Wilson v. Commissioner of Social Security
Filing
18
MEMORANDUM OPINION. Signed by S. Allan Alexander on 11/06/12. (bnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
MONICA WILSON
PLAINTIFF
vs.
CIVIL ACTION NO. 3:12-cv-0026-SAA
COMMISSIONER OF SSA
DEFENDANT
MEMORANDUM OPINION
This case involves an application under 42 U.S.C. § 405(g) for judicial review of the
decision of the Commissioner of Social Security denying the application of plaintiff for
supplemental security income (SSI) payments under Section 1614(a)(3) of the Act. Plaintiff
filed her application for SSI on September 23, 2008, alleging disability beginning August 1,
2004. Docket 10, pp. 80-83. The Commissioner denied her application initially on February 17,
2009 and upon reconsideration on May 15, 2009. Docket 10, pp. 44, 45. Plaintiff filed a request
for a hearing on September 21, 2009. Docket 10, p.56. An administrative hearing was held in
Tupelo, Mississippi before an Administrative Law Judge (ALJ) on January 6, 2011. Docket 10,
p. 29-42. The ALJ issued an unfavorable decision on January 24, 2011 (Docket 10, p. 13- 24)
and, after reviewing additional information submitted by the plaintiff, the Appeals Council
denied her request for a review. Docket 10, p. 5-8. Plaintiff filed the instant appeal and it is now
ripe for review. Because both parties have consented to have a magistrate judge conduct all the
proceedings in this case under 28 U.S.C. § 636(c), the undersigned has the authority to issue this
opinion and the accompanying final judgment.
I. FACTS
Plaintiff was born on July 30, 1989. Docket 10, p. 18. Plaintiff was twenty one years old
on the date of the hearing before the ALJ. Docket 10, p. 32-33. She has a ninth grade education
and is working toward a GED. Docket 10, p. 106. The ALJ found that plaintiff had no past
relevant work experience. Docket 10, p. 22, 345. She claimed disability due to bipolar disorder
and panic attacks. Docket 10, p. 101.
SSA sent plaintiff a very explicit letter on September 25, 2009, advising her that she had
a right to representation, enclosing a brochure with very thorough explanation of her rights and
options. The ALJ sent her another, similar letter on November 4, 2010 with the same
information. Finally the ALJ once again informed plaintiff at the hearing on January 6, 2011 of
her right to representation by an attorney for her hearing. Docket 10, pp. 57-61, 62-63, 64-71, 31.
Plaintiff, who was not represented by an attorney at the hearing, responded that she wished to
proceed with the hearing. The hearing began at 9:19 a.m. and concluded at 9:32 a.m. Docket
10, pp. 29 - 42. Plaintiff and a Vocational Expert (VE), David Horne, testified at the hearing.
Id.
The ALJ determined that plaintiff’s “anxiety/panic disorder” was a “severe” impairment,
but that her other claimed impairments were not severe “within the meaning of 20 C.F.R. §§
404.1521 and 404.921.” Docket 10, p. 18-20, Finding No. 2. The ALJ further found that
plaintiff’s anxiety/panic disorder, considered singly and in combination with other complaints,
did not meet or equal a listed impairment in 20 C.F.R. Part 404, Subpart P, App. 1 (20 C.F.R. §§
404.920(d), 404.925 and 404.926). Docket 10, p. 20- 21, Finding No. 3. After considering the
entire record as a whole, and relying in part on Dr. Scates’s Mental Residual Functional Capacity
assessment, the ALJ concluded that plaintiff
has the residual functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional limitations: Despite an
anxiety/panic disorder, she can understand, remember and carry out simple
instructions and perform simple repetitive tasks. [Plaintiff] can attend to these
2
tasks for 2 hour periods at a time. She should not be around crowds of 10 to 20
people. She can have occasional interaction with the general public. Her
judgment is fair and she can adapt to simple gradually introduced changes
adequately. She can work no high stress conflict oriented jobs.
Docket 10, p. 21, Finding No. 4.
