McMillion v. Astrue
Filing
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MEMORANDUM OPINION: denying Plaintiff's 12 MOTION to Remand To Commissioner of Social Security; granting Defendant's 15 MOTION for Judgment on the Pleadings; AFFIRMING the final decision of the Commissioner; dismissing this matter from the docket of this Court. Signed by Magistrate Judge R. Clarke VanDervort on 3/30/2012. (cc: attys; any unrepresented party) (slr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
CONNIE TURNER McMILLION,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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CIVIL ACTION NO. 5:11-00139
MEMORANDUM OPINION
This is an action seeking review of the decision of the Commissioner of Social Security
denying Plaintiff's application for Supplemental Security Income (SSI), under Title XVI of the
Social Security Act, 42 U.S.C. §§ 1381-1383f. This case is presently pending before the Court on
the Plaintiff’s Motion for Remand (Document No. 12.) and Defendant’s Motion for Judgment on
the Pleadings. (Document No. 15.) Both parties have consented in writing to a decision by the
United States Magistrate Judge. (Document Nos. 4 and 5.)
The Plaintiff, Connie Turner McMillion (hereinafter referred to as “Claimant”), filed an
application for SSI on January 18, 2008 (protective filing date), alleging disability as of July 1, 2007,
due to “bipolar disorder, hepatitis C, problems with neck and back, panic attacks, [and] post
traumatic stress disorder.”1 (Tr. at 9, 116-19, 127, 131.) The claim was denied initially and upon
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Claimant filed previous applications for DIB and SSI on December 16, 1999, and June 19,
2003. (Tr. at 9.) The 1999 application was denied initially and no appeal was pursued. (Id.) The
2003 application was denied on January 28, 2005, by decision of an ALJ. (Id.) ALJ Kilbane noted
that the 1999 application alleged an onset date of July 31, 1999, and the 2003 application alleged
an onset date of June 1, 2003. (Id.) Because the most current application alleged an onset date of
July 1, 2007, the ALJ determined that the prior claims were subject to Administrative Finality and
that reopening was not legally justified. (Id.)
reconsideration.2 (Tr. at 75-77, 83-85.) On January 26, 2009, Claimant requested a hearing before
an Administrative Law Judge (ALJ). (Tr. at 86-88.) The hearing was held on June 30, 2009, before
the Honorable Brian P. Kilbane. (Tr. at 30-53.) By decision dated September 22, 2009, the ALJ
determined that Claimant was not entitled to benefits. (Tr. at 9-18.) The ALJ’s decision became the
final decision of the Commissioner on December 27, 2010, when the Appeals Council denied
Claimant’s request for review. (Tr. at 1-4.) On March 3, 2011, Claimant brought the present action
seeking judicial review of the administrative decision pursuant to 42 U.S.C. § 405(g). (Document
No. 2.)
Under 42 U.S.C. § 423(d)(5), a claimant for disability has the burden of proving a disability.
See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir. 1972). A disability is defined as the
"inability to engage in any substantial gainful activity by reason of any medically determinable
impairment which can be expected to last for a continuous period of not less than 12 months . . . ."
42 U.S.C. § 423(d)(1)(A).
The Social Security Regulations establish a "sequential evaluation" for the adjudication of
disability claims. 20 C.F.R. §§ 404.1520, 416.920 (2009). If an individual is found "not disabled"
at any step, further inquiry is unnecessary. Id. §§ 404.1520(a), 416.920(a). The first inquiry under
the sequence is whether a claimant is currently engaged in substantial gainful employment. Id. §§
404.1520(b), 416.920(b). If the claimant is not, the second inquiry is whether claimant suffers from
a severe impairment. Id. §§ 404.1520(c), 416.920(c). If a severe impairment is present, the third
inquiry is whether such impairment meets or equals any of the impairments listed in Appendix 1 to
Subpart P of the Administrative Regulations No. 4. Id. §§ 404.1520(d), 416.920(d). If it does, the
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On request for reconsideration, Claimant alleged the following additional disabling
impairments: “severe vertigo due to medication, left thumb, [and] cervical scrape.” (Tr. at 83.)
