Blane v. Colvin
MEMORANDUM OPINION AND ORDER denying 12 Motion for Summary Judgment. Plaintiff's appeal is dismissed with prejudice. A Final Judgment in favor of the Commissioner shall be entered. Signed by Magistrate Judge Linda R. Anderson on 9/29/2017 (wld)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
MARTIN FRANKLIN BLANE
CIVIL ACTION NO. 1:16CV228 LRA
NANCY BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY1
MEMORANDUM OPINION AND ORDER
Martin Franklin Blane appeals the final decision denying his applications for
disabled widower’s benefits (DWB) and supplemental security income (SSI). The
Commissioner requests an order pursuant to 42 U.S.C. § 405(g), affirming the final
decision of the Administrative Law Judge. Having carefully considered the hearing
transcript, the medical records in evidence, and all the applicable law, the Court finds that
the decision should be affirmed.
On November 5, 2012, Blane filed applications for DWB and SSI alleging a
disability onset date of March 31, 2007, due to depression and problems with his back,
knee, ankle and heart. He was 48 years old on his alleged onset date, with three years of
college and work experience in family-owned businesses as a retail store manager and
electronic sales and service person. Following agency denials of his applications, an
Administrative Law Judge (“ALJ”) rendered an unfavorable decision finding that he had
Nancy Berryhill is substituted for her predecessor, Carolyn W. Colvin, as Acting Commissioner
of Social Security. Fed. R. Civ. P. 25(d).
not established a disability within the meaning of the Social Security Act. The Appeals
Council denied Plaintiff’s request for review. He now appeals that decision.
At step one of the five-step sequential evaluation,2 the ALJ found that Plaintiff had
not engaged in substantial gainful activity since his alleged onset date. At steps two and
three, the ALJ found that although Plaintiff’s osteoarthritis of the knees, diabetes mellitus,
hearing loss, obesity, major depressive disorder, and generalized anxiety disorder were
severe, they did not meet or medically equal any listing. At step four, the ALJ found that
Plaintiff had the residual functional capacity to perform medium work with the following
exceptions (as paraphrased by the Court):
He cannot frequently balance, stoop, kneel, crouch, crawl, and climb ramps,
stairs, ladders, ropes, and scaffolds; he should avoid concentrated exposure
to noise (noise intensity level of no more than three as per SCO); avoid
concentrated exposure to hazards such as dangerous moving machinery and
unprotected heights; he is limited to simple, routine, repetitive tasks of
unskilled work; he can maintain attention and concentration for two hours;
occasionally interact with supervisors; work in proximity but not in
coordination with co-workers; he can have no interaction with the general
public and is limited to low stress work (no fast-paced production
requirements, simple work-related decisions, and few or no changes in
Under C.F.R. ' 404.1520, the steps of the sequential evaluation are: (1) Is plaintiff engaged in
substantial gainful activity? (2) Does plaintiff have a severe impairment? (3) Does plaintiff=s
impairment(s) (or combination thereof) meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? (4) Can plaintiff return to prior relevant work? (5) Is there any work in the national
economy that plaintiff can perform? See also McQueen v. Apfel, 168 F.3d 152,154 (5th Cir. 1999).
ECF No. 9, p. 24.
Based on vocational expert testimony, the ALJ concluded that given Plaintiff’s age,
education, work experience, and residual functional capacity, he could perform work as a
food service worker, store laborer, and floor waxer.
Standard of Review
Judicial review in social security appeals is limited to two basic inquiries: A(1)
whether there is substantial evidence in the record to support the [ALJ’s] decision; and
(2) whether the decision comports with relevant legal standards.@ Brock v. Chater, 84
F.3d 726, 728 (5th Cir. 1996) (citing Carrier v. Sullivan, 944 F.2d 243, 245 (5th Cir.
1991)). Evidence is substantial if it is Arelevant and sufficient for a reasonable mind to
accept as adequate to support a conclusion; it must be more than a scintilla, but it need
not be a preponderance.@ Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995) (quoting
Anthony v. Sullivan, 954 F.2d 285, 295 (5th Cir. 1992)). This Court may not re-weigh the
evidence, try the case de novo, or substitute its judgment for that of the ALJ, even if it
finds evidence that preponderates against the ALJ’s decision. Bowling v. Shalala, 36
F.3d 431, 434 (5th Cir. 1994).
