GARCIA v. ASTRUE
Filing
14
ORDER: Decision of the Commissioner is AFFIRMED. Clerk directed to enter final judgment and close the file. Signed by MAGISTRATE JUDGE GARY R JONES on 4/22/2013. (jws)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
ANTHONY A. GARCIA,
Plaintiff,
v.
CASE NO. 1:12-cv-84-GRJ
CAROLYN W. COLVIN,1
Acting 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 application for supplemental security
income pursuant to Title 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, 12, 13.) The parties have consented to have the
undersigned U.S. Magistrate Judge conduct all proceedings in this case. (Docs. 9, 11.)
For the reasons discussed below, the Commissioner’s decision is due to be
AFFIRMED.
I. PROCEDURAL HISTORY
Plaintiff filed applications for supplemental security income benefits under Title
XVI of the Social Security Act on February 11, 2010 alleging a disability beginning
1
Carolyn W . Colvin becam e the Acting Com m issioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W . Colvin should be substituted
for Michael J. Astrue as the defendant in this case.
Page 2 of 14
February 15, 2009 due to chronic obstructive pulmonary disease (“COPD”), back pain,
asthma, hepatitis, and depression. (R. 96, 105.) Plaintiff was 50 years old at the time of
her alleged onset of disability, and had no prior relevant work, in part due to the fat that
he had been incarcerated for most of his adult life. (R. 333.) Plaintiff’s applications
were denied initially and upon reconsideration. (R. 49-53, 67-71.) An administrative
hearing was held before an Administrative Law Judge (“ALJ”) on June 17, 2011. (R.
319-40.) On July 7, 2011, the ALJ issued a written decision finding that Plaintiff was
not disabled. (R. 18-27.) The Appeals Council denied Plaintiff’s request for review on
March 16, 2012. (R. 6-9.) Plaintiff then filed his Complaint in this case on April 25,
2012. (Doc. 1.)
II. STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial
evidence.2 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.3
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
2
See 42 U.S.C. § 405(g) (2000).
3
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
Case No. 1:12-cv-84-GRJ
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the Commissioner's decision.4 The district court must view the evidence as a whole,
taking into account evidence favorable as well as unfavorable to the decision.5
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.6
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.7 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.8
The ALJ must follow five steps in evaluating a claim of disability.9 First, if a
claimant is working at a substantial gainful activity, he is not disabled.10 Second, if a
4
Edwards, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11 th Cir. 1991).
5
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).
6
Keeton v. Dep’t Health and Hum an Servs., 21 F.3d 1064, 1066 (11 th Cir. 1994).
7
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.).
8
42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.
9
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).
10
20 C.F.R. § 404.1520(b).
Case No. 1:12-cv-84-GRJ
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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
not have a severe impairment and is not disabled.11 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.12 Fourth, if a claimant's impairments do not prevent him from doing past
relevant work, he is not disabled.13 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.14
The burden of proof regarding the plaintiff’s inability to perform past relevant
work initially lies with the plaintiff.15 The burden then temporarily shifts to the
Commissioner to demonstrate that “other work” which the claimant can perform
currently exists in the national economy.16 The Commissioner may satisfy this burden
by pointing to the Medical-Vocational Guidelines (the “Grids”) for a conclusive
11
20 C.F.R. § 404.1520(c).
12
20 C.F.R. § 404.1520(d).
13
20 C.F.R. § 404.1520(e).
14
20 C.F.R. § 404.1520(f).
15
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).
16
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).
Case No. 1:12-cv-84-GRJ
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determination that a claimant is disabled or not disabled.17
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.”18 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.19
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.20 Such independent evidence may be
introduced by a Vocational Expert’s (“VE”) testimony, but this is not the exclusive
means of introducing such evidence.21 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 his mental impairments,
17
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.”).
18
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
19
W alker, 826 F.2d at 1003.
20
W olfe, 86 F.3d at 1077-78.