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claimant is found disabled and awarded benefits. Id. If it does not, the fourth inquiry is whether the
claimant's impairments prevent the performance of past relevant work. 20 C.F.R. §§ 404.1520(e),
416.920(e). By satisfying inquiry four, the claimant establishes a prima facie case of disability. Hall
v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). The burden then shifts to the Commissioner, McLain
v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983), and leads to the fifth and final inquiry: whether
the claimant is able to perform other forms of substantial gainful activity, considering claimant's
remaining physical and mental capacities and claimant's age, education and prior work experience.
20 C.F.R. §§ 404.1520(f), 416.920(f) (2009). The Commissioner must show two things: (1) that the
claimant, considering claimant’s age, education, work experience, skills and physical shortcomings,
has the capacity to perform an alternative job, and (2) that this specific job exists in the national
economy. McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).
When a claimant alleges a mental impairment, the Social Security Administration “must
follow a special technique at every level in the administrative review process.” 20 C.F.R. §§
404.1520a(a) and 416.920a(a). First, the SSA evaluates the claimant’s pertinent symptoms, signs
and laboratory findings to determine whether the claimant has a medically determinable mental
impairment and documents its findings if the claimant is determined to have such an impairment.
Second, the SSA rates and documents the degree of functional limitation resulting from the
impairment according to criteria as specified in 20 C.F.R. §§ 404.1520a(c) and 416.920a(c). Those
sections provide as follows:
(c) Rating the degree of functional limitation. (1)Assessment of functional
limitations is a complex and highly individualized process that requires us to
consider multiple issues and all relevant evidence to obtain a longitudinal picture of
your overall degree of functional limitation. We will consider all relevant and
available clinical signs and laboratory findings, the effects of your symptoms, and
how your functioning may be affected by factors including, but not limited to,
chronic mental disorders, structured settings, medication and other treatment.
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(2) We will rate the degree of your functional limitation based on the extent
to which your impairment(s) interferes with your ability to function independently,
appropriately, effectively, and on a sustained basis. Thus, we will consider such
factors as the quality and level of your overall functional performance, any episodic
limitations, the amount of supervision or assistance you require, and the settings in
which you are able to function. See 12.00C through 12.00H of the Listing of
Impairments in appendix 1 to this subpart for more information about the factors we
consider when we rate the degree of your functional limitation.
(3) We have identified four broad functional areas in which we will rate the
degree of your functional limitation: Activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation. See 12.00C of
the Listings of Impairments.
(4) When we rate the degree of limitation in the first three functional areas
(activities of daily living, social functioning; and concentration, persistence, or pace),
we will use the following five-point scale: None, mild, moderate, marked, and
extreme. When we rate the degree of limitation in the fourth functional area
(episodes of decompensation), we will use the following four-point scale: None, one
or two, three, four or more. The last point on each scale represents a degree of
limitation that is incompatible with the ability to do any gainful activity.
Third, after rating the degree of functional limitation from the claimant’s impairment(s), the SSA
determines their severity. A rating of “none” or “mild” in the first three functional areas (activities
of daily living, social functioning; and concentration, persistence, or pace) and “none” in the fourth
(episodes of decompensation) will yield a finding that the impairment(s) is/are not severe unless
evidence indicates more than minimal limitation in the claimant’s ability to do basic work activities.
20 C.F.R. §§ 404.1520a(d)(1) and 416.920a(d)(1).3 Fourth, if the claimant’s impairment(s) is/are
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20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04, provides that affective disorders, including
depression, will be deemed severe when (A) there is medically documented continuous or
intermittent persistence of specified symptoms and (B) they result in two of the following: marked
restriction of activities of daily living; marked difficulties in maintaining social functioning; marked
difficulties in maintaining concentration, persistence or pace; or repeated episodes of
decompensation , each of extended duration or (C) there is a medically documented history of a
chronic affective disorder of at least 2 years’ duration that has caused more than a minimal limitation
of ability to do basic work activities with symptoms currently attenuated by medication or
psychosocial support and (1) repeated extended episodes of decompensation; (2) a residual disease
process resulting in such marginal adjustment that a minimal increase in mental demands or change
in the environment would cause decompensation; or (3) a current history of 1 or more years’
inability to function outside a highly supportive living arrangement, and the indication of a
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deemed severe, the SSA compares the medical findings about the severe impairment(s) and the
rating and degree and functional limitation to the criteria of the appropriate listed mental disorder
to determine if the severe impairment(s) meet or are equal to a listed mental disorder. 20 C.F.R. §§
404.1520a(d)(2) and 416.920a(d)(2). Finally, if the SSA finds that the claimant has a severe mental
impairment(s) which neither meets nor equals a listed mental disorder, the SSA assesses the
Claimant’s residual functional capacity. 20 C.F.R. §§ 404.1520a(d)(3) and 416.920a(d)(3). The
Regulation further specifies how the findings and conclusion reached in applying the technique must
be documented at the ALJ and Appeals Council levels as follows:
At the administrative law judge hearing and the Appeals Council levels, the written
decision issued by the administrative law judge and the Appeals Council must
incorporate the pertinent findings and conclusions based on the technique. The
decision must show the significant history, including examination and laboratory
findings, and the functional limitations that were considered in reaching a conclusion
about the severity of the mental impairment(s). The decision must include a specific
finding as to the degree of limitation in each of the functional areas described in
paragraph (c) of this section.
