Rhodes v. Colvin

Filing 18

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 2/8/18. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
JIMMIE KEVIN RHODES,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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Civil Action No.: 1:16cv810-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Jimmie Kevin Rhodes (“Plaintiff”) filed applications for a period of disability and

disability insurance benefits and for supplemental security income on May 28, 2013. Both
applications alleged disability beginning on December 1, 2011.

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, and after obtaining
additional development of the record, the ALJ issued an unfavorable decision, and the
Appeals Council denied Plaintiff’s request for review. The ALJ’s decision consequently
became the final decision of the Commissioner of Social Security (“Commissioner”).1 See

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.

Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is now before the court
for review of that decision 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. 17);
Def.’s Consent to Jurisdiction (Doc. 16). 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 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 (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
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?

2

A “physical or mental impairment” is one resulting from anatomical, physiological, or
psychological abnormalities that are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.
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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 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 perform. Id.
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 Vocational
Guidelines (“grids”), see 20 C.F.R. pt. 404 subpt. P, app. 2, or call a vocational expert

3

McDaniel is a supplemental security income (SSI) case. The same sequence applies to disability
insurance benefits brought under Title II of the Social Security Act. 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., 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.”).
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(“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 in
evaluating claims.
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Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was forty-three years old at the onset of his alleged disability, and was

forty-six years old at the time of the ALJ’s decision. Tr. 30. Plaintiff completed high
school. Tr. 30, 52. 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 December 1, 2011, his alleged onset date[.]” Tr. 21. At Step Two, the ALJ
found that Plaintiff suffers from the following severe impairments: “longstanding ischemic
and coronary heart disease, hypertension, hyperlipidemia and type II insulin-dependent
diabetes mellitus (IDDM) without serious verifiable secondary complications like diabetic
peripheral neuropathy in the extremities or diabetic retinopathy involving the eyes.” Tr.
21. 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. 23. Next, the ALJ articulated Plaintiff’s RFC as follows:
the claimant has the hybrid residual functional capacity to perform a
sedentary to light level of work . . . [,] except the claimant cannot perform a
“full range” of work at either exertional level[.] He is limited to lifting up to
twenty pounds occasionally and ten pounds frequently. He is limited to
sitting for two hours at a time and for up to six hours or more per day. The
claimant is limited to walking for fifteen to thirty minutes at a time and
standing for up to one hour at a time. He is limited to standing and walking
in combination for about four hours per day, with the opportunity to alternate
his position as described above. The claimant must avoid any climbing of
ladders, ropes or scaffolds or being around any unprotected heights. He is
also only able to work in a climate-controlled setting where extremes of heat
and humidity are avoided. He must also avoid unprotected heights and
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operating dangerous machinery, which includes industrial equipment.
Lastly, he must avoid operating any automobiles or trucks at night.
Tr. 24. At Step Four, having consulted with a VE, the ALJ concluded that Plaintiff is
unable to perform his past relevant work as an automotive technician. Tr. 30. However,
based upon the testimony of the VE, the ALJ found at Step Five of the sequential analysis
that, based upon his age, education, work experience, and RFC, Plaintiff is capable of
performing the work demands of jobs existing in significant numbers in the national
economy. Tr. 30. The ALJ identified several representative occupations, including “parimutuel ticket checker,” “ampoule sealer,” and “weight tester.” Tr. 31. Accordingly, the
ALJ determined that Plaintiff “has not been under a disability . . . from December 1, 2011,
through the date of this decision[.]” Tr. 31.
IV.

PLAINTIFF’S ARGUMENT
Plaintiff presents two issues in his “Summary of Issues”: a) “The Plaintiff’s

combination of impairments functionally equaled listing 4.04;” and b) “The Administrative
Law Judge’s decision is not supported by substantial evidence.” Pl.’s Br. (Doc. 13) at 1;
id. at 5.
V.

DISCUSSION
A.

The ALJ’s determination about Listing 4.04.

Plaintiff appears to argue that the ALJ erred because the ALJ “only considered
whether [Plaintiff] met listing 4.04, and not whether he equaled a listing[.]” Doc. 13 at 6
(emphasis in original); id. (“However, the administrative law judge never explicitly stated
that he was considering the possible functional equality to Listing 4.04 specifically.”). As
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noted by the ALJ, Listing 4.04, “Ischemic heart disease,” “requires chest discomfort
associated with myocardial ischemia with: (A) sign or symptom limited exercise test; (B)
three separate ischemic episodes or (C) coronary artery disease; and, very serious
limitations in the ability to independently initiate, sustain or complete activities of daily
living.” Tr. 23-24. The ALJ found that the “record contains no medical findings which
meet the criteria of this listing.” Tr. 24.
As relevant in this matter, Listing 4.04B requires three ischemic episodes requiring
revascularization, or that are not amenable to revascularization, within a consecutive period
of twelve months. 20 C.F.R. pt. 404, subpt. P, app. 1, § 4.04. “Revascularization means
angioplasty (with or without stent placement) or bypass surgery . . . . Not amenable means
that the revascularization procedure could not be done because of another medical
impairment or because the vessel was not suitable for revascularization.” 20 C.F.R. pt.
404, subpt. P, app. 1, § 4.00E(9)(f). Plaintiff acknowledges both the Listing’s requirement
of three separate ischemic episodes and the two ischemic episodes recognized by the ALJ
in his review of the medical evidence. Doc. 13 at 6. Lacking the requisite third ischemic
episode, Plaintiff asserts that his “uncontrolled diabetes mellitus should factor into this
equation, and in fact, should count as functionally equaling a third episode of ischemic
activity.” Id. Plaintiff does not cite any authority for his proposition that diabetes
functionally equals an ischemic episode for purposes of Listing 4.04, and the court is not
aware of any such authority. Nor does Plaintiff cite any evidence in the medical record
tending to show that his ongoing diabetes issues are equivalent in severity to an ischemic
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episode as such is defined and required by Listing 4.04B. Instead, Plaintiff cites to
evidence demonstrating Defendant’s struggles to control his diabetes, and specifically
notes evidence showing that Defendant’s diabetes caused him to feel fatigued. Doc. 13 at
6.

