Greggs v. Astrue

Filing 14

MEMORANDUM OPINION AND ORDER; The Court has carefully and independently reviewed the record and, for the reasons stated above, concludes the decision of the Commissioner is AFFIRMED. A separate judgment will issue. Signed by Honorable Wallace Capel, Jr on 6/22/2010. (jg, )

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 R I C H A R D PIERCE GREGGS, P l a 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. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 1:09cv663WC

M E M O R A N D U M OPINION AND ORDER
I. INTRODUCTION P la in tif f Richard Pierce Greggs applied for supplemental security income pursuant to Title XVI of the Social Security Act (Act), 42 U.S.C. § 1381-1383c. Plaintiff's

a p p lic a tio n was denied at the initial administrative level. Plaintiff then requested and re c eiv e d a hearing before an Administrative Law Judge (ALJ). Following the hearing, the A L J also denied the claims. The Appeals Council rejected a subsequent request for review. T h e ALJ's decision consequently became the final decision of the Commissioner of Social S ec u rity (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The c a s e is now before the Court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 6 3 6 (c ), both parties have consented to the conduct of all proceedings and entry of a final

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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ju d g m e n t by the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (D o c . #9); Def.'s Consent to Jurisdiction (Doc. #8). Based on the Court's review of the rec o rd and the briefs of the parties, the Court AFFIRMS the decision of the Commissioner. 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 i r m e n t s 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 sti o 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 ."

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

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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. E a c h factor can independently limit the number of jobs realistically available to an
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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. 3

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). See also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1 1 5 5 , 1158 (11th Cir. 2004) ("Even if the evidence preponderates against the C o m m is s io n e r 's findings, [a reviewing court] must affirm if the decision reached is s u p p o rte d by substantial evidence."). 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 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).

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III.

ADMINISTRATIVE PROCEEDINGS P la in tif f was twenty-one years old at the time of the hearing before the ALJ and had

a ninth grade education. (Tr. 3 & 32). Plaintiff's only past work experience was as a parttim e laborer. (Tr. 34). Following the administrative hearing, and employing the five-step p ro c e ss , the ALJ found Plaintiff had not engaged in substantial gainful activity since the a p p lic a tio n date of February 22, 2006 (Step 1). (Tr. 14). At Step 2, the ALJ found that P la in tif f suffers from the following severe impairments: seizure disorder; epilepsy; a learning d isa b ility in the area of math; a depressive disorder; a mood disorder; and a personality d is o rd e r (Tr. 14). The ALJ then found that Plaintiff does not have an impairment or c o m b i n a tio n of impairments that meets or medically equals one of the listed impairments (S te p 3). (Tr. 15-17). Next, the ALJ found that Plaintiff retained the residual functional c a p ac ity to perform a range of unskilled work at all exertional levels that did not involve, " h az a rd o u s activities, such as working around moving equipment; operating automotive e q u ip m e n t; climbing ladders, ropes, and scaffolds; and working around unprotected heights a n d open water." (Tr. 17). The ALJ also determined that Plaintiff had no past relevant

w o r k , (Tr. 21), and, using the grids, found that Plaintiff could perform jobs that exist in s ig n if ic a n t numbers in the regional and national economy (Step 4). Accordingly, the ALJ determined that Plaintiff is not disabled. (Tr. 22). (Tr. 21-22).

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IV .

P L A I N T I F F 'S CLAIMS P la in tif f raises four issues for this court's consideration: (1) "[w]hether the ALJ erred

b y relying solely on the Medical Vocational Guidelines;" (2) "[w]hether the ALJ failed to m a k e the required specific finding as to the cumulative effect of [Plaintiff's] impairments;" (3 ) "[w]hether the ALJ erred by failing to state the weight he afforded to the different m e d ic a l opinions; (4) "[w]hether [Plaintiff's] timely submission of new and material e v id e n c e warrants remand." Pl.'s Brief (Doc. #11) at 1. The court will address these claims in turn. V. DISCUSSION A. W h e th e r the ALJ erred by relying solely on the Medical Vocational G u i d e lin e s

Plaintiff argues that, due to his nonexertional limitations, the ALJ improperly relied o n the grids. Plaintiff also argues that, as a result of the ALJ's improper reliance on the g rid s , he also failed to solicit the services of a VE and to articulate specific jobs that Plaintiff c o u ld preform. In contrast, the Commissioner argues that, because the ALJ determined P la in tif f 's exertional and nonexertional limitations did not erode the occupations base, e x c lu s iv e reliance on the grids, and thus failure to call a VE and articulate specific jobs, was n o t error. "The 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 6

