Izeman v. Astrue

Filing 21

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 9/26/2008. (cc, ) Copies mailed to Office of Hearings and Appeals and Judge Thigpen.

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 L Y N D A L. IZEMAN, 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. 1:07cv731-WC

M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P la in tif f Lynda L. Izeman (Izeman) applied for disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. § 401 et seq. (2000) and for supplemental s e c u rity income benefits under Title XVI, 42 U.S.C. § 1381 et seq. (hereinafter collectively " th e Act"). Izeman's applications were denied at the initial administrative level. Izeman th e n requested and received a hearing before an Administrative Law Judge (ALJ). Following th e hearing, the ALJ also denied the claims. The Appeals Council rejected a subsequent r e q u e s t for review. The ALJ's decision consequently became the final decision of the C o m m issio n er of Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11 th Cir. 1986). The case is now before the Court for review under 42 U.S.C. § 405(g). P u r s u a n t to 28 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings
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.
1

a n d entry of a final judgment by the undersigned United States Magistrate Judge. Pl.'s C o n s e n t to Jurisdiction (Doc. #10); Def.'s Consent to Jurisdiction (Doc. #9). Based on the C o u rt's review of the record and the briefs of the parties, the Court REVERSES the decision o f the Commissioner and the case is REMANDED for further proceedings consistent with th is opinion. 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

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.

2

2

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 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

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) (Unit A).
4

3

See 20 C.F.R. pt. 404 subpt. P, app. 2.

3

lig h t work, inability to speak English, educational deficiencies, and lack of job experience. 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 th 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 um p tio 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

4

Iz e m a n was forty-eight years old and had completed her high school education at the tim e of the hearing before the ALJ. (Tr. 12, 249, 161). Izeman's past relevant work ex p erien ce included work as a custodian/janitor, stocker, certified nurse's aid, and cook's a ss is ta n t. (Tr. 12, 111-115, 123-127). Following the administrative hearing, and employing th e five step process, the ALJ found Izeman had not engaged in substantial gainful activity s in c e the alleged onset date of April 29, 2003 (Step 1). (Tr. 12). At Step 2, the ALJ found Iz e m a n suffered from the severe impairments of diabetes, degenerative joint disease, h e p a titis C, and a depressive disorder. (Tr. 13). The ALJ nonetheless found Izeman did not p o s s e ss an impairment or combination of impairments that met or equaled the criteria of any listed impairment set forth in the Listing of Impairments, and that she could perform the full ran g e of light work (Step 3). (Tr. 13). At Step 4, the ALJ found Izeman could not perform h e r past relevant work. (Tr. 17). At Step 5, the ALJ determined that, based on her age, e d u c atio n and RFC, Izeman could perform jobs that exist in significant numbers in the n a tio n a l economy. (Tr. 17). Consequently, the ALJ found Izeman had not been disabled s in c e the alleged onset date. B. Izeman's Claims

Iz e m a n sets forth two issues: (1) whether the ALJ erred in relying upon the MedicalV o c a tio n a l Guidelines rather than calling a vocational expert to determine whether Izeman c o u ld perform other work existing in significant numbers in the national economy; and (2) w h e th e r the ALJ failed to properly consider Izeman's obesity and its effect on her ability to 5

p e rf o rm work-related functions. (Doc. #16 at 6). IV. DISCUSSION A. W h e th e r the ALJ erred in failing to call a VE.

Iz e m a n 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 Izeman given her impairments. (Doc. #16 at 6.) Izeman a ss e rts that, given the ALJ's finding that she could not return to her past relevant work, her " n o n e x e rtio n a l impairments" - specifically, the "reduced ability to manipulate objects," " p a in ," "seizures and/or blackouts," "hepatitis C," and "[m]ental impairments such as d e p re ss io n " - rendered the Medical-Vocational Guidelines inapplicable and required the te s tim o n y of a VE. (Doc. #16 at 6-7). Defendant contends that the ALJ's reliance upon the Medical-Vocational Guidelines w a s appropriate because the ALJ found that none of Izeman's nonexertional impairments p re v e n t her from performing the full range of light work. " 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 f u ll range of work at a given residual functional level or when a claimant has non-exertional

6

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 ALJ d e te rm in e s that the claimant cannot perform the full range or unlimited types of work at the g iv e n functional level, the ALJ must consult a VE to ascertain whether there are sufficient jo b s in the national economy at that functional level given the claimant's exertional lim ita tio n s . Id. In this case, the ALJ found that Izeman is "capable of performing the full range of lig h t work as defined under" the Code of Federal Regulations at 20 C.F.R. §§ 404.1567(b) a n d 416.967(b). (Tr. 17). The definition for "light work" given in each of those sections is, in relevant part, as follows: L ig h t work involves lifting no more than 20 pounds at a time with frequent lif tin g or carrying of objects weighing up to 10 pounds. Even though the w e ig h t lifted may be very little, a job is in this category when it requires a good d e a l of walking or standing, or when it involves sitting most of the time with s o m e pushing and pulling of arm or leg controls. To be considered capable of p e rf o rm in g a full or wide range of light work, you must have the ability to do s u b s ta n t ia lly all of these activities. 2 0 C.F.R. §§ 404.1567(b) and 416.967(b). The ALJ's findings as to Izeman's actual im p a irm e n ts are inconsistent with his determination that she is "capable of performing the f u ll range of light work." The ALJ specifically found that Izeman's "impairments preclude: liftin g ten pounds frequently and twenty pounds occasionally; standing and walking more 7

th a n six hours in an eight hour work day; and sitting more than two hours in an eight hour w o rk day." (Tr. 18). Obviously, if Izeman's impairments preclude her from lifting ten p o u n d s frequently or from sitting more than two hours in an eight-hour day, then she is not " u n lim ited " and is not capable of performing the "full range of work" at the light work level. P h illip s , 357 F.3d at 1242. If Izeman is unable to perform the "full range of work" at the lig h t work level, then the ALJ was required to "consult a vocational expert to determine w h e th e r there are sufficient jobs at the [light] work level within the economy that [Izeman] c a n perform." Id. In light of the ALJ's failure to consult a VE despite his explicit findings r e g a rd in g Izeman's limitations, the Court cannot conclude his decision is supported by su b sta n tial evidence and must reverse and remand for further consideration consistent with th is 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 September, 2008. /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

5

In light of this finding, the Court need not reach Izeman's second issue. 8