COTTON v. COLVIN et al

Filing 14

ORDER re 1 Complaint filed by HELEN COTTON. The decision of the Social Security Commissioner is affirmed. Ordered by US Magistrate Judge STEPHEN HYLES on 3-9-15. (mpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
HELEN COTTON,
Plaintiff,
v.
CAROLYN COLVIN,
Commissioner of Social Security,
Defendant.

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CASE NO. 4:14-CV-245-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 benefits,
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 he is unable to perform his
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
seeking Social Security disability benefits must demonstrate that he suffers from an
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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).

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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.
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impairment that prevents him 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 (“RFC”) 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.

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ISSUES
I.

Whether the ALJ properly supported the assessment of Plaintiff’s RFC.

II.

Whether the ALJ erred in failing to recontact the consultative examiner to
resolve conflicting information.
Administrative Proceedings
Plaintiff applied for supplemental security income on January 18, 2011, alleging

disability as of October 1, 2010. Tr. 19, ECF No. 11-2. Plaintiff’s application was
denied initially and on reconsideration, and Plaintiff timely requested a hearing before an
Administrative Law Judge (“ALJ”). The ALJ conducted a video hearing on November
30, 2012.

Id.

Following the hearing, the ALJ issued an unfavorable decision on

December 27, 2012.

Tr. 19-30. The Appeals Council ultimately denied Plaintiff’s

Request for Review on July 14, 2014. Tr. 1-3. This appeal followed.
Statement of Facts and Evidence
After consideration of the written evidence and the hearing testimony in this case,
the ALJ determined that Plaintiff had not engaged in substantial gainful activity as
defined by the Act since the application date. Tr. 21. The ALJ found that Plaintiff had
the severe impairments of arthritis and joint pain of the hands with morning stiffness, and
joint pain in the knee. Id. The ALJ then determined that Plaintiff had no impairments or
combination of impairments that met or medically equaled any one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 22.
After consideration of the entire record, the ALJ found that Plaintiff retained the
residual functional capacity (RFC) to perform medium work with some exertional
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limitations. Tr. 23. Plaintiff had past relevant work as a small parts assembler, inspector
general, short order cook, and child monitor, and the ALJ elicited testimony from a
vocational expert (VE) who opined that given the RFC formulated by the ALJ she could
return to her past relevant work. Tr. 29. The ALJ therefore found that Plaintiff had not
been under a disability as defined in the Act from January 18, 2011 through the date of
the decision. Id.
DISCUSSION
I.

Whether the ALJ properly supported the assessment of Plaintiff’s RFC.
Plaintiff contends that the ALJ improperly assessed Plaintiff’s RFC by failing to

include substantial bilateral hand impairments caused by her arthritis. Plaintiff argues
that the ALJ did not consider all of the relevant evidence or include the required
“function-by-function” assessment.

Pl.’s Br. 3, ECF No. 12.

The Commissioner

responds that the ALJ properly considered all of the relevant evidence and although
objective medical evidence supported Plaintiff’s alleged impairments, the evidence
showed that they did not have the functionally limiting effects Plaintiff asserted.
Comm’r’s Br. 7, ECF No. 13.
In her testimony before the ALJ, Plaintiff alleged disabling pain in her knees and
hands, especially in the mornings, which cause an average pain level of six-out-of-ten on
a daily basis. Tr. 24. She further alleged that she must change positions after sitting for
twenty minutes or standing for ten, and that she lies down three or four times a day for
fifteen minutes at a time. Id. Plaintiff also testified that she can only lift or carry ten
pounds at a time due to pain, that she is unable to reach fully overhead, that she cannot
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climb stairs, and that she is unable to grip or grasp with her left hand because one finger
is frozen due to arthritis, but that she can pick up coins and do buttons with her right
hand. Id.
In considering Plaintiff’s alleged symptoms, the ALJ must follow a two-step
process, first determining whether an underlying medically determinable impairment
could reasonably be expected to produce the symptoms, and then evaluating the intensity,
persistence, and limiting effects of the symptoms in light of the objective medical
evidence. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). Where, as here, the
objective medical evidence does not substantiate the alleged intensity, persistence, and
functionally limiting effects of the alleged pain and other symptoms, the ALJ must
evaluate the credibility of the statements based on the entire record.

20 C.F.R.

404.1529(c), 416.929(c). The ALJ may rely on a claimant’s daily activities, frequency
and consistency of symptoms, and types and dosages of medications in assessing
credibility. Dyer v. Barnhart, 395 F.3d 1206, 1212 (11th Cir. 2005).
The ALJ found that the medical evidence of record showed limited range of
motion in Plaintiff’s right knee and crepitus with flexion and extension.

Tr. 27.