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 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 rtio 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)) (em p h asis in original). In this case, the ALJ found that Plaintiff required no exertional limitations. Next, after c o n sid e rin g Plaintiff's non-exertional limitations, the ALJ found that Plaintiff would be lim ite d from performing skilled work, and, due to his seizure disorder, hazardous activities in c lu d in g : working around moving equipment; operating automotive equipment; climbing ladd ers, ropes, and scaffolds; and working around unprotected heights and open water. (Tr. 1 7 ). However, the ALJ, relying on the Social Security Rulings (SSR), found that Plaintiff c o u ld perform jobs that exist in significant numbers in the regional and national economy.

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Id. The court has reviewed the ALJ's RFC determination and has found no error. The medical evidence in this case supports the ALJ's determination that Plaintiff can perform a full range of unskilled work at all exertional levels. As the Commissioner rightly points out, Dr. Searcy referred Plaintiff to vocational rehabilitation and Dr. Ferrell advised Plaintiff against seeking disability (Tr. 19-21). Further, medical evidence showed that Plaintiff could reasonably control his seizures through medication. (Tr. 19). The court has also determined that, because the limitations specified in the RFC do n o t erode the occupational base, the ALJ did not error in exclusively relying on the grids. S S R 85-15 provides as follows: "[a] person with a seizure disorder who is restricted only f ro m being on unprotected elevations and near dangerous moving machinery is an example o f someone whose environmental restriction does not have a significant effect on work that ex ist at all exertional levels." All of the limitations placed on Plaintiff relate to the seizure d is o rd e r and involve unprotected elevations and dangerous moving machinery (as well as o p e n waters). Accordingly, Plaintiff's non-exertional impairments do not prohibit him "from performing 'a wide range' of work at a given level." Barnhart, 357 F.3d at 1242. Further, the ALJ could properly rely on an agency ruling to establish that there are s ig n if ic a n t jobs that Plaintiff could perform in the regional and national economy. As stated a b o v e , the ALJ determined that Plaintiff could perform unskilled work at all exertional levels a n d based on SSR 85, his nonexertional limitations imposed do not erode the occupational

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b a s e . The ALJ's reliance on agency rulings, rather than calling a VE, was proper. See, e.g., M ille r v. Astrue, 2010 WL 1268079 (M.D. Ala. Mar. 30, 2010) ("[T]his court cannot c o n c lu d e that the ALJ's reliance on SSR 85-15 as vocational evidence to establish that M ille r's residual functional capacity for light work did not significantly reduce the o c c u p a tio n a l base for the exertional level of work is misplaced."); Williams v. Astrue, No., 2 0 0 9 WL 902485, *5 (M.D. Ala. March 31, 2009) (finding ALJ was not required to consult a vocational expert where SSR 83-14 and 85-15 were referenced as authority when d e te rm in in g claimant's non-exertional impairments would have little or no effect on the o cc u p atio n al base of unskilled light work). Accordingly the court finds no error. B. W h e th e r the ALJ failed to make the required specific finding as to the c u m u la tiv e effect of [Plaintiff's] impairments, and whether the ALJ erred b y failing to state the weight he afforded to the different medical opinions

In this section, Plaintiff argues that the ALJ erred by failing to properly articulate his f in d in g s in relation to some of the medical evidence that Plaintiff argues supports his claim o f disability. He also argues that the ALJ's failure to specifically articulate his findings as to this evidence shows that he did not consider its cumulative effect in combination with P la in tif f 's other impairments. The Commissioner counters that much of the evidence P lain tiff points to in these arguments predates the relevant period and is irrelevant. In d e e d , Plaintiff filed his application for supplemental benefits on February 24, 2006, a lle g in g an onset date of December 1, 2005. (Tr. 81-87). The ALJ properly looked to the

