Wilkins v. Colvin (CONSENT)
MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 3/13/14. (djy, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
ANDREA DIANA WILKINS,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
CIVIL ACTION NO.: 2:13cv109-WC
Plaintiff, Andrea Diana Wilkins, applied for disability insurance benefits and
supplemental security income. Her application was 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 a decision in which the ALJ found
Plaintiff not disabled at any time through the date of the decision. 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
Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103296, 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.
is now before the court for review under 42 U.S.C. § 405(g). Pursuant to 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. 10); Def.’s Consent to Jurisdiction (Doc. 11). Based on the court’s
review of the record and the briefs of the parties, the court REVERSES the decision of
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 (2011).
(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?
A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic
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
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
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.
or light work, inability to speak English, educational deficiencies, and lack of job
experience. 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
statutorily-required 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 claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
Plaintiff was twenty eight years old at the time of the hearing and has a high
school equivalent education (GED). Tr. 19. Following the administrative hearing, and
employing the five-step process, the ALJ found Plaintiff “has not engaged in substantial
gainful activity since May 1, 2008, the alleged onset date.” (Step 1) Tr. 14. At Step 2,
the ALJ found that Plaintiff suffers from the following severe impairments: “seizure
disorder, bipolar disorder, affective mood disorder, and headaches.” Id. The ALJ then
found that Plaintiff “does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments.” (Step 3) Id.
Next, the ALJ found that Plaintiff has
the [RFC] to perform a less than full range of light work . . . except that she
can never climb ladders, ropes, or scaffolds. She should avoid all
dangerous machinery, unprotected hights; large bodies of water; and no
operation of motor vehicles. She is able to perform the following activities
1) understand and remember and carry out detailed
instructions; 2) sustain an ordinary routine without special supervision; 3)
work in coordination with or proximity to others without being unduly
distracted by them; 4) complete a normal workday and workweek without
interruptions from psychologically based symptoms; 5) respond to
customers or other members of the general public; 6) respond appropriately
to supervision; 7) respond appropriately to co-workers; 8) maintain socially
appropriate behavior and adhere to standards of neatness and cleanliness;
and 9) respond appropriately to changes in work setting.
Tr. 15-16 (footnote omitted). The ALJ then concluded that Plaintiff “is capable of
performing past relevant work” as a fast food worker, bartender, waitress, hostess, salad
preparer, and cashier. (Step 4) Tr. 22. As a result of that finding, the ALJ did not
continue to Step 5, and concluded that Plaintiff “has not been under a disability, as
defined in the Social Security Act, from May 1, 2008 through the date of this decision.”
Plaintiff presents two issues for this court’s consideration in review of the ALJ’s
decision: (1) whether the Commissioner’s decision should be reversed because “the ALJ
erred as a matter of law in not finding [Plaintiff]’s seizure disorder to be medically
equivalent to Listing 11.03;” and (2) whether the Commissioner’s decision should be
reversed because “the ALJ erred as a matter of law in finding [Plaintiff] capable of
performing her past relevant work.”
Pl.’s Br. (Doc. 13) at 7.
Because the court
determines the first issue requires remand for further proceedings, the court declines to
address the second issue at this time.
Plaintiff argues that “the ALJ erred as a matter of law in not finding that
[Plaintiff]’s seizure disorder was medically equivalent to Listing 11.03.” Pl.’s Br. (Doc.
13) at 9.
Defendant responds that “the ALJ reasonably evaluated the severity of
[Plaintiff’s] seizures” because “the longitudinal record does not suggest that the
frequency of Plaintiff’s seizure activity was sufficient under Listing 11.03.” Def.’s Br.
(Doc. 14) at 9.
When a claimant presents a neurological impairment such as seizure disorder or
epilepsy, the “degree of impairment [is] determined according to type, frequency,
duration, and sequelae5 of seizures.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 11.00A.
Listing 11.03 is met if a claimant suffers from “petit mal, psychomotor, or focal”
seizures, “occurring more frequently than once weekly in spite of at least 3 months of
prescribed treatment.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 11.03. To establish that the
listing has been met, “[a]t least one detailed description of a typical seizure is required,”
and the ALJ must obtain such a description from a “reporting physician” or, “if
professional observation is not available,” from “[t]estimony of persons other than the
claimant.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 11.00A (emphasis added). The Listing
does not consider a claimant’s own observations to be sufficient evidence of the type and
frequency of the seizures.