The ALJ went on to find the plaintiff’s subjective complaints and hearing testimony for
the period under consideration “less than fully credible.” Docket 10, p. 23. In support of his
credibility assessment, the ALJ noted that the plaintiff’s testimony regarding physical effect of
her weight and her interactions with strangers and crowds was inconsistent and wholly
unsupported by the record and found that plaintiff’s lack of ongoing mental health counseling
belied her claims. Id. In light of testimony by the VE, the ALJ held that plaintiff’s “severe”
impairment did not prevent her from performing work-related activities as a janitor/cleaner, or
other such work existing in significant numbers in the national economy [Docket 10, p. 23,
Finding No. 9], and plaintiff therefore was “not disabled” under the Act. Docket 10, p. 23, 24.
After the ALJ’s decision, the plaintiff submitted additional evidence to the Appeals
Council, including medical evidence from J. Jolene Bailey, Ph.D. dated 11-09-04 to 05-03-06.
Docket 10, p. 8. After reviewing the additional evidence submitted by the plaintiff, the Appeals
Council denied plaintiff’s request for review and concluded that the additional information did
not provide a basis for changing the ALJ’s decision. Docket 10, p. 7-9.
On appeal plaintiff makes three arguments: (1) the ALJ improperly advised her about her
right to an attorney; (2) he overlooked plaintiff’s limited intelligence, education and mental
problems in his determination that she was not disabled; and (3) he failed to develop the record
adequately. Docket 15.
II. STANDARD OF REVIEW
3
In determining disability, the Commissioner, through the ALJ, works through a five-step
sequential evaluation process.1 The burden rests upon plaintiff throughout the first four steps of
this five-step process to prove disability, and if plaintiff is successful in sustaining her burden at
each of the first four levels, then the burden shifts to the Commissioner at step five.2 First,
plaintiff must prove she is not currently engaged in substantial gainful activity.3 Second,
plaintiff must prove her impairment is “severe” in that it “significantly limits [his] physical or
mental ability to do basic work activities . . . .”4 At step three, the ALJ must conclude plaintiff is
disabled if she proves that her impairments meet or are medically equivalent to one of the
impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1, §§ 1.00-114.09 (2010).5 If plaintiff
does not meet this burden, at step four she must prove that she is incapable of meeting the
physical and mental demands of her past relevant work.6 At step five, the burden shifts to the
Commissioner to prove, considering plaintiff’s residual functional capacity, age, education and
past work experience, that she is capable of performing other work.7 If the Commissioner proves
other work exists which plaintiff can perform, plaintiff is given the chance to prove that she
1
See 20 C.F.R. §416.920 (2010).
2
Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999).
3
20 C.F.R. §416.920(b) (2010).
4
20 C.F.R. §416.920(c) (2010).
5
20 C.F.R. §416.920(d) (2010). If a claimant’s impairment meets certain criteria, that
claimant’s impairments are “severe enough to prevent a person from doing any gainful activity.”
20 C.F.R. § 416.925 (2003).
6
20 C.F.R. §416.920(e) (2010).
7
20 C.F.R §416.920(g) (2010).
4
cannot, in fact, perform that work.8
The court considers on appeal whether the Commissioner’s final decision is supported by
substantial evidence and whether the Commissioner used the correct legal standard. Crowley v.
Apfel, 197 F.3d 194, 196 (5th Cir. 1999), citing Austin v. Shalala, 994 F.2d 1170 (5th Cir. 1993);
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). It is the court’s responsibility to
scrutinize the entire record to determine whether the ALJ’s decision was supported by
substantial evidence and whether the Commissioner applied the proper legal standards in
reviewing the claim. Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983). The court has
limited power of review and may not reweigh the evidence or substitute its judgment for that of
the Commissioner,9 even if it finds that the evidence leans against the Commissioner’s
decision.10 In the Fifth Circuit substantial evidence is “more than a scintilla, less than a
preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Crowley v. Apfel, 197 F.3d 194, 197 (5th Cir. 1999) (citation omitted).
Conflicts in the evidence are for the Commissioner to decide, and if there is substantial evidence
to support the decision, it must be affirmed even if there is evidence on the other side. Selders v.
Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The proper inquiry is whether the record, as a
whole, provides sufficient evidence that would allow a reasonable mind to accept the ALJ’s
conclusions. Richardson v. Perales, 402 U.S. 389, 401 (1971). “If supported by substantial
evidence, the decision of the [Commissioner] is conclusive and must be affirmed.” Paul v.
8
Muse, 925 F.2d at 789.
9
Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988).
10
Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); Harrell v. Bowen, 862 F.2d 471,
475 (5th Cir. 1988).
5
Shalala, 29 F.3d 208, 210 (5th Cir. 1994), citing Richardson v. Perales, 402 U.S. 389, 390, 28
L.Ed.2d 842 (1971).
III. DISCUSSION
The plaintiff did not engage in substantial gainful activity after the date she filed her
application, satisfying step one. Docket 10, p. 18. The ALJ found at step two that plaintiff’s
anxiety/panic disorder was a severe impairment [Docket 10, pp. 18-20] and, at step three, that
the plaintiff’s impairments did not meet the stringent requirements set out in the listings.11
Docket 10, pp. 20-21. Next, the ALJ determined that the plaintiff had the residual functional
capacity for a full range of at all exertional levels but with several specific non-exertional
limitations [Docket 10, pp. 21-22], though he found that the plaintiff’s subjective statements
were “less than fully credible.” Docket 10, p. 22. At step four, the ALJ found that the plaintiff
had no prior relevant work experience. Docket 10, p. 22. At step five, relying on the testimony
of the VE, the ALJ determined that because plaintiff could perform work existing in significant
numbers in the national economy [Docket 10, p. 23], plaintiff was not disabled. Docket 10. Pp.
23-24.
1.
Right to Counsel
A claimant at a Social Security hearing has a statutory right to counsel. 42 U.S.C. § 406;
Clark v. Schweiker, 652 F.2d 399, 403 (5th Cir. Unit B July 1981); Norden v. Barnhart, 77 Fed.
Appx. 221, 223 (5th Cir.2003). The claimant must be notified of this right. Clark, 652 F.2d at
11
Plaintiff must prove by objective medical evidence at step three that her impairment,
either singly or in combination with other impairments, meets the stringent requirements set out
in the listings. Selders v. Sullivan, 914 F.2d 614, 617, 619 (5th Cir. 1990), citing Sullivan v.
Zebley, 493 U.S. 521, 110 S.Ct. 885, 891-92 (1990) (claimant bears the burden of proof to show
medical findings that she meets each element of the listing).
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403. “[N]otice should generally be provided in writing prior to a hearing. The ALJ should then
provide oral notification at the hearing to ensure that a claimant who appears pro se . . . has been
made aware of the options for obtaining counsel so that her or his waiver is knowingly and
intelligently effected.” Gullett v. Chater, 973 F.Supp. 614, 621 (E.D.Tex.1997) (citation
omitted); see also Norden, 77 Fed. Appx. at 223. The magistrate judge in Gullett opined that an
ALJ should also inquire whether the claimant had a meaningful opportunity to secure counsel
and, if not, consider adjourning the hearing to provide that opportunity. Gullett, 973 F. Supp at 621.
A claimant may waive her statutory right to counsel if she possesses adequate
information to enable her “to decide intelligently whether to retain counsel or proceed pro se.”
Norden, 77 Fed. Appx. at 223. However, “[i]f inadequate notice was provided concerning the
scope of the claimant's right, [the] waiver will be deemed invalid.” Gullett v. Chater, 973
F.Supp. 614, 620 (E.D.Tex.1997). Thus, the ALJ must notify claimants of (1) “the manner in
which an attorney can aid in the proceedings, (2) the possibility of free counsel or a contingency
arrangement, and (3) the limitation of attorney fees to twenty-five percent of past due benefits
and the required court approval of the fees.” Id., citing Clark v. Schweiker, 652 F.2d 399, 403
(5th Cir.1981); see Norden, 77 Fed. Appx. at 223.
