Daffin v. Colvin(CONSENT)
OPINION. The court concludes the ALJ erred in failing to specifically address the combination of severe and non-severe in combination when she made her determination in Step 3. Accordingly, this case will be reversed and remanded to the Commissioner for further proceedings consistent with this opinion. A separate order will be entered. Signed by Honorable Judge Terry F. Moorer on 12/21/2015. (dmn, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
CASE NO. 2:14-cv-1221-TFM
Following administrative denial of her application for disability insurance benefits under
Title II of the Social Security Act, 42 U.S.C.§§ 401, et seq. and Supplemental Security Income
benefits under Title XVI of the Social Security Act, Betty Daffin (“Daffin” or “Plaintiff”)
received a requested hearing before an administrative law judge (“ALJ”) who rendered an
unfavorable decision. When the Appeals Council rejected review, the ALJ’s decision became
the final decision of the Commissioner of Social Security (“Commissioner”). See Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Judicial review proceeds pursuant to 42 U.S.C. §
405(g), 42 U.S.C. § 1383(c)(3), and 28 U.S.C. § 636(c), and for reasons herein explained, the
Court concludes the Commissioner’s decision denying disability insurance benefits and
supplemental security income benefits should be reversed and remanded.
I. NATURE OF THE CASE
Daffin requests judicial review of the Commissioner of Social Security Administration’s
decision denying her application for disability insurance benefits. United States district courts
may conduct limited review of such decisions to determine whether they comply with applicable
law and are supported by substantial evidence. 42 U.S.C. § 405 (2006). The court may affirm,
reverse and remand with instructions, or reverse and render a judgment. Id.
II. STANDARD OF REVIEW
Judicial review of the Commissioner’s decision to deny benefits is narrowly
The court reviews a social security case solely to determine whether the
Commissioner’s decision is supported by substantial evidence and based upon proper legal
standards. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). The court
“may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the
Commissioner,” but rather “must defer to the Commissioner’s decision if it is supported by
Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (quoting
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)); see also Winschel, 631 F.3d at
1178 (stating the court should not re-weigh the evidence).
This court must find the
Commissioner’s decision conclusive “if it is supported by substantial evidence and the correct
legal standards were applied.” Kelley v. Apfel, 185 F.3d 1211, 1213 (11th Cir. 1999); see also
Kosloff v. Comm’r of Soc. Sec., 581 Fed. Appx. 811, 811 (11th Cir. 2015) (citing Kelley).
Substantial evidence is more than a scintilla — i.e., the evidence must do more than
merely create a suspicion of the existence of a fact, and must include such relevant evidence as a
reasonable person would accept as adequate to support the conclusion. Winschel, 631 F.3d at
1178 (quoting Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)); Lewis v.
Callahan, 125 F.3d 1436, 1440 (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420,
1427, 28 L.Ed.2d 842 (1971)). If the Commissioner’s decision is supported by substantial
evidence, the district court will affirm, even if the court would have reached a contrary result as
finder of fact, and even if the court finds that the evidence preponderates against the
Commissioner’s decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); see also
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Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (“even if the evidence
preponderates against the Commissioner’s findings, we must affirm if the decision reached is
supported by substantial evidence.”) (citation omitted). The district court must view the record
as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote
v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986)).
The district court will reverse a Commissioner’s decision on plenary review if the
decision applies incorrect law, or if the decision fails to provide the district court with sufficient
reasoning to determine that the Commissioner properly applied the law. Keeton v. Department
of Health and Human Services, 21 F.3d 1064, 1066 (11th Cir. 1994) (internal citations omitted).
There is no presumption that the Secretary’s conclusions of law are valid. Id.; Brown v. Sullivan,
921 F.2d 1233, 1236 (11th Cir. 1991).
III. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB”) provides
income to individuals who are forced into involuntary, premature retirement, provided they are
both insured and disabled, regardless of indigence.1 See 42 U.S.C. § 423(a). The Social Security
Act’s Supplemental Security Income (“SSI”) is a separate and distinct program. SSI is a general
public assistance measure providing an additional resource to the aged, blind, and disabled to
assure that their income does not fall below the poverty line.2 Eligibility for SSI is based upon
DIB is authorized by Title II of the Social Security Act, and is funded by Social Security taxes.
