Sawls v. Berryhill (CONSENT)

Filing 15

MEMORANDUM OPINION AND ORDER: it is ORDERED that the decision of the Commissioner is AFFIRMED. Signed by Honorable Judge Gray M. Borden on 12/3/2018. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
TINA TRUCHON SAWLS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,
Defendant.

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CASE NO. 1:17-cv-624-GMB
[WO]

MEMORANDUM OPINION AND ORDER
Plaintiff Tina Truchon Sawls applied for supplemental security income and
disability insurance benefits under the Social Security Act, alleging a disability onset date
of March 1, 2011.

Sawls’ claim was denied at the initial administrative level. Sawls

requested a hearing before an Administrative Law Judge (“ALJ”) and the ALJ found her
not disabled. Doc. 14-2 at 16. The Appeals Council denied her request for review, making
the ALJ’s decision the final decision of the Commissioner. Doc. 14-2 at 9.

The

Commissioner’s final decision is subject to judicial review. 42 U.S.C. §§ 405(g) &
1383(c)(3).

Sawls subsequently filed a complaint seeking review of the Commissioner’s

final decision in this court.
Pursuant to 28 U.S.C. § 636(c)(1) and Rule 73 of the Federal Rules of Civil
Procedure, the parties have consented to the full jurisdiction of the undersigned United
States Magistrate Judge. Doc. 8 & Doc. 9. Based upon a review of the evidentiary record,

the parties’ briefs, and the relevant authority, the court finds that the Commissioner’s
decision is due to be AFFIRMED, as set forth below.
I. STANDARD OF REVIEW
The court reviews a Social Security appeal to determine whether the
Commissioner’s decision “is supported by substantial evidence and based upon proper
legal standards.” Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). The court will
reverse the Commissioner’s decision if it is convinced that the decision was not supported
by substantial evidence or that the proper legal standards were not applied. Carnes v.
Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991). The court “may not decide the facts anew,
reweigh the evidence, or substitute its judgment for that of the Commissioner,” but rather
it “must defer to the Commissioner’s decision if it is supported by substantial evidence.”
Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (internal quotation marks omitted).
“Even if the evidence preponderates against the Secretary’s factual findings, [the court]
must affirm if the decision reached is supported by substantial evidence.” Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). Moreover, reversal is not warranted even
if the court would have reached a result contrary to that of the factfinder. See Edwards v.
Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991).
The substantial evidence standard is met “if a reasonable person would accept the
evidence in the record as adequate to support the challenged conclusion.” Holladay v.
Bowen, 848 F.2d 1206, 1208 (11th Cir. 1988) (quoting Boyd v. Heckler, 704 F.2d 1207,
1209 (11th Cir. 1983)). The requisite evidentiary showing has been described as “more
than a scintilla, but less than a preponderance.” Bloodsworth, 703 F.2d at 1239. The court

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must scrutinize the entire record to determine the reasonableness of the decision reached
and cannot “act as [an] automaton[] in reviewing the [Commissioner’s] decision.” Hale v.
Bowen, 831 F.2d 1007, 1010 (11th Cir. 1987). Thus, the court must consider evidence both
favorable and unfavorable to the Commissioner’s decision. Swindle v. Sullivan, 914 F.2d
222, 225 (11th Cir. 1990).
The court will reverse the Commissioner’s decision on plenary review if the
decision applies incorrect law or fails to provide the court with sufficient reasoning to
determine that the Commissioner properly applied the law. Id. (citing Keeton v. Dept. of
Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994)). There is no presumption
that the Commissioner’s conclusions of law are valid. Id.
II. STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits, a claimant must show the “inability 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); 42
U.S.C. § 416(i). A physical or mental impairment is “an impairment that results from
anatomical, physiological, or psychological abnormalities which are demonstrated by
medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
A claimant bears the burden of proving that he is disabled, and he is responsible for
producing evidence to support his claim. See Ellison v. Barnhart, 355 F.3d 1272, 1276
(11th Cir. 2003).

