Salter v. Astrue

Filing 30

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is REVERSED and the case REMANDED for further proceedings consistent with this opinion. Signed by Honorable Wallace Capel, Jr on 11/26/08. Also mailed to Office of Hearings and Appeals and SSA Chief Judge.(djy, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION P H Y L L IS D. SALTER, P la in tif f , v. M IC H A E L J. ASTRUE, Commissioner of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C IV IL ACTION NO. 1:07cv445-WC

M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P lain tiff Phyllis D. Salter applied for disability insurance benefits pursuant to Title II o f the Social Security Act, 42 U.S.C. § 401 et seq. (2000) and for supplemental security in c o m e benefits under Title XVI, 42 U.S.C. § 1381 et seq. (hereinafter collectively "the A c t" ). Her applications were denied at the initial administrative level. Plaintiff then re q u e ste d and received a hearing before an Administrative Law Judge (ALJ). Following the h e a r in g , the ALJ also denied the claims. The Appeals Council rejected a subsequent request f o r review. The ALJ's decision consequently became the final decision of the Commissioner o f Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1 9 8 6 ). The case is now before the Court for review under 42 U.S.C. § 405(g). Pursuant to 2 8 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings and entry
Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social Security matters were transferred to the Commissioner of Social Security.
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o f a final judgment by the undersigned United States Magistrate Judge. Pl.'s Consent to J u ris d ic tio n (Doc. #9); Def.'s Consent to Jurisdiction (Doc. #8). Based on the Court's review o f the record and the briefs of the parties, the Court REVERSES the decision of the C o m m i s s io n e r . II. STANDARD OF REVIEW U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period o f not less than 12 months. 4 2 U.S.C. § 423(d)(1)(A).2 T o make this determination, the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920 (2006). (1 ) Is the person presently unemployed? (2 ) Is the person's impairment severe? (3 ) Does the person's impairment meet or equal one of the specific im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of I m p a i rm e n t s] (4 ) Is the person unable to perform his or her former occupation? (5 ) Is the person unable to perform any other work within the economy? A n affirmative answer to any of the above questions leads either to the next q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not

A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

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d is a b le d ." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3 T h e burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F .3 d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying d is a b ility once they have carried the burden of proof from Step 1 through Step 4. At Step 5, th e burden shifts to the Commissioner, who must then show there are a significant number o f jobs in the national economy the claimant can perform. Id. To perform the fourth and fifth steps, the ALJ must determine the claimant's Residual F u n c tio n a l Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do d e s p ite his impairments and is based on all relevant medical and other evidence. Id. It also c a n contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, th e ALJ considers the claimant's RFC, age, education, and work experience to determine if th e re are jobs available in the national economy the claimant can perform. Id. at 1239. To d o this, the ALJ can either use the Medical Vocational Guidelines 4 (grids) or call a vocational e x p e rt (VE). Id. at 1239-40. T h e grids allow the ALJ to consider factors such as age, confinement to sedentary or lig h t work, inability to speak English, educational deficiencies, and lack of job experience.

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental security income case (SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981).
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See 20 C.F.R. pt. 404 subpt. P, app. 2.

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E a c h factor can independently limit the number of jobs realistically available to an in d iv id u a l. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyre q u ire d finding of "Disabled" or "Not Disabled." Id. The Court's review of the Commissioner's decision is a limited one. This Court must f in d the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U .S .C . § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of t h e record which support the decision of the ALJ, but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11th Cir. 1986). [The court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings. . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). III. ISSUES A. Introduction

Plaintiff was thirty-eight years old and had completed her high school education at the

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tim e of the hearing before the ALJ. (Tr. 33-34). Plaintiff's past relevant work experience in c lu d e d work as a "binder," a nursing assistant in a convalescent home, and a small motor a ss e m b le r. (Tr. 37-40). Following the administrative hearing, and employing the five-step p r o c e s s , the ALJ found Plaintiff had not engaged in substantial gainful activity since the a lle g e d onset date of July 14, 2003 (Step 1). (Tr. 19). At Step 2, the ALJ found Plaintiff s u f f e rs from severe impairments which "cause significant vocationally relevant limitations." (T r. 19). The ALJ nonetheless found Plaintiff did not possess an impairment or combination o f impairments that met or equaled the criteria of any listed impairment set forth in the L is tin g of Impairments and, additionally, that no "treating or examining physician has m e n tio n e d findings which are equivalent in severity to the criteria of any listed impairment." (T r. 19). Thus, the ALJ found that Plaintiff could perform the full range of sedentary work (S te p 3). (Tr. 20). At Step 4, the ALJ found Plaintiff could not perform her past relevant w o rk . (Tr. 20). At Step 5, using the Medical-Vocational Guidelines, the ALJ determined tha t, based on her age, education, past work experience, and RFC, Plaintiff could perform jo b s that exist in significant numbers in the national economy. (Tr. 20-21). Consequently, th e ALJ found Plaintiff had not been disabled since the alleged onset date. B. Salter's Claims

P la in tif f sets forth two issues: (1) whether, in light of Plaintiff's nonexertional lim i ta t io n s , the ALJ erred in relying upon the Medical-Vocational Guidelines rather than c a llin g a vocational expert to determine whether Plaintiff could perform other work existing 5

in significant numbers in the national economy; and (2) whether the Appeals Council erred in failing to remand to the ALJ to receive additional medical expert testimony after it was p ro v id e d with new and material evidence. (Doc. #21 at 7, 11). IV. DISCUSSION A. W h e th e r the ALJ erred in failing to call a VE.