Here, the ALJ discussed the medical evidence, Plaintiff’s testimony, and
Plaintiff’s stepfather’s testimony regarding the frequency and severity of Plaintiff’s
seizures. The problem in this case is that, after reviewing the relevant evidence, the ALJ
never made any finding as to the frequency of Plaintiff’s seizures. Without that finding,
the court is unable to determine whether Plaintiff met Listing 11.03 or whether Plaintiff’s
seizure disorder even need be addressed under that listing.
Sequelae are aftereffects of a disease, condition, or injury.
The noted medical evidence included Plaintiff seeking treatment of seizures at
least three times in 2008. Tr. 16-17. At least one physician assessed Plaintiff with a
seizure disorder. Tr. 16. Although the ALJ did not discuss any medical evidence of
seizures during 2009, Plaintiff did seek medical treatment in 2010.
hospitalized for two days in February 2010, when she was diagnosed with partial seizure
disorder (Tr. 16-17), Plaintiff “continued to be treated through 6/3/10” for seizure
disorder, (Tr. 17), and Plaintiff “was treated at Elmore Community Rural Health from
June 30, 2010, to June 23, 2011, for . . . epilepsy with complex seizure [sic]” (Tr. 19).
The ALJ did not make a finding of the frequency of Plaintiff’s seizures based on this
evidence from the reporting physicians. Nor did the ALJ state whether the foregoing
medical evidence was sufficient to make a determination under Listing 11.03.
If the ALJ found the professional observation not to be sufficient, the ALJ was
then required to consider testimony of persons other than the claimant, which the ALJ
appeared to do. The ALJ noted testimony of Plaintiff’s stepfather regarding the severity
and frequency of Plaintiff’s seizures:
[The stepfather] witnessed small seizures where [Plaintiff] just stares off.
When [Plaintiff] has grand seizures, she will throw up. The petit seizures
happen once or twice a week or once every other week. [Plaintiff] has 2
grand seizures in a little over a year. When she had her last seizure, she did
not go to the emergency room.
Tr. 20. It would appear that the stepfather’s testimony may have satisfied the frequency
requirement, as the seizures occurring once or twice a week would be more frequent than
the Listing requirement of “more frequently than once weekly.” 20 C.F.R. pt. 404, subpt.
P, app. 1, § 11.03. However, the ALJ made no finding as to the credibility of the
stepfather’s testimony,6 nor whether his testimony satisfied the frequency requirement of
Because the ALJ failed to make a finding as to how frequently Plaintiff suffers
from seizures, the ALJ’s determination is insufficiently clear to allow the court to
conduct its mandated review for substantial evidence. See, e.g., Gaskin v. Commissioner
of Soc. Sec., 2013 WL 4081321, *2 (11th Cir. Aug, 14, 2013) (remanding because the
court was “unable to review correctly whether substantial evidence supports the ALJ’s
finding”). This case presents a close call as to whether Plaintiff meets the frequency
requirement of the Listing. Therefore, the court would require the ALJ to make a
determination, based on the evidence reviewed, of how frequently Plaintiff suffers from
seizures. Without this determination, the court is unable to determine whether Listing
11.03 applies to Plaintiff and whether Plaintiff met that listing. Accordingly, the court
finds that remand is necessary for the ALJ to clarify the determination of Listing 11.03.
The ALJ does make a determination as to the credibility of Plaintiff’s testimony regarding the severity
and frequency of her seizures. This too concerns the court because Plaintiff’s own testimony is
insufficient for the ALJ to consider when determining whether Plaintiff’s impairment meets the Listing.
20 C.F.R. pt. 404, subpt. P, app. 1, § 11.00A (“Testimony of persons other than the claimant is essential
for description of type and frequency of seizures if professional observation is not available.”) (emphasis
The court has carefully and independently reviewed the record and concludes that,
for the reasons given above, the decision of the Commissioner is REVERSED and this
case REMANDED for further proceedings consistent with this opinion.
Done this 13th day of March, 2014.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE
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