Plaintiff contends that this case should be reversed or alternatively remanded for
two reasons: (1) the ALJ erred in failing to develop the record concerning Plaintiff’s
hearing loss; and, (2) the ALJ’s residual functional capacity is not supported by
Plaintiff alleges that the ALJ failed in his affirmative duty to develop the record
concerning his hearing loss. Although he did not allege hearing loss in his disability
applications, Plaintiff cites his daughter’s third-party function report identifying hearing
loss among his conditions, and his own testimony estimating a 50 percent loss at the
administrative hearing. In addition, Plaintiff notes that the ALJ acknowledged that there
was no auditory testing despite citing medical records showing hearing loss. All of this
was sufficient to warrant a consultative hearing evaluation, Plaintiff argues, and the
ALJ’s failure to do so was error.4
The duty to obtain a consultative examination is triggered only if “the record
establishes that such an examination is necessary to enable the [ALJ] to make the
disability decision.” Hardman v. Colvin, 820 F.3d 142, 148 (5th Cir. 2016) (quotation
omitted). The decision is discretionary and must be balanced against the fact that the
claimant bears the burden of proof through step four of the evaluation process. Brock, 84
F.3d at 728; Jones v. Bowen, 829 F.2d at 527 (5th Cir. 1987). It “does not extend to
possible disabilities that are not alleged by the claimant or to those disabilities that are not
clearly indicated on the record.” Hardman, 820 F.3d at 147 (quoting Leggett, 67 F.3d at
566). The claimant must present “evidence sufficient to raise a suspicion concerning a
non-exertional impairment.” Clary v. Barnhart, 214 F. App=x. 479, 481 (5th Cir. 2007)
(quoting Brock, 84 F.3d at 728). “Isolated comments in the record are insufficient,
ECF No. 9, pp. 28, 57-87, 207-214, 330-344.
without further support, to raise a suspicion of non-exertional impairment.” Id. (citation
In the instant case, the ALJ clearly found sufficient evidence based on the
claimant’s hearing testimony and other evidence to conclude that hearing loss was a
severe impairment at step two. However, the Court can find no evidence of record
indicating that Plaintiff has ever complained, or that any physician has found evidence, of
hearing loss. Medical records referenced by the ALJ, and in turn, cited by Plaintiff on
appeal, appear to be a singular medical report showing that Plaintiff was negative for
hearing loss on examination, not positive. Neither the consultative physical or mental
examinations ordered by the ALJ revealed evidence of hearing loss. On the contrary,
Plaintiff’s hearing acuity was “good to the whispered voice.” Given the lack of any
medical finding confirming hearing loss, the failure to mention hearing loss as an
impairment in his applications for benefits, and the failure to seek treatment for same,
Plaintiff fails to show that an examination was necessary to determine his disability
status. Hardman, 820 F.3d at 148. Further, notwithstanding the lack of objective
medical evidence, the ALJ’s residual functional capacity assessment incorporates noise
restrictions and limits his interaction with others. Plaintiff fails to establish that his
hearing loss imposed limitations on his ability to work beyond these.5
ECF No. 9, pp. 270-73, 341.
Next, Plaintiff alleges the ALJ’s residual functional capacity determination is not
supported by substantial evidence because it fails to give sufficient weight to his
subjective complaints and other favorable evidence. At the administrative hearing,
Plaintiff testified that constant knee pain makes it difficult to stand or walk, and diabetic
neuropathy causes his feet to stay numb. He also has back pain from a herniated disc and
trouble with pins in his right foot from prior ankle injuries. Depression and panic attacks
also make it difficult for him to the leave the house, and impair his ability to concentrate
longer than 30 minutes. While he acknowledges that doctors have recommended that he
lose weight, and that medications do help, the side effects cause drowsiness and digestive
It is well-established law that the sole responsibility for determining a claimant=s
residual functional capacity rests with the ALJ, and there is substantial evidence to
support his residual functional capacity determination in this case. 20 C.F.R. ' 404.1546
(c). The ALJ=s assessment reflects a narrative discussion of Plaintiff=s ability to do
sustained work-related activities in an ordinary work setting on a regular continuing basis
in compliance with social security rulings and regulations. See SSR 96-8p. 1996 WL
374184, at *1, 3. 20 C.F.R. ' 404.1546(c) (2009). Based on the evidence as a whole, the
ALJ concluded that Plaintiff had the residual functional capacity to perform medium
unskilled work subject to the physical and mental limitations of his residual functional
ECF No. 9, pp. 57-87.
capacity. In making this determination, the ALJ found that Plaintiff=s allegations and
complaints were not entirely credible. When a claimant=s statements concerning the
intensity, persistence or limiting effects of symptoms are not supported by objective
evidence, the ALJ has the discretion to make a finding on their credibility. Sun v. Colvin,
793 F.3d 502, 508 (5th Cir. 2015); Foster v. Astrue, 277 F. App=x. 462 (5th Cir. 2008).
The ALJ explained as follows:
Credibility is important when considering an individual’s complaints. In
this case, the claimant’s allegations of debilitating symptoms and
limitations are not fully credible. First, the objective medical evidence, as
discussed above, does not establish conditions to produce the very serious
symptoms and limitations testified to by the claimant at the hearing.
