Salter v. Astrue (CONSENT)

Filing 21

MEMORANDUM OPINION that the decision of the Commissioner is AFFIRMED. A separate judgment will issue. Signed by Honorable Judge Wallace Capel, Jr. on 8/2/2013. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
DEIDRA SALTER o/b/o P.S.,

)
)
Plaintiff,
)
)
v.
) CIVIL ACTION NO. 1:11cv995-WC
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff, Deidra Salter, (“Salter”) brings this action on behalf of the Claimant,

(“P.S.”), who is deceased. P.S. applied for disability insurance benefits under Title II of
the Social Security Act (“the Act”), 42 U.S.C. §§ 401 et seq, and supplemental security
income payments under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. Her application
was denied at the initial administrative level. P.S. then requested and received a hearing
before an Administrative Law Judge (“ALJ”). Following the hearing, the ALJ issued a
decision, on May 9, 2005, in which he found P.S. not disabled. Tr. 23. The Appeals
Council denied P.S.’s request for review of the ALJ’s decision. P.S. then filed an appeal
to this district court. In November 2008, this district court remanded the matter to the
Commissioner. The Appeals Council, thus, vacated the May 2005 hearing decision and

remanded the case to the ALJ for further proceedings. Tr. 323A. The ALJ held a second
hearing on April 16, 2009, in which both P.S. and a vocational expert (“VE”) testified.
Following the 2009 hearing, the ALJ issued an unfavorable decision, dated May 21,
2009, in which he found P.S. not disabled from July 14, 2003 to May 9, 2005. Tr. 280.
The Appeals Council rejected P.S.’s request for review of the 2009 decision. Tr. 5. The
ALJ’s 2009 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), 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 AFFIRMS 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
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.
2

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
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

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.
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).

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. 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
statutorily-required 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

4

See 20 C.F.R. pt. 404 subpt. P, app. 2.
4

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).
III.

ADMINISTRATIVE PROCEEDINGS
Pursuant to this court’s November 2008 Order, the Appeals Council remanded the

case to the ALJ and directed the ALJ to obtain testimony from a VE. While the appeals
process was pending, P.S. filed a subsequent application on July 12, 2005 alleging an
onset date of May 10, 2005. That subsequent application was granted by another ALJ on
July 23, 2008.

Accordingly, the ALJ limited the scope of review of P.S.’s first

application—at issue in this case—to whether P.S. was disabled from July 14, 2003 to
May 9, 2005. Tr. 275.
P.S. was forty-two years old at the time of the second hearing before the ALJ, and

thirty-six years old at the time of the alleged onset date. Tr. 403. P.S. has a high school
education. Tr. 403. P.S.’s past relevant work experience was as a “binder” in a bed linen
factory, a “nursing assistant,” and a “small motor assembler.” Tr. 403. Following the
2009 administrative hearing, and employing the five-step process, the ALJ found P.S.
“has not engaged in substantial gainful activity since July 14, 2003, the application date.”
(Step 1) Tr. 277. At Step 2, the ALJ found that P.S. suffers from the following severe
impairments: “congestive heart failure, headaches, obesity and hypertension.” Tr. 277.5
The ALJ then found that P.S. “does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1525, 404.1526, 416.925 and 416.926).” (Step
3) Tr. 277. Id. Next, the ALJ found that “from July 14, 2003 to May 9, 2005, [P.S.] had
the residual functional capacity to perform the full range of sedentary work.” Tr. 278. At
Step 4, and after consulting with a VE, the ALJ found that “[P.S.] was unable to perform
any past relevant work from July 14, 2003 to May 9, 2005.” (Step 4) Tr. 279. At Step 5,
the ALJ found that, “[b]ased on vocational expert testimony and considering [P.S.]’s age,
education, work experience, and residual functional capacity, there were jobs that
exist[ed] in significant numbers in the national economy that [P.S.] could perform from
July 14, 2003 to May 9, 2005.” Tr. 279. The VE testified that P.S. could perform the

5

The ALJ’s findings as to the Claimant’s severe impairments were the same as his 2005
decision, which found that Claimant had “congestive heart failure,” “obesity,” “hypertension,”
and “secondary headaches.” Tr. 22.
6

following jobs in the national economy:

“surveillance system monitor” (sedentary,

unskilled); “call out operator” (sedentary, unskilled); and “microfilm preparer”
(sedentary, unskilled). Tr. 405-06.6 Accordingly, the ALJ determined that “[P.S.] has
not been under a disability, as defined in the Social Security Act, from July 14, 2003
through the date of this decision.” Tr. 280.7
IV.

