Harris v. Colvin

Filing 19

MEMORANDUM OPINION AND ORDER: Accordingly, for the reasons discussed, the decision of the Commissioner will be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. 405(g) so that the Commissioner can conduct additional proceedings consistent with this opinion. A separate judgment is entered herewith. Signed by Honorable Judge Terry F. Moorer on 9/18/2017. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
LISA GAYNELL HARRIS,

)
)
Plaintiff,
)
)
v.
)
)
1
NANCY A. BERRYHILL,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

CASE NO. 1:15-cv-838-TFM
[wo]

MEMORANDUM OPINION AND ORDER
On August 30, 2012, Lisa Gaynell Harris (APlaintiff@ or AHarris@) applied for disability
insurance benefits under Title II of the Social Security Act (Athe Act@) alleging a disability
date of May 8, 2012. (Tr. 172, 174). The application was initially denied on December 13,
2012. (Tr. 70-80). Thereafter, Harris filed a request for a hearing and on April 4, 2014, the
ALJ held a video hearing. (Tr. 47-70). Although Plaintiff appears pro se before the Court
now, she was represented by counsel at the hearing. (Tr. 46). The ALJ rendered an
unfavorable decision on April 24, 2014. (Tr. 39). The Appeals Council denied Plaintiff’s
request for review. (Tr. 1). As a result, the ALJ=s decision became the final decision of the
Commissioner of Social Security (ACommissioner@). Id. Judicial review proceeds pursuant
to 42 U.S.C. ' 405(g), and 28 U.S.C. ' 636(c). After careful scrutiny of the record and

1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as
the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of
section 205(g) of the Social Security Act, 42 U.S.C. §405(g).

Page 1 of 14

briefs, for reasons herein explained, the Court concludes that the Commissioner=s decision is
to be REVERSED and REMANDED.
I. NATURE OF THE CASE
Johnson seeks judicial review of the Commissioner=s decision denying her application
for disability insurance benefits and social security income. United States District Courts
may conduct limited review of such decisions to determine whether they comply with
applicable law and are supported by substantial evidence. 42 U.S.C. ' 405. The Court may
affirm, reverse and remand with instructions, or reverse and render a judgment. Id.
II. STANDARD OF REVIEW
The Court=s review of the Commissioner=s decision is a limited one. The Court=s sole
function is to determine whether the ALJ=s opinion is supported by substantial evidence and
whether the proper legal standards were applied. See Jones v. Apfel, 190 F.3d 1224, 1228
(11th Cir. 1999); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
AThe Social Security Act mandates that >findings of the Secretary as to any fact, if
supported by substantial evidence, shall be conclusive.=@ Foote v. Chater, 67 F.3d 1553,
1560 (11th Cir. 1995) (quoting 42 U.S.C. '405(g)). Thus, this Court must find the
Commissioner=s decision conclusive if it is supported by substantial evidence. Graham v.
Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). Substantial evidence is more than a scintilla C
i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and
must include such relevant evidence as a reasonable person would accept as adequate to
support the conclusion. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing

Page 2 of 14

Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971));
Foote, 67 F.3d at 1560 (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982)).
If the Commissioner=s decision is supported by substantial evidence, the district court
will affirm, even if the court would have reached a contrary result as finder of fact, and even
if the evidence preponderates against the Commissioner=s findings. Ellison v. Barnhart, 355
F.3d 1272, 1275 (11th Cir. 2003); Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir.
1991) (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)). The Court
must view the evidence as a whole, taking into account evidence favorable as well as
unfavorable to the decision. Foote, 67 F.3d at 1560 (citing Chester v. Bowen, 792 F.2d 129,
131 (11th Cir. 1986). The Court Amay not decide facts anew, reweigh the evidence, or
substitute [its] judgment for that of the [Commissioner],@ but rather it Amust defer to the
Commissioner=s decision if it is supported by substantial evidence.@ Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1997) (quoting Bloodsworth, 703 F.2d at 1239).
The Court will also reverse a Commissioner=s decision on plenary review if the
decision applies incorrect law, or if the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner properly applied the law. Keeton v.
Dep=t of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing Cornelius v.
Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)). There is no presumption that the
Commissioner=s conclusions of law are valid. Id.; Brown v. Sullivan, 921 F.2d 1233, 1236
(11th Cir. 1991) (quoting MacGregor, 786 F.2d at 1053).