Although the claimant had a herniated disc at L5-S1, there is no
radiographic evidence of such in the file. In addition, although he alleged
bad knees with daily pain at 8 out of 10, the x-rays of his knees showed
only mild changes. Dr. Coulter noted only generalized osteoarthritis and
indicated the claimant could perform work at a medium level. Second, in
his application documents, the claimant stated he stopped working because
the company he was working for “got bought out and then went bankrupt,”
not because of his impairments. Third, the claimant reported some anxiety
and agoraphobia in March 2013. However, in October 2014, the mental
status examination was normal with just a note of depression worsening
over the years and anxiety when leaving home. Fourth, viewing all of the
evidence together, the undersigned finds the claimant’s subjective
allegations of serious and debilitating symptoms and limitations cannot
reasonably be accepted as consistent with the objective medical evidence
and other evidence in the case record.7
Plaintiff does not dispute the ALJ’s credibility analysis, nor does he deny that the ALJ is
solely responsible for determining a claimant’s residual functional capacity. He simply
maintains that it strains logic to believe that someone with his history of ankle fracture,
ECF No. 9, p. 29 (internal record citations omitted).
uncontrolled diabetes, arthritis in both knees, and obesity could perform the lifting and
standing requirements of medium work.
In support, Plaintiff cites treatment records generated 5 weeks after injuring his
left ankle in July 2012, when he had a limp and rated his pain as 8 out of 10.
Examination findings from his consultative examination nearly a year later indicate that
his prior ankle injuries had healed. The examiner noted that Plaintiff had a normal gait
with “no assistive device used or needed.” He also had a normal range of motion, full
muscle strength, and normal sensation. Subsequent treatment records do not document
any ongoing treatment or permanent ankle injury, but mirror the findings of the
consulting examiner. Plaintiff’s history of ankle fractures also failed to meet the severity
threshold at step two.8
With regard to Plaintiff’s knee osteoarthritis, the ALJ weighed his allegations of
constant knee pain against x-ray evidence showing no more than mild to moderate
arthritic changes and small joint effusion in the knees. Plaintiff’s argument that his
subjective complaints were not given enough weight is unavailing. The ALJ was not
required to credit Plaintiff’s subjective complaints of constant and severe pain over the
objective medical evidence. Cornett v. Astrue, 261 F. App’x. 644, 650 (5th Cir. 2008)
(per curiam). The record also fails to substantiate Plaintiff’s assertion that his diabetes
was not well-controlled. His treating sources repeatedly indicated that his diabetes was
controlled without complications. The only apparent outlier is a nurse practitioner’s
ECF No. 9, pp. 270-73, 301.
notation in May 2014. Moreover, while observing that no medical source had
specifically attributed limitations to Plaintiff’s obesity, the ALJ considered its cumulative
effect with other impairments on his ability to work. See SSR 02-1P. Lastly, the ALJ
assigned great weight to the examiner’s opinion that Plaintiff could lift and carry 50
pounds occasionally and 25 pounds frequently, stand and walk for up to six hours, sit
without limitation, and perform postural activities frequently. Such evidence
substantially supports the ALJ’s conclusion that Plaintiff could perform the requirements
of medium work subject to the physical limitations of his residual functional capacity.9
Substantial evidence also supports the ALJ’s finding that Plaintiff has the residual
functional capacity to perform low-stress work if limited to simple, routine, repetitive
tasks; maintaining attention and concentration for two hours; and, occasional interaction
with supervisors in proximity, but not in coordination with, coworkers or the general
public. Plaintiff’s contends that this finding overlooks his subjective complaints of
anxiety and depression, and favorable evidence generated by mental health examiners
during an outpatient visit on October 30, 2014. Examiners noted that his Global
Assessment of Functioning (“GAF”) scores indicated moderate functional limitations,
and recommended that he undergo one year of counseling. But such evidence is
insufficient to overcome the overwhelming weight of the evidence supporting the ALJ’s
ECF No. 9, pp. 263, 271-73, 331.
ECF No. 9, pp. 307-22.
A disability claimant must show that he is so functionally impaired by his mental
impairment that he is precluded from engaging in substantial gainful activity. The ALJ
observed that Plaintiff sought outpatient treatment for panic attacks and depression in
October 2014, but noted that the examination findings were generally normal. Although
the ALJ did not discuss the diagnoses, one-year counseling recommendation, or the GAF
scores assigned, an ALJ is not required to discuss every piece of evidence in reaching a
disability finding. Audler v. Astrue, 501 F.3d 446 (5th Cir. 2007). Further, a GAF score
is not “dispositive of anything in and of itself, but rather only significant to the extent that
it elucidates an individual’s underlying mental issues.” Oliver v. Comm’r of Soc. Sec.,
415 F.App’x 681, 684 (6th Cir. 2011). It is the clinician’s subjective evaluation, and one
of many factors considered in evaluating the consistency of the medical evidence.