Nevertheless, an invalid waiver of the right to counsel, by itself, will not merit reversal of
an ALJ's decision. Castillo v. Barnhart, 325 F.3d 550, 552 (5th Cir.2003). A claimant must also
show she suffered prejudice or unfairness because of the lack of counsel, Clark, 652 F.2d at 399,
or produce evidence that “would have been adduced ... that could have changed” the ALJ's
decision if the claimant had been represented by counsel. Johnson v. Astrue, 326 Fed. Appx.
737, 740. (5th Cir.2009) (stating if Johnson had counsel and counsel had called witnesses to
7
corroborate the severity of his symptoms, this could have changed the ALJ's decision); see also
Castillo, 325 F.3d at 552.
In this case, it is undisputed that plaintiff was notified of her right to representation, and
she does not challenge the adequacy of the pre-hearing notice. However, plaintiff argues that her
waiver of counsel was invalid because at the hearing the ALJ improperly apprised her of how a
lawyer could have assisted her at the hearing. At the beginning of the hearing the ALJ had the
following exchange with the plaintiff:
ALJ:
Now before the hearing, we sent you a notice of hearing, we sent you a letter
explaining you have a right to be represented by an attorney or qualified
representative of your choice. Told you of the list of agencies that would
represent you free of charge if you qualify and we would give you the number if
you need them. Did you receive our letters?
CLMT: Yes, sir.
ALJ: Okay. A representative may help you find additional evidence, examine
witnesses, and submit arguments, but you’re not required to have a representative.
Do you understand your right to an attorney and qualified representative?
CLMT: What is that?
ALJ: A lawyer.
CLMT: Oh, okay.
ALJ: Do you wish to proceed with the hearing today?
CLMT: Yes, sir.
ALJ: Very good. All right.
Docket 10. P. 27. It is clear that the ALJ did not explain to plaintiff at the hearing (1) the manner
in which an attorney can aid in the proceedings, (2) the possibility of free counsel or a
contingency arrangement, and (3) the limitation of attorney fees to twenty-five percent of past
due benefits and the required court approval of the fees. Neither party, however, disputes that
this information is clearly detailed in the two separate notices that the plaintiff received in the
mail before the hearing. See Docket 10, pp. 57-61, 62-63, 64-71, 31; Clark v. Schweiker, 652
F.2d 399, 403. Assuming plaintiff's waiver of her right to counsel was invalid, she still must
8
show prejudice by “pointing to evidence that would have been adduced and that could have
changed the result had [the claimant] been represented by counsel.” Brock, 84 F.3d at 729, n. 1
(5th Cir.1996). Plaintiff has not presented any such proof.
This case is factually similar to the case of Castillo v. Barnhart, 325 F.3d 550, 552 (5th
Cir. 2003.). In Castillo, the plaintiff acknowledged that she was told that she could be
represented during the proceedings by an attorney, but she asserts that she was not adequately
informed of relevant facts related to obtaining a representative.
Id. The Fifth Circuit concluded
that “the numerous written notices Castillo received – along with the ALJ's reminder to Castillo
at the hearing of her right to counsel – sufficiently informed her of her right to an attorney, and
that she validly consented to proceed without representation.” Id. Furthermore, the court held
that “even if Castillo had validly waived her right to an attorney, she ‘point[ed] to no evidence
that would have been adduced and that could have changed the result had’ [she] been
represented by an attorney, and therefore has not demonstrated that she was prejudiced due to the
absence of counsel at the hearing.” Id.
In this case, it is clear that plaintiff received at least two notices before the hearing
explaining her right to representation, the benefits of such representation and the likely cost. At
the hearing itself, he ALJ discussed with her, albeit briefly, her right to have a lawyer. The
plaintiff now argues that because of her lack of education she did not completely understand the
notices or what the ALJ was saying. However, there is no evidence in the record to demonstrate
that had she had an attorney at the hearing that she would have obtained a different result.