See Social Security Administration, Social Security Handbook, § 136.1, available at
SSI benefits are authorized by Title XVI of the Social Security Act and are funded by general tax
revenues. See Social Security Administration, Social Security Handbook, §§ 136.2, 2100, available at
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proof of indigence and disability. See 42 U.S.C. §§ 1382(a), 1382c(a)(3). However, despite the
fact they are separate programs, the law and regulations governing a claim for DIB and a claim
for SSI are identical; therefore, claims for DIB and SSI are treated identically for the purpose of
determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n. 1 (11th
Cir. 1986). Applicants under DIB and SSI must provide “disability” within the meaning of the
Social Security Act which defines disability in virtually identical language for both programs.
See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§ 404.1505(a), 416.905(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), 1382c(a)(3)(A). 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. 42 U.S.C. §§ 423(d)(3),
The Commissioner utilizes a five-step, burden-shifting analysis to determine when
claimants are disabled. 20 C.F.R. §§ 404.1520; Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th
Cir. 2004); O’Neal v. Comm’r of Soc. Sec., 614 Fed. Appx. 456, 2015 U.S. App. LEXIS 9640,
2015 WL 3605682 (11th Cir. June 10, 2015). The ALJ determines:
Whether the claimant is currently engaged in substantial gainful activity;
Whether the claimant has a severe impairment or combination of impairments;
Whether the impairment meets or exceeds one of the impairments in the listings;
Whether the claimant can perform past relevant work; and
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Whether the claimant can perform other work in the national economy.
Winschel, 631 F.3d at 1178; Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). When a
claimant is found disabled – or not – at an early step, the remaining steps are not considered.
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). This procedure is a fair and just way
for determining disability applications in conformity with the Social Security Act. See Bowen v.
Yuckert, 482 U.S. 137, 153, 107 S. Ct. 2287, 2297, 96 L.Ed.2d 119 (1987) (citing Heckler v.
Campbell, 461 U.S. 458, 461, 103 S. Ct. 1952, 1954, 76 L.Ed.2d 66 (1983)) (The use of the
sequential evaluation process “contribute[s] to the uniformity and efficiency of disability
The burden of proof rests on the claimant through Step 4. See Ostborg v. Comm’r of Soc.
Sec., 610 Fed. Appx. 907, 915 (11th Cir. 2015); Phillips, 357 F.3d at 1237-39. A prima facie
case of qualifying disability exists when a claimant carries the Step 1 through Step 4 burden.
Only at the fifth step does the burden shift 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
Functioning Capacity (“RFC”). 20 C.F.R. § 404.1520(a)(4). RFC is what the claimant is still
able to do despite the impairments, is based on all relevant medical and other evidence, and can
contain both exertional and nonexertional limitations. Phillips, 357 F.3d 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. In order
to do this, the ALJ can either use the Medical Vocational Guidelines3 (“grids”) or call a
vocational expert. Id. at 1239-40.
See 20 C.F.R. pt. 404 subpt. P, app. 2
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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. Each of
these factors can independently limit the number of jobs realistically available to an individual.
Id. at 1240. Combinations of these factors yield a statutorily-required finding of “Disabled” or
“Not Disabled.” Id. Otherwise, the ALJ may use a vocational expert. Id. A vocational expert is
an expert on the kinds of jobs an individual can perform based on her capacity and impairments.
