Smith v. Astrue

Filing 15

MEMORANDUM OPINION AND ORDER. Signed by Honorable Judge Wallace Capel, Jr on 7/6/11. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
PEGGY ANN SMITH,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 3:10cv641-WC

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION
Plaintiff Peggy Ann Smith applied for disability insurance benefits under Title II of

the Social Security Act (“the Act”), 42 U.S.C. §§ 401 et seq, and supplemental security
income payments under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. Her applications
were 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 he found Plaintiff not disabled from the alleged onset date of January 8,
2007, through the date of the decision. Tr. 28. 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
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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.

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. #14); Def.’s Consent to Jurisdiction (Doc. #13).
Based on the Court’s review of the record and the briefs of the parties, the Court AFFIRMS
the decision of the Commissioner.
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.
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
Impairments]
(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

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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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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
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

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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).
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See 20 C.F.R. pt. 404 subpt. P, app. 2.
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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 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
claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
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III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was fifty-one years old at the time of the hearing before the ALJ. Tr. 34.

Plaintiff has an eleventh grade education. Tr. 34. Plaintiff’s past relevant work experience
was as a “convenience store cashier,” “sales clerk,” “assistant manager of a convenience
store,” “line server,” “retail cashier/checker,” and “cook.” Tr. 25; Tr. 67. Following the
administrative hearing, and employing the five-step process, the ALJ found Plaintiff “has not
engaged in substantial gainful activity since the alleged disability onset date” (Step 1). Tr.
17. At Step 2, the ALJ found that Plaintiff suffers from the following severe impairments:
“cervical spinal stenosis and degenerative disk disease status post fusion and diskectomy,
lumbar degenerative disc disease with spondylosis and stenosis, lumbar radiculopathy, right
rotator cuff syndrome, arthritis of the knees, and right carpal tunnel syndrome.” Tr. 18. The
ALJ then found that none of Plaintiff’s impairments, alone or in combination, are of listinglevel severity (Step 3). Tr. 18. Next, the ALJ found that Plaintiff
has the residual functional capacity to perform the physical exertional and
nonexertional requirements of light work with the following limitations: She
requires a sit/stand option. She can continuously lift or carry up to 5-10
pounds, frequently lift or carry up to 10-15 pounds, and occasionally lift or
carry up to 20 pounds. She can frequently use her hands for repetitive action
such as in simple grasping and the pushing and pulling of arm controls. She
can frequently use her left hand for repetitive action such as for fine
manipulation and occasionally use her right hand for fine manipulation. She
can occasionally use her feet for repetitive movement such as in the pushing
and pulling of leg controls. She can occasionally climb, balance, stoop, or
kneel; occasionally crouch or crawl; and frequently reach overhead. She can
frequently work around unprotected heights or moving machinery;
occasionally drive automotive equipment; and occasionally work around
exposure to marked changes in temperature and humidity and exposure to dust,
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fumes, and gases. She experiences a moderate degree of severity of pain
lasting one to two hours at a time and occurring every two to three days.
Additionally, she can perform only extremely simple and repetitive type work.
Tr. 27. Relying on the testimony of the vocational expert, the ALJ then found that Plaintiff
could perform her past relevant work as a sales clerk (Step 4). Tr. 25-26. Despite this
finding, and giving Plaintiff “the full benefit of the doubt,” the ALJ proceeded to the fifth
step of the sequential evaluation process to determine whether “there are other jobs existing
in significant numbers in the national economy which the claimant can perform.” Tr. 26.
The ALJ found that, in light of Plaintiff’s “medically determinable impairments, functional
limitations, age, education, and work experience,” and after consulting with a vocational
expert, “jobs exist in significant numbers in the regional and national economies which the
claimant can perform.” Tr. 26. The ALJ identified the following occupations as examples:
“inspector/checker,” “machine packer,” and “machine feeder/off bearer.”

Tr. 26.

Accordingly, the ALJ determined that Plaintiff “is not disabled within the meaning of the
Social Security Act.” Tr. 26.
IV.