Further, other than the medical evidence from J. Jolene Bailey, Ph.D., dated 11-09-04 to 05-03-
9
06, which was presented to the Appeals Council, plaintiff has brought forth no evidence12 to
attempt to demonstrate that the decision might be different had she been represented by counsel
at the hearing. The proffered records predate the allowable onset date by years and are
contradicted by later records which the ALJ did have before him. The Appeals Council found no
basis for changing the ALJ’s decision. The plaintiff’s own conjecture and unsupported
assertions are insufficient to show she was prejudiced by the absence of counsel at the hearing.
Without clear evidence or a proffer from plaintiff as to what evidence might have been adduced
by an attorney, the court finds that the plaintiff has failed to meet her burden under this
argument.
2.
Evaluation of Plaintiff’s Limited Intelligence in Determining RFC
The ALJ is responsible for determining the plaintiff’s RFC. Ripley v. Chater, 67 F.3d
552, 557 (5th Cir. 1995). In making that determination the ALJ must consider all the evidence in
the record, evaluate the medical opinions in light of other information contained in the record
and determine the plaintiff’s ability despite her physical and mental limitations. Martinez v.
Chater, 64 F.3d 172, 176 (5th Cir. 1995). The assessment of a claimant’s work capacity is
reserved solely to the ALJ. Ripley 67 F.3d at 557; see also Social Security Ruling 96-8p.
Unless he ignored evidence, misapplied the law or judged matters entrusted to experts, the ALJ’s
findings of fact are conclusive when supported by substantial evidence. Id.; see also 42 U.S.C
405(g).
12
Plaintiff saw J. Jolene Bailey, Ph.D. several times from November 2004 to June 2006.
Docket 10, 317-345. Plaintiff’s counsel presented medical records from Dr. Bailey to the
Appeals Council, which found that the reports did not provide a basis for altering the ALJ’s
decision. Docket 10, pp. 5-10.
10
In this case, the ALJ found that the plaintiff had a severe impairment of anxiety/panic
disorder [Docket 10, pp. 18-20, Finding No. 2], a limited education (ninth grade) and was still
working toward her GED. Docket 10, pp. 19, 22, Finding No. 7. The ALJ specifically included
plaintiff’s mental limitations in the non-exertional limitations contained in his RFC
determination:
Despite an anxiety/panic disorder, she can understand, remember and carry out
simple instructions and perform simple repetitive tasks. [Plaintiff] can attend to
these tasks for 2 hour periods at a time. She should not be around crowds of 10 to
20 people. She can have occasional interaction with the general public. Her
judgment is fair and she can adapt to simple gradually introduced changes
adequately. She can work no high stress conflict oriented jobs.
Docket 10, p. 21, Finding No. 4 (emphasis added by the court). In making this finding, the ALJ
discussed Dr. Michael Whelan’s medical report in detail and afforded it “some weight.” Docket
10, p. 19.
Plaintiff argues that the ALJ overlooked statements in Dr. Whelan’s report that indicate
plaintiff has had “trouble learning all her life” and that plaintiff’s mother put her in “a ‘white
Christian school’ (the claimant is black) so [plaintiff] could work at her own pace” and avoid
“special education [classes] in the public school program. . . .” Docket 10, p. 251. Dr. Whelan
diagnosed plaintiff with “anxiety disorder, not otherwise specified, and depressive disorder, not
otherwise specified, as apparently anxiety and depression are fairly effectively treated with
medication.” Docket 10, p. 253. He stated that she reads on about a “fifth or sixth grade level
and probably has borderline intelligence.” Id. Dr. Whelan also noted the plaintiff’s lack of
effort on verbal math problems and the notable distraction caused by plaintiff’s child presence at
the evaluation. Id. Dr. Whelan’s findings are consistent with those of Dr. Sharon Scates, Ph.D.,
the state agency psychologist, who submitted a Psychiatric Review Technique (PRT) and Mental
11
RFC Assessment to which the ALJ granted “substantial weight”. Docket 10, pp. 19-20, 246-263.
Contrary to plaintiff’s argument, the ALJ clearly considered that plaintiff has a ninth
grade education and, at the time of the hearing, was working toward her GED. Docket 10, pp.
