Saunders v. Astrue (CONSENT)

Filing 15

MEMORANDUM OPINION that the decision of the Commissioner is REVERSED and this case is REMANDED to the Commissioner for proceedings consistent with this decision. Signed by Honorable Judge Wallace Capel, Jr on 3/23/2012. Copies mailed to SSA Chief Judge and SSA Office of Hearings and Appeals. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHERRY DALE SAUNDERS,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 1:11cv308-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff, Sherry Dale Saunders, applied for supplemental security income benefits

under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 1381 et seq. Her
application was denied at the initial administrative level. Tr. 82-86. Plaintiff then requested
and received a hearing before an Administrative Law Judge (“ALJ”). Following the hearing,
the ALJ issued a decision in which he found Plaintiff not disabled since June 10, 2008, the
date the application was filed. Tr. 23. The Appeals Council rejected Plaintiff’s request for
review of the ALJ’s decision. Tr. 1-5. The ALJ’s decision consequently became the final
decision of the Commissioner of Social Security (“Commissioner”).1 See Chester v. Bowen,
792 F.2d 129, 131 (11th Cir. 1986). The case is now before the Court for review under 42

1

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.

U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c), both parties have consented to the conduct
of all proceedings and entry of a final judgment by the undersigned United States Magistrate
Judge. Pl.’s Consent to Jurisdiction (Doc. #8); Def.’s Consent to Jurisdiction (Doc. #9).
Based on the Court’s review of the record and the briefs of the parties, the Court REVERSES
the decision of the Commissioner.
II.

STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the

person is unable to
engage in any substantial gainful activity by reason of any medically
determinable 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
of not less than 12 months.
42 U.S.C. § 423(d)(1)(A).2
To make this determination, the Commissioner employs a five-step, sequential
evaluation 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
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of
Impairments]
(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?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
2

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

answer to any question, other than step three, leads to a determination of “not
disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357
F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying
disability 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
of 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
Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do
despite his impairments and is based on all relevant medical and other evidence. Id. It also
can contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step,
the ALJ considers the claimant’s RFC, age, education, and work experience to determine if
there are jobs available in the national economy the claimant can perform. Id. at 1239. To
do this, the ALJ can either use the Medical Vocational Guidelines4 (grids) or call a vocational
expert (VE). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary or
light work, inability to speak English, educational deficiencies, and lack of job experience.
3

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
individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyrequired finding of “Disabled” or “Not Disabled.” Id.
The Court’s review of the Commissioner’s decision is a limited one. This Court must
find 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
evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). See also Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004) (“Even if the evidence preponderates against the
Commissioner’s findings, [a reviewing court] must affirm if the decision reached is
supported by substantial evidence.”). A reviewing court may not look only to those parts of
the record which support the decision of the ALJ, but instead must view the record in its
entirety 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
reasonableness of the [Commissioner’s] . . . factual findings. . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal conclusions,
including determination of the proper standards to be applied in evaluating
claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

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III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was fifty-seven years old at the time of the hearing before the ALJ. Tr. 23,

33. Plaintiff completed high school and almost two years of college. Tr. 23, 34, & 62.
Plaintiff attempted to start her own sewing business doing custom orders, but indicated
business was slow. Tr. 18, 35. Following the administrative hearing, and employing the
five-step process, the ALJ found Plaintiff had “not engaged in substantial gainful activity
since June 10, 2008, the application date.” (Step 1) Tr. 18. At Step 2, the ALJ found that
Plaintiff suffers from the following severe impairments: “degenerative disc disease of the
lumbar spine and cervical disorder.” Id. The ALJ then found that “[Plaintiff] does not have
an impairment or combination of impairments that meets or medically equals one of the listed
impairments.” (Step 3) Id. Next, the ALJ found that Plaintiff “has the residual functional
capacity to perform the full range of medium work as defined in 20 C.F.R. 416.967(c).” Tr.
19. The ALJ then found that Plaintiff “has no past relevant work.” (Step 4) Tr. 23.
Considering Plaintiff’s “age, education, work experience, and [RFC],” and after applying the
Medical Vocational Grids, the ALJ determined “there are jobs that exist in significant
numbers in the national economy that [Plaintiff] can perform.” Id. Accordingly, the ALJ
determined that Plaintiff “has not been under a disability . . . since June 10, 2008, the date
the application was filed.” Id.