Id. In order for a vocational expert’s testimony to constitute substantial evidence, the ALJ must
pose a hypothetical question which comprises all of the claimant’s impairments. Jones v. Apfel,
190 F.3d 1224, 1229 (11th Cir. 1999) (citing McSwain v. Bowen, 814 F.2d 617, 619-20 (11th
IV. BACKGROUND AND PROCEEDINGS
Daffin claims disability because chronic anemia, chronic pain syndrome (knees, legs,
feet, ankles, and arms), kidney removal, chronic edema of the extremities, effusion of the knee,
and lobes on her lungs. (Tr. 31-32). Following initial administrative denial of his claim, Daffin
requested a hearing before an administrative law judge (“ALJ”) (Tr. 83). ALJ Katie H. Pierce
(“the ALJ”) convened a video evidentiary hearing on March 4, 2013. (Tr. 26-66). Daffin was
represented by an attorney. The ALJ received direct testimony from Daffin. The remaining
evidentiary record consisted of medical reports from treating sources and residual functional
capacity assessments completed by a medical consultant who reviewed Daffin’s medical records
upon request of Alabama Disability Determination Services.4 The ALJ rendered an unfavorable
verdict on May 10, 2013. (Tr. 9-21). On October 16, 2014, the Appeals Council denied Daffin’s
Robert H. Heilpern, M.D. (Tr. 304-311). “A medical consultant is a person who is a member of a
team that makes disability determinations in a State agency, as explained in § 404.1615, or who is a
member of a team that makes disability determinations for us when we make disability determinations
ourselves.” 20 C.F.R. § 404.1616(a)(2005).
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request for review (Tr. 1-8). This Social Security Appeal was filed on December 15, 2014. See
Doc. 1, Complaint.
V. ADMINISTRATIVE DECISION
Employing the five step process, the ALJ found that Daffin has not engaged in substantial
gainful activity since the alleged onset date (Step 1); has severe impairments (Step 2)5; the
impairments, considered individually and in combination, do not meet or equal in severity any
impairment set forth in the listings (Step 3); and Daffin cannot perform her past relevant work
(Step 4). (Tr. 14-19). As such, Daffin met her prima facie case for disability and the burden
shifted to the Commissioner to show there are a significant number of jobs in the national
economy which she can perform.
At Step Four, the ALJ found Daffin had the RFC to perform a reduced range of light
work. (Tr. 15). Specifically, after evaluating the entire record, the ALJ determined Daffin
would be able to sit or stand 6 hours of an 8 hour day, but that she would only be able to
maintain that position for a prolonged period of approximately 2 - 2.5 hours. (Tr. 15-16)
Further, the ALJ indicated Daffin would need the opportunity to prop her leg at the waist level
during a break and regular lunch hour. (Tr. 16). Further, the ALJ noted Daffin could lift/carry
10 pounds frequently and 20 pounds occasionally; occasionally push/pull leg controls; frequently
push and pull arm controls; occasionally perform overhead work or reaching overhead,
occasionally stoop, kneel, crouch, crawl, balance, and climb ramps and stairs; and is precluded
from climbing ropes, ladders, and scaffolds, working at unprotected heights, hazardous
machinery and automatic equipment, with no limitations involving handling, fingering, or
feeling. (Tr. 16).
The ALJ found the following “severe” impairments: osteoarthritis, edema, left knee
osteochondral defect, anemia, and degenerative changes in the lumbar spine. (Tr. 14).
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As a result of these limitations, the ALJ determined Daffin could not perform past relevant work.
(Tr. 19). Therefore, the ALJ moved to Step Five to determine whether Daffin could perform
other jobs in the national economy and determined there are jobs that exist in significant
numbers in the national economy that Batts could perform. (Tr. 20). The ALJ utilized the
Medical-Vocational Rules and Vocational Expert testimony regarding jobs in existing in the
national economy which Daffin could perform. The VE provided several examples of jobs
which Daffin could perform such as electrical accessory assembly, garment folder, and
silverware wrapper. (Tr. 20). Consequently, the ALJ found Daffin has not been disabled since
the alleged onset date. (Tr. 20).
Daffin identifies four issues on appeal:
The ALJ erroneously found many of Ms. Daffin’s impairments were not
The ALJ erroneously rejected the opinion of a Treating Primary Care
Physician, and the opinion deserved at least “deferential” or “great” if not
The ALJ erroneously relied on two Non-Treating Medical Source
The ALJ erred in her finding concerning Ms. Daffin’s credibility.