19, 22. Further, the portion of Dr. Whelan’s report relied upon by plaintiff is the history
provided by plaintiff and her mother – not independent, objective findings by Dr. Whelan.
Docket 10, p. 251. Although the ALJ did not give great weight to Dr. Whelan’s report or the
subjective statements contained in it, he did consider other opinion evidence in addition to the
medical evidence, as well as a function report submitted by plaintiff’s friend, Dessie Akins, and
plaintiff’s own testimony regarding her condition. See, Docket 10, p. 22, pp. 101-107. He gave
Dessie Akins’s report “some weight,” noting that “it is consistent with the claimant’s anxiety as
obviously being a non-disabling impairment. Id. At 22.
The undersigned may review the denial of benefits only to ascertain whether substantial
evidence supports the final decision and whether the Commissioner used the proper legal
standards to evaluate the evidence. See 42 U.S.C. § 405(g); Newton, 209 F.3d at 452; Brown v.
Apfel, 192 F.3d 492, 496 (5th Cir.1999). The Commissioner's findings are to be upheld when
supported by substantial evidence. Martinez v. Chater, 64 F.3d 172, 173. Substantial evidence
“is more than a mere scintilla and less than a preponderance.” Newton, 209 F.3d at 452 (citations
omitted). In short, “[c]onflicts in the evidence are for the Commissioner and not the courts to
resolve.” Id. (citations omitted). After review of the record, it is clear that there exists evidence
of plaintiff’s limited intelligence and that the ALJ considered all of the evidence before him and
his findings and conclusions are well supported by the entirety of the record.
3.
The ALJ Adequately Developed the Record
12
The plaintiff argues that even though the ALJ questioned her about treatment for her
mental problems, he nevertheless failed to fully and adequately develop the record. In particular,
plaintiff contends that the ALJ erred when he did not obtain treatment notes and records from Dr.
Jolene Bailey after the plaintiff testified Dr. Bailey treated her for several years. Dr. Bailey’s
records indicate plaintiff’s last visit was two years before plaintiff filed her application for SSI
and five years before the hearing. See Docket 10, pp. 35-36. As previously noted, the Appeals
Council considered Dr. Bailey’s treatment records and found that they did not provide a basis for
altering the ALJ’s decision. Docket 10, pp. 5-10.
An ALJ has a duty to develop fully and fairly the facts relating to an applicant's claim for
disability benefits. Ripley, 67 F.3d at 557. Although charged with this duty, particularly in light
of the fact that plaintiff was not represented by counsel at the hearing, the ALJ’s failure to
contact Dr. Bailey is only reversible error if the plaintiff was prejudiced or plaintiff demonstrates
that had the ALJ obtained the records, they “could and would have adduced evidence that might
have altered the result.” Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir.1984).
In McConnell v. Schweiker, 655 F.2d 604, 605 (5th Cir. 1981), the pro se claimant’s
application for SSI was denied, and he appealed arguing inter alia that the ALJ failed to develop
the record. Id. The Fifth Circuit held that despite McConnell’s unrepresented status at the
hearing, conflicting medical evidence in the record and no medical experts testimony at the
hearing, the ALJ’s decision should be affirmed because substantial evidence supported the ALJ’s
decision, and “[s]ome evidence does not support the ALJ’s decision, but substantial evidence
does. Id.
In this case, the record contains ample medical evidence, opinion evidence, testimony
13
from the plaintiff and a VE that support the ALJ’s decision. In the court’s view, Dr. Bailey’s
records do not reveal substantive information that would have or could have altered the ALJ’s
decision. In fact, their contents are very much in line with the existing evidence. Because
plaintiff has not provided evidence that supports reversal of the ALJ’s decision, the court
concludes that the ALJ’s decision should be affirmed.
IV. CONCLUSION
After a review of the record, this court is of the opinion that the ALJ’s decision was
supported by substantial evidence, and should be affirmed. A separate judgment in accordance
with this Memorandum Opinion will issue this date.
SO ORDERED, this, the 6th day of November, 2012.
/s/ S. Allan Alexander
UNITED STATES MAGISTRATE JUDGE
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