Cunigan v. Astrue(CONSENT)

Filing 15

MEMORANDUM OF OPINION. Signed by Honorable Judge Susan Russ Walker on 9/20/12. (Furnished to SSA Chief Judge and SSA Appeals.)(scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
HOPE LEIGH CUNIGAN,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.

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CIVIL ACTION NO. 2:11CV180-SRW
(WO)

MEMORANDUM OF OPINION
Plaintiff Hope Leigh Cunigan brings this action pursuant to 42 U.S.C. § 405(g)
seeking judicial review of a decision by the Commissioner of Social Security
(“Commissioner”) denying her application for disability benefits under Title II of the Social
Security Act. The parties have consented to entry of final judgment by the Magistrate Judge,
pursuant to 28 U.S.C. § 636(c). (Doc. ## 7, 8). Upon review of the record and briefs
submitted by the parties, the court concludes that the decision of the Commissioner is due
to be reversed.
BACKGROUND
Plaintiff filed the present application for benefits on October 9, 2007 (protective filing
date), just over one year after her date last insured, alleging disability beginning December
31, 2004 due to “3 bulging discs and arthritis in neck, back pain, carpal tunnel in [right]
hand/wrist.” (Exhibits 1D, 1E, 2E). Her application was denied at the initial administrative

level in December 2007 (Exhibits 5B, 6B), and plaintiff requested review by an
administrative law judge (Exhibit 7B). The ALJ held an administrative hearing on June 24,
2009, in which he took testimony from the plaintiff and Dr. Linda Williams, a vocational
expert. (R. 23-57). In a decision he rendered on November 18, 2009, the ALJ found that
plaintiff suffers from the severe impairments of “bilateral carpal tunnel syndrom and right
shoulder impingement with debridement and acromioplasty” and additional non-severe
impairments. He concluded that, through her date last insured (September 30, 2006), plaintiff
did not have an impairment or combination of impairments that met or medically equaled a
listing. He further determined that plaintiff’s residual functional capacity precluded her past
relevant work as a delicatessen counter worker, retail cashier/stocker and assistant manager retail sales, but that, through the date last insured, there were jobs that existed in significant
numbers in the national economy that plaintiff could have performed. Thus, the ALJ found
that plaintiff was not under a disability as defined by the Social Security Act between her
alleged onset date and her date last insured. (R. 9-19). The Appeals Council denied plaintiff’s
request for review of the ALJ’s decision on January 28, 2011. (R. 1-3).
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
court does not reweigh the evidence or substitute its judgment for that of the Commissioner.
Rather, the court examines the administrative decision and scrutinizes the record as a whole
to determine whether substantial evidence supports the ALJ’s factual findings. Davis v.