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m e d ic a l evidence presented by Plaintiff that related to the relevant period. See Wilson v. A p fe l, 179 F.3d 1276, 1279 (11th Cir. 1999) ("We review the decision of the ALJ as to w h e th e r the claimant was entitled to benefits during a specific period of time. . ."); see also C a s s id y v. Comm'r of Soc. Sec. Admin., 2010 WL 2412435, *1 (11th Cir. 2010) ("The b u rd e n was on [Plaintiff] to establish his entitlement to benefits during a specific time p eriod ."); Goff ex rel. Goff v. Comm'r of Soc. Sec. Admin., 253 F. App'x 918, 922 (11th Cir. N o v . 15, 2007) (distinguishing between medical opinions offered during the relevant time p e rio d as opposed to those that relate back several years). Further, substantial evidence supports the ALJ's finding that Plaintiff's impairments, o r combination of impairments did not meet or equal a listing. As the ALJ set forth in his d e c is io n , Plaintiff was making progress in dealing with his ADHD, his seizure disorder was c o n tro lla b le through medication, and, importantly, "[n]o treating source of record ha[d] o p in e d that the claimant [was] precluded from work activity because of limitations caused b y any medically determinable impairment." (Tr. 19). In fact, Dr. Searcy and Dr. McKeown re f erre d Plaintiff to vocational rehabilitation, and Dr. Ferrell encouraged Plaintiff to not "go o n disability and get old and fat." See id. The information presented by Plaintiff that falls o u tsid e the relevant time period is not compelling. It is ultimately Plaintiff's responsibility to prove his disability claim and provide relevant evidence in support. Hale v. Bowen, 831 F .2 d 1007, 1011 (11th Cir. 1987) ("Finally, the burden shifts back to the claimant to prove [h e] is unable to perform the jobs suggested by the Secretary.").

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T h e court has reviewed the decision by the ALJ and has determined that he properly c o n sid e re d the relevant medical evidence and properly articulated the weight which he a f f o rd e d the evidence. C. W h e th e r Plaintiff's timely submission of new and material evidence w a r r a n ts remand.

After the hearing before the ALJ, Plaintiff submitted new evidence for the Appeals C o u n s e l to consider. The Appeals Counsel denied review of the ALJ's decision. Plaintiff a rg u e s that the Appeals Counsel erred by denying review, because the new evidence raised a reasonable possibility that the ALJ would likely have changed his decision. The

C o m m is s io n e r argues that the evidence would not have changed the ALJ's decision and that th e evidence submitted related to events outside the relevant time period. "The Appeals Council must consider new, material, and chronologically relevant ev iden ce and must review the case if `the [ALJ]'s action, findings, or conclusion is contrary to the weight of the evidence currently of record.'" Ingram v. Comm'r of Soc. Sec. Admin., 4 9 6 F.3d 1253, 1261 (11th Cir. 2007) (quoting 20 C.F.R. § 404.970(b)). The evidence in q u estio n is a report by a rehabilitation counselor (Tr. 471-72), as well as notes of Plaintiff's attem p ts to attend work training (Tr. 475-81). T h e letter by the counselor opines that while Plaintiff has work potential, his mental illnes s and behavioral issues prevented him from working in a competitive environment. (Tr. 4 7 2 ). Thus, Plaintiff was terminated from the work program. Id. Plaintiff asserts that this 11

ev iden ce is enough to raise a reasonable possibility that it would have changed the ALJ's d e c is io n because the ALJ referenced the need for Plaintiff to seek and receive occupational re h a b ilita tio n . The court does not agree. The opinion of the occupational counselor does not o v e rc o m e the strong medical evidence in this case, especially the opinion of the treating p h ys ic ia n s that Plaintiff could work. F u r th e r, the Commissioner is correct that the evidence is not material because it does n o t cover the relevant time period. The letter is dated November 24, 2008, six months after th e ALJ's decision, and relates to rehabilitation he received after the ALJ's decision. As the C o u rt of appeals stated in Wilson, "[w]e review the decision of the ALJ as to whether the c la im a n t was entitled to benefits during a specific period of time, which period was n e c es s a rily prior to the date of the ALJ's decision." 179 F.3d at 1279. This is to what the In g r a m court refers when it requires that the new evidence be "chronologically relevant." 496 F .3 d at 1261. Here, the information relates to a period of time after the ALJ's decision and is thus irrelevant. Wilson, 179 F.3d at 1279 (evidence relating to period of time after ALJ's d e c is io n is irrelevant). VI. C O N C L U SIO N T h e Court has carefully and independently reviewed the record and, for the reasons sta ted above, concludes the decision of the Commissioner is AFFIRMED. A separate ju d g m e n t will issue.

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D O N E this 22nd day of June, 2010. /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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