SALTER’S CLAIMS
Salter presents three issues for this court’s consideration in review of the ALJ’s

decision: 1) “whether the ALJ erred by failing to properly weigh the medical opinions of
record”; 2) “whether the ALJ’s finding of [P.S.]’s Residual Functional Capacity or
(“RFC”) is not based on substantial evidence”; and 3) “whether the ALJ erred as a matter
of law when he failed to find that [P.S.] was disabled through testimony of pain or other
subjective symptoms.” Pl.’s Br. (Doc. 13) at 1.
V.

DISCUSSION
While Salter presents three issues for this court’s consideration, her challenges to

the ALJ’s 2009 decision are interrelated as all three challenges hinge on her argument

6

The ALJ’s opinion states that the “Ms. Berthaume [the VE] testified that [P.S.] could perform
jobs as a lens inserter and textile worker.” Tr. 280. However, a review of the hearing transcript
shows that the VE identified “surveillance system monitor” (sedentary, unskilled); “call out
operator” (sedentary, unskilled); and “microfilm preparer” (sedentary, unskilled) as examples of
the jobs P.S. could perform. See Tr. 405-06. Accordingly, it appears the ALJ’s reference to
“lens inserter and textile worker” in his opinion is a typographical error.

7

This appears to be a typographical error since the relevant time period of the ALJ’s 2009
decision is July 14, 2003 to May 9, 2005. The ALJ’s decision clearly states that his opinion is

that the ALJ did not intend to incorporate his earlier 2005 decision and that, therefore, the
2009 decision should be read independently.
Salter’s first two arguments challenge the ALJ’s findings as to P.S.’s severe
impairments of “congestive heart failure, headaches, obesity, and hypertension” and RFC
of “full range of sedentary work” arguing that the ALJ erred because “the ALJ did not
discuss the medical records that led him to th[ese] finding[s].” Pl.’s Br. (Doc. 13) at 7.
Salter argues as follows:
(1) the ALJ had the opportunity to incorporate his 2005 decision into his
2009 decision by reference and chose not to; (2) any argument that
incorporation was the ALJ’s intent is a post hoc justification, which is not
allowed in this Circuit; (3) the ALJ’s severity findings in the 2009 decision
are different from the findings in his 2005, which is indication that he found
something more credible in 2009. (R. 272-280).
Pl.’s Br. (Doc. 13) at 9. Defendant contends that “[Salter]’s argument that reversal is
required because only the ALJ’s 2009 Decision should be considered on appeal fails.
Rather . . . when the ALJ’s Decisions are read in tandem, substantial evidence supports
his conclusion that [P.S.] was not disabled.” Def.’s Br. (Doc. 18) at 12.
Salter’s arguments fail for two reasons. First, it was not erroneous for the ALJ to
limit his supplemental proceedings and decision to the scope of this court’s remand order.
Second, it was not erroneous for the ALJ to rely on findings he made in his previous
hearing and decision in 2005.

limited to considering whether P.S. was disabled from July 14, 2003 to May 9, 2005 since P.S.’s
subsequent application, with an alleged onset date of May 10, 2005, was granted by another ALJ.
8