PLAINTIFF’S CLAIMS
Plaintiff presents the following issues for this Court’s consideration in determining

whether the ALJ’s decision is supported by substantial evidence: (1) whether the ALJ erred
in failing to find Plaintiff disabled under the medical vocational rules at the sedentary level,
and (2) whether the ALJ’s RFC findings are supported by substantial evidence. Pl.’s Brief

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(Doc. #10) at 7, 9.5
V.

DISCUSSION
A.

The ALJ’s finding that Plaintiff is not disabled.

Plaintiff appears to assert that the ALJ reversibly erred in finding Plaintiff able to do
a restricted range of light work because “[a] favorable finding under the Medical Vocational
Rules (MVR) at the sedentary level could readily have been made.” Pl.’s Brief (Doc. #10)
at 7. She further contends as follows:
The ALJ failed to explain the concept of work with a sit/stand option at will
in the context of a light exertional level. If a sit/stand option is to be
accommodated within the confines of an otherwise very restricted RFC, clearly
a sedentary exertional level would be a better fit. An inference may be drawn
that the ALJ insisted on a light RFC in order to avoid the consequences of such
a choice. . . . The ALJ’s own RFC findings establish that Plaintiff is not
capable of the full range of light work or anything like the full range of light
work. An RFC for at best the full range of sedentary would better comport
with the ALJ’s own assessment of limitations and restrictions, in which case
Plaintiff would be mandatorily disabled under 201.14.
Id. at 7-8. Defendant argues that the ALJ properly determined Plaintiff’s RFC based on the

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As presented in her brief, Plaintiff’s claim about whether the RFC finding is
supported by substantial evidence appears incomplete and/or aborted. The argument in support
of the claim begins “[i]n his decision, the ALJ gave Dr. Chivukula’s assessment substantial
weight, yet failed to indicate why that would not cause Plaintiff to meet this Grid Rule. (R.???).”
Pl.’s Brief (Doc. #10) at 9. Next, Plaintiff includes a single paragraph discussing case law
concerning the Eleventh Circuit’s “pain standard” governing a claimant’s efforts to establish
disability through testimony about pain or other subjective symptoms. After this paragraph,
Plaintiff concludes her argument with the curious fragment “Objective findings include imaging
pre and post surgery.” Pl.’s Brief (Doc. #10) at 10. To the extent Plaintiff intends this portion of
her brief to present any argument about the ALJ’s supposed improper application of the “pain
standard,” the Court finds it deficient. Rather, the Court can only construe this claim as a broad
and conclusory claim that the ALJ’s RFC findings are not supported by substantial evidence.
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medical evidence in the record and that Plaintiff’s claim that her ability to do light work was
so eroded that she should have been assessed a sedentary level of RFC is without merit.
Def.’s Brief (Doc. #11) at 6-9. Defendant also maintains that Plaintiff’s claim that the ALJ
should have applied the Medical Vocational Rules for the sedentary exertional level is
without merit because, as the ALJ found, Plaintiff’s RFC exceeded the sedentary level.
Hence, “the sedentary grid rules cannot apply in this case.” Id. at 10.
Plaintiff first appears to argue that limiting her ability to perform light work with a
sit/stand option suggests that sedentary was a more appropriate functional level. Plaintiff
faults the ALJ for “fail[ing] to explain the concept of work with a sit/stand option at will in
the context of a light exertional level.” Pl.’s Brief (Doc. #10) at 8. She opines that “[i]f a
sit/stand option is to be accommodated within the confines of an otherwise very restricted
RFC, clearly a sedentary exertional level would be a better fit.” Id. Plaintiff does not clarify
how the ALJ might have better explained “the concept of work with a sit/stand option” that
he included in the RFC. Nor does Plaintiff explain how the ALJ’s failure to offer any
putative explanation of the concept prejudiced her. The ALJ mostly adopted the relevant
functional capacity findings of Dr. Chivukula, compare Tr. 27 with Tr. 413-15, who opined
that Plaintiff could sit, stand, or walk for a half hour at a time and several cumulative hours
in a workday. The ALJ also queried the vocational expert about the sit/stand option in his
hypothetical, and the vocational expert opined that, even including that limitation, Plaintiff
could perform some of her past relevant work and other jobs existing in significant numbers

