Shelley v. Colvin
MEMORANDUM OPINION. The court has carefully and independently reviewed the record and concludes that, for the reasons given as further set out in the opinion, the decision of the Commissioner is AFFIRMED. A separate judgment will issue. Signed by Honorable Judge Wallace Capel, Jr on 10/12/2016. (dmn, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Civil Action No.: 1:15cv513-WC
Brad Shelley (“Plaintiff”) filed applications for a period of disability and disability
insurance benefits under Title II of the Social Security Act (“the Act”), 42 U.S.C. § 401,
et seq., and for supplemental security income under Title XVI of the Act, 42 U.S.C. §
1381, et seq., on July 10, 2012. The applications were 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 finding that Plaintiff
had not been under a disability since January 1, 2009, the alleged onset of his disability.
Plaintiff appealed to the Appeals Council, which rejected his 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
Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No.
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. 15); Def.’s Consent to Jurisdiction (Doc. 14).
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 benefits when the person is
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 (2011).
(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?
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.
A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic
(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
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The burden of proof rests on a claimant through Step Four. 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 One
through Step Four. At Step Five, the burden shifts to the Commissioner, who must then
show there are a significant number of jobs in the national economy the claimant can
To perform the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (“RFC”). Id. at 1238-39. The RFC is what the claimant is
still able to do despite the claimant’s impairments and is based on all relevant medical
and other evidence. Id. It may 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
McDaniel is a supplemental security income (SSI) case. The same sequence applies to disability
insurance benefits. Supplemental security income cases arising under Title XVI of the Social Security
Act are appropriately cited as authority in Title II cases, and vice versa. See, e.g., Ware v. Schweiker, 651
F.2d 408, 412 (5th Cir. 1981); Smith v. Comm’r of Soc. Sec., 486 F. App’x 874, 876 n.* (11th Cir. 2012)
(“The definition of disability and the test used to determine whether a person has a disability is the same
for claims seeking disability insurance benefits or supplemental security income.”).
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
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
See 20 C.F.R. pt. 404 subpt. P, app. 2.
in evaluating claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
Plaintiff was thirty-four years old on the date of the administrative hearing before
the ALJ, and had obtained a “high school equivalent education.” Tr. 21, 17. Following
the administrative hearing, and employing the five-step process, the ALJ found at Step
One that Plaintiff “has not engaged in substantial gainful activity since January 1, 2009,
the alleged onset date[.]” Tr. 17.5 At Step Two, the ALJ found that Plaintiff suffers from
the severe impairment of “bilateral hearing loss.” Tr. 17. In addition, the ALJ found
non-severe impairments, including “low IQ or learning disorder and obesity.” Tr. 18. At
Step Three, the ALJ found that Plaintiff “does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed
impairments[.]” Tr. 20. Next, the ALJ articulated Plaintiff’s RFC as follows:
the claimant has the residual functional capacity to perform medium work
as defined in 20 CFR 404.1567(c) and 416.967(c). Secondary to the
claimant’s severe hearing impairment and other non-severe impairments
combined, the claimant can lift or carry up to fifty pounds occasionally and
twenty-five pounds frequently. However, the claimant is limited to work
environments with no more than moderate loudness, no loud or very loud
environments. He is limited to work with no ladders, ropes, scaffolds,
heights, or dangerous equipment. The claimant is able to carry out short,
simple work instructions, make judgments regarding simple work-related
decisions and adapt to occasional changes [in] workplace settings and
The ALJ noted that, although Plaintiff worked intermittently during 2010-2012, Plaintiff
testified at the hearing that “this was part-time work as a security guard and the earning amounts
would not rise to the level of substantial gainful activity.” Tr. 17.
Tr. 20. Having consulted with a VE at the hearing, the ALJ concluded at Step Four that
Plaintiff is “capable of performing past relevant work as a janitor and patient transporter.
This work does not require the performance of work-related activities precluded by the
claimant’s residual functional capacity[.]”
The ALJ next found that,
alternatively, even if Plaintiff’s RFC precluded him from performing past relevant work,
based upon the testimony of the VE, “there are other jobs that exist in significant
numbers in the national economy that the claimant can also perform[.]” Tr. 25. The ALJ
noted the following representative occupations: “dietary aid,” “stocker,” and “automobile
detailer.” Tr. 25. Accordingly, at Step Five, the ALJ determined that Plaintiff “has not
been under a disability . . . from January 1, 2009, through the date of this decision[.]” Tr.