20 C.F.R. §§ 404.1520a(e)(2) and 416.920a(e)(2) (2009).
In this particular case, the ALJ determined that Claimant satisfied the first inquiry because
she had not engaged in substantial gainful activity since January 18, 2008, the application date. (Tr.
at 11, Finding No. 1.) Under the second inquiry, the ALJ found that Claimant suffered from
“hepatitis C, gastroesophageal reflux disease, asthma, a back injury, a thumb injury, a history of
poly-substance abuse, a history of a depressive disorder, a history of an anxiety disorder, and a
history of a personality disorder[,]”, which were severe impairments. (Tr. at 11, Finding No. 2.) At
the third inquiry, the ALJ concluded that Claimant’s impairments did not meet or equal the level of
severity of any listing in Appendix 1. (Tr. at 12, Finding No. 3.) The ALJ then found that Claimant
continued need for such an arrangement.
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had a residual functional capacity to perform light exertional work, as follows:
[T]he [C]laimant has the residual functional capacity to perform light work with the
following restrictions: the claimant should avoid concentrated exposure to extreme
cold, extreme heat, and extreme vibrations; she should avoid concentrated exposure
to fumes, odors, dusts, gases, poor ventilation, etc.; and she should avoid
concentrated exposure to hazards such as machinery, heights, etc. (Exhibit B21F and
B30F). As for the claimant’s mental limitations, she can perform simple, unskilled
work in an environment that involves limited contact with people (Exhibit B23F,
page 3).
(Tr. at 13, Finding No. 4.) At step four, the ALJ found that Claimant could perform her past relevant
work as a maid and an assembler. (Tr. at 17, Finding No. 5.) On the basis of testimony of a
Vocational Expert (“VE”) taken at the administrative hearing, the ALJ also concluded that Claimant
could perform jobs such as an assembler, an inspector, and a hand packer, at the light level of
exertion. (Tr. at 18, Finding No. 6.) On these bases, benefits were denied. (Tr. at 18, Finding No.
6.)
Scope of Review
The sole issue before this Court is whether the final decision of the Commissioner denying
the claim is supported by substantial evidence. In Blalock v. Richardson, substantial evidence was
defined as:
evidence which a reasoning mind would accept as sufficient to support a particular
conclusion. It consists of more than a mere scintilla of evidence but may be
somewhat less than a preponderance. If there is evidence to justify a refusal to direct
a verdict were the case before a jury, then there is ‘substantial evidence.’
Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws v. Celebrezze, 368 F.2d
640, 642 (4th Cir. 1966)). Additionally, the Commissioner, not the Court, is charged with resolving
conflicts in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Nevertheless, the
Courts “must not abdicate their traditional functions; they cannot escape their duty to scrutinize the
record as a whole to determine whether the conclusions reached are rational.” Oppenheim v. Finch,
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495 F.2d 396, 397 (4th Cir. 1974).
A careful review of the record reveals the decision of the Commissioner is supported by
substantial evidence.
Claimant’s Background
Claimant was born on September 11, 1963, and was 45 years old at the time of the
administrative hearing, June 30, 2009. (Tr. at 116.) Claimant had a high school education and
completed training as a surface miner, and was able to communicate in English. (Tr. at 130, 139.)
In the past, she worked as a cashier, short order cook, maid, cook’s helper, an assembly worker, and
a fast food worker. (Tr. at 17, 48-49, 131-33.)
