Evans v. Commissioner of Social Security

Filing 23

Memorandum Opinion and Order that the decision of the Commissioner denying Evans's application for supplemental security income is affirmed. (Related Docs. # 1 , 13 ). Signed by Magistrate Judge William H. Baughman, Jr., on 3/28/2017. (S,MD)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

HENRY C. EVANS, III,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 1:16 CV 378

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
Before me1 is an action by Henry C. Evans, III under 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security denying his application
for supplemental security income.2 The Commissioner has answered3 and filed the transcript
of the administrative record.4 Under my initial5 and procedural6 orders, the parties have

1

ECF # 13. The parties have consented to my exercise of jurisdiction.

2

ECF # 1.

3

ECF # 9.

4

ECF # 10.

5

ECF # 5.

6

ECF # 11.

briefed their positions7 and filed supplemental charts8 and the fact sheet.9 They have
participated in a telephonic oral argument.10
For the reasons set forth below, the decision of the Commissioner will be affirmed as
supported by substantial evidence.

Facts
A.

Background facts and decision of the Administrative Law Judge (“ALJ”)
Evans who was 42 years old at the time of the administrative hearing,11 has an

eleventh grade education.12 He was in special education classes from fourth grade through
eleventh grade.13 His past relevant work history includes work as a valet driver and tow
motor operator.14
The ALJ, whose decision became the final decision of the Commissioner, found that
Evans had the following severe impairments: borderline intellectual functioning, personality

7

ECF # 19 (Commissioner’s brief); ECF # 14 at 3 (Evans’s brief).

8

ECF # 19-1 (Commissioner’s charts); ECF # 14-1 (Evans’s charts).

9

ECF # 14 at 1 (Evans’s fact sheet).

10

ECF # 22.

11

ECF # 14 at1.

12

ECF #10, Transcript (“Tr.”) at 48.

13

Id.

14

Id. at 17.
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disorder, amputation of fingertip, left anterior cruciate ligament (ACL) tear and repair,
decreased vision in the right eye and low back pain (20 CFR 416.920(c)).15
After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding Evans’s residual functional capacity (“RFC”):
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform medium work as
defined in 20 CFR 416.967(c) except: He can occasionally use gross
manipulation of the non-dominant left hand (due to weak grasp) and all other
uses of dominant and non-dominant hands are unlimited. He should avoid
work at unprotected heights due to visual limitations. He can understand,
remember, and carry out instructions consistent with performing work at the
SP1 through SVP3 levels. He can maintain concentration, persistence or pace
for work that is commensurate with work performed at the SPV 1 through SPV
3 levels. He can interact with the general public, co-workers and supervisors
to speak, signal take instructions and carry out instructions. He is limited to
routine type changes at work without strict mechanized production demands
or standards.16
Based on that residual functional capacity, the ALJ found Evans capable of his past relevant
work as a valet and tow motor operator and, therefore, not under a disability.17
B.

Issues on judicial review
Evans asks for reversal of the Commissioner’s decision on the ground that it does not

have the support of substantial evidence in the administrative record. Specifically, Evans
presents the following issues for judicial review:

15

Id. at 10.

16

Id. at 13.

17

Id. at 17.
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•

Whether the ALJ’s Step 3 finding is contrary to law and/or not based
on substantial evidence.18

Analysis
A.

Standards of review

1.

Substantial evidence

The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable to
decisions of the ALJs in disability cases:
Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by
this court is whether the decision is supported by substantial evidence.
Substantial evidence is “ ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ”
The findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different
conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.19
Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds
could reach different conclusions on the evidence. If such is the case, the Commissioner

18

ECF # 14 at 3.

19

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).
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survives “a directed verdict” and wins.20 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.21
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
B.

Application of standard
Evans essentially argues that the ALJ erred by not ordering another consultative IQ

examination when that was requested by the claimant’s counsel and was purportedly required
by relevant sections of the HALLEX, and that this error was compounded when the ALJ
impermissibly evaluated raw medical data to express a medical opinion.
As I recently stated in Sito v. Commissioner of Social Security,22 the Hearings,
Appeals and Litigation Law Manual (“HALLEX”) is a “source of guiding principles,
procedural guidance and information” to the ALJs and agency staff.23 As such, it must be
understood that while “HALLEX procedures are binding on the Social Security

20

LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06CV403, 2008 WL 399573, at *6 (S.D. Ohio Feb. 12,
2008).
21

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).