P la in tif f argues the ALJ improperly relied upon the Medical-Vocational Guidelines (th e "guidelines" or "grids"), rather than procuring the testimony of a VE, in assessing the a v a ila b ility of employment to Plaintiff given her impairments. (Doc. #21 at 7). Plaintiff a ss e rts that, given the ALJ's findings respecting her RFC and her inability to return to her p a s t relevant work, her "nonexertional limitations" - specifically, "environmental restrictions, s ig n if ic a n t fatigue, and medication side effects" - rendered the guidelines inapplicable and re q u ire d the testimony of a VE. (Doc. #21 at 7-8). Defendant contends that the ALJ's reliance upon the Medical-Vocational Guidelines w a s appropriate because the ALJ found that Plaintiff could perform the full range of sed en tary work without significant non-exertional limitations. (Doc. #26 at 3-4). " T h e general rule is that after determining the claimant's RFC and ability or inability to return to past relevant work, the ALJ may use the grids to determine whether other jobs e x is t in the national economy that a claimant is able to perform. However, `exclusive re lia n c e on the grids is not appropriate either when [the] claimant is unable to perform the

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f u ll range of work at a given residual functional level or when a claimant has non-exertional im p a irm e n ts that significantly limit basic work skills." Phillips v. Barnhart, 357 F.3d 1232, 1 2 4 2 (11th Cir. 2004) (quoting Francis v. Heckler, 749 F.2d 1562, 1566 (11th Cir. 1985)) (e m p h a s is in original). The Eleventh Circuit has defined the "full range of work" as "being a b le to do `unlimited' types of work at the given exertional level." Id. Where the claimant's e x e r ti o n a l limitations do not preclude the performance of a full range of work at a given le v e l, the ALJ must next consider whether the claimant's nonexertional limitations limit the c la im a n t's "basic work skills." The claimant's "basic work skills" are significantly limited if non-exertional impairments prohibit the "claimant from performing `a wide range' of work a t a given level." Id. at 1243 (quoting Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (e m p h a s is in original). In this case, the ALJ found that Plaintiff "retains the residual functional capacity for th e full range of sedentary work." (Tr. 22). Although the ALJ ostensibly did not find any n o n -e x e rtio n a l impairments which significantly limit Plaintiff's work skills, the ALJ did find th a t Plaintiff is precluded from working in "hazardous situations [such] as unprotected h e ig h ts or dangerous machinery." (Tr. 23). Plaintiff contends that the ALJ's explicit finding of such an "environmental lim ita tio n " on her ability to work required the testimony of a VE because, upon finding such a limitation, the ALJ was required to determine whether that limitation effected a significant lim ita tio n on her basic work skills at the sedentary level. According to Plaintiff, such a 7

f in d in g could only properly be reached through the testimony of a VE. Defendant asserts that a VE was not necessary because the limitations recognized by the ALJ are embedded in the S o c ia l Security Administration's concept of what sedentary work entails. Defendant

m a in ta in s this position, though, while acknowledging that "[t]here is no document which d e sc rib e s, in one place, the requirements of sedentary work." (Doc. #26 at 6). Defendant re lie s upon SSR 96-9p, which states that "[i]n general, few occupations in the unskilled s e d e n ta ry occupational base require work in environments with . . . unusual hazards." H o w e v e r, as Plaintiff demonstrates, pertinent regulations reflect that over eighty-five percent o f unskilled sedentary jobs are in the "machine trades and benchwork occupational c a te g o rie s ." 20 C.F.R. Part 404, Subpart P, App. 2, § 201.00(a) (2008). See also Asher v. B o w e n , 837 F.2d 825, 828 (8th Cir. 1988); Williams v. Halter, 135 F.Supp. 2d 1225, 1227 (M .D . Fla. 2001). Thus, perhaps owing to the lack of a central and complete description of sedentary w o rk , there is an inherent tension in any effort to determine whether imposed environmental lim ita tio n s significantly limit available employment at the sedentary work level. While the A L J , and the Defendant, may justifiably suppose that few of the jobs at the sedentary level in v o lv e the types of "environmental limitations" found by the ALJ, it should not resolve such a m b ig u itie s against the Plaintiff without at least consulting a VE. Sanders v. Sullivan, 983 F .2 d 822, 824 (8th Cir. 1992) ("Although most unskilled sedentary jobs probably do not in v o l v e exposure to these [environmental] conditions, this court has held that such a

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d e te rm in a tio n is improper without the benefit of further testimony such as that of a v o c a tio n a l expert."); Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). In this case, the ALJ recognized explicit environmental limitations on the Plaintiff's a b ility to work but did not consult a VE to determine whether those limitations would s ig n if ic a n tly limit her basic work skills at the sedentary level. Because the testimony of a VE w a s required to determine whether the ALJ's environmental limitations would preclude P la in tif f from performing a wide range of sedentary work, the ALJ's exclusive reliance on the guidelines was erroneous. Accordingly, this Court is unable to conclude that the ALJ's d e ter m in a tio n that Plaintiff is not disabled is supported by substantial evidence, and this C o u rt must reverse and remand for further consideration consistent with this opinion.5 V. CONCLUSION

T h e Court has carefully and independently reviewed the record and concludes the d e c is io n of the Commissioner is REVERSED and the case REMANDED for further p ro c e ed in g s consistent with this opinion. A separate judgment will issue. D O N E this 26th day of November, 2008.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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In light of this finding, the Court need not reach Plaintiff's other issues. 9