Williams v. Astrue (CONSENT)

Filing 17

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is REVERSED and the case REMANDED for further proceedings consistent with this opinion. Signed by Honorable Wallace Capel, Jr on 6/12/2009. Also mailed to SSA Office of Hearings and Appeals and SSA Chief Judge.(wcl, )

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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION B R ID G E T T E WILLIAMS, P l a in tif f , v. M IC H A E L J. ASTRUE, Commissioner of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:08cv387-WC M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P lain tiff Bridgette Williams applied for supplemental security income (SSI) benefits b a se d on disability under Title XVI of the Act, 42 U.S.C. 1381 et seq. (hereinafter "the A c t" ). Plaintiff's application was denied at the initial administrative level. Plaintiff then re q u e ste d and received a hearing before an Administrative Law Judge (ALJ). Following the h e a r in g , the ALJ also denied the claims. The Appeals Council rejected a subsequent request f o r review. The ALJ's decision consequently became the final decision of the Commissioner o f Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1 9 8 6 ). The case is now before the Court for review under 42 U.S.C. 405(g). Pursuant to 2 8 U.S.C. 636(c), both parties have consented to the conduct of all proceedings and entry 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. 1 o f a final judgment by the undersigned United States Magistrate Judge. Pl.'s Consent to Ju risd iction (Doc. #10); Def.'s Consent to Jurisdiction (Doc. #9). Based on the Court's re v ie w of the record and the briefs of the parties, the Court REVERSES AND REMANDS th e Commissioner's decision. II. STANDARD OF REVIEW U n d e r 42 U.S.C. 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le 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 o f not less than 12 months. 4 2 U.S.C. 423(d)(1)(A).2 T o make this determination, the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. 404.1520, 416.920 (2006). (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 im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of I m p a i rm e n t s] (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? A n affirmative answer to any of the above questions leads either to the next q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not 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. 2 2 d is a b le d ." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3 T h e burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F .3 d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying d is a b ility once they have carried the burden of proof from Step 1 through Step 4. At Step 5, th e burden shifts to the Commissioner, who must then show there are a significant number o f 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 F u n c tio n a l Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do d e s p ite his impairments and is based on all relevant medical and other evidence. Id. It also c a n contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, th e ALJ considers the claimant's RFC, age, education, and work experience to determine if th e re are jobs available in the national economy the claimant can perform. Id. at 1239. To d o this, the ALJ can either use the Medical Vocational Guidelines 4 (grids) or call a vocational e x p e rt (VE). Id. at 1239-40. T h e grids allow the ALJ to consider factors such as age, confinement to sedentary or lig h t work, inability to speak English, educational deficiencies, and lack of job experience. 3 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). 4 See 20 C.F.R. pt. 404 subpt. P, app. 2. 3 E a c h factor can independently limit the number of jobs realistically available to an in d iv id u a l. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyre q u ire d finding of "Disabled" or "Not Disabled." Id. The Court's review of the Commissioner's decision is a limited one. This Court must f in d 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 e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). See also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1 1 5 5 , 1158 (11th Cir. 2004) ("Even if the evidence preponderates against the C o m m is s io n e r's findings, [a reviewing court] must affirm if the decision reached is s u p p o rte d by substantial evidence."). A reviewing court may not look only to those parts of th e record which support the decision of the ALJ, but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11th Cir. 1986). [The court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings. . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). 