The Medical Record
The Court has reviewed all the evidence of record, including the medical evidence, and will
discuss it below in relation to Claimant’s arguments.
Claimant’s Challenges to the Commissioner’s Decision
Claimant alleges that the Commissioner’s decision is not supported by substantial evidence
because the ALJ’s decision is internally inconsistent because she cannot perform her past relevant
work as a maid or an assembler within the parameters of the ALJ’s decision. (Document No. 13 at
3-6.) Citing DOT 323.687-014, she asserts that she cannot perform her past relevant work as a maid
because common sense dictates that the job would require more than limited contact with the public
and exposure to concentrated environmental irritants. (Id. at 4-5.) Citing DOT 369.687-010,
Claimant asserts that she cannot perform her past relevant work as an assembler because the job
would require exposure to extreme heat and humidity. (Id. at 5.) Claimant further asserts that the
ALJ erred in not following the prior ALJ decision issued in 2005. (Id. at 5-6.) Claimant also asserts
that the ALJ failed to address in his decision, the prior ALJ’s decision. (Id. at 6.)
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In response, the Commissioner asserts that contrary to Claimant’s allegation, the DOT
indicates that a maid would neither be required to interact significantly with people by taking
instructions or helping, nor have significant exposure to any environmental conditions or irritants.
(Document No. 15 at 6.) Regarding the assembler job, the Commissioner asserts that Claimant
incorrectly referenced DOT 369.687-010, which is the job assembler in the laundry, cleaning,
dyeing, and pressing industry. (Id. at 6-7.) The Commissioner contends that DOT 706.687-010,
production assembler, is more representative of Claimant’s work. (Id. at 7.) To that extent, the
Commissioner asserts that the job requires light exertion with no exposure to extreme heat,
humidity, or any other environmental irritants, or interaction with people. (Id.) Furthermore, the
Commissioner notes that the ALJ also found that Claimant was capable of performing other jobs that
existed in significant numbers in the economy. (Id. at 8.) Regarding the prior ALJ’s decision, the
Commissioner asserts that pursuant to AR 00-1(4), the ALJ was not bound by the finding contained
within the prior denial of Claimant’s disability claim. (Id.) The Commissioner finally notes that
contrary to Claimant’s assertion, the ALJ acknowledged and addressed Claimant’s prior two
applications. (Id. at 9.)
Analysis.
1. Past Relevant Work.
Claimant first argues that the ALJ’s decision that she could perform her past relevant work
as a maid and an assembler in accordance with the Dictionary of Occupational Titles (“DOT”), is
inconsistent with the ALJ’s assessed RFC. (Document No. 13 at 3-5.) Claimant asserts that the maid
job, with a DOT occupational code of 323.687-014, requires contact with the public and exposure
to concentrated environmental irritants. (Id. at 4-5.) As the Commissioner notes however, DOT
323.687-014 specifically indicates that a cleaner, housekeeping, would not be required to have
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significant interaction with people (taking instructions or helping) or to have exposure to
environmental irritants. See Dep’t of Labor, DOT (4th ed. 1991) (Occupational Code 323.687-014).
Claimant next argues that the ALJ’s decision that she could perform her past relevant work
as an assembler, with a DOT occupational code of 369.687-010, requires exposure to extreme heat
and humidity. (Document No. 13 at 5.) The Court agrees with the Commissioner and finds that DOT
369.687-010, is not representative of Claimant’s past work as an assembler. That occupational
number has an industry designation of “Laundry, Cleaning, Dyeing, and Pressing Industry,” which
does not correlate with Claimant’s prior work. See Dep’t of Labor, DOT (4th ed. 1991)
(Occupational Code 369-687-010). Rather, the Court finds, as the Commissioner points out, that
DOT occupational code 706.687-010, “Assembler, Production,” which pertains to any industry and
consists of “repetitive bench or line assembly to mass-produce products” is more representative of
Claimant’s past relevant work. See Dep’t of Labor, DOT (4th ed. 1991) (Occupational Code
706.687-010). Contrary to Claimant’s argument, this DOT listing does not require exposure to
extreme heat, humidity, or environmental irritants, or interaction with the public. Id. Accordingly,
the Court finds that Claimant’s arguments are without merit and that the ALJ’s decision is not
inconsistent with his assessed RFC or the DOT. Alternatively, the Court notes that the ALJ found
at step five of the sequential analysis that Claimant was capable of performing other jobs in the
economy. Accordingly, the Court finds that for this reason, too, the ALJ’s decision does not require
remand regarding a step four decision.