Plaintiff’s “Statement of the Issues” in his brief lists four separate arguments in his
challenge to the Commissioner’s decision: (1) “Whether the Commissioner erred as a
matter of law in failing to order a consultative health examination;” (2) “Whether the
Commissioner erred as a matter of law in finding that Mr. Shelley can perform the
requirements of medium and unskilled work as the case record is absolutely devoid of
evidence to support such a finding;” (3) “Whether the Commissioner erred in failing to
apply listing 12.05 to claimant after his hearing loss;” and (4) “Whether the ALJ
misconstrued claimant’s testimony when he testified he lost his job when accused of
sleeping but actually couldn’t hear but [the] ALJ put ‘was fired for sleeping’ in her
decision.” Pl.’s Br. (Doc. 16) at 4.6
The ALJ’s failure to order a consultative health examination.
Plaintiff first argues that the ALJ erred in failing to order a consultative
examination. According to Plaintiff:
There is [a] sparsity of medical evidence in this case file in which the ALJ
made her decision on. There is no true medical evidence at all, and given
that the ALJ should have sent the claimant out for a consultative evaluation
as there is no medical evidence in the file on which to base medium work
Pl.’s Br. (Doc. 16) at 10. Although Plaintiff appears to argue that there was insufficient
medical evidence in the record regarding Plaintiff’s “physical condition,” id., Plaintiff
does not argue that, in fact, any specific condition of Plaintiff’s, whether identified by the
ALJ or not, precludes his ability to perform work consistent with the RFC articulated by
Plaintiff alleged disability based upon “hearing loss.” Tr. 55. Indeed, the ALJ
found Plaintiff’s hearing loss to be a severe impairment and consequently reviewed and
discussed the available medical evidence concerning the impairment while formulating
Plaintiff’s RFC. Tr. 20-22. However, the reason that there is a sparsity of evidence
Plaintiff’s brief makes clear that the first two separately numbered points raised by Plaintiff—
that the ALJ erred in failing to order a consultative examination and that the record contains
insufficient evidence to support the ALJ’s RFC determination—are actually one argument.
Hence, the court’s discussion of these two points will be merged below into one subheading in
concerning any other problems with Plaintiff’s “physical condition” is that there does not
appear to be any physical condition—apart from Plaintiff’s obesity, which the ALJ found
to be a non-severe impairment—that affects Plaintiff’s ability to perform work. Plaintiff
conceded as much at the hearing:
Q. All right. Now, Mr. Shelley, you don’t have any physical
problems, do you, like back or –
Q. All right. You’re not seeing a physician for anything else other
than your ears, your hearing.
Tr. 46. Thus, because Plaintiff did not allege disability on the basis of any “physical
condition” other than his hearing loss, and because he even disclaimed any physical
problems other than his hearing, it is not surprising, much less problematic, that there is
little medical evidence in the record about Plaintiff’s “physical condition.”
Although the ALJ is charged with conducting a full and fair, non-adversarial
hearing, the burden to establish disability rests on the claimant. Ingram v. Comm’r of
Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir. 2007). “The administrative law judge
has a duty to develop the record where appropriate but is not required to order a
consultative examination as long as the record contains sufficient evidence for the
administrative law judge to make an informed decision.” Id. (citing Doughty v. Apfel,
245 F.3d 1274, 1281 (11th Cir. 2001). In this case, the record contained sufficient
evidence for the ALJ to make an informed decision regarding Plaintiff’s impairments and
his ability to perform work, especially considering that Plaintiff alleged disability only on
the basis of his hearing loss and specifically denied having any physical problem other
than hearing loss. Accordingly, the ALJ did not err in failing to order a consultative
examination to develop additional evidence regarding Plaintiff’s “physical condition.”
The ALJ’s failure to find Plaintiff disabled pursuant to Listing 12.05.
Plaintiff next argues that the ALJ erred in failing to find that Plaintiff’s “low IQ or
learning disorder” does not meet listing 12.05. Pl.’s Br. (Doc. 16) at 11-12. Plaintiff
appears to argue that a previous IQ score attributed to Plaintiff “meets the Listing
12.05(C),” and that his hearing loss constitutes “‘a physical or other mental impairment
imposing additional and significant work-related limitations of function[,]’” under the
Listing 12.05 covers the mental disorder now described as “Intellectual
Disability.” “Intellectual disability 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.” Listing 12.05. While Plaintiff is correct that there is a full scale IQ score
of 65 in the record, and that his hearing loss may constitute “a physical or other mental
impairment imposing an additional and significant work-related limitation of function”
for purposes of Listing 12.05(C), it does not follow that, without more, Plaintiff satisfies
the Listing. See, e.g., Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (citations
omitted) (“Generally, a claimant meets the criteria for presumptive disability under
section 12.05(C) when the claimant presents a valid I.Q. score of 60 to 70 inclusive, and
evidence of an additional mental or physical impairment that has more than ‘minimal
effect’ on the claimant’s ability to perform basic work activities. This court, however,
has recognized that a valid I.Q. score need not be conclusive of [intellectual disability]
where the I.Q. score is inconsistent with other evidence in the record on the claimant’s
daily activities and behavior.”).
