Ford v. Astrue

Filing 19

MEMORANDUM OPINION AND ORDER; that the decision of the Commissioner is REVERSED and REMANDED. A separate judgment will issue. Copies mailed to SSA Chief Judge and Social Security Administration. Signed by Honorable Wallace Capel, Jr on 11/15/2010. (jg, )

Ford v. Astrue (CONSENT)

Doc. 19

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 J O H N L. FORD, P la in tiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 1:09cv1047-WC

M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P la in tiff John L. Ford applied for disability insurance benefits under Title II of the S o c ia l Security Act ("the Act"), 42 U.S.C. §§ 401 et seq. His application was denied at the in itia l administrative level. Plaintiff then requested and received a hearing before an A d m in is tra tiv e Law Judge (ALJ). Following the hearing, the ALJ issued a decision in which h e found Plaintiff not disabled from the alleged onset date of April 1, 2002, through the date o f the decision. Tr. 18. The Appeals Council rejected Plaintiff's request for review of the A L J ' s decision. The ALJ's decision consequently became the final decision of the

C o m m is s io n e r of Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (1 1 th Cir. 1986). The case is now before the Court for review under 42 U.S.C. § 405(g). Pursuant 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.
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and 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. #11). 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. 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 rs o n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e te rm 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 ir m e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of Im p a irm e n ts] (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 s tio n , or, on steps three and five, to a finding of disability. A negative a n s w 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. 2

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disabled." 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 , the 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 Guidelines4 (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. 3

Each 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 fin 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 r a 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 tire ty and take account of evidence which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986). [The court must] . . . scrutinize the record in its entirety to determine the re a s o n a b le n e s s of the [Commissioner's] . . . factual findings. . . . No similar p re s u m 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).

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III.

ADMINISTRATIVE PROCEEDINGS P la in tiff was forty-seven years old at the time of the hearing before the ALJ. Tr. 24.

Plaintiff has a twelfth-grade education. Tr. 24.5 Plaintiff's past relevant work experience w a s as a furniture mover and a "material handler." Tr. 17, 25, 39. Following the

a d m in is tra tiv e hearing, and employing the five-step process, the ALJ found Plaintiff had not e n g a g e d in substantial gainful activity since the alleged onset date of April 1, 2002 (Step 1). Tr. 11. At Step 2, the ALJ found that Plaintiff suffers from the following severe

im p a irm e n ts: "degenerative disc disease and osteoarthritis of the lumbar spine." Tr. 11. The A L J then found that "[t]he claimant does not have an impairment or combination of im p a irm e n ts that meets or medically equals one of the listed impairments . . . ." (Step 3) Tr. 1 1 . Next, the ALJ articulated Plaintiff's RFC as follows: "the claimant has the residual fu n c tio n a l capacity to perform light work as defined in 20 CFR 404.1567(b) except ." Tr. 1 1 .6 The ALJ then found that Plaintiff is unable to perform his past relevant work. (Step 4) T r. 17. Next, the ALJ found that, given Plaintiff's age, education, work experience, and R F C , and after consulting with a vocational expert, "there are jobs that exist in significant n u m b e rs in the national economy that Plaintiff can perform." (Step 5) Tr. 17. The ALJ

The ALJ found that Plaintiff's education included "one year of college." Tr. 17. However, Plaintiff testified at the hearing that he did not attend "college of any type." Tr. 24. As will be discussed more fully below, the ALJ failed to articulate precisely what limitations preclude Plaintiff's ability to perform the full range of light work, despite his clear indication that such limitations exist in stating Plaintiff's RFC and later in his opinion. See Tr. 11; see also Tr. 17 ("However, the claimant's ability to perform all or substantially all of the requirements of this level of work has been impeded by additional limitations."). 5
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found that such occupations include: "production assembler," "poultry work," "garment b a g g e r," and, at the sedentary level, "surveillance monitor." Tr. 18, 40. Accordingly, the A L J determined that Plaintiff "has not been under a disability . . . from April 1, 2002, th ro u g h the date of this decision." Tr. 18. IV . P L A I N T I F F 'S CLAIMS P la in tiff states two issues for this Court's review of the ALJ's decision: (1) whether re v e rsa l is required because the ALJ's "finding of [Plaintiff's] residual functional capacity is ambiguous[;]" and (2) "[w]hether the ALJ erred by failing to properly apply the pain s ta n d a rd ." Pl.'s Brief (Doc. #16) at 1. V. DISCUSSION A. T h e ALJ's articulation of Plaintiff's RFC.

