GRIFFETH v. COLVIN

Filing 18

ORDER affirming the determination of the Social Security Commissioner. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 2/23/2017. (efw) (Main Document 18 replaced on 2/23/2017 due to scrivener's error as to the date of the order.) (ggs).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
CONNIE JEAN GRIFFETH,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

:
:
:
:
:
:
:
:
:
:
:

CASE NO. 3:16-CV-26-MSH
Social Security Appeal

ORDER
The Social Security Commissioner, by adoption of the Administrative Law
Judge’s (ALJ’s) determination, denied Plaintiff’s application for disability insurance
benefits and Supplemental Security Income (SSI), finding that she was not disabled
within the meaning of the Social Security Act and Regulations. Plaintiff contends that
the Commissioner’s decision was in error and seeks review under the relevant provisions
of 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c). All administrative remedies have been
exhausted. Both parties filed their written consents for all proceedings to be conducted
by the United States Magistrate Judge, including the entry of a final judgment directly
appealable to the Eleventh Circuit Court of Appeals pursuant to 28 U.S.C. § 636(c)(3).
LEGAL STANDARDS
The court’s review of the Commissioner’s decision is limited to a determination of
whether it is supported by substantial evidence and whether the correct legal standards

were applied. Walker v. Bowen, 826 F.2d 996, 1000 (11th Cir. 1987) (per curiam).
“Substantial evidence is something more than a mere scintilla, but less than a
preponderance. If the Commissioner's decision is supported by substantial evidence, this
court must affirm, even if the proof preponderates against it.” Dyer v. Barnhart, 395 F.3d
1206, 1210 (11th Cir. 2005) (internal quotation marks omitted). The court’s role in
reviewing claims brought under the Social Security Act is a narrow one. The court may
neither decide facts, re-weigh evidence, nor substitute its judgment for that of the
Commissioner.1 Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). It must,
however, decide if the Commissioner applied the proper standards in reaching a decision.
Harrell v. Harris, 610 F.2d 355, 359 (5th Cir. 1980) (per curiam). The court must
scrutinize the entire record to determine the reasonableness of the Commissioner’s
factual findings.

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

However, even if the evidence preponderates against the Commissioner’s decision, it
must be affirmed if substantial evidence supports it. Id.
The Plaintiff bears the initial burden of proving that she is unable to perform her
previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). The Plaintiff’s burden
is a heavy one and is so stringent that it has been described as bordering on the
unrealistic. Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981).2 A Plaintiff

1

Credibility determinations are left to the Commissioner and not to the courts. Carnes v.
Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991). It is also up to the Commissioner and not to the
courts to resolve conflicts in the evidence. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir.
1986) (per curiam); see also Graham v. Bowen, 790 F.2d 1572, 1575 (11th Cir. 1986).
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decision of the former Fifth Circuit rendered prior to
October 1, 1981.

2

seeking Social Security disability benefits must demonstrate that she suffers from an
impairment that prevents her from engaging in any substantial gainful activity for a
twelve-month period. 42 U.S.C. § 423(d)(1). In addition to meeting the requirements of
these statutes, in order to be eligible for disability payments, a Plaintiff must meet the
requirements of the Commissioner’s regulations promulgated pursuant to the authority
given in the Social Security Act. 20 C.F.R. § 404.1 et seq.
Under the Regulations, the Commissioner uses a five-step procedure to determine
if a Plaintiff is disabled. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); 20
C.F.R. § 404.1520(a)(4). First, the Commissioner determines whether the Plaintiff is
working.

Id.

If not, the Commissioner determines whether the Plaintiff has an

impairment which prevents the performance of basic work activities. Id. Second, the
Commissioner determines the severity of the Plaintiff’s impairment or combination of
impairments. Id. Third, the Commissioner determines whether the Plaintiff’s severe
impairment(s) meets or equals an impairment listed in Appendix 1 of Part 404 of the
Regulations (the “Listing”).

Id. Fourth, the Commissioner determines whether the

Plaintiff’s residual functional capacity can meet the physical and mental demands of past
work. Id. Fifth and finally, the Commissioner determines whether the Plaintiff’s residual
functional capacity, age, education, and past work experience prevent the performance of
any other work. In arriving at a decision, the Commissioner must consider the combined
effects of all of the alleged impairments, without regard to whether each, if considered
separately, would be disabling. Id. The Commissioner’s failure to apply correct legal
standards to the evidence is grounds for reversal. Id.
3

ISSUES
I.