III. STATUTORY AND REGULATORY FRAMEWORK
Page 3 of 14

The Social Security Act=s general disability insurance benefits program (ADIB@)
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence.2 See 42 U.S.C. '
423(a). The Social Security Act=s Supplemental Security Income (ASSI@) is a separate and
distinct program. SSI is a general public assistance measure providing an additional resource
to the aged, blind, and disabled to assure that their income does not fall below the poverty
line.3 Eligibility for SSI is based upon proof of indigence and disability. See 42 U.S.C. ''
1382(a), 1382c(a)(3)(A)-(C). However, despite the fact they are separate programs, the law
and regulations governing a claim for DIB and a claim for SSI are identical; therefore, claims
for DIB and SSI are treated identically for the purpose of determining whether a claimant is
disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n. 1 (11th Cir. 1986). Applicants under
DIB and SSI must provide Adisability@ within the meaning of the Social Security Act which
defines disability in virtually identical language for both programs. See 42 U.S.C. '' 423(d),
1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. '' 404.1505(a), 416.905(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.

2

DIB is authorized by Title II of the Social Security Act, and is funded by Social Security taxes.
See Social Security Administration, Social Security Handbook, ' 136.1, available at
http://www.ssa.gov/OP_Home/handbook/handbook.html
3
SSI benefits are authorized by Title XVI of the Social Security Act and are funded by general
tax revenues. See Social Security Administration, Social Security Handbook, '' 136.2, 2100,
available at http://www.ssa.gov/OP_Home/handbook/handbook.html
Page 4 of 14

42 U.S.C. '' 423(d)(1)(A), 1382c(a)(3)(A). A Aphysical or mental impairment@ is one
resulting from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42
U.S.C. '' 423(d)(3), 1382c(a)(3)(D).

The Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits. See 20 C.F.R. '' 404.1520,
416.920 (2010).4
(1) Is the person presently unemployed?
(2) Is the person=s impairment(s) severe?
(3) Does the person=s impairment(s) meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?5
(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 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 Anot disabled.@
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357
F.3d 1232, 1237-39 (11th Cir. 2004). Claimants establish a prima facie case of qualifying for
disability once they meet the burden of proof from Step 1 through Step 4. At Step 5, the

For the purposes of this appeal, the Court utilizes the versions effective until March 27, 2017 as
that was the version in effect at the time of the ALJ’s decision and the filing of this appeal.
4

5

This subpart is also referred to as Athe Listing of Impairments@ or Athe Listings.@
Page 5 of 14

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 Guidelines6 (Agrids@) or hear
testimony from 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. Id. at 1240. Combinations of these factors yield a statutorily-required finding of
ADisabled@ or ANot Disabled.@ Id.
IV. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
Harris was forty-two years old, had a high school diploma, and had taken several
college classes, when the ALJ rendered his decision. (Tr. 50). She has past clerical work
experience with the military, where she served about 20 years. She has a 100 percent
service-connected disability from the military and receives both military retirement and

6

See 20 C.F.R. pt. 404 subpt. P, app. 2; see also 20 C.F.R. ' 416.969 (use of the grids in SSI
cases).
Page 6 of 14