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Shalala, 985 F.2d 528, 531 (11th Cir. 1993); Cornelius v. Sullivan, 936 F.2d 1143, 1145
(11th Cir. 1991). Substantial evidence consists of such “relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Cornelius, 936 F.2d at 1145.
Factual findings that are supported by substantial evidence must be upheld by the court. The
ALJ’s legal conclusions, however, are reviewed de novo because no presumption of validity
attaches to the ALJ’s determination of the proper legal standards to be applied. Davis, 985
F.2d at 531. If the court finds an error in the ALJ’s application of the law, or if the ALJ fails
to provide the court with sufficient reasoning for determining that the proper legal analysis
has been conducted, the ALJ’s decision must be reversed. Cornelius, 936 F.2d at 1145-46.
DISCUSSION
Plaintiff argues that the Commissioner’s decision is due to be reversed because:
(1) the record does not include a physical capacities evaluation completed by a treating or
examining physician that supports the ALJ’s RFC determination; and (2) the ALJ’s step five
conclusion is not supported by substantial evidence. The court finds plaintiff’s contention
that an ALJ’s RFC assessment cannot be supported by substantial evidence in the absence
of a physical capacities assessment by an examining physician without merit. See Green v.
Social Security Administration, 223 Fed. Appx. 915, 923 (11th Cir. 2007)(unpublished
opinion)(ALJ’s RFC assessment supported by substantial evidence where he rejected treating
physician’s opinion properly and formulated the plaintiff’s RFC based on treatment records,
without a physical capacities evaluation by any physician). Plaintiff does not challenge the
RFC finding on any other basis. However, the ALJ’s step five error identified by the plaintiff
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warrants reversal.
The ALJ found that plaintiff retains the residual functional capacity to perform less
than a full range of light work. He included a number of non-exertional limitations in his
finding, including that plaintiff “is not able to frequently handle and finger with the right
arm/hand.” (R. 12). Plaintiff contends that the ALJ’s step five finding is not supported by
substantial evidence, as it is contradicted by the vocational expert’s testimony. Plaintiff’s
brief, Doc. # 11, pp. 2, 4). The Commissioner concedes that the particular jobs identified
by the ALJ as other work that plaintiff can still perform – café attendant, cashier, and
telephone survey worker – are precluded by plaintiff’s residual functional capacity, as
determined by the ALJ. (See Commissioner’s brief, Doc. # 13, p. 5)(“It is true that the ALJ
mistakenly listed three jobs with DOT requirements that did not match his RFC
assessment[.]”). The Commissioner contends that this error is harmless, however, because
there is evidence – that is, the vocational expert’s testimony coupled with a provision of the
Dictionary of Occupational Titles subject to judicial notice – of another job that exists in
significant numbers in the national economy that plaintiff can perform with the RFC assessed
by the ALJ, specifically, that of surveillance system monitor. (Id., pp. 5-8).
As the Commissioner notes, the limitations included in the ALJ’s hypothetical
questions to the vocational expert remained constant, except as to handling and fingering.
(R. 50-55). The vocational expert testified that a hypothetical claimant with the other
limitations identified by the ALJ who is also limited to: (1) frequent handling and fingering
with the right hand could perform other work including the jobs of cafeteria attendant,
general cashier, and telephone survey worker (R. 50-52); (2) frequent fingering and

occasional handling could perform the jobs of cashier, telephone survey worker, and
surveillance system monitor, DOT # 379.367-010 (R. 53-55); and (3) occasional handling
and fingering with her dominant right hand could perform “some jobs but not a significant
number.” (R. 52-53).1 The vocational expert responded affirmatively to the ALJ’s query
regarding whether “the occasional handling and fingering on the occasional level would
cause the erosion of jobs[.]” (R. 53).
As noted above, the ALJ found that plaintiff “is not able to frequently handle and
finger with the right arm/hand.” (R. 12)(emphasis added). The Commissioner concedes that
this RFC includes “limitations to occasional fingering and handling with [plaintiff’s] right
hand” and, also, that it precludes the performance of the jobs of cafeteria attendant, cashier,
and telephone survey worker. (Doc. # 13, p. 6). However, the Commissioner argues:
The evidence nonetheless showed that there were a significant number of jobs
Plaintiff could perform despite her limitations to occasional fingering and
handling with her right hand. During her testimony, Dr. Williams identified
surveillance system monitor as a job a hypothetical individual with limitations
similar to Plaintiff’s could perform (Tr. 54-55). According to the DOT, the
surveillance system monitor job does not require any significant handling or
fingering, and therefore would be available to a person with the fingering and
handling limitations identified in the ALJ’s RFC assessment (Tr. 12). DOT
379.367-010.
This evidence from the DOT, when combined with Dr. Williams’ testimony,
is substantial evidence supporting the ALJ’s finding that Plaintiff was not
disabled, because she could perform work existing in significant numbers in
the national economy.
(Id., pp. 6-7)(footnote omitted). The Commissioner further points to Dr. Williams’ testimony

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Plaintiff testified that she is right-handed. (R. 37).