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IV.

PLAINTIFF’S CLAIMS
Plaintiff presents three issues for this Court’s consideration in review of the ALJ’s

decision: (1) whether the decision should be reversed because “there is absolutely no support
for the ALJ’s Residual Functional capacity (RFC) assessment as the record is devoid of any
RFC assessments provided by a physician[;]” (2) whether “the ALJ erred in mechanically
applying the medical vocational guidelines in determining there were significant jobs existing
in the national economy that [Plaintiff] could perform based on her capacity to perform a full
range of medium work[;]” and (3) whether “the ALJ improperly rejected [Plaintiff’s]
testimony concerning the effects and resulting limitations imposed by the combination of her
medically determinable impairments.” Pl.’s Brief (Doc. #12) at 5. The Court finds that the
ALJ’s RFC determination warrants remand. Because the Court finds reversal is warranted
on the first issue, the Court declines consideration of the other issues raised by Plaintiff.
V.

DISCUSSION
A.

Whether the ALJ’s RFC assessment is supported by substantial evidence.

Plaintiff contends that the ALJ’s RFC determination is not supported by substantial
evidence because the “the record is completely devoid of a medical assessment that supports
the ALJ’s RFC.” Pl.’s Brief (Doc. #12) at 6. Plaintiff argues that because “the record does
not contain an RFC assessment completed by a physician . . . the ALJ simply formulated his
own opinion regarding [Plaintiff’s] limitations.” Id. at 7. Accordingly, Plaintiff “requests

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that the Court reverse or remand her case so that a proper RFC assessment can be
established.” Id. Defendant contends that
[r]equiring an ALJ to rely on a treating or examining physician’s evaluation of
the evidence effectively removes the ALJ from the residual functional capacity
determination, and instead gives physicians control over the residual functional
capacity assessment. By this reasoning, it is the physician who would
determine the often dispositive issue of residual functional capacity – a result
that is contrary to the regulations, along with the Eleventh Circuit’s repeated
holdings that the final disability determination must be left to the agency.
Def.’s Brief (Doc. #13) at 9.
At the administrative law judge hearing level, the ALJ is responsible for assessing a
claimant’s RFC. 20 C.F.R. § 404.1546(c). The ALJ must assess a claimant’s RFC “based
on all of the relevant medical and other evidence[,]” and, in general, the claimant will be
responsible for providing the evidence used to make a finding about the RFC. 20 C.F.R. §
404.1545(a)(3). While the ALJ has the responsibility to make a determination on Plaintiff’s
RFC, it is Plaintiff who bears the burden of proving her RFC. See 20 C.F.R. § 404.1512(a)
& (c) (instructing claimant that ALJ will consider “only impairment(s) you say you have or
about which we receive evidence” and “[y]ou must provide medical evidence showing that
you have an impairment(s) and how severe it is during the time you say that you are
disabled”).
The Court agrees with the Commissioner that the ALJ is responsible for determining
Plaintiff’s RFC. The Court also agrees that the Eleventh Circuit has not set out a rule
indicating that an RFC must be based on the assessment of a treating or examining physician