disability pay. (Tr. 48-51, 191). However, the VA determined that her “[e]titlement to
individual unemployability is denied.” (Tr. 191).
VA’s disability rating assignments are included in the record and generally referred to
by the ALJ multiple times. The VA’s disability determination is summarized as follows:
(Right and left lower extremity diabetic neuropathy 10%; Rhinitis, 0%; Right should strain
10%; Anxiety disorder not otherwise specified with dysthymic disorder 70%; neck strain
30%; Right wrist carpal tunnel syndrome 30%; Low back strain 20%; Irritable Bowel
Syndrome with gastroesophageal reflux disease 30%; Migraine headaches 30%; Diabetes
mellitus type II 20%; Left and right knee strain 10%; Right ankle strain 10%; Left and right
hip strain 10%; Tinnitus 10%); bilateral feel frostbite 10%; Left ankle strain 0%; Bilateral
tinea pedis 0%; Eczema 0%). (Tr. 190-191). The VA disability rating further explains “[w]e
do not add the individual percentages of each condition to determine your combined rating.
We use a combined rating table that considers the effect from the most serious to the least
serious conditions.” (Emphasis added.) (Tr. 191).
Harris testified at the hearing before the ALJ. (Tr. 46-68). She stated that she can
perform some chores around the house, but because of the pain in her knees and back that she
can work for only about 15 to 20 minutes before taking a break. (Tr. 53-54). After sitting
about 30 to 40 minutes, she stated that her legs will start cramping and she has to move
around. (Tr. 54). She does her own grocery shopping about once or twice a month and she
uses the regular basket, not a motorized cart. (Tr. 55). Plaintiff suffers from migranes and
she testified that they have gotten worse since she retired from the military, and she has them
three to four times a week. (Tr. 57). Plaintiff also has diabetes. She reported that her “feet
Page 7 of 14

stay cold all the time” and that sometimes she has a burning sensation in her feet. She also
has carpal tunnel syndrome and she stated that three to four times a month her “hand loses
it’s shape.” (Tr. 59-60). She further reported that she has anxiety and “problems socializing
with other people” and that she has “nightmares about being in Iraq.” (Tr. 61). Plaintiff
alleged disability based on diabetes, migraine headaches, right shoulder/neck pain, lumbago,
bilateral anterior knee pain, eczema, gastroesophageal reflux disease, irritable bowel
syndrome, adjustment disorder, insomnia, uterine fibroids, allergic rhinitis, history of
frostbite of the feet, tinnitus, high blood pressure, high cholesterol and acid reflux. (Tr. 32,
200).
The ALJ found Plaintiff had severe impairments of diabetes mellitus, osteoarthritis of
the knees, obesity, migraines, anxiety disorder, and dysthymic disorder. (Tr. 28). The ALJ
also found that Plaintiff’s right shoulder strain, hysterectomy, neck strain, right carpal tunnel
syndrome, low back strain, irritable bowel syndrome with gastroesophageal reflux, right
ankle strain, bilateral hip strain, tinnitus, and bilateral frost bite, high blood pressure, high
cholesterol, eczema, and allergic rhinitis were “not severe impairments, as they do not cause
more than minimal functional limitations”. (Tr. 28-29, 30, 33). The ALJ determined
Plaintiff’s conditions did not meet or medically equal the criteria for any impairment listed in
20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 30). The ALJ then found that Plaintiff
retained the residual functional capacity to perform light work, except she:
cannot climb ladders, ropes, or scaffolds or work at unprotected heights, [but] can
occasionally climb stairs, stoop, kneel, crouch, and crawl. The claimant cannot tolerate
concentrated exposure o hazards in the workplace. The claimant can perform simple, routine
tasks of unskilled work that require simple workplace decisions and ordinarily have few
Page 8 of 14

changes in the work setting. The claimant is able to interact with coworkers, supervisors, and
the public on a basic level.
(Tr. 32). A vocational expert, Charles Miller, testified that based upon Plaintiff’s age,
education, work experience and residual functional capacity, Plaintiff would be able to
perform her past relevant work as both a mail clerk and a general clerk. (Tr. 62-64). Thus,
the ALJ concluded that Plaintiff was not disabled through the date of his decision. (Tr. 38).
V. MEDICAL HISTORY
Plaintiff was treated at Lyster Army Community Hospital between June 7, 2010 and
August 28, 2012 for a variety of complaints including -- knee pain where “mild degenerative
changes bilaterally” were noted (Tr. 237); hip, ankle and wrist pain (Tr. 238, 239, 245,); right
ankle sprain (Tr. 297, 299); diabetes (Tr. 251, 265, 269, 272, 301, 313); hypertension (Tr.
257); anxiety and depression (Tr. 276, 280) allergies (Tr. 253, 285, 286, 291, 293); reflux
(Tr. 286); and upper respiratory congestion (Tr. 305, 307). In late September to early
October of 2012, Plaintiff presented to Central Alabama HCS “to assess psychosocial
stessors/concerns. (TR. 331-366). She tested positive in a PTSD screening test. (Tr. 364).
From July 24, 2012 until July 17, 2013, Plaintiff was treated at Central Alabama HCS for
dysthymia, anxiety, migraines, constipation, depression, hyperlipidemia, and diabetes. (Tr.
380-381, 410, 418, 422, 430, 470; 480,); numbness and tingling of the feet (Tr. 399); knee
pain and brace provided (Tr. 403; 465, 484) and migraines (Tr. 454). From July 6, 2013
until March 7, 2014, Plaintiff was again treated at Lyster Army Community Hospital for
recurring complaints including, diabetes (Tr. 496, 497, 500-505); hyperlipidemia, (Tr. 497);