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A determination of disability under the Social Security Act requires a five-step
analysis. 20 C.F.R. § 404.1520(a). The Commissioner must determine in sequence:
(1) Is the claimant performing substantial gainful activity?
(2) Does she have a severe impairment?
(3) Does she have a severe impairment that equals one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Sub pt. P, App. 1?
(4) Is the claimant able to perform past relevant work?
(5) Is the claimant unable to perform other work given her residual
functional capacity (RFC), age, education, and work experience?
See Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); Frame v. Comm’r, Soc.
Sec. Admin., 596 F. App’x 908, 910 (11th Cir. 2015). “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)
(quoting 20 C.F.R. § 416.920(a)−(f)). “Once the finding is made that a claimant cannot
return to prior work the burden of proof shifts to the Secretary to show other work the
claimant can do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citing Gibson v.
Heckler, 762 F.2d 1516 (11th Cir. 1985)).
III. FACTUAL BACKGROUND AND ADMINISTRATIVE PROCEEDINGS
Sawls was 49 years old on the alleged disability onset date. Sawls has a high school
diploma and has worked as a receptionist and secretary.
The ALJ found that Sawls had the following severe impairments: degenerative disc
disease of the cervical, thoracic, and lumbar spine; bone spur formation in the lumbar and
cervical spine; anxiety/panic disorder; and major depressive disorder. Doc.14-2 at 22. The
ALJ also found that Sawls has the following non-severe impairments: history of substance

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abuse and dependence, low vitamin D level, hypertension, shingles, insomnia,
hyperlipidemia, and myalgia. Doc. 14-2 at 22. The ALJ found that Sawls’ impairments
did not individually or collectively meet or equal any of the impairments listed in 20 C.F.R.
pt. 404, Sub pt. P, App 1. R. 133.
In considering the RFC, the ALJ gave great weight to the opinion of Robert Estock,
M.D., the state agency examiner. The ALJ found that Sawls retained the RFC to perform
light work within certain parameters––namely, that she can only occasionally reach
overhead and is precluded from climbing ropes, ladders, and scaffold; she can occasionally
stoop, kneel, crouch, balance, and climb ramps and stairs; she can occasionally push or pull
arm and leg controls or operate foot pedals; she is precluded from working at unprotected
heights, working around dangerous machinery, or operating automotive equipment; she is
able to understand to carry out detailed but uninvolved written or oral instructions
involving a few concrete variables in or from standardized situations; she can perform goal
oriented work but not production pace work; she can occasionally interact with the general
public, supervisors, and co-workers, but contact with the public and co-workers can only
be brief and superficial; she can adapt to minimal changes in the work setting or routine;
and she can maintain attention and concentration for up to two hours at one time. Doc.
14-2 at 24–25.
A vocational expert (“VE”) testified that a hypothetical person with this RFC could
not perform Sawls’ past relevant work, but could perform other representative jobs. Doc.
14-2 at 63–64. The VE testified that the hypothetical person could perform jobs such as
general office clerk, a “light and unskilled” job that represents approximately 234,700 jobs

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in the United States economy; non-postal mailroom clerk, another job the VE classified as
“light and unskilled” with 139,300 jobs in the national economy; and companion, which
the VE classified as light and semi-skilled. Doc. 14-2 at 64–65. Ultimately, the ALJ
concluded that Sawls was not disabled within the meaning of the Social Security Act. Doc.
14-2 at 30.
IV. DISCUSSION
Sawls presents one issue to the court:1 whether the ALJ erred at step four of the fivestep sequential analysis by not fully incorporating Dr. Estock’s opinion in her RFC analysis
1