A review of the record in this case establishes that the ALJ did not commit
reversible error. This court found that the ALJ’s 2005 decision erred in relying on the
Medical-Vocational Guidelines and remanded the case to the Commissioner solely for
the purpose of obtaining VE testimony.8 Memorandum Opinion, 07cv445-WC, Nov. 26,
2008. The ALJ complied with the remand order and held a supplemental hearing where
he obtained testimony from a VE. The ALJ made it clear that the supplemental hearing
and decision were limited to complying with the court’s remand order, as his decision
clearly states “Pursuant to the District Court remand order, the Appeals Council has
directed the undersigned to obtain testimony from a vocational expert.” Tr. 275. The
ALJ also noted that [P.S.]’s subsequent benefits application had been granted by another
ALJ on July 23, 2008 and, thus, on remand, he would “only consider whether [P.S.] was
disabled from July 14, 2003 to May 9, 2005.” Tr. 275.
The ALJ did not err by limiting the 2009 hearing and his subsequent decision to
obtaining VE testimony. The Social Security Regulations state that the ALJ “shall take
any action that is ordered by the Appeals Council and may take any additional action that
is not inconsistent with the Appeals Council’s remand order.” 20 C.F.R. § 404.977

8

In reviewing the ALJ’s 2005 decision, this court found that “the ALJ recognized explicit
environmental limitations on the [P.S.]’s ability to work but did not consult a VE to determine
whether those limitations would significantly limit her basic work skills at the sedentary level.
Because the testimony of a VE was required to determine whether the ALJ’s environmental
limitations would preclude [P.S.] from performing a wide range of sedentary work, the ALJ’s
exclusive reliance on the guidelines was erroneous.” Memorandum Opinion, 07cv445-WC, Nov.
26, 2008.

(emphasis added). See also 20 C.F.R. § 404.9839 (providing that the procedures in 20
C.F.R. § 404.977 should be followed if the Appeals Council returns a court-remanded
case to an ALJ). Accordingly, while the ALJ may look into other issues on remand, he is
under no duty to do so. See, e.g., Leonard v. Astrue, 2010 WL 338099, at *4 (M.D. Fla.
Jan. 22, 2010) (finding that ALJ “was not required to take evidence on issues outside the
scope of the remand”).10 Thus, it was not erroneous for the ALJ to limit his supplemental
proceedings and decision to obtaining testimony of a VE in order “to determine whether
the ALJ’s environmental limitations would preclude [P.S.] from performing a wide range
of sedentary work” as this is what the court instructed him to do on remand.

9

“When a Federal court remands a case to the Commissioner for further consideration, the
Appeals Council, acting on behalf of the Commissioner, may make a decision, or it may remand
the case to an administrative law judge with instructions to take action and issue a decision or
return the case to the Appeals Council with a recommended decision. If the case is remanded by
the Appeals Council, the procedures explained in § 404.977 will be followed. Any issues
relating to your claim may be considered by the administrative law judge whether or not they
were raised in the administrative proceedings leading to the final decision in your case.” 20
C.F.R. § 404.983 (emphasis added).
10

In fact, in Leonard v. Astrue, the court noted that “[o]n remand, the Commissioner is required
to follow the district court’s remand order in the subsequent administrative proceeding; deviation
from the district court’s order is itself legal error subject to reversal on further judicial review.”
2010 WL 338099, at *4 (M.D. Fla. Jan. 22, 2010) (citing Sullivan v. Hudson, 490 U.S. 877, 88586 (1989) (“Where a court finds that the Secretary has committed a legal or factual error in
evaluating a particular claim, the district court’s remand order will often include detailed
instructions concerning the scope of the remand, the evidence to be adduced, and the legal or
factual issues to be addressed. . . . Deviation from the court’s remand order in the subsequent
administrative proceedings is itself legal error, subject to reversal on further judicial review.”
(internal citations omitted)).

10

Salter’s argument that the ALJ did not discuss the medical records that led to his
findings regarding P.S.’s severe impairments and RFC and that, thus, these findings are
not supported by substantial evidence is due to fail. First, contrary to Salter’s argument, a
review of the 2005 and 2009 decisions reveals that the ALJ’s findings as to P.S’s severe
impairments and RFC are almost identical.11 Second, a review of that 2005 decision
reveals that the ALJ did discuss how the record supported his findings. Salter does not
attack the 2005 findings, she merely attacks the 2009 findings based on her argument that
the ALJ did not explicitly incorporate his 2005 findings. Moreover, the ALJ’s reliance
on his findings in the 2005 decision does not constitute error. The United States Court of
Appeals for the Eleventh Circuit has held that it is not error for an ALJ to rely on factual
findings made in the claimant’s previous hearings and decisions. Leonard v. Comm’r of