Page 9 of 14

hypertension (Tr. 497). On April 17, 2013, she was treated for allergies at Alabama Asthma
and Allergy, P.C. (Tr. 507-508).
On October 24, 2012, Plaintiff saw, family practitioner, David H. Arnold, M.D. for a
consultative examination. (Tr. 368-375). Dr. Arnold diagnosed Plaintiff with depression,
anxiety, hypertension, gastroesophageal reflux, diabetes type 2 and hypercholesterolemia.
(Tr. 374). He noted that Plaintiff had “normal station, gate is stable” (Tr. 371). He further
noted “normal muscle strength”; however, back spasms were present and “worse with
movement”. As far as Plaintiff’s right, left knee and ankle, he noted “normal stability, no
laxity”. (Tr. 372). He stated that exam shows “mild crepitus of the knees, but no significant
joint deformities.” Further, he stated that “xrays of the knees and ankles show no acute or
severe joint/bone deformities or abnormalities.” (Tr. 374). Also, x-rays of the “AP and
lateral lumbar spine” showed “early proliferative change at L4.”) (Tr. 377).
Plaintiff alleges that she is disabled due to diabetes, migraine headaches, right
shoulder and neck pain, lumbago, bilateral knee pain, eczema, gastroesophageal reflux
disease, irritable bowel syndrome, adjustment disorder, insomnia, fibroid uterus, allergic
rhinitis, history of frostbite of the feet tinnitus, high blood pressure, high cholestrerol, and
acid reflux. (Tr. 32).
VI. ISSUE TO BE CONSIDERED
Whether the ALJ properly considered the VA’s disability rating?
VII. ANALYSIS
The ALJ recognized that Plaintiff was assigned a permanent 100% disability rating

Page 10 of 14

from the VA for her service connected disabilities effective May 2012. (Tr. 28, 29, 33, 37,
189-195). Although this rating is to be given “great weight”, it is not binding on the ALJ. 7
Brady v. Heckler, 724 F. 2d 914, 917-921 (11th Cir. 1984) (Reversing for failure to give
“great weight” to VA disability rating where the ALJ found Plaintiff suffered from no severe
impairment.) Moreover, the ALJ must “expressly consider[] and closely scrutinize[]” the
VA’s determination in his opinion. Adams v. Comm’r of Soc. Sec., 542 F. App’x 854, 857
(11th Cir. 2013) (Affirming where “ALJ did not expressly state that he gave ‘great weight’ to
the VA’s rating”, but “record shows that he expressly considered and closely scrutinized it.”).
Additionally, where an ALJ discounts the VA’s disability determination, he “must give
specific reasons” therefore. Brown-Gaudet-Evans v. Comm’r of Soc. Sec., 673 Fed. Appx.
902, 904 (11th Cir. 2016) (Reversing where ALJ stated he gave VA’s disability
determination “little weight” and ALJ’s findings about Plaintiff’s credibility were not
supported by substantial evidence). However, an ALJ’s determination that the VA’s decision
“had little bearing” on Plaintiff’s Social Security claim was not reversible error where “[t]he
ALJ’s specific reasons for discounting the VA’s determination show he considered and
closely scrutinized that determination.” Ostborg v. Comm’r of Soc. Sec., 610 Fed. Appx.
907, 914 (11th Cir. 2015) (Affirming where substantial evidence supported the ALJ’s RFC
and credibility determinations and ALJ did not misapply law in discounting VA
determination).