Whether substantial evidence exists showing that there are significant numbers of
jobs which Plaintiff can perform within her assessed RFC.

II.

Whether the Appeals Council properly evaluated Plaintiff’s new VE opinion.

III.

Whether the ALJ assigned appropriate weight to the medical opinions.

Administrative Proceedings
Plaintiff Connie Jean Griffeth filed applications for disability insurance benefits
and supplemental security income on June 16, 2009, alleging disability to work beginning
December 31, 2007. Her claims were denied initially on December 8, 2009, and denied
on reconsideration on October 21, 2010. She requested an evidentiary hearing before an
administrative law judge (ALJ) on December 17, 2010, and the hearing was conducted on
January 31, 2012. Subsequent hearings were held on June 2, 2011 and July 28, 2011.
Plaintiff

was

represented

by

counsel

at

the

July

hearing—conducted

by

videoconference—and a vocational expert (VE) appeared and gave testimony. Tr. 260.
The ALJ issued an unfavorable decision denying Plaintiff’s claims but, after review by
the Appeals Council, her case was remanded with instructions. Another hearing was held
on March 4, 2014, at which Plaintiff was again represented by counsel and testimony was
taken from a different VE. A second unfavorable decision was rendered by a different
ALJ on June 20, 2014, finding Plaintiff to be not disabled. Tr. 57-83. Plaintiff again
requested review by the Appeals Council on August 18, 2014, but was denied on January
11, 2016. Tr. 8-40, 1-7. Having exhausted the administrative remedies available to her
under the Social Security Act, Plaintiff now brings this action for judicial review of the
final decision by the Commissioner to deny her applications for benefits.
4

Statement of Facts and Evidence
On her alleged onset of disability date, Plaintiff was forty-four years old and
classified as a “younger individual.” She has a high school education and prior relevant
work at the medium exertional level, characterized by the VE as cleaning and custodial
work. Tr. 115.

In her applications for benefits, she described her impairments as

problems with her neck and hands. Tr. 497, 559. In conducting the five-step sequential
analysis mandated by the Commissioner’s regulations for evaluating claims of disability,
the ALJ found Plaintiff to have “severe” impairments of tendonitis, obesity, cervical pain,
degenerative joint disease in the ankle, and connective tissue disease. Finding No. 3, Tr.
63. He next found that Plaintiff’s severe impairments—considered both alone and in
combination—do not meet or medically equal a listed impairment set out in 20 C.F.R.
Part 404, Subpart P, Appendix 1. Finding No. 4, Tr. 65-66. Between steps three and four
of the sequential analysis, the ALJ formulated a residual functional capacity assessment
(RFC) which permits Plaintiff to engage in a restricted range of light work with specific
motor, postural, and environmental limitations. Finding No. 5, Tr. 66-72. Based on
testimony from the VE, the ALJ established that Plaintiff is unable to resume her past
relevant work but can perform other jobs available to her in the national economy as an
assembler of electrical boxes, hardware assembler, and electronics worker at the light
exertional level and as a sorter, bench hand, and final assembler at the sedentary
exertional level. Findings 6 & 10, Tr. 73-74. Therefore, the ALJ found her to be not
disabled to work at substantial gainful activity. Finding No. 11, Tr. 74.

5

DISCUSSION
Plaintiff first argues that the ALJ’s finding that there are significant numbers of
jobs which Plaintiff can perform within her assessed RFC is not supported by substantial
evidence. Plaintiff further contends that the Appeals Council erred in declining to
consider new and material evidence submitted in her request for review relating to the her
RFC. Finally, Plaintiff asserts that the ALJ made errors in assigning weight to the
medical opinions in the record. Pl.’s Br. 1-2, ECF No. 12. The Commissioner responds
that the decision by the ALJ is supported by substantial evidence considering the record
as a whole, and that proper legal principles were applied in his determination that
Plaintiff is not disabled to work. Comm’r’s Br. 2, ECF No. 16.
I.