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in every case.5 See Def.’s Brief (Doc. #13) at 9. However, the Commissioner misstates the
issue presented in this case. Plaintiff argues that because there is no RFC assessment by a
treating or examining physician, the ALJ’s RFC determination is not supported by substantial
evidence as there is no evidence on the record to explain the ALJ’s assessment of Plaintiff’s
limitations. Plaintiff does not argue that “an ALJ [has] to rely on a treating or examining
physician’s evaluation of the evidence.” Def.’s Brief (Doc. #13) at 9. Rather, Plaintiff
argues that the physician’s role is to provide the evidence–by medically assessing Plaintiff’s
limitations–the ALJ will use when making an RFC determination. The Court agrees with
Plaintiff. While the ALJ determines Plaintiff’s RFC, Plaintiff’s limitations are considered
medical opinions and, as such, must be evaluated by a physician.6
The Court is concerned that there is not sufficient evidence on the record to support
the ALJ’s finding that Plaintiff has an RFC to “perform the full range of medium work.” Tr.
19. The ALJ has an affirmative duty to develop a full and fair record. Ellison v. Barnhart,
355 F.3d 1272, 1276 (11th Cir. 2003). Moreover, the ALJ must ensure that a sufficient
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The ALJ’s RFC assessment may be supported by substantial evidence, even in the absence of
an opinion from an examining medical source about Plaintiff’s functional capacity. See, e.g.,
Green v. Soc. Sec. Admin., 223 F. App’x 915, 923 (11th Cir. 2007) (unpublished opinion)
(finding the ALJ’s RFC assessment supported by substantial evidence where he rejected treating
physician’s opinion properly and formulated the plaintiff’s RFC based on treatment records,
without a physical capacities evaluation by any physician).
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“Medical opinions are statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of your impairment(s),
including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s),
and your physical or mental restrictions.” 20 CFR 404.1527(a)(2) & 416.927(a)(2) (emphasis
added).
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record exists to evaluate the claimant’s exertional and nonexertional limitations.7 In this
case, the only medical records before the ALJ consisted of treatment records from Plaintiff’s
treating physician, Dr. Childs, and a consultative examination performed by Dr. Ellis.8
Neither Dr. Childs nor Dr. Ellis specifically addressed or defined Plaintiff’s exertional
limitations (ability to sit, stand, walk, lift, carry, push, and pull) or her nonexertional
limitations (Plaintiff’s mental abilities, her ability to reach, stoop, crouch, climb, etc.).9 The
ALJ accorded Dr. Childs’ opinion great weight and his opinion indicates he incorporated Dr.
Childs’ assessment into Plaintiff’s RFC. Tr. 22. Plaintiff reported to Dr. Childs due to her
back pain in 2006 and 2008.10 The ALJ referred Plaintiff to Dr. Ellis for a consultative
examination in July 2008.11 A month later, in August 2008, Plaintiff was referred for an MRI
7

See SSR 96-8p, 1996 WL 374184, *5 (July 2, 1996) (noting that ALJs “must . . . make every
reasonable effort to ensure that the file contains sufficient evidence to assess RFC,” and that
“[t]he RFC assessment must address both the remaining exertional and nonexertional capacities
of the individual”).
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The Court agrees with the ALJ that the consultative examination performed by Dr. Ellis
“supplemented” the medical record. Tr. 20. However, the examination did not assess Plaintiff’s
exertional and nonexertional limitations.
9

Exertional limitations are defined as those restrictions affecting a person’s ability to meet what
the Social Security Administration considers the seven strength demands of a job: sitting,
standing, walking, lifting, carrying, pushing, and pulling. Social Security Ruling 96-9P, 1996
WL 374185 at *5 (July 2, 1996). Nonexertional limitations, on the other hand, relate to
limitations that affect capacities such as mental abilities, vision, hearing, speech, climbing,
balancing, stooping, kneeling, crouching, crawling, reaching and the like. Id. Environmental
restrictions are also considered to be nonexertional limitations. Id.

10

In 2006, Dr. Childs’ assessment indicated: “cervical disorder” and “muscle spasm.” Tr. 198.
In 2008, Dr. Childs’ assessment indicated: “left injury to sciatic nerve; muscle spasm;
musculoskeletal neck disorder; back pain; and sciatica.” Tr. 195.
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Dr. Ellis diagnosed “undiagnosed low back pain and cervical disorder.” Tr. 201.
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by Dr. Childs.12 In 2010, Plaintiff again reported to Dr. Childs, who advised Plaintiff to
“avoid heavy lifting.” Tr. 209. Discussing Dr. Childs’ assessment, the ALJ noted,
There is no evidence that Dr. Childs intended this [heavy lifting] restriction to
be permanent as he based it on the claimant’s infrequent symptoms and need
for treatment. Moreover, he apparently did not intend this as a specific
evaluation of the claimant’s abilities as it is very general and lacks specificity
concerning the claimant’s abilities and limitations.
Tr. 22. The Court agrees that Dr. Childs’ restriction is not “a specific evaluation of the
claimant’s abilities [and limitations]” and because there is no such evaluation of Plaintiff’s
abilities, the Court is unable to reconcile how the ALJ was able to conclude Plaintiff can
perform a “full range of medium work.”13 Medium work requires the ability to lift up to 50
pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds; the
ability to stand or walk, off and on, for a total of approximately six hours in an eight-hour
workday; use of the arms and hands to grasp, hold and turn objects; and frequent
bending/stooping. SSR 83-10; 20 C.F.R. § 404.1567(c) (2002). It is unclear how the ALJ
reached the conclusion that Plaintiff “can lift and carry up to fifty pounds occasionally and
twenty-five pounds frequently” and sit, stand and/or walk for six hours in an eight hour
workday, Tr. 21, when the record does not include an evaluation of Plaintiff’s ability to
12

