Kimbril v. Astrue (CONSENT)

Filing 16

OPINION. Signed by Honorable Judge Terry F. Moorer on 2/2/2012. (cc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JIMMY KIMBRIL,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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CIVIL ACTION NO. 2:10cv1096-TFM
(WO)

OPINION
I. Introduction
Plaintiff Jimmy Kimbril (“Kimbril”) applied for disability insurance benefits pursuant
to Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., alleging that he is unable to
work because of a disability. His application was denied at the initial administrative level.
Kimbril then requested and received a hearing before an Administrative Law Judge (“ALJ”).
Following the hearing, the ALJ concluded that the plaintiff was not under a “disability” as
defined by the Social Security Act. The ALJ, therefore, denied the plaintiff’s claim for
benefits. The Appeals Council rejected a subsequent request for review. The ALJ’s decision
consequently became the final decision of the Commissioner of Social Security
(“Commissioner”).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Pursuant to
28 U.S.C. § 636(c), the parties have consented to entry of final judgment by the United States

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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.

Magistrate Judge. The case is now before the court for review pursuant to 42 U.S.C. § 405(g)
and § 1631(c)(3). Based on the court’s review of the record in this case and the parties’
briefs, the court concludes that the Commissioner’s decision is due to be affirmed.
II. Standard of Review
Under 42 U.S.C. § 423(d)(1)(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. . . .
To make this determination,2 the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. § 404.1520, §416.920.
(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?
(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 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

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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.
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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) (Unit A).

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The standard of 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). 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.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. Administrative Proceedings
Kimbril was 54 years old at the time of the hearing and has a high school equivalency
diploma. (R. 327, 332.) Kimbril has prior work experience as a logger, electrician,
construction worker, and landscape worker. (R. 34-36, 50.) Kimbril alleges that he became
disabled on March 31, 2008, from back and knee pain, carpal tunnel syndrome, heel spurs,
arthritis, sinus infections, and high blood pressure. (R. 36-38, 41-43.) After the hearing, the
ALJ found that Kimbril suffers from severe impairments of traumatic arthritis of the left knee,
chronic back pain, history of carpal tunnel syndrome, and sinusitis produce limitations and
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non-severe impairments of mixed hyperlipidemia and hypertension, lacrimal duct stenosis,
and bi-lateral foot problems. (R. 16-17.) The ALJ also found that Kimbril is unable to
perform his past relevant work, but that he retains the residual functional capacity to perform
less than the full range of light work. (R. 18.) Specifically, the ALJ determined that Kimbril
must alternate between sitting and standing; can rarely operate foot controls with his left leg,
climb stairs or ramps, bend stoop, kneel, crouch, or crawl; cannot climb ladders, scaffolds, or
ropes; and cannot work around unprotected heights or dangerous equipment. (R. 18.)
Testimony from the vocational expert led the ALJ to conclude that a significant number of
jobs exist in the national economy that Kimbril could perform, including work as a parking
lot attendant, mail clerk, and information clerk. (R. 23.)
IV. Discussion
Kimbril contends that the ALJ improperly applied the Medical-Vocational Guidelines,
20 C.F.R. Pt. 404, Subpt. P., App. 2 (“Grids”) because Rule 201.14 establishes that he is
disabled. According to Kimbril, the ALJ improperly concluded that he could perform light
work when, under the Guidelines, his exertional limitations establish he can perform no more
than sedentary work.
Exclusive reliance on the grids is appropriate only when a claimant has no nonexertional impairments that significantly limit his basic work activities. Foote v. Chater, 67
F.3d 1553 (11th Cir. 1995); Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985).
[I]n determining residual functional capacity only exertional limitations are
considered . . . If a claimant has nonexertional impairments that significantly
limit the ability to do basic work activities . . . then the grid regulations do not
apply. . . . However, when both exertional and nonexertional work impairments
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exist the grids may still be applicable. [N]on–exertional limitations can cause
the grid to be inapplicable only when the limitations are severe enough to
prevent a wide range of gainful employment at a designated level. Therefore,
when both exertional and nonexertional limitations affect a claimant’s ability
to work, the ALJ should make a specific finding as to whether the
nonexertional limitations are severe enough to preclude a wide range of
employment at the given work capacity level indicated by the exertional
limitations. Courts will review this determination only to determine whether
it is supported by substantial evidence.
Sryock, 764 F.2d at 836 (internal citations omitted).
The crux of Kimbril’s argument concerns the ALJ’s determination that he is able to
perform light work and her “presump[tion] that he could stand and walk for 6 hours out of an
8 hour day or that he could use leg controls frequently” with his impairments, which include
a “severe problem with his left knee . . . status post two surgeries and . . . a limp and . . . use[]
[of] a cane,” as well as heel spurs and arthritic feet. (Pl. Br. 9.) First, the court notes that,
contrary to Kimbril’s assertion, the ALJ did not find that Kimbril is able to perform the full
range of light exertional work. The ALJ specifically found that Kimbril “had the residual
functional capacity to perform less than the full range of light work as defined in 20 C.F.R.
404.1567(b).” (R. 18.) The ALJ also did not find that Kimbril is able to stand and walk for
six hours of an eight-hour workday. Rather, the ALJ found that Kimbril requires the ability
to alternate between sitting and standing while working and accounted for his left knee
problems by limiting him to rarely operating foot controls with his left leg. (R. 18, 51.)
The Social Security Administration has developed a sequential evaluation process to
determine if a plaintiff is disabled. 20 C.F.R. §§ 404.1520 and 416.920. It is the plaintiff’s
responsibility to demonstrate an inability to return to his past relevant work. Lucas, supra.
After a plaintiff has shown that he cannot perform his past relevant work, the burden then falls
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upon the Commissioner to show that there are other jobs in the national economy that the
plaintiff can perform. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
The ALJ determined by expert vocational testimony that there are other light jobs that
Kimbril could perform in the national economy within the sit/stand limitation and other
restrictions of his impairments. (R. 23.) During the hearing, the following exchange between
the ALJ and vocational expert occurred:
Q:

And I’d like you to assume that I have an individual with the
same work history as you already described for Mr. Kimbril and
assume further I find the individual is limited in the following
fashion, lifting and carrying no more than 20 pounds
occasionally and 10 pounds frequently with the need to alternate
between sitting and standing, rarely operating foot controls with
the left leg, rarely climbing stairs or ramps, never climbing
ladders, scaffolds or ropes, rarely bending, stooping kneeling,
crouching or crawling and no work around unprotected heights
and dangerous equipment. Now, with these limitations, in your
opinion, could such an individual perform any of the work that
Mr. Kimbril has performed in the past?

A:

No past work, Your Honor.

Q:

And in your opinion, are there any jobs in the region or several
regions in the country that an individual with the same work as
a younger – an individual closely approaching advanced age and
has a high school education could perform?

A:

Your honor, there would be unskilled and it would be a limited
number of jobs starting with parking lot attendant. The DOT
code is 91547310. This is light work. It’s unskilled with an SVP
of 2. Nationally jobs would exceed 600,000. I would include
mail clerk. The DOT code is 209687026. This is light work.
It’s unskilled with an SVP of 2. Nationally jobs it would exceed
900,000. I would include surveillance system monitor. DOT
code is 379367010. This is sedentary work. It’s unskilled with
an SVP of 2. Nationally jobs would exceed 700,000.

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Q:

And do you have another light work job that would be
identifiable?

A:

Your honor, I would include information clerk. DOT code is
237367018. This is light work. It’s unskilled with an SVP of 2.
Nationally jobs would exceed 900,000.

(R. 51-52.)
The ALJ further inquired as follows:
Q:

Now, I in my hypothetical did pose this sit/stand option and I
from personal knowledge know that the DOT does not identify
sit/stand options within its category of exertional limitations. But
is your testimony on this matter different that what the DOT
identifies with these jobs?

A:

Your Honor, I have 30 years experience doing job placement and
vocational assessments. Some of it is based on personal
knowledge and experience with these jobs.

Q:

Is your testimony on these matters consistent with the description
of these jobs in the DOT?

A:

Yes, ma’am.

Q:

So it’s based on your knowledge as well as the description in the
DOT?

A:

That’s correct.