Plaintiff’s treating physician, Dr. Grace Chin-Yut M.D., also noted that on one occasion
Plaintiff walked with a limp favoring the right leg, and at times complained of pain and
swelling in the right knee affecting weight-bearing. Tr. 413. However, Dr. Chin-Yut
also stated that the pain and swelling “subsided after several weeks.” Tr. 428. Plaintiff
only occasionally had swelling in the knee during her medical examinations and had
normal tone and muscle strength. Tr. 27, 413. Diagnostic imaging studies showed mild
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degenerative changes in the right knee. Tr. 27, 355. Dr. Carl Foster, a consultative
examiner, noted that Plaintiff had a normal gait, normal range of motion in the knees, and
could squat and rise without any assistance. Tr. 28. The ALJ further noted that Plaintiff
sweeps, mops, makes the bed, washes dishes, cleans the kitchen and bathroom, and
scrubs the tub and toilet. Tr. 24. The ALJ found based on all of the evidence that the
functionally limiting effects of Plaintiff’s knee pain were no more severe than the RFC
assessment. Although a medically determinable impairment was found which could
cause the alleged pain in Plaintiff’s knee, substantial evidence in the record as a whole
supports the ALJ’s determination that the mild degenerative changes in the right knee did
not substantiate the alleged intensity, persistence, and functionally limiting effects alleged
by Plaintiff.
As for Plaintiff’s hand pain, the ALJ found the medical evidence of record showed
some degenerative changes in the right hand, but that the radiologist concluded that it
was a negative examination for Plaintiff’s age. Tr. 26. Plaintiff was found to have
puffiness at the wrists and joints of the hand, and was prescribed a gel prescription for
joint pain, but antibody tests to determine rheumatoid arthritis were negative. Id. Dr.
Foster found that Plaintiff was unable to make a fist with her right hand and had a frozen
left index finger. Tr. 347. However, Dr. Foster also found that Plaintiff was still able to
complete manipulative activities such as buttoning a shirt, turn a doorknob, and write a
full sentence without difficulty, activities that the ALJ specifically noted in the opinion.
Tr. 28. Dr. Foster assessed Plaintiff’s grip strength in both hands as 5/5. Id. This
objective medical evidence constitutes substantial evidence to support the RFC
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determination made by the ALJ with regard to Plaintiff’s hand pain. No error is found in
Plaintiff’s first contention.
II.

Whether the ALJ erred in failing to recontact the consultative examiner to
resolve conflicting information.
In her second claim of error, Plaintiff argues that the ALJ should have recontacted

Dr. Foster in order to obtain an explanation for what Plaintiff alleges to be a discrepancy
in his report. That discrepancy, according to Plaintiff, is that while Dr. Foster found that
Plaintiff was unable to make a fist with her right hand and had a frozen index finger, he
did not comment on the possibility of manipulative limitations. Pl.’s Br. 4-5. The
Commissioner argues that the ALJ had no duty to recontact the consultative examiner
under the regulations, but instead “may” recontact a treating physician if the evidence is
insufficient to determine whether the claimant was disabled or not disabled, and that
Plaintiff has failed to show that the record was insufficient. Comm’r’s Br. 8-9.
As the Commissioner points out, the points creating the alleged discrepancy cited
by Plaintiff were discussed by the ALJ. After considering all of the evidence, including
the opinion of Dr. Richard Whitney, who reviewed Dr. Foster’s examination and
determined that Plaintiff did not have any manipulative limitations, the ALJ formulated
the RFC with substantial support. Tr. 348. Plaintiff argues that Dr. Whitney did not have
the records from Dr. Chin-Yut or the imaging studies done on her hands, but this would
not affect how Dr. Whitney would view the alleged discrepancy in Dr. Foster’s opinion,
which Dr. Whitney did review. Further, as the imaging studies showed only age related
degenerative changes, they do not support Plaintiff’s claim. There is no evidentiary gap

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requiring recontact since the ALJ found hand pain as a severe impairment and considered
it in conjunction with all examinations and evaluations in the record. Brown v. Shalala,
44 F.3d 931, 935 (11th Cir. 1995); Gallina v. Comm’r of Soc. Sec., 202 F. App’x 387
(11th Cir. 2010). Plaintiff has shown no reason why the ALJ needed more information
from Dr. Foster, and the contention that the ALJ erred in failing to recontact him is
meritless.
Additionally, Plaintiff retains the burden of proof at step four of the sequential
analysis process to show that she is not capable of returning to past work. As the
Commissioner points out, Plaintiff has not shown that even if the ALJ erred in failing to
account for manipulative limitations, she could not return to her past relevant work as a
child monitor, which only requires occasional reaching, handling, and fingering. See
U.S. Dep’t of Labor, Dictionary of Occupational Titles § 301.677-101, 1991 WL 672652
(4th ed. 1991). Plaintiff has not carried this burden, so even assuming arguendo that the
ALJ erred in the treatment of Plaintiff’s manipulative limitations, no error is found.
CONCLUSION
WHEREFORE, for the foregoing reasons, it is ORDERED that the determination
of the Social Security Commissioner is AFFIRMED.
SO ORDERED, this 9th day of March, 2015.
/s/ Stephen Hyles
UNTED STATES MAGISTRATE JUDGE

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