21
See id.
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the summary of the record will focus on those impairments.
A.
Medical Records
Plaintiff was treated for his mental impairments on October 1, 2009 at Meridian
Behavioral Healthcare by Sally Martinez, ARNP. (R. 199-202.) Ms. Martinez noted that
Plaintiff had previous psychiatric admissions, had attempted suicide, and expressed a
desire to resume taking psychiatric medication. She found Plaintiff to have a fair mood
and pleasant affect, but suffering from paranoia and with poor insight. Ms. Martinez
diagnosed Plaintiff with bipolar disorder and antisocial personality, and assessed his
GAF score as 40. (R. 202.)
Plaintiff was treated by Ms. Martinez on October 29, 2009, as well as in
December 2009 and January 2010. (R. 204, 205-208, 208.) The treatment notes
reflect that Plaintiff was taking his medication and improving with treatment. On
October 29, 2009, Plaintiff reported that his mood was better, and by January he
reported that he was sleeping well and that his mood was good. Ms. Martinez also
noted that by January, Plaintiff’s thought process was “much better.” (R. 208.) On May
27, 2010, Plaintiff was treated by Ms. Martinez, who reported that he was taking his
medicine daily, had a fair appearance and normal motor behavior, but had poor insight
and judgment. (R. 237.)
Plaintiff also underwent consultative psychological examinations and his records
were reviewed by various state agency experts. Dr. William E. Beaty performed a
consultative psychological examination on May 25, 2010. Dr. Beaty noted Plaintiff’s
history of incarceration and mental health treatment in prison, as well as his use of
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psychiatric medication. (R. 224.) Plaintiff reported that with respect to his activities of
daily living, he is able to clean up the yard, play with his dogs, collect scrap metal, ride
his bicycle, nap, and play video games. (R. 224.) Plaintiff was able to count
backwards, skipping one number, could multiply 8x5 but not add 13+12, and could
recall five digits forwards and three backwards. (R. 225.) Dr. Beaty found that Plaintiff
had poor insight and abstractive ability, average to low average cognitive ability, and
severe judgment impairment. He diagnosed schizoaffective disorder (bipolar type),
intermittent explosive disorder, dysomnia, alcohol and amphetamine abuse (in
remission), cannabis dependence, and antisocial personality disorder. (R. 225.) Dr.
Beaty opined that “[s]ustained concentration and task persistence is problematic,” and
noted that Plaintiff “avoids crowds and new people, [and is] comfortable with neighbors
and people he is familiar with.” (R. 226.)
Dr. Thomas Conger, a state agency physician, completed a mental RFC
assessment and Psychiatric Review Technique form for Plaintiff on June 3, 2010. (R.
243-45, 247-60.) Dr. Conger opined that Plaintiff was not significantly limited in
understanding and memory, sustained concentration and persistence, social
interaction, and adaptation. (R. 243-44.) He provided the following functional capacity
assessment: “Although the claimant’s personality style may result in some social
difficulties as well as a negative reaction to criticism at times, he shows the ability to
relate effectively in general. Mentally, he is capable of performing routine tasks on a
sustained basis and is judged to have adequate understanding and adaptation
abilities.” (R. 245.)
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Dr. Conger based his PRT findings on Plaintiff’s affective disorder, personality
disorder, and substance addiction disorder. (R. 247.) He found mild restriction in
activities of daily living, moderate difficulties in maintaining social functioning, mild
difficulties in maintaining concentration, persistence, and pace, and no episodes of
decompensation of extended duration. (R. 257.) Dr. Conger opined that in spite of
Plaintiff’s “significant history of social difficulties,” he “does show the ability to relate
effectively in general.” (R. 259.) Dr. Conger also opined that Plaintiff “is judged to be
capable of performing routine tasks independently and there is no indication of a mental
impairment that would meet or equal any listing at this time.” (R. 259.)
B.