Kennedy v. Astrue, 247 F. App’x 761, 766 (6th Cir. 2007). Based on the evidence as a
whole, the ALJ concluded that the weight of the evidence showed Plaintiff had mild
restriction in his daily activities, moderate difficulties in social functioning, and moderate
difficulties with regard to maintaining concentration, persistence, and pace. Plaintiff does
not explain how this finding fails to adequately account for his GAF scores indicating
moderate functional limitations. And, while he correctly points out that counselors
recommended that he undergo counseling for one year, the Court finds no treatment
records showing that he followed through with the recommendation. A claimant's failure
to seek treatment is a relevant factor to consider in determining the severity of an alleged
impairment and may be used in conjunction with the medical reports to discount
complaints of disabling pain or other limitations. Doss v. Barnhart, 137 F. App'x 689,
690 (5th Cir. 2005); Griego v. Sullivan, 940 F.2d 942, 945 (5th Cir. 1991).
In addition to this evidence, the ALJ considered the examination findings of the
consulting psychologist who opined that Plaintiff is capable of performing routine,
repetitive tasks. But he rejected the examiner’s opinion that Plaintiff could “interact with
others in a limited situation” as too vague. The ALJ found Plaintiff’s mental impairments
would allow him to perform low-stress unskilled work, but only if he did not interact with
the general public or work in coordination with coworkers, and only occasionally
interacted with his supervisors. This finding is consistent with the state agency medical
expert’s opinion that Plaintiff appeared “capable of completing a workweek without
excessive interference from psychological based factors.” And, although the ALJ stated
he assigned it little weight, it is also consistent with the expert’s opinion that Plaintiff had
moderate limitations in social functioning and maintaining attention and concentration.11
Notwithstanding, Plaintiff argues that the ALJ’s residual functional capacity
finding is inconsistent with the hypothetical posed to the vocational expert at the hearing.
Specifically, he notes that while the hypothetical posed to the vocational expert at the
administrative hearing limited him to maintaining attention and concentration to “twohour blocks of time,” the residual functional capacity finding as set forth in the ALJ’s
decision, limits him to maintaining attention and concentration for two hours. The
implication, according to Plaintiff, is that the ALJ found that he was unable to maintain
ECF No. 9, p. 30, 88-107, 258-61.
attention and concentration for six hours of the workday. The issue therefore is whether
the ALJ intended to find that Plaintiff could only concentrate for two hours over the
course of a single workday, or for two hours at a time. Plaintiff contends that it was the
former and that any reliance on the expert’s response was misplaced.
The Court finds no reversible error. Nothing in the ALJ’s analysis indicates that
his failure to include the two-hour block qualifier in his written assessment meant that he
intended to find Plaintiff more limited than the evidence suggests. No examining or
treating source found that Plaintiff’s mental impairments would preclude him from
concentrating on simple, repetitive tasks for more than two hours of the workday, and
Plaintiff does not cite any evidence to this effect. Further, courts have found that an
ALJ’s omission of the two-hour block qualifier is inconsequential. It is “simply a term of
art, or shorthand reference, to a basic presupposition inherent in the concentration,
persistence, and pace analysis.” Baker v. Comm'r Soc. Sec. Admin., No. 1:10–CV–
00167–JAW, 2011 WL 1298694, at *4 (D. Me. Mar. 31, 2011). It does not equate to “a
medical finding which is required to be “explained away by the Judge if it is not
incorporated into an RFC finding.” Id at *6. See also MacDougall v. Astrue, No. 2:10CV-400-GZS, 2011 WL 4566268, at *8 (D. Me. Sept. 29, 2011); McGrath v. Astrue, No.
10-CV-455-JL, 2012 WL 976026, at *6 (D.N.H., Mar. 22, 2012); Dagraffenreid v.
Colvin, No. 15-CV-10185-ADB, 2016 WL 5109509, at * 7 (D. Mass., Sept. 20, 2016).
The two-hour block limitation merely references the “approximately 2–hour segments
between arrival and first break, lunch, second break, and departure.” See Social Security
Administration’s Program Operation Manual, § DI 25020.010(B)(2)(a).
For the reasons stated, the Court's review of the record compels a finding that the
ALJ applied the correct legal standards and that substantial evidence supports the ALJ's
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff’s Motion for
Summary Judgment is hereby denied and Plaintiff=s appeal is dismissed with prejudice.
A Final Judgment in favor of the Commissioner shall be entered.
SO ORDERED on September 29, 2017.
s/ Linda R. Anderson
UNITED STATES MAGISTRATE JUDGE
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