Bowers v. Colvin (CONSENT)

Filing 14

MEMORANDUM OPINION. The court has carefully and independently reviewed the record and concludes that the decision of the Commissioner is supported by substantial evidence and is due to be affirmed. A separate order will be entered. Signed by Honorable Judge Charles S. Coody on 5/19/2016. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
STEVEN RAY BOWERS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,1
Defendant.

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CIVIL ACTION NO. 1:15cv260-CSC
(WO)

MEMORANDUM OPINION
I. Introduction
Plaintiff Steven Ray Bowers (“Bowers”) applied for disability insurance benefits
pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., alleging that he was
unable to work because of a disability.
administrative level.

His application was denied at the initial

The plaintiff then requested and received a hearing before an

Administrative Law Judge (“ALJ”). Following the hearing, the ALJ also denied the claim.
The Appeals Council rejected a subsequent request for review. The ALJ’s decision
consequently became the final decision of the Commissioner of Social Security
(“Commissioner”).2 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case
is now before the court for review pursuant to 42 U.S.C. §§ 405 (g) and 1383(c)(3). Pursuant

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Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.

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.

to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have consented to the United
States Magistrate Judge conducting all proceedings in this case and ordering the entry of final
judgment. Based on the court’s review of the record in this case and the briefs of the parties,
the court concludes that the decision of the Commissioner should be affirmed.
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 . . .
To make this determination,3 the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(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?
(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.”

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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.

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McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4
The standard of 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). 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. The Issues
A. Introduction. Bowers was 42 years old on the date of the administrative hearing
and has a high school education. (R. 47). His prior work experience includes work as an
electronics mechanic. (R. 35). Following the administrative hearing, the ALJ concluded that

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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) (Unit A).

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Bowers has severe impairments of “degenerative disc disease, obesity and obstructive sleep
apnea.” (R. 23). The ALJ found that Bowers was unable to perform his past relevant work
but concluded that he
has the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b). The claimant is able to lift 20 pounds occasionally and 10
pounds frequently; sit at least 6 hours in an 8-hour work day; stand and walk
in combination at least 6 hours during an 8-hour work day; occasionally climb
ramps/stairs, but never climb ladders/ropes/scaffolding; frequently stoop,
kneel, crouch and crawl; and work in an environment that would not require
exposure to unprotected heights. Due to the potential for medication side
effects, the claimant is capable of simple tasks with short, simple instructions.
(R. 25).
Using the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P., App. 2, as a
framework and relying on the testimony of a vocational expert, the ALJ concluded that there
were significant number of jobs in the national economy that the plaintiff could perform. (R.
36-37). Accordingly, the ALJ concluded that the plaintiff was not disabled. (R. 37).
B. Plaintiff’s Claim. Bowers presents a single issue for the Court’s review. Bowers
argues that “[t]he Commissioner’s decision should be reversed because the ALJ failed to
pose a complete hypothetical question to the Vocational Expert which comprised all of Mr.
Bowers’ impairments.” (Doc. # 11, Pl’s Br. at 3-4).
IV. Discussion
The plaintiff alleges that the ALJ’s residual functional capacity (“RFC”) finding is
inconsistent with the hypothetical questions she posed to the vocational expert, and thus, her
RFC determination is not supported by substantial evidence. In the ALJ’s RFC finding, she
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concluded that Bowers could “sit at least 6 hours in an 8-hour work day; stand and walk in
combination at least 6 hours during an 8-hour work day . . .” (R. 25). In her hypothetical
questions, the ALJ asked the vocational expert to assume in part that an individual “can sit
for at least 8 hours during an eight-hour work day; can stand and walk, in combination, at
least six hours during an eight-hour workday.” (R. 61-62). According to the plaintiff,
“[g]iven that [the sitting] restriction is significantly more reduced that (sic) the limitations
considered by the Vocational Expert, it is unclear whether Mr. Bowers could indeed
perform” the jobs identified by the vocational expert. (Doc. # 11 at 8).
The Commissioner concedes that the ALJ erred in this regard. “As Plaintiff correctly
notes, the ALJ’s RFC finding indicated Plaintiff could sit up to 6 hours per workday, but the
hypothetical to the VE indicated Plaintiff could sit up to 8 hours per workday.” (Doc. # 12
at 4). However, the Commissioner asserts that the ALJ’s error was harmless. See Diorio v.
Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (applying harmless error analysis in the Social
Security case context).
An ALJ is required to independently assess a claimant’s residual functional capacity
“based upon all of the relevant evidence.” 20 CFR § 404.1545(a)(3) (“We will assess your
residual functional capacity based on all of the relevant medical and other evidence.”); 20
C.F.R. § 404.1546(c) (“Responsibility for assessing residual functional capacity at the
administrative law judge hearing . . . level. If your case is at the administrative law judge
hearing level . . ., the administrative law judge . . . is responsible for assessing your residual