The Statement of Issues on the first page of Sawls’ brief includes this issue and also includes two
placeholders for other issues, but provides no content for these other issues. The procedural order issued
in this case cautions that issues not presented in the Statement of Issues will not be considered. Doc. 3 at 2.
Therefore, because the other purported issues have no content the court has only considered the single issue
set out in the Statement of Issues.
If this court were to consider the other issue briefed but not included in the Statement of Issues––
namely, that substantial evidence does not support a finding that Sawls could perform a limited range of
light work—the court would conclude that this argument is unavailing. Sawls argues that the ALJ’s finding
that she could perform a reduced range of light work is not supported by substantial evidence because the
ALJ cited 20 C.F.R. 404.1567(b), which defines light work as lifting no more than 20 pounds or carrying
of objects weighing up to ten pounds. Sawls argues that Dr. Chandler and a nurse practitioner stated that
she could lift ten pounds occasionally and five pounds frequently, and notes her own testimony that she
could lift five pounds. Sawls argues that no other provider gave an opinion regarding the weight she could
lift.
The ALJ provided an extensive discussion of her RFC finding. She declined to give Dr. Chandler’s
and the nurse practitioner’s opinions much weight regarding Sawls’ pain and limitations, finding them
inconsistent with Chandler’s treatment records and the objective medical evidence of normal
musculoskeletal examinations. Doc. 14-2 at 27. The ALJ determined that light work is consistent with the
minimal abnormalities shown in the x-rays of the spine and the minimal objective musculoskeletal findings
through the record. Doc. 14-2 at 27. She noted that Sawls said she could not lift more than five pounds,
but found that her statements regarding the intensity, persistence, and limiting effects of her symptoms are
not entirely credible. Doc. 14-2 at 25. The ALJ considered Sawls’ x-rays of her lumbar, thoracic, and
cervical spine, and noted that she has had a number of normal musculoskeletal examinations. Doc. 14-2 at
26. She noted the examinations in which Sawls had no tenderness in her back muscles. Doc. 14-2 at 26.
The Eleventh Circuit, in an unpublished opinion, has analyzed similar facts. See Green v. Soc. Sec.
Admin., 223 F. App’x 915 (May 2, 2007). In that case, the plaintiff argued that once the ALJ decided to
discredit the doctor’s evaluation, the record lacked substantial evidence to support a finding that she could
perform light work. The court found, however, that once the ALJ determined that no weight could be
placed on the doctor’s opinion of the limitations, the only documentary evidence that remained was the
office visit records indicating that the plaintiff was managing her respiration problems well, that she had
controlled her hypertension, and that her pain could be treated with over-the-counter medication. Id. at 924.

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and not explaining why a portion of his opinion was rejected despite assigning Dr. Estock’s
opinion significant weight. Having carefully considered the parties’ arguments, the record,
and the applicable legal authority, and for the reasons set forth below, the undersigned finds
that the Commissioner’s decision is due to be AFFIRMED for the following reasons.
Sawls challenges the ALJ’s determination of the RFC and the ultimate
determination that she is not disabled which, in turn, incorporated the limitations in the
RFC through the VE’s testimony relating to a hypothetical. Sawls points to the ALJ’s
statement in her opinion that Dr. Estock, the state agency examiner, offered an opinion
which was given great weight. Sawls then argues that the ALJ erred because she did not
adopt Dr. Estock’s opinion that Sawls was limited to following only simple instructions or
explain the weight she gave to that opinion.
Dr. Estock filled out a form in which he answered “yes” to the question, “Does the
individual have understanding and memory limitations?” He also indicated that Sawls’
ability to understand and remember very short and simple instructions is “not significantly
limited,” her ability to understand and remember detailed instructions is “moderately
limited,” that Sawls “could understand and remember simple instructions but not detailed
ones,” and that her ability to carry out detailed instructions is “moderately limited.” Doc.
14-3 at 16. Dr. Estock also indicated on the form that Sawls “could carry out simple
instructions and sustain attention to routine/familiar tasks for extended periods.” Doc.

