James v. Astrue (CONSENT)
MEMORANDUM OPINION: The Court has carefully and independently reviewed the record and concludes that, for the reasons given above, the decision of the Commissioner is AFFIRMED. A separate judgment will issue. Signed by Honorable Judge Wallace Capel, Jr. on 8/15/2012. (dmn, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
MICHAEL J. ASTRUE,
Commissioner of Social Security,
CIVIL ACTION NO. 1:11cv641-WC
Plaintiff, David James, applied for Supplemental Security Income benefits under XVI
of the Social Security Act (“the Act”), 42 U.S.C. §§ 1381-83c. His application was denied
at the initial administrative level. 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 from the alleged onset date. The Appeals Council
rejected Plaintiff’s request for review of the ALJ’s decision.
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 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c),
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.
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. 9);
Def.’s Consent to Jurisdiction (Doc. 10). Based on the court’s review of the record and the
briefs of the parties, the Court AFFIRMS the decision of the Commissioner.
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
(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
answer 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
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.
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
See 20 C.F.R. pt. 404 subpt. P, app. 2.
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
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
Plaintiff was nineteen years old at the time of the hearing before the ALJ. Tr. 20.
Plaintiff was in the eleventh grade, in special education classes, and had past relevant work
experience as a “lobby person” at McDonald’s. Tr. 22. Following the administrative
hearing, and employing the five-step process, the ALJ noted that Plaintiff had received child
SSI benefits, but that his application for adult disability was rejected in April 2009. (Step 1)
Tr. 17. At Step 2, the ALJ found that Plaintiff has had the following severe impairment:
“mild mental retardation.” Id. The ALJ then found that Plaintiff did not have an impairment
or combination of impairments that met or medically equaled one of the listed impairments.
(Step 3) Id. Next, the ALJ found that Plaintiff “has had the residual functional capacity to
perform medium work . . . except with avoidance of hazards, heights and machinery.” Tr.
19. The ALJ then found that Plaintiff is able to perform his past relevant work as a “lobby
person.” (Step 4) Tr. 22. The ALJ next found that, “[c]onsidering the claimant’s age,
education, work experience, and [RFC],” and after consulting with a vocational expert, there
are jobs that exist in significant numbers in the national economy that Plaintiff can perform.
Tr. 23. Accordingly, the ALJ determined that Plaintiff’s “disability ended on April 7, 2009,”
and he “has not become disabled again since that date.” Id.
Plaintiff presents two issues for this Court’s consideration in review of the ALJ’s
decision: (1) whether the ALJ failed to properly evaluate Plaintiff pursuant to Listing
12.05(d); and (2) whether the ALJ properly rejected Plaintiff and his mother’s testimony
regarding Plaintiff’s mental impairments. See Pl.’s Br. (Doc. 13).5
Whether the ALJ failed to properly evaluate Plaintiff pursuant to Listing
Plaintiff argues that the record supports his claim that he meets the listing for mental
retardation under Listing 12.05(D). In relevant part, listing 12.05 reads:
12.05 Mental retardation: Mental retardation refers to significantly subaverage
general intellectual functioning with deficits in adaptive functioning initially
manifested during the developmental period; i.e., the evidence demonstrates
or supports onset of the impairment before age 22. The required level of
severity for this disorder is met when the requirements in A, B, C, or D are
D. A valid verbal, performance, or full scale IQ of 60 through 70, resulting in
at least two of the following: (1) Marked restriction of activities of daily
living; or (2) Marked difficulties in maintaining social functioning; or (3)
Marked difficulties in maintaining concentration, persistence, or pace; or (4)
Repeated episodes of decompensation, each of extended duration.
See 20 C.F.R. pt. 404, subpt. P, app. 1, §§ 12.00, 12.05D. Plaintiff argues that “the only
Plaintiff couches his second claim in slightly different terms, but this court’s wording of his
claim and analysis are based on the arguments set forth in Plaintiff’s Brief.
perceived rationale as to why each subsection of D was not met was because, ‘Dr.