Does substantial evidence support the ALJ’s finding that there are significant
numbers of jobs which Plaintiff can perform within her assessed RFC?
After determining at step three of the sequential analysis that Plaintiff’s

impairments do not meet or medically equal a listed impairment, considered either alone
or in combination, the ALJ formulated an RFC assessment which allows Plaintiff to
“perform light work, as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), but is
limited to occupations with a sit/stand option.” He continued, however, adding “(t)he
sit/stand option allows the claimant to sit 30 minutes, stand 30 minutes, and walk 30-45
minutes as needed.” Additional restrictions not at issue here were also included. Finding
No. 5, Tr. 66. Resolution of Plaintiff’s first two assertions of error turns on what is meant
by “as needed.” Light work is a defined term which includes standing and walking on
and off for approximately six hours of an eight hour work day. SSR 83-10; Freeman v.

6

Barnhart, 220 F. App’x 957, 960 (11th Cir. 2007). In posing the hypothetical question to
the VE, the ALJ asked whether work would be available for someone at light exertion
who is “able to sit for 30 minutes at a time, able to stand for 30 minutes at a time, and
able to walk for 30-45 minutes at a time.” Tr. 115. Plaintiff’s contention that “as
needed” means “at will” is unsupported by the phrasing of the hypothetical. “As needed”
reflects the requirements of light work. By limiting Plaintiff to light work, the ALJ
necessarily found Plaintiff capable of walking, sitting, or standing six hours in an eight
hour work day. The limitation simply requires that these exertions be intermittent—thus
the characterization in the hypothetical to “at a time.” Id. No examining medical doctor
limited Plaintiff to the extent as she argues, other than by reciting her subjective
complaints. The ALJ discounted her testimony as to her subjective complaints of pain
and she raises no issue here about his decision to do so. Carson v. Comm’r of Soc. Sec.,
440 F. App’x 863, 865 (11th Cir. 2011). Testimony by the VE at the evidentiary hearing
in response to the hypothetical question identified three jobs at the light exertional level
and three additional jobs at the sedentary exertional level which Plaintiff can perform
within her restricted RFC. This meets the Commissioner’s burden of proof at step five
and Plaintiff has not met her burden of showing that she cannot do these jobs. No error
exists as to Plaintiff’s first assertion.
II.

Did the Appeals Council properly evaluated Plaintiff’s new VE opinion?
What Plaintiff contends is new and additional evidence in the form of an opinion

by a different VE—produced after the evidentiary hearing and submitted to the Appeals
Council—addresses jobs within an RFC where the sit/stand option is “at will” and
7

includes walking at will.

That is not the case with Plaintiff’s RFC.

The residual

functional capacity is an assessment, based on all relevant evidence of record, of a
claimant’s ability to engage in work despite impairments. The ALJ adequately considered
the medical evidence and formulated an RFC assessment properly describing Plaintiff’s
ability to work in spite of her impairments. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th
Cir. 1997). No error exists as to Plaintiff’s second assertion.
III.

Did the ALJ assign appropriate weight to the medical opinions?
In her third assertion of error, Plaintiff contends the ALJ erred by giving

significant weight to the opinions of a state agency reviewing physician and giving only
little weight to the opinion of an examining consultative physician. Plaintiff was twice
examined by Stephen Schacher, M.D.

Dr. Schacher himself, however, limited the

reliability of his conclusions noting that they were based almost wholly on Plaintiff’s
subjective complaints and unsupported by objective testing.

In his consultative

examination on August 25, 2010, Dr. Schacher handwrote a notation that “her inability
seemed subjective. No objective testing abnormalities.” Tr. 910. Because his diagnosis
was “diffuse joint pain,” he ruled out rheumatoid arthritis with two objective clinical tests
(which yielded negative results) and characterized the test results in a separate
handwritten note as “always negative or normal.” Tr. 910. The second examination by
Dr. Schacher on September 30, 2010 was identical. The ALJ discounted Dr. Schacher’s
limitations for the same reasons the doctor expressed his own doubt. This is not error.
As to giving greater weight to the opinion of a non-examining state agency
consulting physician, the ALJ was entitled to do so. Dr. Linda Francis reported that
8

Plaintiff had extensive capabilities with few limitations, and the ALJ found her
conclusions to be well-supported by and consistent with evidence in the record as a
whole. State agency consultants are considered to be expert in Social Security disability
determinations and where, as here, the ALJ finds their opinions to be consistent and wellsupported, great weight may be afforded to their findings. The ALJ did not err in how he
considered the opinions of either Dr. Schacher or Dr. Francis.
CONCLUSION
For the reasons stated above, the determination of the Social Security
Commissioner is affirmed.
SO ORDERED, this 23rd day of February, 2017.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

9