11

As to P.S.’s severe impairments, in 2009, the ALJ found that P.S. suffers from the following
severe impairments: “congestive heart failure, headaches, obesity and hypertension.” Tr. 277.
In 2005, the ALJ found that:
The medical evidence established that the claimant has severe congestive heart
failure, but that she does not have an impairment or combination of impairments
listed in, or medically equal to one listed in, Appendix 1, Subpart P, Regulations
No. 4. The claimant’s obesity has not been shown to cause any work-related
limitations, and her hypertension and secondary headaches are controllable with
appropriate medications. There is absolutely no medical reference to anxiety or to
any severe mental or emotional impairment of record.
Tr. 22. In both decisions the ALJ found that P.S. does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments in Appendix 1 of the
Regulations. See Tr. 19 and 277.
As to P.S.’s RFC, in both decisions the ALJ found that P.S. can perform a “full range of
sedentary work” but should not work in “hazardous situations as unprotected heights or
dangerous machinery.” See Tr. 278-79 and 22-23.

Soc. Sec., 409 F. App’x 298, 300 (11th Cir. 2011). In fact, as Defendant points out, “the
ALJ relied on his 2005 Decision in articulating to the VE the parameters of various
hypotheses presented to her.” Def.’s Br. (Doc. 18) at 10. Indeed, the ALJ asked the VE
to consider a hypothetical “including the facts as found by me and my May 9th, 2005,
decision and in particular the environment[al] limitations.” Tr. 405. The ALJ did exactly
what he was supposed to do on remand—he presented a hypothetical to the VE framed
with an identical RFC as he found in 2005. The VE testified that the hypothetical
individual could perform some jobs available in the national economy and the ALJ relied
on the VE’s testimony in finding that P.S. was not disabled from July 14, 2003 to May 9,
2005. Thus, the ALJ committed no reversible error.
Salter’s third challenge to the ALJ’s decision is that “the ALJ erred as a matter of
law when he failed to find that [P.S.] was disabled through testimony of pain or other
subjective symptoms.” Pl.’s Br. (Doc. 13) at 1. According to Salter, the ALJ’s finding
that “[P.S.]’s statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the above residual
functional capacity assessment,” Tr. 27, constitutes reversible error because “[t]his
finding fails to explicitly articulate the reasons that the ALJ discredited [P.S.]’s testimony
and is not supported by substantial evidence.” Pl.’s Br. (doc. 13) at 11. Again, as with
Salter’s other arguments, her argument fails because the ALJ’s 2009 credibility finding
did not change from his 2005 decision where he fully explained why he did not find
12

P.S.’s testimony to be credible, explaining in part that “[P.S.]’s allegations of disability
are disproportionate to the evidence of record, are not supported by her infrequent follow
up visits with her heart doctor subsequent to her hospitalization, are consistent with her
described activities, and are not credible.” Tr. 21.
Moreover, as Defendant points out, “even if [P.S.]’s testimony of her symptoms as
of April 2009 were accepted as true, they are irrelevant to a determination of whether
[P.S.] was disabled between June 14, 2003 and May 9, 2005, and have no impact on the
ALJ’s decision.” Def.’s Br. (Doc. 18) at 15. Indeed, P.S.’s testimony at the 2009 hearing
focused on her limitations from her various impairments at the time of the hearing. See
Tr. 397-400. Thus, the court finds this testimony is irrelevant given that, on remand, the
sole question before the ALJ was whether P.S. was disabled between July 14, 2003 to
May 9, 2005. See Carroll v. Soc. Sec. Admin., Comm’r, 453 F. App’x 889, 892 (11th Cir.
2011) (“Evidence is irrelevant and immaterial when it relates to a time period after the
eligibility determination at issue.” (citing Wilson v. Apfel, 179 F.3d 1276, 1278-79 (11th
Cir.1999) (per curiam) (explaining that a medical opinion given one year after the denial
of benefits “may be relevant to whether a deterioration in [the claimant’s] condition
subsequently entitled her to benefits” but is not probative to the issue of eligibility during
the time period for which benefits were denied))).

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 AFFIRMED.
separate judgment will issue.
Done this 2nd day of August, 2013.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

14

A