Hearing Testimony
At his administrative hearing, Plaintiff testified that he last worked in 2009
planting trees. He described his current inability to work as due mostly to his mental
problems, including anti-social personality and anxiety. Plaintiff testified that he gets
along well with his fiancee, but is paranoid around strangers. He testified that he
smokes cigarettes and “[a]s much [marijuana] as [he] could in . . . a day.” (R. 330.)
Plaintiff stated that his fiancee does the cooking, shopping, and housework, but that he
cleans the porch and the yard, and “[w]hatever I can.” (R. 332.) He testified that he
was incarcerated for most of his adult life, and was treated for mental health issues in
prison. (R. 333-34.) He also stated that without medication, he hears voices, has
hallucinations, and experiences uncontrolled anger. (R. 334.)
Mark A. Capps, a vocational expert, testified at the hearing that an individual with
Plaintiff’s RFC could perform the following occupations that existed in significant
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numbers in the regional and national economies: Order Picker, Kitchen Helper, and
Cleaner II. (R. 335-36.)
C.
Findings of the ALJ
The ALJ found that the Plaintiff had the following severe impairments: bipolar
disorder and chronic low back pain. The ALJ found that Plaintiff’s COPD, asthma, and
hepatitis C were non-severe impairments. The ALJ found that Plaintiff’s severe
impairments did not meet or equal the listings. At step three, the ALJ found that
Plaintiff had no 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 of extended duration. (R. 21.) The ALJ determined
that Plaintiff’s RFC was as follows:
[T]he claimant has the residual functional capacity to perform medium
work as defined in 20 CFR 416.967(c) except the claimant is limited to
jobs involving simple, routine, repetitive tasks with up to 3-step
commands. The claimant is limited to jobs involving occasional
changes in the work setting, occasional judgment and decision-making,
no interaction with the general public, and occasional interaction with
co-workers.
(R. 22.)
The ALJ found that Plaintiff had no past relevant work. The ALJ found, relying
on the testimony of a vocational expert (“VE”), that there were jobs that existed in
substantial numbers in the national economy that Plaintiff could perform. (R. 26.)
These jobs included Order Picker, Kitchen Helper, and Cleaner II. (R. 26.)
Accordingly, the ALJ found that Plaintiff was not disabled.
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IV. DISCUSSION
Plaintiff raises one issue on appeal. He challenges the hypothetical posed to the
VE at step five on the grounds 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. As
a result, Plaintiff argues that the VE’s testimony cannot constitute substantial evidence
in support of the step five finding and therefore reversal and remand is appropriate.
(Doc. 12.) For the reasons discussed below, the Court concludes that 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.22 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.23 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
22
23
Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999).
W ilson v. Barnhart, 284 F3d.1219, 1227 (11 th Cir. 2002).
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responses to hypothetical questions that include unsupported allegations.24
If an ALJ determines a claimant has moderate difficulties in concentration,
persistence or pace, then the ALJ’s hypothetical to a VE must account for those
difficulties.25 The ALJ need not include, however, such limitations explicitly in the
hypothetical.26 Instead, “limiting the hypothetical to include only unskilled work
sufficiently accounts for such limitations” in concentration, persistence or pace when the
“medical evidence demonstrates that a claimant can engage in simple, routine tasks or
unskilled work” despite those limitations.27 Hypotheticals also “adequately account for a
claimant’s limitations in concentration, persistence, and pace when the questions
otherwise explicitly account for these limitations.”28
In this case the ALJ’s hypothetical to the VE proposed an individual with several
non-exertional limitations. The VE opined that with those restrictions an individual could
perform the following occupations in the regional and national economies: Order
Picker, Kitchen Helper, and Cleaner II. (R. 336.) Plaintiff argues that the ALJ’s
hypothetical questions to the VE did not properly account for the ALJ’s PRT findings, in
contravention of Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176 (11th Cir. 2011).