4 III. ADMINISTRATIVE PROCEEDINGS A t the time of the hearing Plaintiff was approximately thirty-five years old and had a high school education (Tr. 19). Plaintiff's primary past relevant work experience included w o rk as a packer and cook. (Tr. 19 & 64). Following the administrative hearing, and e m p lo yin g the five-step process, the ALJ found Plaintiff had not engaged in substantial g a in f u l activity since the alleged onset date. (Step 1). (Tr. 15). At Step 2, the ALJ found that P la in tif f suffered from the severe impairment of status post acetabular fracture. Id. The ALJ n o n e th e les s found Plaintiff does not possess an impairment or combination of impairments t h a t meets or medically equals one of the listed impairments. (Tr. 17). Next, the ALJ d e ter m in e d Plaintiff's RFC (Step 3). (Tr. 17). At Step 4, the ALJ found that Plaintiff could n o t perform her past relevant work. (Tr. 17). At Step 5, the ALJ determined that considering c laim a n t's age, education, work experience, and RFC, there were jobs that existed in sign ifica n t numbers in the national economy. (Tr. 19). IV . P L A I N T I F F 'S CLAIMS P la in tif f sets forth three claims in challenging the Commissioner's decision: (1) w h e th e r the ALJ erred by failing to develop the record because he did not question Plaintiff a b o u t the period of time not documented by medical records; (2) whether the ALJ erred by n o t including in his RFC all of the non-exertional limitations found by the consultative e x a m in e r and by failing to call a VE; and (3) whether the ALJ erred by assessing a RFC w h ic h is not supported by substantial evidence in the record and which is improperly based 5 o n a post-hearing consultative examination. Because the Court finds remand necessary as to the second issue, the Court need not address Plaintiff's third claim. V. DISCUSSION A. W h e th e r the ALJ erred by failing to develop the record. Plaintiff argues the ALJ failed to develop a full and fair record in this case because o f the evidentiary gap in the record between July 2004 and October 2005. The C o m m iss io n e r concedes that there is a gap in the evidentiary record, but argues the ALJ did n o t err, because there was no available medical evidence for that period and the ALJ did not h a v e a duty to elicit testimony from Plaintiff as to that time period, because the ALJ d is c o u n te d Plaintiff's testimony. B o th parties agree that an ALJ has a duty to develop a full and fair record. See Ellison v . Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). "Nevertheless, the claimant bears the b u rd e n of proving that [s]he is disabled, and, consequently, [s]he is responsible for producing e v id e n c e in support of h[er] claim." Id. "In determining whether the claimant has satisfied th is initial burden, the examiner must consider four factors: (1) objective medical facts or c lin ic a l findings; (2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the c la im a n t's age, education, and work history." Jones v. Bowen, 810 F.2d 1001, 1005 (11th C i r. 1986) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir.1983)). Instead, P la in tif f argues she should have been allowed to establish her disability through her own te s tim o n y. However, Plaintiff's testimony alone would not have established her disability, 6 s e e 20 C.F.R. 416.929(a), because the ALJ found that Plaintiff's testimony was suspect.5 (T r. 18); see Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). B e c au s e of the evidentiary gap, and in order to more fully develop the record, after th e hearing the ALJ ordered a consultive exam and asked the consulting physician to develop a RFC assessment.6 Thus, the ALJ fulfilled his duty to develop a full and fair record and this C o u rt finds there was no error. B. W h e th e r the ALJ erred by not including in the RFC all of the non-exertional lim ita tio n s found by the consultative examiner and by failing to call a VE. P la in tif f argues the ALJ erred when he failed to include all of Dr. Golomb's 7 findings a n d improperly relied on the Medical-Vocational Guidelines Grids (grids) in determining P lain tiff 's RFC. The Commissioner counters that the ALJ did include all of Dr. Golomb's f in d in g s and the ALJ properly relied on the grids. T h e only findings of Dr. Golomb that Plaintiff alleges the ALJ failed to include in his R F C were the restrictions in postural limitations affecting upper and lower extremities and e n v iro n m e n ta l restrictions. (Doc. #12 at 8-9). The Court has reviewed the limitations in the R F C assessment by Dr. Golomb (Tr. 175-76) and finds that the RFC does include all of Dr. 5 Plaintiff does not contest the credibility finding by the ALJ. Plaintiff's attorney indicated that her surgeon would not feel comfortable making an RFC assessment. (Tr. 210, see Tr. 169-175). 7 6 Dr. Golomb was the consultative examiner who made the RFC assessment post-hearing. 7 G o l o m b ' s restrictions.8 N e x t, Plaintiff argues the ALJ committed error by exclusively relying on the grids and f a ilin g to call a VE. "The general rule is that after determining the claimant's RFC and a b il i t y or inability to return to past relevant work, the ALJ may use the grids to determine w h e th e r other jobs exist in the national economy that a claimant is able to perform. H o w e v e r, `exclusive reliance on the grids is not appropriate either when [the] claimant is u n a b le to perform the full range of work at a given residual functional level or when a c la im a n t has non-exertional impairments that significantly limit basic work skills." Phillips v . Barnhart, 357 F.3d 1232, 1242 (11th Cir. 2004) (quoting Francis v. Heckler, 749 F.2d 1 5 6 2 , 1566 (11th Cir. 1985)) (emphasis in original). The Eleventh Circuit has defined the " f u ll