Glenn v. Astrue(CONSENT)
MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 2/22/13. (scn, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
MICHAEL J. ASTRUE,
Commissioner of Social Security,
CIVIL ACTION NO. 2:11cv999-WC
Plaintiff, Eugene Glenn, applied for disability insurance benefits and supplemental
security income benefits under Titles II and XVI of the Social Security Act (“the Act”), 42
U.S.C. §§ 1381 et seq. His application was initially denied at the initial administrative level.
Plaintiff then requested and received a hearing before an Administrative Law Judge (“ALJ”).
Following the hearing, the ALJ issued an unfavorable decision in which he found Plaintiff
not disabled. The Appeals Council rejected Plaintiff’s request for review of the ALJ’s
decision. 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). The case is now before the court for review under 42 U.S.C. § 405(g). Pursuant to
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.
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. 7); Def.’s Consent to Jurisdiction (Doc. 8). Based on the court’s review
of the record and the briefs of the parties, the court AFFIRMS the decision of the
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.
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 (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
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of
(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
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.
answer to any question, other than step three, leads to a determination of “not
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The burden of proof rests on a claimant through Step 4. 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 1 through Step 4. At Step 5,
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. RFC is what the claimant is still able to do
despite his impairments and is based on all relevant medical and other evidence. Id. It also
can 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 Guidelines4 (grids) or call a vocational
expert (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.
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).
See 20 C.F.R. pt. 404 subpt. P, app. 2.
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 statutorilyrequired 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
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
Plaintiff was forty-three years old at the time of the hearing before the ALJ and had
completed the eighth grade. Tr. 90. His past relevant work experience was as a “lumber
stacker,” “housekeeper/cleaner,” “cook helper,” “poultry worker,” “fast food worker,” and
“small products assembler.” Tr. 106. Following an administrative hearing, and employing
the five-step process, the ALJ found Plaintiff had “not engaged in substantial gainful activity
since February 12, 2008, the alleged onset date.” (Step 1) Tr. 80. At Step 2, the ALJ found
that if Plaintiff were to stop his substance abuse, he would suffer the following severe
“gout, status post-stab wound to the left thigh, status post-frontal lobe
contusion, alcoholic hepatitis, neuralgia, headaches, polysubstance abuse, borderline
intellectual functioning, antisocial personality disorder, and anxiety disorder.” Tr. 87. The
ALJ then found that if Plaintiff discontinued the substance abuse, he “would not have an
impairment or combination of impairments that met or medically equaled one of the listed
impairments.” (Step 3) Tr. 88. Next, the ALJ determined that if Plaintiff discontinued the
substance abuse, he would have the RFC “to perform less than a full range of medium work.”
Tr. 88. The ALJ went on to list a litany of limitations. Id. The ALJ also found that if
Plaintiff stopped the substance abuse, he would be able to perform past relevant work as a
housekeeper/cleaner, small products assembler, and lumber stacker. (Step 4). Tr. 106. Even
though that finding would preclude a finding of disability, the ALJ continued on to Step 5,
and, after consulting with the VE, the ALJ found that if Plaintiff stopped the substance abuse,
“considering [his] age, education, work experience, and [RFC], there were jobs that existed
in significant numbers in the national economy that [Plaintiff] can perform.” Tr. 107. The
ALJ identified the following occupations as examples: “dietary aide”; “laundry worker”; and
“marker.” Id. Accordingly, the ALJ concluded that Plaintiff would not be disabled if he
stopped the substance abuse. Id.
Plaintiff presents a single issue for this courts review: whether the ALJ erred when
he “failed to accept the VE’s testimony which is substantial evidence that the ALJ’s RFC
assessment would result in a rate of absenteeism that would exceed the customary tolerances
of potential employers.” Pl.’s Br. (Doc. 12) at 11.
Plaintiff argues that the ALJ’s decision is due to be reversed, because the VE testified
that after including Plaintiff’s decompensation and gout limitations, the RFC “would cause
a rate of absenteeism which would be unacceptable for most unskilled occupations (Tr. 69).”
Pl.’s Br. (Doc. 12) at 12. “More specifically, the VE testified that, for unskilled work, most
employers will tolerate a maximum of two absences per month, but some only tolerate one
absence per month (Tr. 69). The VE further testified that given the ‘episodes of
decompensation’ and the ‘gout attacks,’ this could cause an unacceptable rate of
absenteeism.” Id. Plaintiff argues both that the ALJ ignored this aspect of the VE’s
testimony, and that he “clearly rejected” it. Id. at 12 & 14. Plaintiff also asserts that the
VE’s testimony is substantial evidence that he is disabled.
After providing a hypothetical that included sufferings from gout attacks and one to
two episodes of decompensation, the ALJ asked the VE whether such an individual could
perform Plaintiff’s past relevant work and/or other work in the regional or national economy.
Tr. 66-67. The VE testified that such an individual could perform Plaintiff’s past relevant
work and that there were other jobs in the regional or national economy that such an
individual could perform. Tr. 67-69. The ALJ then inquired as to the acceptable maximum
absenteeism rate for unskilled workers. Tr. 69. The VE testified that given a hypothetical
of nine days absent due to gout, such an individual would still be able to perform the listed
jobs. Tr. 70. On cross-examination, counsel for Plaintiff asked the VE, with regard to
absenteeism, if he was taking the one to two episodes of decompensation into account when
rendering his opinion. Id. The VE testified that if such an individual were to miss more than
12 but less than 24 days of work, some employers would tolerate that, and some would not.
Tr. 71. That was the end of the testimony on the matter.
The court struggles to follow Plaintiff’s argument that this testimony constitutes
substantial evidence of disability. The court does not agree that the ALJ either ignored or
rejected the VE’s testimony. In fact, the ALJ clearly relied on the VE’s testimony, who, even
assuming the absenteeism suggested by Plaintiff’s counsel, testified that Plaintiff would be
able to work. In other words, the VE did not testify that Plaintiff’s absenteeism would
preclude him from finding jobs. Plaintiff’s argument hinges on the assumption that Plaintiff
would suffer from maximum amounts of gout and episodes of decompensation within a year,
at the maximum rate, and that this would result in his termination for absenteeism and
foreclose his ability to find employment. But this was not the testimony of the VE. The VE
testified that some employers would not tolerate even 12 days of absenteeism, but that others
would. “[B]y merely eliciting testimony from the VE that missing work more than twice a
month results in unemployment, the ALJ did not somehow impute such absenteeism to
Plaintiff.” Davis v. Astrue, 2010 WL 3258619, at*6 (M.D. Ala. Aug. 16, 2010). “Plaintiff’s
claim [ . . . ] confuses the very nature and purpose of the practice of posing hypothetical
questions to a VE.” Id. In any case, Plaintiff’s claim that the ALJ either ignored or rejected
the VE’s testimony fails, where the VE testified on cross-examination, taking counsel’s
hypothetical, that assuming the gout and episodes of decompensation, Plaintiff could still
perform work in the regional and national economies.
The court has carefully and independently reviewed the record and concludes that, for
the reasons given above, the decision of the Commissioner is AFFIRMED. A separate
judgment will issue.
Done this 22nd day of February, 2013.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE
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