The Court concludes first that the ALJ’s RFC determination–which Plaintiff has
24
W right v. Com m ’r of Soc. Sec., 327 F. App’x 135, 137 (11 th Cir. 2009).
25
W inschel v. Com m ’r of Soc. Sec., 631 F.3d 1176, 1180-81 (11 th Cir. 2011.)
26
Id. at 1180.
27
Id.
28
Id.
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not challenged–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 non-exertional limitations that Plaintiff was “limited to
jobs involving simple, routine, repetitive tasks with up to 3-step commands,” and was
“limited to jobs involving occasional changes in the work setting, occasional judgment
and decision-making.” (R. 22.) The ALJ’s RFC determination also properly accounted
for Plaintiff’s moderate limitations in social functioning, as it stated that Plaintiff would
be limited to “no interaction with the general public, and occasional interaction with coworkers.” (R. 22.) Each of these findings described above (as well as additional
limitations) was included in the hypothetical to the VE, which described a person with
the following non-exertional limitations:
limited to jobs involving simple and routine, repetitive tasks . . . with up to threestep commands. Occasional changes in the work setting. Occasional judgment
and decision-making. No interaction with the general public. And occasional
interaction with co-workers.
(R. 335-36.)
Plaintiff suggests that if the ALJ does not state his paragraph B findings
regarding activities of daily living, social functioning, and concentration, persistence and
pace verbatim in the hypothetical to the VE, remand is required under Winschel. This
argument misreads Winschel. Winschel does not require an ALJ to repeat the
paragraph B findings in the hypothetical to the VE; rather, it requires the hypothetical to
“adequately account” for those findings, whether through a restriction to unskilled work
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or by otherwise “implicitly” accounting for the claimant’s restrictions.29 The ALJ’s
hypothetical to the VE clearly accounted for Plaintiff’s moderate mental limitations. The
ALJ, in turn, appropriately considered the VE’s testimony that the hypothetical individual
could perform work as an Order Picker, Kitchen Helper, or Cleaner II.
The ALJ’s findings are also consistent with the medical evidence of record. The
treatment notes from Ms. Martinez, the ARNP that treated Plaintiff at Meridian, reflected
that his mental condition was improving with medication. (R. 204-08.) While
consultative psychologist Dr. Conger opined that Plaintiff had mild restrictions in
activities of daily living, R. 257, the ALJ’s finding that Plaintiff had no restrictions in
activities of daily living was supported by Plaintiff’s own testimony at the hearing
regarding his ability to clean his home and do other household chores. (R. 332.) The
ALJ’s finding was also supported by Plaintiff’s representation to consultative examining
psychologist Dr. Beaty that he is able to clean up the yard, play with his dogs, collect
scrap metal, ride his bicycle, nap, and play video games. (R. 224.) The ALJ’s finding
that Plaintiff was moderately limited in social interaction was supported by Plaintiff’s
testimony that he is paranoid around strangers, R. 330, and by Dr. Beaty’s note that
Plaintiff “avoids crowds and new people, [and is] comfortable with neighbors and people
he is familiar with.” (R. 226.) Dr. Conger also found that Plaintiff had moderate
difficulties in social interaction. (R. 257.) Finally, while Dr. Conger found that Plaintiff
had only mild difficulties in maintaining concentration, persistence, and pace, R. 257,
29
Id.
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the ALJ found that Plaintiff had moderate difficulties in concentration, persistence, and
pace, which was consistent with Dr. Beaty’s opinion that “[s]ustained concentration and
task persistence is problematic.” (R. 226.)
Accordingly, the Court concludes that the ALJ did not err at step five, that the
ALJ’s step five determination is supported by substantial evidence and therefore the
decision of the Commissioner is due to be affirmed.
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 22nd day of April 2013.
s/ Gary R. Jones s/GaryR.Jone
GARY R. JONES
United States Magistrate Judge
Case No. 1:12-cv-84-GRJ
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