Sullivan, 918 F.2d 1567, 1571 (11th Cir. 1990)(“The claim ant also bears the initial
burden of proving that she is unable to perform her previous work.”).
22
20 C.F.R. § 404.1520(e).
23
Hennes v. Com m 'r of Soc. Sec. Adm in., 130 Fed. Appx. 343, 345-46 (11th Cir. 2005)(quoting
20 C.F.R. § 404.1560(b)(2)); see also W alker v. Com m 'r of Soc. Sec., No. 6:07-cv-1647-Orl-18KRS, 2008
W L 5100120, at *6 (M.D.Fla. Dec. 2, 2008).
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services of a vocational expert” may be used in making this determination,24 vocational
expert testimony is not necessary to determine whether a claimant can perform his past
relevant work.25 Accordingly, the issue in the instant case is not whether the
hypothetical posed to the VE was proper – and therefore constitutes substantial
evidence as would be the case at step five – but whether substantial evidence supports
the ALJ’s finding at step four. A review of the record as a whole discloses that even
without considering the VE’s response to the hypothetical, the ALJ’s step four
determination is supported by substantial evidence.
The VE testified that Plaintiff’s past relevant work as a hand packager had an
SVP of 2.26 (R. 57.) A position with an SVP of 2, which is unskilled work, is consistent
with the ALJ’s determination of Plaintiff’s mental RFC, which Plaintiff does not
challenge. The ALJ determined that Plaintiff could perform light work with the following
non-exertional limitations:
The claimant is limited to understanding and remembering simple on [sic] and
two-step instructions, carrying out simple decision-making and only occasional
changes in the work setting.
(R. 20.) These limitations are consistent with the requirements of a hand packager.
The ALJ’s findings are also consistent with the medical evidence of record. Dr.
24
20 C.F.R. § 416.960(b)(2).
25
Lucas v. Sullivan, 918 F.2d 1567, 1573 n.2 (11 th Cir. 1990)(concluding “because the ALJ
concluded that she [claim ant] is capable of perform ing her past relevant work, testim ony from a vocational
expert was not necessary”).
26
SVP stands for “Specific Vocational Preparation.” Unskilled work corresponds to an SVP of 1-2
and is work which needs little or no judgm ent to do sim ple duties that can be learned on the job in a short
period of tim e. Soc. Sec. Adm in. Rul. 00-4p, 83-10.
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Nazario, a consultative examiner, opined that Plaintiff was able to concentrate;
understand and follow directions; and interact appropriately with others. (R. 339-44.)
Dr. Humphreys, also a consultative examiner, opined that Plaintiff had only mild
impairment in short-term memory and “appeared capable of carrying out complex
instructions.” (R. 397-403.) State agency expert Dr. Bee opined that Plaintiff had
adequate capacity for understanding and memory and was capable of well structured
tasks. (R. 369.) Dr. Zelenka opined Plaintiff retained adequate mental ability to carry
out simple instructions and relate with others in a routine work setting. (R. 406.)
Finally, Dr. Dinwoodie opined that Plaintiff was capable of understanding and following
instructions, and sustaining concentration to complete a task. (R. 441.)
Other evidence of record, including Plaintiff’s testimony at the hearing and
function reports, reflects that Plaintiff could perform her past relevant work. Field office
staff in November 2005 and December 2007 wrote that Plaintiff did not observe
problems with her concentration or coherency. (R. 135, 169.) Plaintiff’s mother wrote
that Plaintiff could cook meals, pay bills, and handle a savings account. (R. 140, 142.)
Plaintiff testified that she performs some household chores, helps with household
shopping, uses the public bus system 3-4 times per week, attends AA meetings every
day and has the times memorized for each day. (R. 30-61.)
The Court therefore concludes that Plaintiff did not meet her burden of
demonstrating that she cannot return to her past relevant work. In comparing Plaintiff’s
RFC with the physical and mental demands of Plaintiff’s past relevant work, the ALJ
properly concluded that Plaintiff was capable of performing her past work as a meat
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wrapper. The ALJ’s step four determination is supported by substantial evidence and
the decision of the Commissioner is therefore due to be affirmed.
B. Winschel Error
Even assuming, arguendo, that step five jurisprudence applies to this case and
that the opinion of the VE must be analyzed to determine whether it constitutes
substantial evidence in support of the ALJ’s decision, the ALJ’s hypothetical questions
to the VE were proper and fully accounted for Plaintiff’s impairments.
Generally, when posing a hypothetical to a VE the ALJ is required to describe
Plaintiff’s educational level, age, work skills, experience, and all of Plaintiff’s
impairments included in the RFC.27 The Social Security Administration’s regulations do
not obligate an ALJ to use specific wording when describing Plaintiff’s impairments in
these hypotheticals so long as the question accurately reflects the claimant’s RFC. In
order for a response to a hypothetical question to constitute substantial evidence of
work available to the claimant (at step five), the question must set out all of the
claimant’s impairments.28 However, in posing a hypothetical question, the ALJ is not
required to include findings the ALJ properly rejects, nor must he accept the VE’s
responses to hypothetical questions that include unsupported allegations.29 If an ALJ
determines a claimant has moderate difficulties in concentration, persistence or pace,
27
Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999).
28
W ilson v. Barnhart, 284 F3d.1219, 1227 (11 th Cir. 2002).
29
W right v. Com m ’r of Soc. Sec., 327 Fed. Appx. 135, 137 (11 th Cir. 2009).
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then the ALJ’s hypothetical to a VE must account for those difficulties.30 The ALJ need
not include, however, such limitations explicitly in the hypothetical.31
Here, the ALJ’s hypothetical to the VE proposed an individual with several nonexertional limitations. The VE opined that with those restrictions an individual could
perform the past work done by the Plaintiff. (R. 58.) Plaintiff argues that the ALJ’s
hypothetical questions to the VE did not properly account for the ALJ’s PRT findings or
Dr. Bee’s statement that Plaintiff might have occasional lapses in concentration and
productivity, in contravention of Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176 (11th
Cir. 2011).
The Court finds first that the ALJ’s RFC determination properly accounted for the
ALJ’s findings that Plaintiff was moderately limited in concentration, persistence, and
pace. The RFC appropriately accounted for these limitations by including the nonexertional limitations that Plaintiff was “limited to understanding and remembering
simple on [sic] and two-step instructions, carrying out simple decision-making and only
occasional changes in the work setting.” (R. 20.) Each of these findings described
above (as well as additional limitations) were included in the hypothetical to the VE,
which described a person with the following non-exertional limitations:
understanding and remembering simple one or two-step instructions, carrying
out simple one or two-step routine and repetitive tasks. Work in a low stress job
defined as having only occasional decision making, and only occasional changes
in the work setting.
30
W inschel, 631 F.3d at 1180-81.
31
Id. at 1180.
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(R. 57.)
Accordingly, the Court concludes that the ALJ’s hypothetical to the VE
adequately addressed Plaintiff’s moderate mental limitations. The ALJ, in turn,
appropriately considered the VE’s testimony that the hypothetical individual could
perform work as a hand packager.
V. CONCLUSION
In light of the foregoing it is ORDERED that the decision of the Commissioner is
AFFIRMED. The Clerk is directed to enter final judgment and close the file.
DONE AND ORDERED this 23rd day of January 2013.
s/ Gary R. Jones s/GaryR.Jone
GARY R. JONES
United States Magistrate Judge
Case No. 1:12-cv-74-GRJ
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