The court held that substantial evidence supported the ALJ’s decision. Id. Green would lend further support
to the court’s rejection of Sawls’ challenge to the finding that she could perform light work.

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14-3 at 16. The ALJ’s statement of the RFC is that Sawls can “understand to carry out
detailed but uninvolved written or oral instructions involving a few concrete variables in
or from standardized situations.” Doc. 14-2 at 24–25.
The Commissioner’s response to Sawls’ argument is that the ALJ’s decision shows
that she considered the record as a whole and she is not required to discuss explicitly or
assign weight to every piece of a medical opinion. The Commissioner also argues that
there is no harm in the finding that Sawls could understand and carry out detailed
instructions because the VE identified two jobs with Sawls’ RFC that are unskilled which
only require the ability to carry out simple instructions.
The court begins with the Commissioner’s harmless error argument. An incorrect
application of the regulations results in harmless error when the correct application would
not contradict the ALJ’s ultimate findings. See Diorio v. Heckler, 721 F.2d 726, 728 (11th
Cir. 1983). Sawls argues that the harmless error analysis is not appropriate where an ALJ
has discounted a medical opinion because the court would have to reweigh the evidence,
citing Nyberg v. Commissioner of Social Security, 179 F. App’x 589, 592 (11th Cir. 2006).
The Eleventh Circuit, however, also has held that harmless error analysis may be
appropriate even when the ALJ errs in not explaining why weight was given to particular
medical opinion. Caldwell v. Barnhart, 261 F. App’x 188, 190 (11th Cir. 2008). The
Caldwell court reasoned that an
ALJ’s failure to state with particularity the weight given different medical
opinions is reversible error. When, however, an incorrect application of the
regulations results in harmless error because the correct application would
not contradict the ALJ’s ultimate findings, the ALJ’s decision will stand.

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Id. (citing Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (per curiam); Diorio v.
Heckler, 721 F.2d 726, 728 (11th Cir. 1983)).

In Caldwell, a doctor made

recommendations of limitations, but the ALJ did not present those limitations to the VE.
Caldwell, 261 F. App’x at 190. The court held that “because the limitations that Dr. Bell
highlighted would not affect Caldwell’s ability to perform one the of jobs that, according
to the VE, is appropriate for Caldwell and exists in significant numbers in the national
economy, the ALJ’s failure to discuss the weight she gave to Dr. Bell’s findings was
harmless.” Id.
In light of Caldwell, therefore, this court now turns to the issue of whether the
limitation Dr. Estock recommended would affect Sawls’ ability to perform one of the jobs
the VE identified as appropriate and existing in significant numbers in the national
economy. Id. In this case, the ALJ asked the VE to consider the hypothetical situation of
an individual who “could perform or be able to understand, to carry out detail[ed] but
uninvolved written or oral instructions.” Doc. 14-2 at 62. The VE testified that the
individual could perform the specific jobs of general office clerk, which the VE described
as “light and unskilled”; non-postal mailroom clerk, also “light and unskilled”; and
companion, “semi-skilled.” Doc. 14-2 at 64–65.
In her brief, Sawls states that the positions identified by the VE of general office
clerk, mailroom clerk, and companion all require a reasoning level of two or three under
the definitions provided in the Dictionary of Occupational Titles (“DOT”), and that those