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functional capacity.”) See also Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997)
(“The residual functional capacity is an assessment, based upon all of the relevant evidence,
of a claimant’s remaining ability to do work despite his impairments.”). “Residual functional
capacity, or RFC, is a medical assessment of what the claimant can do in a work setting
despite any mental, physical or environmental limitations caused by the claimant’s
impairments and related symptoms. 20 C.F.R. § 416.945(a).” Peeler v. Astrue, 400 F. App’x
492, 494 n.2 (11th Cir. 2010).
The ALJ determined that Bowers could perform both light and sedentary work. In her
RFC, she concluded that Bowers could “sit for at least 6 hours during an 8-hour work day.”
Although the ALJ asked the vocational expert to assume an individual could sit for eight
hours during an eight-hour work day, her RFC finding is not inconsistent with the vocational
expert’s testimony. To the extent that Bowers asserts that a sitting restriction of at least six
hours precludes light or sedentary work, he is simply mistaken. The regulations defining
light work do not specify how much time an individual needs to be able to sit to perform light
work. However, Social Security Ruling 83-10 explains that “the full range of light work
requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour
workday. Sitting may occur intermittently during the remaining time.” SSR 83-10.5
Sedentary jobs are defined as those jobs which require walking and standing occasionally.
“‘Occasionally’ means occurring from very little up to one-third of the time, and would

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Available at https://www.ssa.gov/OP_Home/rulings/di/02/SSR83-10-di-02.html

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generally total no more than about 2 hours of an 8-hour workday. Sitting would generally
total about 6 hours of an 8-hour workday.” (Id.) Consequently, an individual who can sit
for at least six hours during an eight hour work day is not precluded from performing light
or sedentary work. Thus, the court concludes that any error in the hypothetical questions
posed to the vocational expert by the ALJ was harmless. See Diorio, supra; Howard v. Soc.
Sec. Admin., Comm’r., 566 F. App’x 784, 787 (11th Cir. 2014) (“even if the AC improperly
failed to consider some of [the plaintiff’s] additional evidence, any error was harmless
because we have independently reviewed all submitted evidence.”).
Finally, Bowers argues that this matter should be remanded because the ALJ failed
to clarify a statement to the vocational expert. It is clear that the transcript contains a
scrivener’s error. During the questioning of the vocational expert, the ALJ asked the expert
to assume
. . . The individual would have environmental limitations resulting in the need
to avoid all kinds of work and unprotected heights. . .
(R. 61). It makes no sense at all for the ALJ to ask a vocational expert to assume that an
individual has environmental limitations that result in the need to avoid all work. Such a
question is nonsensical. Moreover, because the ALJ found in her RFC that Bowers needed
to work in an environment “that would not require exposure to unprotected heights,” (R. 25),
it is apparent that the question posed to the vocational expert referred to “environmental
limitations resulting in the need to avoid all kinds of work at unprotected heights.” (emphasis
added). The court is not required “to remand for express findings when doing so would be
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a “wasteful corrective exercise” in light of the evidence of record and when no further
findings could be made that would alter the ALJ’s decision.” Sanchez v. Comm’r of Soc.
Sec., 507 Fed. Appx. 855, 856 (11th Cir. 2013).
It is clear from the context of the testimony at the administrative hearing, the ALJ’s
opinion, and from the record as a whole, that the ALJ reviewed and considered all the
evidence in the record in determining that Bowers could perform light or sedentary work and
was, therefore, not disabled.
V. Conclusion
The court has carefully and independently reviewed the record and concludes that the
decision of the Commissioner is supported by substantial evidence and is due to be affirmed.
A separate order will be entered.
Done this 19th day of May, 2016.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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