7 Indeed, a disability finding under the Social Security Act, requires Plaintiff to satisfy a more stringent
standard. See Pearson v. Astrue, 271 Fed. Appx. 979, 981 (11th Cir. 2008) citing 42 U.S.C.§§
423(d)(2)(A), 1382c(a)(3)(B).

Page 11 of 14

In the instant case, the ALJ stated that he gave “little weight” to the VA disability
determination, because a VA rating is “not binding” on the Social Security Administration
and because the conclusion Plaintiff is able to perform a “reduced range of light unskilled
work . . . is supported by the treatment records from Lyster Army Health Clinic and the VA
and the examination findings of Dr. Arnold.” (Tr. 37). The ALJ clearly erred in considering
the VA disability rating when he stated that he gave it “little weight”. Brown-Gaudet-Evans,
id. Moreover, the ALJ failed to give specific reasons for discounting the VA determination,
and therefore, did not “show that he considered and closely scrutinized that determination.”
Ostborg, 610 Fed. Appx. at 914. Although the ALJ included a thorough recitation of the
medical evidence of record and mentioned the VA disability findings multiple times, (Tr. 2838), his reasons for discounting the ALJ’ opinion do not include the level of specificity
required to demonstrate that he “closely scrutinized” the VA determination. Brown-GaudetEvans, id. Accordingly, the Court concludes that this case is due to be remanded so that the
ALJ can consider Plaintiff’s claim for benefits after affording “great weight” to the VA’s
100% disability determination. Cornelius v. Sullivan, 936 F. 2d 1143, 1145-46 (11th Cir.
1991) (Secretary’s failure to apply the correct law . . . mandates reversal.)
Additionally, the Court reads the relevant case law as requiring the Court to consider
whether substantial evidence supports the ALJ’s opinion, even where he fails to give the
correct weight to a VA disability determination. Id. (Reversed where substantial evidence
did not support ALJ’s finding discounting Plaintiff’s credibility as to her complaints of
fibromyalgia); Brady, 724 F. 2d 914 (Reversed where substantial evidence did not support
ALJ’s finding of no severe impairment); Rodriguez v. Schweiker, 640 F.2d 682, 686 (5th Cir.
Page 12 of 14

Unit A March 25, 1981) (Reversed where no substantial evidence that Plaintiff was “capable
of performing substantial gainful employment” and insufficient weight given to VA rating.)
The ALJ concluded that Plaintiff retained the residual functional capacity to perform
light work, except she:
cannot climb ladders, ropes, or scaffolds or work at unprotected heights, [but]
can occasionally climb stairs, stoop, kneel, crouch, and crawl. The claimant
cannot tolerate concentrated exposure to hazards in the workplace. The
claimant can perform simple, routine tasks of unskilled work that require
simple workplace decisions and ordinarily have few changes in the work
setting. The claimant is able to interact with coworkers, supervisors, and the
public on a basic level.
(Tr. 32). A residual functional capacity assessment is used to determine a claimants’
capacity to do as much as they are possibly able to do despite their limitations. See 20 C.F.R.
§ 404.1545(a)(1) (2010). An RFC assessment will be made based on all relevant evidence in
the case record. Id.; Lewis v. 125 F.3d at 1440. The Court concludes that the RFC is not
supported by substantial evidence because the ALJ did not expressly and specifically
consider how the VA disability determination impacted his finding of the Plaintiff’s RFC.
Moore, 405 F.3d at 1211.
It is not clear to the Court at this time whether the ALJ’s conclusion that Plaintiff is
not disabled will be altered by the application of the correct legal standard for consideration
of the VA disability rating. Accordingly, the Court refuses to reverse and remand for an
award of benefits. Rather, the Court concludes remand is appropriate so that the ALJ can
apply the correct legal standard of “great weight” to the VA’s determination and make a
determination of Plaintiff’s residual functional capacity in light of the VA’s disability
determination.
Page 13 of 14

VIII. CONCLUSION
Accordingly, for the reasons discussed, the decision of the Commissioner will be
REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) so that the
Commissioner can conduct additional proceedings consistent with this opinion.
A separate judgment is entered herewith.
DONE this 18th day of September, 2017.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

Page 14 of 14