Pl. Br. at p. 1.
The Commissioner re-characterizes the issue as essentially whether substantial evidence
supports the ALJ’s decision. Regardless of the wording, the Commissioner does address the
issues raised by Plaintiff in the brief.
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VII. DISCUSSION AND ANALYSIS
Daffin alleges the ALJ erred when she did not find her other impairments to be severe.
Specifically, Daffin includes her left kidney removal, ongoing constitutional symptoms
(including fatigue and malaise), chronic pain syndrome, and lung lesions. See Doc. 12 at p. 5. A
severe impairment is one that significantly limits the claimant’s ability to do basic work
activities. Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997). The Commission
responds that by finding at Step 2 that Daffin has severe impairments, nothing further is required
by the ALJ. See Doc. 13 at p. 5. Specifically, the Commissioner’s brief argues “by finding in
Plaintiff’s favor at step two and proceed[ing] to the next step of the sequential evaluation
process, the ALJ did all [she] was required to do at step two.” Any failure to make severe
findings as to other ailments is harmless because a finding is all step 2 requires. See Heatly v.
Comm’r of Soc. Sec., 382 Fed. Appx. 823, 824-25 (11th Cir. 2010).
However, what the Commissioner fails to address is the Heatly holding also continues to
note the ALJ must make specific and well-articulated findings in step 3 as to the effect of the
combination of impairments. Id. at 825. Thus, the Court will also look to whether the ALJ erred
in Step 3 in her consideration of Daffin’s impairments or combination of impairments.
“The ALJ is required to demonstrate that it has considered all of the claimant's
impairments, whether severe or not, in combination.” Id. (citing Bowen v. Heckler, 748 F.2d
629, 635 (11th Cir. 1991) (explaining that the ALJ must make “specific and well-articulated
findings as to the effect of the combination of impairments.”). Here, as Daffin notes, the ALJ
spent a great deal of time in her determination on whether or not a condition was severe. At the
conclusion of Step 2, she states “[a]lthough these conditions are medically determinable
impairments, the medical evidence of the record does not show that singly, or in combination,
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they significantly limit the claimant’s ability to function. Accordingly, the undersigned finds
that these conditions are nonsevere.” (Tr. 15). When the ALJ moves to Step 3, she perfunctorily
states “[t]he claimant does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments.” (Tr. 15). There is no discussion
on considering the combined effects of severe and non-severe impairments. Unlike the Heatly
case, it is not clear that the ALJ did consider ALL impairments in combination. It is clear the
ALJ considered the severe impairments and it is clear she considered the combined non-severe
impairments when she determined they were non-severe.
But, there is no discussion on
considering them all together at the Step 3 termination. The ALJ simply moves on to Step 4 and
making a RFC determination. In Step 4, the ALJ states she has “considered all symptoms and
the extent to which these symptoms can be reasonably accepted as consistent with the objective
medical evidence and other evidence.” It is possible the ALJ did properly consider the combined
effect of severe and non-severe impairments. However, the Court cannot peer into the void
between Step 2 and Step 4 to assume the ALJ considered all severe and non-severe impairments
in combination at Step 3. The ALJ is required to articulate this consideration and discuss with
enough specificity such that reviewing authorities are certain this requirement was done. The
Commissioner argues Plaintiff merely speculates that her other impairments might have affected
her functioning, but does not cite medical evidence indicating other impairments would have
imposed additional functional limitations. However, that is not the point. The point is that the
ALJ failed to specifically address the issue. This error merits remand.
Pursuant to the findings and conclusions detailed in this Memorandum Opinion, the Court
concludes the ALJ erred in failing to specifically address the combination of severe and nonPage 10 of 11
severe in combination when she made her determination in Step 3. Accordingly, this case will
be reversed and remanded to the Commissioner for further proceedings consistent with this
opinion. A separate order will be entered.
DONE this 21st of December, 2015.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE
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