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that 100,000 surveillance system monitor jobs exist nationally, and cites Eleventh Circuit and
Southern District of Alabama opinions concluding that vocational expert testimony that “less
than 80,000 jobs” and “50,000 jobs,” respectively, provides substantial evidence to support
a finding of a significant number of jobs that the claimant could perform. (Id. at pp. 7-8)
(citing R. 55, Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987) and Huber v. Apfel, 2000
WL 284284 at 4 (S.D. Ala. 2000)).
In short, the Commissioner contends that the ALJ’s step five error is harmless because
the ALJ could have concluded, with substantial evidentiary support, that plaintiff can
perform work as a surveillance system monitor and that a significant number of such jobs
exist nationally. As the Commissioner notes, the DOT description of the surveillance system
monitor job does not include a requirement for handling or fingering. (See DOT 379.367-010
and Selected Characteristics of Occupations Defined in the Revised Dictionary of
Occupational Titles (1993) at § 04.02.03). However, Dr. Williams testified that a limitation
to occasional handling and occasional fingering on the right – the limitation ultimately
assessed by the ALJ – would allow the claimant to perform “some jobs, but not a significant
number.” (R. 52-53)(emphasis added). She identified the surveillance system monitor job
for the hypothetical claimant who could perform fingering frequently and handling
occasionally, tasks precluded by the ALJ’s RFC finding. (R. 53-55). While Dr. Williams
further testified that her opinions were consistent with the Dictionary of Occupational Titles
(R. 55), her testimony appears to conflict with the DOT. The Commissioner’s “harmless
error” argument might, perhaps, have merit if the ALJ were precluded from relying on the
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testimony of the vocational expert in the event of such a conflict.2 However, that is not the
law of this circuit. See Miller v. Commissioner of Social Security, 246 Fed. Appx. 660, 662
(11th Cir. 2007)(“Even assuming that an inconsistency existed between the testimony of the
vocational expert and the DOT, the ALJ did not err when, without first resolving the alleged
conflict, he relied on the testimony of the vocational expert. Our precedent establishes that
the testimony of a vocational expert “trumps” an inconsistent provision of the DOT in this
Circuit.”)(citing Jones v. Apfel, 190 F.3d 1224, 1229-30 (11th Cir. 1999)). The court cannot
conclude that the ALJ’s error is harmless when doing so would require that the court weigh
the evidence and resolve the evidentiary conflict against the plaintiff. “The resolution of
conflicting evidence is the function of the ALJ, not the Court.” Bouie v. Astrue, 226 Fed.
Appx. 892, 894 (11th Cir. 2007)(citing Graham v. Bowen, 790 F.2d 1572, 1575 (11th Cir.
1986)). While the Appeals Council could have taken action to correct the ALJ’s obvious
error, it chose instead to deny review. The court may not now weigh the conflicting evidence
in the first instance. See Graham, 790 F.2d at 1575-76 (noting that the issue before the court
on appeal was whether the Appeals Council’s finding of fact – not the District Court’s
finding – was supported by substantial evidence). The court “‘may not supply a reasoned
basis for [an] agency’s action that the agency itself has not given.’” Dixon v. Astrue, 312
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The court does not decide the propriety of finding substantial evidentiary support for the ALJ’s
step five finding by taking judicial notice of a DOT classification not cited by the ALJ that describes a job
not identified by the ALJ in his decision as one that the claimant can perform. In Hubbard v. Commissioner
of Social Security, 348 Fed. Appx. 551 (11th Cir. 2009), the case cited by the Commissioner on the issue of
judicial notice, the ALJ had relied on the DOT classifications for plaintiff’s past relevant work but did not
“specifically place[] [the DOT] into the record[.]” Id. at 553 n. 1. The Eleventh Circuit took judicial notice
of the DOT job classification on appeal. This case does not present the same issue as that in Hubbard.

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Fed. Appx. 226, 229 (11th Cir. 2009)(quoting Zahnd v. Sec'y, Dep't of Agric., 479 F.3d 767,
773 (11th Cir.2007)). As plaintiff contends, the ALJ’s step five finding is not supported by
substantial evidence.
CONCLUSION
For the foregoing reasons, the Commissioner’s decision is due to be REVERSED, and
this action REMANDED to the Commissioner for further administrative proceedings. A
separate judgment will be entered.
DONE, this 20th day of September, 2012.

/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE

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