22

Sito v. Comm’r of Soc. Sec., No. 3:15 CV 2551, 2017 WL 168496 (N.D. Ohio Jan.
17, 2017).
23

Sito, 2017 WL 168496, at * 7 (citing Bowie v. Comm’r of Social Security, 539 F.3d
395, 397 (6th Cir. 2008)(internal quotation omitted)); see also, Kostyo v. Colvin, No. 3:14 CV
1238, 2015 WL 4067260, at * 7 fn.3 (N.D. Ohio July 2, 2015).
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Administration, they are not binding on courts reviewing the administration’s proceedings.”24
Therefore, as is more fully detailed in Sito, any “attempt to ground a reversible due process
violation solely on the Commissioner’s purported lack of adherence to some provision of
HALLEX must necessarily fail.”25
In that regard, Evans argues that the prejudice here was in not following a HALLEX
provision that allegedly directs an ALJ to order a new consultative IQ examination after a
claimant has been determined to have not “put forth his best effort” in taking the original IQ
examination.26 He also contends that the same provision of HALLEX required that ALJ to
inform him prior to his original IQ test that any failure to put forth his best effort would be
used against him.27
The Commissioner observes first that the HALLEX section cited by Evans was I-2524, which was last revised in 1994, and is now most closely analogous to section I-2-5-24,

24

Kostyo, 2015 WL 4067260, at *7 (internal quotation and citation omitted). I observe
in this regard, as is more fully addressed in Sito, that the Sixth Circuit has not directly
addressed the question of whether a failure to follow HALLEX procedures constitutes
reversible error, and that the Ninth and Fifth Circuits have reached different results on that
matter. See, Sito, 2017 WL 168496, at * 7 fn. 89. Given this split in the circuits, I concluded
that the analysis by Magistrate Judge White in Kostyo, and the district court’s decision
Caudill v. Astrue, No. CIV.A. 09-70-GWU, 2010 WL 148806 (E.D. Ky. Jan. 14, 2010),
together with the dicta in Bowie, cited above, was persuasive that “the mere failure to follow
specific procedures in the HALLEX manual itself is not grounds for reversal absent a
convincing showing of prejudice to the plaintiff.” Sito, 2017 WL 168496, at *7 fn. 90
(internal citation omitted).
25

Sito, 2017 WL 168496 at *7.

26

ECF # 14 at 5.

27

Id. at 3-5.
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which was last updated in 2015.28 Further, as the Commissioner notes, and the plain text of
the provision states, this section applies when a claimant “does not attend or refuses to
undergo a consultative examination,”29 and not in a situation, as here, where the issue is any
failure to put forth best efforts in a consultative examination that the claimant actually
underwent.30
Moreover, as the Commissioner points out, despite being represented by counsel from
the inception of this case in 2012, Evans himself could have obtained any additional IQ
testing himself, once he was notified by a claims reviewer that his best effort was lacking in
the original test.31 It is the claimant who bears the burden of providing the evidence that his
is disabled, and of the degree of severity of that disability.32
To that point, Evans asserts that it is the ALJ who has a duty to fully and fairly
develop the record, and that the ALJ’s decision here to decline to order IQ additional testing
was a breach of that duty.
The reason given by the ALJ for not requesting an additional IQ examination was that
it was not needed, in that “there is sufficient evidence in the record upon which to render a
decision, including the psychological diagnoses rendered by Dr. Konieczny that the claimant

28

See, 1992 WL 601810.

29

Id.

30

ECF # 19 at 6.

31

See, ECF # 14 at 5 (citing record).

32

See, Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
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has an Axis II diagnosis of malingering.”33 Dr. Konieczny further noted that Evans
“appeared to exhibit minimal effort and appeared to intentionally offer wrong answers to
questions. As such, it is likely that the obtained test results are not valid. Given his apparent
educational and vocational history, it is likely that his true level of intellectual functioning
lies within the borderline range.”34
The ALJ gave great weight to this opinion.35 In addition, he gave some weight to the
opinions of two state agency reviewing physicians who found that Evans had only moderate
difficulties with activities of daily living, maintaining social functioning and in maintaining
concentration, persistence and pace.36 Further, the ALJ herself found that although Evans
had assistance from his mother and girlfriend in performing some of the tasks of daily living,
this reflected a choice by Evans, not any inability.37 Finally, the ALJ noted that Evans had
a score of 86 - low average - on a 2007 General Ability Measure for Adults (GAMA) test
conducted while he was incarcerated,38 and had previously worked at a semi-skilled level as
a tow motor operator.39

33

Tr. at 8.

34

Id. at 16.

35

Id.

36

Id. at 16-17.

37

Id. at 11.

38

Id. at 15.

39

Id. at 14.
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As the Commissioner observes, there is no medical opinion evidence stating that
Evans has greater limitations than those set forth in the RFC.40 Instead, Dr. Konieczny’s
opinion - which concluded by assigning Evans a GAF score of 52, indicative of moderate
limitations41 - itself provides substantial evidence for the RFC and the ultimate finding of no
disability. There is no indication that the record was insufficiently developed to render a
final decision on the issue of disability. In this regard, I also find no indication that the ALJ
impermissibly “played doctor” by herself interpreting raw medical data and fashioning a
medical opinion.

Conclusion
For the reasons stated, I find that the decision of the Commissioner denying the
application of Henry C. Evans III for disability benefits is supported by substantial evidence,
and is hereby affirmed.
IT IS SO ORDERED.
Dated: March 28, 2017

40

ECF # 19 at 12.

41

s/ William H. Baughman, Jr.
United States Magistrate Judge

Tr. at 16.
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