range of work" as "being able to do `unlimited' types of work at the given exertional le v e l." Id. Where the ALJ determines that the claimant cannot perform the full range or u n lim ited types of work at the given functional level, the ALJ must consult a VE to ascertain w h e th e r there are sufficient jobs in the national economy at that functional level given the c la im a n t's exertional limitations. Id. Here, the ALJ found Plaintiff was capable of performing work at a level above that The ALJ's RFC determination states that: " [Plaintiff] has the [RFC] to stand for 6 hours out of 8 hours; walk for 6 hours out of 8 hours and sit for 7 hours out of 8 hours; frequently lift/carry up to 30 pounds; occasionally lift/carry up to 45 pounds; frequently use right arm, left arm and right leg; occasionally to never use left leg; occasionally climb, occasionally to never balance, occasionally stoop[,] kneel, crouch and crawl; frequently handle, finger, feel, talk, hea[r] and occasionally reach overhead; frequently be exposed to extreme heat, wetness/humidity and exposure to fumes, odors, dusts and gases; occasionally be exposed to extreme cold, vibration and never be exposed to moving mechanical parts, work in high places and driving automotive equipment." (Tr. 17). 8 8 o f a sedentary level, yet he applied the sedentary grids. The Commissioner argues that the A L J did not error because "[i]f someone can do medium work, we determine that he or she ca n also do sedentary and light work." (Doc. #15 at 10); quoting 20 C.F.R. 404.1567(c). W h e n making the determination of available jobs in the economy, the ALJ stated that P la in tif f could perform sedentary work activity "which is defined as work that involves liftin g no more than 10 pounds frequently and up to 20 pounds occasionally." (Tr. 19). H o w e v e r, sedentary work is restricted to the lifting of "no more than 10 pounds at a time and o c c a s io n a lly lifting or carrying articles like docket files, ledgers, and small tools." 20 C.F.R. 404.1567(c) (emphasis added). "Light work involves lifting no more than 20 pounds at a tim e with frequent lifting or carrying of objects weighing up to 10 pounds." Id. Thus, while a p p l yin g the sedentary grids, the ALJ went beyond the restrictions for sedentary work in f in d in g there were available jobs in the economy, but did not first determine whether Plaintiff c o u ld perform the full range of light work, much less medium work,9 as the Commissioner s u g g e s ts . In addition, it is unclear from the RFC determination that Plaintiff could perform the f u l l range of sedentary work. For example, the RFC states that Plaintiff has the RFC to " o c ca sio n a lly to never balance," but does not explain what that means. SSR-96.6 states as f o l lo w s : "Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." Id. 9 9 `b a la n c in g ' means maintaining body equilibrium to prevent falling when w a lk in g , standing, crouching, or running on narrow, slippery, or erratically m o v in g surfaces. If an individual is limited in balancing only on narrow, s lip p e ry, or erratically moving surfaces, this would not, by itself, result in a sig n if ica n t erosion of the unskilled sedentary occupational base. However, if a n individual is limited in balancing even when standing or walking on level terra in , there may be a significant erosion of the unskilled sedentary o c c u p atio n a l base. It is important to state in the RFC assessment what is meant b y limited balancing in order to determine the remaining occupational base. C o n s u lta tio n with a vocational resource may be appropriate in some cases. T h e ALJ's inclusion of "never balance," without explanation, leaves this Court to speculate w h e th e r there is a significant erosion of the sedentary base. T h e Commissioner's response is to argue that "[b]ecause Plaintiff is capable p e rf o rm in g a wide range of unskilled sedentary work, the ALJ did nor err in using the Grids." D o c . # at 12. However, as stated above, the standard is not whether Plaintiff is capable of p e rf o rm in g a wide range, but whether she can perform a full range. Phillips, 357 F.3d at 1 2 4 2 . If Plaintiff can not perform a full range, then the ALJ is required to utilize a VE. Id. T h e re f o re , this Court finds that the ALJ should have used the services of a VE b e c au s e : (1) the ALJ, although applying the sedentary girds, modified the exertional lim ita tio n s of sedentary work to include Plaintiff lifting 20 pounds, thus placing her in the lig h t work category while failing to find she could perform a full range of work in that c a teg o ry; and (2) it is unclear whether the ALJ's sedentary work finding is consistent with h is RFC determination, because the the RFC determination itself is not sufficiently clear. Accordingly, this case is due to be REVERSED and REMANDED. 10 IV . CONCLUSION T h e Court has carefully and independently reviewed the record and concludes the d e c is io n of the Commissioner is REVERSED and the case REMANDED for further p ro c e ed in g s consistent with this opinion. A separate judgment will issue. D O N E this 12th day of June, 2009. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE 11

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