However, none of this evidence supports his argument that Plaintiff’s ongoing

experience of diabetes-related symptoms somehow functionally equals an ischemic
episode.
In addition, even if Plaintiff’s diabetes could somehow substitute for a third
ischemic episode, Plaintiff still would not meet or equal Listing 4.04B. The two ischemic
episodes Plaintiff references, in February 2009 and January 2010, both occurred more than
twelve months prior to Defendant’s alleged onset date of December 1, 2011. Because
Listing 4.04B requires three episodes (or, indulging Plaintiff’s argument, an impairment
serving as a substitute for an episode) occurring in a consecutive twelve-month period, and
at least part of that twelve-month period must encompass the period under review by the
Commissioner, see 20 C.F.R. pt. 404, subpt. P, app. 1, § 4.00A(3)(e), Plaintiff cannot show
that he functionally equaled Listing 4.04B even under his attenuated argument about
functional equivalence due to diabetes.
Plaintiff also appears to briefly argue that the ALJ erred because he did not “define
what he meant by ‘hybrid functional capacity.’” Doc. 13 at 6-7. For Plaintiff, this makes
the ALJ’s opinion “suspect, as the term implies the judge applied a different standard for
residual functional capacity, rather than simple functional capacity.” Id. Plaintiff therefore
infers that the ALJ held him “to an unknown standard not found in law.” Id. at 7. To the
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contrary, the ALJ did define what he meant by “hybrid residual functional capacity.” See
Tr. 24 (“[C]laimant has the hybrid residual functional capacity to perform a sedentary to
light level of work . . . except the claimant cannot perform a ‘full range’ of work at either
exertional level.”).

Because the ALJ found that Plaintiff can perform some of the

requirements of both light and sedentary work, but that, due to his impairment-related
limitations, he cannot perform the full range of either functional level, the ALJ consulted
with a VE to determine whether there are jobs existing in significant numbers in the
national economy that Plaintiff can perform. This comports with Social Security law and
the Guidelines discussed previously in this Opinion. The ALJ plainly did not hold Plaintiff
to “an unknown standard not found in law.”
Plaintiff has failed to show any reversible error with respect to the ALJ’s findings
about Listing 4.04B or the ALJ’s findings respecting Plaintiff’s “hybrid” RFC.
B.

The ALJ’s decision is supported by substantial evidence.

Citing only to the testimony of Plaintiff’s former employer (and family member)
and the VE’s answer to a discarded hypothetical posed by the ALJ, Plaintiff argues as
follows: “Clearly, based upon the medical and vocational testimony, there is not work
available for Mr. Rhodes in the national or regional economy. He would simply require
too many concessions due to his health. As such, the administrative law judge’s findings
are not supported by substantial evidence.” Doc. 13 at 8.
Plaintiff’s former employer, the proprietor of a “lighting company,” indeed testified
that Plaintiff worked for him until his performance suffered due to his impairments and he
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was required to let him go. Tr. 64-68. Presumably, Plaintiff posits this as “vocational”
rather than “medical” testimony, but, in any event, the ALJ considered it consistent with
Social Security rules and, ultimately, afforded it only some weight because “it is
inconsistent with the claimant’s presentation upon routine examinations.”

Tr. 30.

Likewise, the ALJ posed numerous hypotheticals to the VE, including the one that Plaintiff
references. See Tr. 59-63. However, the ALJ plainly did not find the limitations described
in that hypothetical consistent with Plaintiff’s RFC. Thus, it is immaterial that the VE
indicated that a hypothetical individual with the limitations described in the ALJ’s third
hypothetical could not perform the requirements of any substantially gainful activity.
Despite alluding to “medical” testimony tending to conflict with the ALJ’s RFC,
Plaintiff cites to none in his brief. The “vocational” testimony cited by Plaintiff is either
insufficient to show that the ALJ’s RFC indeed lacks substantial evidence or, apparently,
is misunderstood by Plaintiff. Plaintiff cites to nothing else in the record tending to show
that the ALJ’s decision lacks substantial evidence. Indeed, the opinion is supported by
substantial evidence.

See Tr. 24-30 (thoroughly reviewing claimant testimony and

submissions and the full medical record). Plaintiff’s argument that the ALJ’s decision is
not supported by substantial evidence is therefore without merit.
VI.

CONCLUSION
For all of the reasons given above, the undersigned Magistrate Judge concludes that

the decision of the Commissioner is AFFIRMED. A separate judgment will issue.

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Done this 8th day of February, 2018.

/s/ Wallace Capel, Jr.
CHIEF UNITED STATES MAGISTRATE JUDGE

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