Plaintiff first presented his argument about Listing 12.05(C) at the hearing before
the ALJ. See Tr. 52. The ALJ rejected Plaintiff’s argument at the hearing: “He has to
meet the part of the listing for adaptive functioning prior to age 22, and the evidence does
not indicate that he’s had any adaptive functioning deficits.” Id. In her written opinion,
the ALJ clarified the reasons why she found that the record does not support that Plaintiff
has deficits in adaptive functioning:
The claimant performs numerous household chores, he can care for himself
independently, he uses the computer on a regular and frequent basis, he
cares for his children, he cooks and prepares meals and he drives. The
claimant goes shopping independently and essentially is a stay at home
father for his children. Additionally, the claimant was awarded custody of
his then toddler age children during his divorce from his previous marriage,
which would seem to directly support the claimant’s ability to function in
an independent manner. Finally, the claimant has been able to perform
semi-skilled and skilled work previously and he testified that he was able to
get all of his jobs on his own.
Plaintiff does not point to any evidence in the record which disputes the ALJ’s
finding that Plaintiff lacks deficits in adaptive functioning, or otherwise indicates that the
ALJ’s decision was not supported by substantial evidence. The Diagnostic and Statistical
Manual of Mental Disorders (“DSM”) explains that deficits in adaptive functioning
broadly “refer to how well a person meets community standards of personal
independence and social responsibility, in comparison to others of similar age and
sociocultural background.” American Psychological Association, DSM-V, p. 37. As the
ALJ recounted, there is substantial evidence in the record that Plaintiff is able to function
independently and responsibly in accord with community standards.
Plaintiff’s daily activities, including that Plaintiff performs many household chores, cares
for his two children after he was awarded custody of them while they were toddler age,
and has performed work at skilled and semi-skilled levels, was properly relied upon by
the ALJ in concluding that Plaintiff did not have deficits in adaptive functioning for
purposes of Listing 12.05(C). See, e.g., Rodriguez v. Comm’r of Soc. Sec., 633 F. App’x
770, 773-74 (11th Cir. 2015) (finding that the claimant’s activities of daily living,
including doing household chores, grocery shopping, attending church, driving, and work
history including jobs at the skilled and semi-skilled level provided substantial evidence
to support the ALJ’s determination that the claimant did not satisfy the diagnostic criteria
of Listing 12.05(C)).
Plaintiff’s I.Q. score and severe impairment of hearing loss are not sufficient to
meet Listing 12.05(C) given the evidence in the record establishing that Plaintiff does not
have deficits in adaptive functioning. Accordingly, the ALJ did not reversibly err in
concluding that Plaintiff does not meet the diagnostic criteria of Listing 12.05(C).
The ALJ’s given reason for Plaintiff’s termination from a previous job.
Plaintiff’s final argument appears to be that the ALJ erred in finding that Plaintiff
was terminated from his security guard position for sleeping on the job because Plaintiff
testified that, rather than sleeping, the “captain came around there and snuck up on me
because I did not hear him.” Tr. 36. In her decision, while articulating Plaintiff’s RFC,
the ALJ noted that “claimant worked part-time as a security guard after his alleged onset
date and was fired for sleeping on the job, rather than as a result of any severe
impairment.” Tr. 22.
Plaintiff does not describe how he was prejudiced by the ALJ’s remark, or how,
even if the ALJ incorrectly found that Plaintiff was fired for sleeping rather than because
of any impairment, the ALJ’s ultimate findings about Plaintiff’s RFC are not supported
by substantial evidence. Indeed, the entirety of Plaintiff’s argument is one sentence that
simply asserts that the ALJ’s remark is not consistent with Plaintiff’s explanation at the
hearing, followed by what appears to be a reminder to further develop the argument. See
Pl.’s Br. (Doc. 16) at 12 (“Mr. Shelley testified that when working for DSI as a security
guard he was fired when his supervisor walked up on him and mistook him for sleeping
when in actuality he couldn’t hear him (TR 22). Inconsistencies between testimony and
what the ALJ used as a basis for denial.”). However, Plaintiff does not describe any such
additional inconsistencies, and his conclusory argument that somehow the ALJ reversibly
erred in noting the reason given by DSI for terminating Plaintiff is without merit without
a better showing that, indeed, he was unable to perform the requirements of the job which
the ALJ relied upon in finding him not disabled. Thus, the ALJ did not reversibly err in
noting that Plaintiff was terminated for sleeping on the job.
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 12th day of October, 2016.
/s/ Wallace Capel, Jr.
UNITED STATES MAGISTRATE JUDGE
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