(R. 52-53.) Thus, the ALJ met her responsibility regarding the option of sitting or standing
and other physical limitations while performing these light work jobs. See Jones, supra.
The ALJ’s finding that Kimbril is able to lift twenty-five pounds is also based on
Kimbril’s own reports to the Social Security Administration. For example, in both a Social
Security Administration Function Report and Adult Disability Report, Kimbril indicates that
he is able to lift no more than 25 pounds. (R. 154, 166.) Thus, the ALJ’s determination that
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Kimbril has the residual functional capacity to lift no more than twenty-five pounds is
supported by substantial evidence.
In addition, the ALJ assigned great weight to Kimbril’s treating physician, Dr. Michael
L. Granberry, when determining Kimbril has the residual functional capacity to perform light
work. Specifically, the ALJ determined:
. . . I find the claimant’s back and left knee pain precludes him from
lifting and carrying more than 20 pounds occasionally and 10 pounds frequently
and from climbing ladders, scaffolds or ropes. The claimant’s back and left
knee pain limits him to rarely climbing stairs or ramps, bending, stooping,
kneeling, crouching, or crawling. Due to his knee pain, the claimant can rarely
operate foot controls with his left leg.
In so finding, I accorded the opinion of Dr. Granberry great weight. In
an office note dated July 8, 2008 and a “Worker’s Compensation Assessment”
dated October 22, 2009, Dr. Granberry restricted the claimant to no kneeling,
squatting, crawling, climbing or lifting weights over 25 pounds. (Exhibits 2F
and 5F). These restrictions are consistent with the claimant’s allegations. Dr.
Granberry is an orthopaedic surgeon. (Exhibit 4F). He has treated the claimant
since April 14, 2008. (Exhibit 2F). His opinion is not inconsistent with the
residual functional capacity described above. However, restricting the claimant
to “never” performing postural activities would effectively limit him to a static
position; therefore, the claimant has been limited to “rarely” performing such
activities.4
(R. 21.) This court’s review of the medical record indicates that the ALJ’s findings
concerning Kimbril’s limitations are consistent with Dr. Granberry’s opinion.

After

conducting an examination of Kimbril on July 9, 2008, Dr. Granberry recommended that
Kimbril “continue his current restrictions of 25 pound lifting [and] no kneeling, crawling or

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The ALJ also found that Dr. Granberry’s conclusory statement that Kimbril “still has enough back
and knee issues that he has been unable to be employed” is an issue reserved to the Commissioner of Social
Security. A statement by a medical source that a claimant is “disabled” or “unable to work” is an issue
reserved to the Commissioner and is not entitled to any special significance. See 20 C.F.R. §§ 404.1527(e)(1);
SSR 96-5p, 1996 WL 374183, at *2.

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climbing or squatting.” (R. 232.) In a Worker’s Compensation Assessment dated October
22, 2009, Dr. Granberry recommended light duty work status with no kneeling, squatting,
crawling, climbing, or lifting over twenty-five pounds. (R. 275.) Consequently, the ALJ’s
reliance on Dr. Granberry’s opinion regarding Kimbril’s work restrictions is supported by
substantial evidence.
The ALJ also considered the plaintiff’s daily activities when determining his residual
functional capacity to perform work. Specifically, the ALJ relied on medical records
indicating the plaintiff engaged in mild exercise on a daily basis. The record indicates that
Kimbril was able to perform light exercise. For example, during a doctor’s visit at the
Veterans Administration Central Alabama Health Care Center on July 31, 2009, Kimbril
reported that he “exercises mildly each day.” (R. 297.) On several occasions between
January 2009 and January 2010, medical personnel noted that Kimbril is able to perform mild
exercise or counseled him regarding diet and exercise. (R. 285, 295, 297, 299, 283, 296, 306,
309.) The court therefore concludes that the ALJ’s finding that Kimbril is able to perform
mild exercise as a daily activity is supported by substantial evidence.
Based on the foregoing, the court concludes that the ALJ’s determination that, based
on Kimbril’s age, education, work experience, and residual functional capacity for light work,
with restrictions which include the alternating of sitting and standing; rarely operating foot
controls with his left leg, climbing stairs or ramps, bending, stooping, kneeling, crouching,
or crawling and never climbing ladders, scaffolds, or ropes or working around unprotected
heights or dangerous equipment, there are jobs that exist in significant numbers in the national
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economy that he can perform is supported by substantial evidence. This court must accept
the factual findings of the Commissioner if they are supported by substantial evidence and
based upon the proper legal standards. Bridges v. Bowen, 815 F.2d 622 (11th Cir. 1987).
VI. Conclusion
The court has carefully and independently reviewed the record and concludes that
substantial evidence supports the ALJ’s conclusion that the plaintiff is not disabled. Thus,
the court concludes that the decision of the Commissioner is supported by substantial
evidence and is due to be affirmed.
A separate final judgment will be entered.
DONE this 2nd day of February, 2012.

/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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