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Charnita Gilmore v. Commissioner of Social Security

October 19, 2011

CHARNITA GILMORE,
PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: William H. Baughman, Jr. United States Magistrate Judge

WILLIAM H. BAUGHMAN, JR. MAGISTRATE JUDGE

MEMORANDUM OPINION AND ORDER

Introduction

This is an action for judicial review of the final decision of the Commissioner of Social Security denying the applications of the plaintiff, Charnita Gilmore, for disability insurance benefits and supplemental security income. The parties have consented to magistrate judge's jurisdiction.

The Administrative Law Judge ("ALJ"), whose decision became the final decision of the Commissioner, found that Gilmore had severe impairments consisting of degenerative disc disease; history of non-dominant right hand wrist ganglion surgically excised; obesity; hypertension; and depression.*fn1 The ALJ made the following finding regarding Gilmore's residual functional capacity:

After careful consideration of the entire record, I find the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(Bb) and 416.967(b), meaning she can lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently, and she can sit, stand, and walk for six hours in an eight-hour workday, except she cannot perform a full range of light work because she can not climb ladders, ropes, or scaffolds, can occasionally balance, stoop, kneel, crouch, and crawl, can perform simple routine tasks, cannot perform a job a [sic] with rigorous production pace or strict production quotas, and can have superficial interaction with co-workers, supervisors, and the general public.*fn2 Given that residual functional capacity, the ALJ found Gilmore incapable of performing her past relevant work as parker, packer, cashier, and laundry worker.*fn3

Based on an answer to a hypothetical question posed to the vocational expert at the hearing setting forth the residual functional capacity finding quoted above, the ALJ determined that a significant number of jobs existed locally and nationally that Gilmore could perform.*fn4 The ALJ, therefore, found Gilmore not under a disability.*fn5

Gilmore 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, Gilmore argues that the mental limitations in the residual functional capacity finding lack the support of substantial evidence because the record contains no evaluation of those limitations by a medical source.

The Court concludes that the ALJ's finding of no disability is supported by substantial evidence and, therefore, must be affirmed.

Analysis

The issue here is a narrow one -- should the ALJ have obtained a consultative examination regarding Gilmore's mental impairments before deciding this case?

At the administrative level, on initial consideration, Gilmore complained of problems dealing with her sister's murder.*fn6 On further questioning, Gilmore denied any psychological problems (to a state agency employee).*fn7 The employee reported this to a state agency psychologist, who advised that a psychological consultative examination would be needed.*fn8 If Gilmore refused the exam, the case would be decided on the existing record with a notation of insufficient evidence.*fn9

The state agency psychologist eventually completed a Psychiatric Review Technique form, noting depression as an impairment but making no further evaluation.*fn10 She commented that Gilmore denied any psychological impairments.*fn11 Taking the agency psychologist's report at face value, it does not appear that the agency made an appointment that Gilmore refused to attend.*fn12 Rather, the state agency decided not to order a consultative examination because Gilmore stated that her back pain, not depression, limited her work-related capabilities.*fn13

Less than a year later, a second state agency psychologist prepared a second Psychiatric Review Technique form.*fn14 He concluded that Gilmore did ...


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