2. Prior Decisions.
Claimant next argues that the ALJ was bound by the findings of the previous ALJ who found
that Claimant was not able to perform her past relevant work as a maid or an assembler, even though
the ALJ found at step five that Claimant was not disabled. (Document No. 13 at 5-6.)
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In Albright v. Commissioner of Soc. Sec. Admin., 174 F.3d 473 (4th Cir. 1999)(King,
Circuit Judge), the Fourth Circuit recognized that the “SSA treats a claimant’s second or successive
application for disability benefits as a claim apart from those earlier filed, at least to the extent that
the most recent application alleges a previously unadjudicated period of disability.” Within the
Fourth Circuit, Acquiescence Ruling 00-1(4), 2000 WL 43774 (Jan. 12, 2000), interpreted the
Albright decision
to hold that where a final decision of SSA after a hearing on a prior disability claim
contains a finding required at a step in the sequential evaluation process for
determining disability, SSA must consider such finding as evidence and give it
appropriate weight in light of all relevant facts and circumstances when adjudicating
a subsequent disability claim involving an unadjudicated period.
The SSA explained how it applies the Albright decision within the Fourth Circuit as follows:
When adjudicating a subsequent disability claim arising under the same or a different
title of the Act as the prior claim, an adjudicator determining whether a claimant is
disabled during a previously unadjudicated period must consider such a prior finding
as evidence and give it appropriate weight in light of all relevant facts and
circumstances. In determining the weight to be given such a prior finding, an
adjudicator will consider such factors as: (1) whether the fact on which the prior
finding was based is subject to change with the passage of time, such as a fact
relating to the severity of a claimant’s medical condition; (2) the likelihood of such
a change, considering the length of time that has elapsed between the period
previously adjudicated and the period being adjudicated in the subsequent claim; and
(3) the extent that evidence not considered in the final decision on the prior claim
provides a basis for making a different finding with respect to the period being
adjudicated in the subsequent claim.
Where the prior finding was about a fact which is subject to change with the passage
of time, such as a claimant’s residual functional capacity, or that a claimant does or
does not have an impairment(s) which is severe, the likelihood that such fact has
changed generally increases as the interval of time between the previously
adjudicated period and the period being adjudicated increases. An adjudicator should
give greater weight to such a prior finding when the previously adjudicated period
is close in time to the period being adjudicated in the subsequent claim, e.g., a few
weeks as in Lively. An adjudicator generally should give less weight to such a prior
finding as the proximity of the period previously adjudicated to the period being
adjudicated in the subsequent claim becomes more remote, e.g., where the relevant
time period exceeds three years as in Albright. In determining the weight to be given
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such a prior finding, an adjudicator must consider all relevant facts and
circumstances on a case-by-case basis.
Id., 2000 WL 43774, at *4; see also, Gilliam v. Astrue, 2010 WL 1009726, at *9-12 (S.D. W.Va.).
In the ALJ’s September 22, 2009, decision, the ALJ acknowledged that his decision reflected
an alleged onset date of July 1, 2007, which was a previously unadjudicated period as the January
28, 2005, decision reflected an alleged onset date of June 1, 2003. The ALJ therefore, was not bound
by the finding contained in the prior denial of benefits. The Court notes that contrary to Claimant’s
allegation, the ALJ addressed this matter on the first page of his decision. (Tr. at 9.) Accordingly,
the Court finds that the ALJ committed no error regarding his treatment of Claimant’s prior claims.
After a careful consideration of the evidence of record, the Court finds that the
Commissioner’s decision is supported by substantial evidence. Accordingly, by Judgment Order
entered this day, the Plaintiff’s Motion for Remand (Document No. 12.) is DENIED, Defendant’s
Motion for Judgment on the Pleadings (Document No. 15.) is GRANTED, the final decision of the
Commissioner is AFFIRMED, and this matter is DISMISSED from the docket of this Court.
.
The Clerk of this Court is directed to send a copy of this Memorandum Opinion to counsel
of record.
ENTER: March 30, 2012.
R. Clarke VanDervort
United States Magistrate Judge
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