P la in tiff claims remand to the ALJ is necessary because, given the ALJ's incomplete a rtic u la tio n of Plaintiff's RFC, the "ALJ's finding of [Plaintiff's] RFC is ambiguous." Pl.'s B rie f (Doc. #16) at 8. He claims that "the lack of clear and specific findings renders it d iffic u lt for Mr. Ford, his family, his attorneys, or a reviewing court to know and understand, w ith a reasonable certainty, the reasons for the denial." Id. at 9. Defendant concedes that th e ALJ "made an incomplete finding regarding Plaintiff's residual functional capacity since h e did not state Plaintiff's additional limitations." Def.'s Brief (Doc. #17) at 6. However, D e fe n d a n t asserts, it is clear that the ALJ "intended to state additional limitations," including th a t "Plaintiff needed to alternate sitting, standing, and walking[,]" and "was precluded from 6

repetitive bending or lifting, and prolonged bending and twisting." Def.'s Brief (Doc. #17) a t 6-7. Thus, Defendant concludes, the ALJ's "omission is an obvious scrivener's error[,]" a n d should not compel remand in this case. Defendant derives the limitations which he asserts the ALJ intended to state from the A L J 's express assignment of "significant evidentiary weight to the opinion of Dr. Maddux [sic ]," see Tr. 16, whom, on June 3, 2003, opined that Plaintiff was "qualified for lightm e d iu m duty which would allow him to alternate sit, stand and walk," Tr. 327, and on April 2 2 , 2004, again opined that Plaintiff has "the capability for medium level work for an eight h o u r day" but "will not be a candidate for repetitive bending or prolonged bending or tw is tin g or lifting repetitively." Tr. 325. Defendant also relies upon the ALJ's statement that h e "assigns significant weight to the opinion of Douglas Miller, vocational expert, who o p in e d that claimant can perform light and sedentary unskilled jobs." Tr. 16. There is a tidy yet ultimately superficial symmetry to Defendant's argument. While it is apparent that Dr. Maddox previously articulated limitations to Plaintiff's ability to do m e d iu m work, it is not entirely clear whether the ALJ adopted all such limitations in his fin d in g that Plaintiff may do light work. Importantly, when the ALJ queried the vocational e x p e rt about the additional exertional limitations on Plaintiff's ability to perform light or s e d e n ta ry work, the ALJ referenced a report which limited Plaintiff to occasional "Work bent o v e r-s ta n d in g /s to o p in g ." Tr. 40. This report makes no mention of Plaintiff's need, if any, to alternate sitting and standing. See Tr. 195-97. Moreover, while Plaintiff's attorney

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questioned the vocational expert about whether the sedentary-level occupation "security g u a rd type job" allows for "alternating sit/stand and walk," Tr. 42-43, the vocational expert g a v e no testimony about whether the light exertional level occupations which he discussed a llo w e d for such exertional limitations. Hence, it appears that the only occupation about w h ic h the vocational expert gave testimony embracing all of the exertional limitations which D e fe n d a n ts assert the ALJ intended to find is the sedentary level representative position of s u rv e illa n c e monitor. Because the ALJ found Plaintiff capable of light-level work impeded b y some unknown number of exertional limitations, the ambiguity existing between the A L J 's findings, the questioning and testimony at the hearing, and Defendant's assertions a b o u t what the ALJ intended impedes this Court's ability to review the ALJ's findings. G iv e n these circumstances, it is clear that the ALJ's findings respecting Plaintiff's R F C are too vague or incomplete for this Court to adequately review the ALJ's decision. While Defendant attempts to minimize the significance of what he perceives as a mere " s c riv e n e r's error," as discussed above, the Commissioner's supposition about what the ALJ in te n d e d to articulate does not square entirely with the ALJ's questioning of the vocational e x p e rt and his implicit findings in according weight to various pieces of medical evidence. Because the ALJ's articulation of a claimant's RFC is so fundamental to the disability d e te rm in a tio n process, it is paramount that this aspect of the ALJ's findings, perhaps more s o than any other, be clear, concise, and unambiguous. Thus, Defendant's invitation that the C o u rt should fill in the blanks left by the ALJ simply places the Court in an untenable

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position in its efforts to conduct "meaningful . . . review of the ALJ's conclusion as to the le v e l of work which [Plaintiff] could perform . . . ." Maffia v. Comm'r of Soc. Sec., 291 F. A p p 'x 261, 265 (11th Cir. 2008). See also Miller v. Astrue, 2009 WL 1664076 at *4-*5 (M .D . Ala. June 15, 2009).7 Accordingly, the Court finds that remand is necessary in this c a s e so that the ALJ may clarify his RFC determination. VI. C O N C L U S IO N T h e Court has carefully and independently reviewed the record and concludes that, fo r the reasons given above, the decision of the Commissioner is REVERSED and R E M A N D E D . A separate judgment will issue. D O N E this 15th day of November, 2010. /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

In Miller, the undersigned was confronted with a case where "the ALJ's d e c is io n expressly state[d] that `the claimant's ability to perform all or substantially all of th e requirements of [medium work] has been impeded by additional limitations,' but d[id] n o t go on to say what those limitations are and how they are included in the RFC." 2009 W L 1664076 at *4. Ultimately the undersigned rejected the Commissioner's arguments th a t the ALJ's errors in rendering the plaintiff's RFC were mere "typographical errors," a n d held that "[o]verall, the Court would be required to engage in imprudent amounts of s p e c u la tio n to review the ALJ's decision in this case. Therefore, this case should be re m a n d e d to allow the ALJ to clarify his RFC determination, so that this Court can give it m e a n in g fu l review." Id. at *5. Given the circumstances of this case, the undersigned s e e s no reason to depart from this logic in this case. 9

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