The MRI revealed “Mild scoliosis of the lumbar spine with mild hypertrophic osteoarthritic
changes;” “Degenerative disc disease with disc bulges at L4-5 and L5-S1 with a bulge appearing
to be asymmetric to the left with possible impingement on the origin of the left S1 nerve root;”
and “Multiple bilateral renal cysts having the appearance of polycystic renal disease.” Tr. 206.
13

The Court does not find Dr. Childs’ determination that Plaintiff should “avoid heavy lifting”
by itself establishes that Plaintiff is disabled, or even that she can only perform light work, but
neither does it establish that she retains the ability to perform a “full range of medium work.”
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perform work activities such as sitting, standing, walking, lifting, bending, or carrying.14
Accordingly, in order to fill the evidentiary gap, the ALJ should have obtained an RFC
assessment for consideration in conjunction with the other evidence on the record.
The Court also notes that an error in the ALJ’s RFC determination will impact the
subsequent determinations at Steps Four and Five of whether or not Plaintiff can perform her
previous work and whether she can perform other work in the national economy. Indeed, the
ALJ’s RFC determination is closely tied to another issue Plaintiff presents for this Court’s
consideration: the ALJ’s application of the Medical Vocational Guidelines (grids).
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 exist in the national economy that a claimant is
able to perform. However, ‘[e]xclusive reliance on the grids is not appropriate
either when [the] claimant is unable to perform a full range of work at a given
residual functional level or when a claimant has non-exertional impairments
that significantly limit basic work skills.’ Therefore, [a court] must determine
whether either of these two conditions exists . . . . If either condition exists,
the ALJ was required to consult a vocational expert.

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The Court also notes that at the hearing, the VE indicated that Plaintiff’s past relevant work
could be best classified as “embroidery machine operator, which is light and unskilled, or sewing
machine operator, which would be light, semi-skilled with an SVP level three” and that Plaintiff
does not have any transferrable skills. Tr. 45-46. The ALJ then asked the VE about “a
hypothetical individual the same age as the claimant with the same educational level and
vocational history . . . [who] can perform the full range of light work. Could that person go back
to the claimant’s past relevant work or any part thereof?” Tr. 46. The VE indicated “[i]f those
were the limitations, then the work would be generally available in the national economy.” Tr.
46. The VE went on to identify the following positions: “cafeteria attendant” (light and
unskilled); “parking attendant” (light and unskilled); “microfilm document preparer” (sedentary
and unskilled). Tr. 46. Given this testimony, which discussed only Plaintiff’s ability to perform
light and sedentary work, it is unclear how the ALJ was then able to determine that Plaintiff can
perform “a full range of medium work.”
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Phillips v. Barnhart, 357 F.3d 1232, 1242 (11th Cir. 2004). Before the ALJ may use the
grids to determine whether Plaintiff can perform other jobs in the national economy, the ALJ
must first determine Plaintiff’s RFC and determine whether, based on the evidence on the
record, Plaintiff can perform all exertional demands at a given level of exertion.
Accordingly, an incorrect RFC determination will lead to an incorrect application of the
grids.
This case is devoid of any medical opinions regarding Plaintiff’s exertional and
nonexertional limitations. Because the Court finds the ALJ’s RFC determination is not
supported by substantial evidence, this case must be remanded. Upon remand, a medical
source should be consulted to assist the ALJ in determining Plaintiff’s RFC. The Court does
not make a finding that Plaintiff is disabled, but notes that the ultimate determination of
disability must be made with an appropriate RFC assessment to allow for the Commissioner’s
examination of the totality of the evidence.
VI.

CONCLUSION
The Court has carefully and independently reviewed the record and concludes that,

for the reasons given above, the decision of the Commissioner is REVERSED and this case
is REMANDED to the Commissioner for proceedings consistent with this decision. A
separate judgment will issue.

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Done this 23rd day of March, 2012.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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