George noted claimant has shown improvement in his verbal skills.’ This rationale fails
to provide substantial support of his step three funding[sic] and lacks a proper understanding
of the objective testing performed and referred to by Dr. George.” Pl.’s Br. (Doc. 13) at 6
(emphasis in original).
If Plaintiff’s assessment of the ALJ’s decision were correct, his argument might
prevail. However, the ALJ’s determination that Plaintiff did not meet the listing does not rest
on Dr. George’s opinion of Plaintiff’s verbal skills alone. Rather, the ALJ spends a good
deal of his decision discussing Plaintiff’s mental retardation claim and Plaintiff’s adaptive
functioning skills. The portion of the decision to which Plaintiff points is merely a section
where the ALJ cursorily announces his findings. The ALJ details those findings a few pages
later. The court need not recount them here, but starting on page 20 of the record and
continuing to page 22, the ALJ discusses Plaintiff’s mental retardation claim in terms of daily
living, social functioning, maintaining concentration, persistence, or pace, and episodes of
decompensation. That the ALJ makes more specific findings on the section (D) factors a few
pages after announcing his decision does not constitute error. It may simply be the ALJ’s
attempt at an economy of words. Regardless, the ALJ makes clear section (D) findings that
this court can review. Plaintiff does not challenge these specific findings and the court’s
review reveals them to be without error. Accordingly, the court finds this claim to be without
Whether the ALJ properly rejected Plaintiff’s and His Mother’s Testimony
Regarding Plaintiff’s Mental Impairments.
Here, Plaintiff states that the ALJ “completely failed to discuss any testimony given
by Mr. James at the hearing. The ALJ also failed to discuss testimony given by his mother,
Robin Narbon.” Pl.’s Br. (Doc. 13) at 7. Plaintiff argues that this is reversible error because
the ALj failed to “to provide specific rationale for rejecting the claimant’s testimony.” Id. at
Here again, Plaintiff’s arguments are without merit. The ALJ did discuss Plaintiff’s
and his mother’s testimony, specifically noting Plaintiff’s mother’s testimony that she did not
think Plaintiff could work, that Plaintiff needed constant supervision, and that he could not
read well, as well as Plaintiff’s testimony that he watched television all day. Tr. 20. The
ALJ also specifically stated that he found Plaintiff’s complaints to be incredible to the extent
inconsistent with the RFC. Id.
The ALJ then went on to discuss the medical evidence in
support of his RFC determination, which outlines the inconsistencies between the RFC and
Plaintiff’s and his mother’s testimony. Plaintiff does not attack the ALJ’s findings because
here merely argued that the ALJ failed to articulate any findings.
After reviewing the record, he court finds that the ALJ met the requirement that he
clearly articulate adequate reasons for discrediting Plaintiff’s allegations of disabling
symptoms and those findings are supported by substantial evidence. See Dyer v. Barnhart,
395 F.3d 1206, 1210 (11th Cir. 2005). Accordingly, this court will not disturb the ALJ’s
The Court has carefully and independently reviewed the record and concludes that,
for the reasons given above, the decision of the Commissioner is AFFIRMED. A separate
judgment will issue.
Done this 15th day of August, 2012.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE
Moreover, Plaintiff’s argument that “[t]he ALJ also improperly surmised that the claimants
[sic] credibility is questionable because monetary gain is at stake,” is without merit. Pl.’s Brief (Doc.
13) at 7. See Willimon v. Astrue, 2010 WL 1252152, at *6 (M.D. Fla. Mar. 26, 2010) (holding that
the ALJ’s “observation that Plaintiff was motivated to present himself as more limited by a desire
to achieve secondary gain was a proper consideration” in assessing credibility); Pitts v. Astrue, 2008
WL 5246047, at *5 (N.D. Cal. Dec. 11, 2008) (holding that the ALJ “reasonably found” Plaintiff’s
“desire to seek benefits for monetary gain” as a basis for rejecting Plaintiff’s subjective testimony).
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