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positions therefore require more reasoning ability than following simple directions.2 Sawls
states that a reasoning level of two or higher would preclude jobs with a limitation of simple
instructions. Therefore, according to Sawls, applying Dr. Estock’s limitation would
eliminate all of the positions identified in the ALJ’s decision.
The Commissioner points out that the VE described the general office clerk and
mailroom clerk (non-postal) positions as “unskilled.” Doc. 14-2 at 64–65. “Unskilled work
is defined as ‘work which needs little or no judgment to do simple duties that can be learned
on the job in a short period of time. . . . [A] person can usually learn to do the job in 30
days, and little specific vocational preparation and judgment are needed.’” Anderson v.
Astrue, 2011 WL 3843683, at *5 (S.D. Ala. Aug. 30, 2011) (quoting 20 C.F.R.
§ 404.1568(a)). The Commissioner argues, therefore, that because unskilled jobs do not
require carrying out detailed instructions, the VE’s positions are consistent with Dr.
Estock’s limitations. The Commissioner argues that if the DOT reasoning level for these
jobs is not consistent with the VE’s “unskilled” testimony, “the VE’s testimony ‘trumps’
the DOT.” Jones v. Apfel, 190 F.3d 1224, 1229–30 (11th Cir. 1999).3
Another judge of this court has determined that a DOT reasoning level of two is
consistent with an ability to perform simple tasks. See Riddle v. Colvin, 2013 WL 6772419,
at *6 (M.D. Ala. Dec. 20, 2013). In Riddle, the VE testified that an individual with the

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The definitions appear in DOT sections 239.567-010, 209.687-026 and 309.677-010. Appendix C to the
DOT describes 02 Level Reasoning Development as follows: “Apply commonsense understanding to carry
out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete
variables in or from standardized situations.”
3
Although the argument is not made in this case, this court notes that the Eleventh Circuit rejected, in a
case in which a petition for certiorari is pending, the argument that Social Security Administration ruling
SSR 00-4p superseded Jones. See Baker v. Comm’r, 729 F. App’x 870, 872 n. 2 (11th Cir. 2018).

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RFC to understand and remember “short, simple instructions” could perform two positions
which, under the DOT, have a reasoning level of two. Id. at *6. The court first concluded
that there was no conflict between the VE’s testimony and the DOT because a reasoning
level of two is consistent with an ability to perform simple tasks. Id. The court alternatively
assumed a conflict but nevertheless found that “the VE’s testimony trumps any inconsistent
provisions of the DOT.” Id. This reasoning is not unique to Riddle. See, e.g., Anderson,
2011 WL 3843683, at *3 (finding no actual conflict between the VE’s testimony that a
plaintiff with a limitation of simple tasks involving simple instructions could perform the
cited unskilled jobs and the applicable DOT, but also finding that, even if there is a conflict,
the ALJ is entitled to rely on a VE’s testimony that conflicts with the DOT).
Applying this persuasive reasoning in this case, the court finds that the jobs
identified by the VE are not precluded by Dr. Estock’s limitations.

Dr. Estock

recommended a limitation of simple instructions for Sawls. The VE applied the ALJ’s
limitation of following detailed but uninvolved directions and identified two jobs which
the VE characterized as “unskilled.”

Unskilled jobs are defined in the applicable

regulations as requiring simple duties. 20 C.F.R. § 404.1568(a). One of those jobs, general
office clerk, has a reasoning level of two (DOT § 239.567-010) and is consistent with
simple tasks of an unskilled position. See Riddle, 2013 WL 6772419, at *6. Even if there
is a conflict between the applicable DOT reasoning definition and the VE’s testimony that
the general office clerk and non-postal mail clerk jobs are “unskilled” jobs, the VE’s
testimony trumps the DOT. Jones, 190 F.3d 1229–30. And because they are unskilled jobs,
the two clerk positions are jobs Sawls can perform even accepting Dr. Estock’s limitation

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to only simple directions. Riddle, 2013 WL 6772419. Therefore, even if the ALJ erred in
using a different limitation than that recommended by Dr. Estock without explaining the
weight given to Dr. Estock’s opinion on that issue, that error is harmless error because the
limitation that Dr. Estock highlighted would not affect Sawls’ ability to perform at least
one of the unskilled jobs identified by the VE as existing in significant numbers in the
national economy. See Caldwell, 261 F. App’x at 190.
V. CONCLUSION
Based on the foregoing, it is ORDERED that the decision of the Commissioner is
AFFIRMED.
A final judgment will be entered separately.
DONE on the 3rd day of December, 2018.

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