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in the economy. Tr. 69-71. Both the Eleventh Circuit and this Court have upheld Agency
RFC determinations assessing light exertional levels with a sit/stand option. See, e.g.,
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004); Wells v. Astrue,
2008 WL 2468562 at *5 (M.D. Ala. June 17, 2008). In short, Plaintiff’s vague and
conclusory argument that the ALJ inherently erred in finding Plaintiff capable of light work
with a sit/stand option, rather than just sedentary, or that the ALJ erred in failing to “explain”
this “concept” is without merit.
Plaintiff does not claim that the ALJ incorrectly determined that her functional
capacity is greater than what is supported by the record evidence. Rather, Plaintiff appears
to contend that, given the restrictions on her ability to perform light work, a finding that she
functions at the sedentary exertional level would be more appropriate. Pl.’s Brief (Doc. #10)
at 8. However, while it is clear that the RFC articulated by the ALJ is for less than the full
range of light work, it is also clear that the given RFC exceeds the sedentary level.6 “Where
a claimant’s RFC is in between two exertional levels, . . . the grid guidelines, which reflect
only common - and not all - patterns of vocational factors are not binding and are instead
used only as an analytical framework. In such a situation, a VE is brought in to testify as to
whether a significant number of jobs exist in the national economy that a hypothetical
individual with the claimant’s limitations can perform.” Anderson v. Comm’r of Soc. Sec.,

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See 20 C.F.R. § 404.1567(a) (“Sedentary work involves lifting no more than 10
pounds at a time . . . .”). The ALJ found, consistent with the consultative examination of Dr.
Chivukula (Tr. 413), that Plaintiff can frequently lift and carry ten to fifteen pounds and
occasionally lift and carry twenty pounds. Tr. 27.
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406 F. App’x 32, 35 (6th Cir. 2010). See also Watson v. Astrue, 376 F. App’x 953, 956-57
(11th Cir. 2010); SSR 83-12 (“Where the extent of the occupational base is not clear, the
adjudicator will need to consult a vocational resource.”). This is precisely what happened
in this case: the ALJ determined that Plaintiff’s RFC fell between the light and sedentary
exertional levels and he therefore consulted with a vocational expert to determine whether
there are jobs in significant numbers in the national and local economies which Plaintiff
could perform at the restricted light exertional level. The ALJ was justified in relying on the
expert’s testimony- which is not challenged by Plaintiff - that Plaintiff could perform past
relevant work and that other jobs exist in significant numbers which she could perform. See
Watson, 376 F. App’x at 957-959. Hence, because the ALJ properly applied governing
regulations to determine the extent of the erosion of Plaintiff’s occupational base of light
work, Plaintiff’s claim that, notwithstanding the medical evidence and the vocational expert’s
testimony, a finding of sedentary work would be a “better fit” is unavailing.
B.

Whether the ALJ’s RFC findings are supported by substantial evidence.

The only other issue conceivably raised by Plaintiff is her claim that “the ALJ’s
residual functional capacity findings are not based on substantial evidence.” Pl.’s Brief (Doc.
#10) at 9. However, as discussed supra, Plaintiff’s argument as to this claim consists only
of a sentence which seems better suited for Plaintiff’s other claim (“In his decision, the ALJ
gave Dr. Chivukula’s assessment substantial weight, yet failed to indicate why that would
not cause Plaintiff to meet this Grid Rule. (R.???),” a brief paragraph alluding to the Eleventh

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Circuit’s pain standard, and what appears to be a simple fragment (“Objective findings
include imaging pre and post surgery”). Id. at 9-10. As stated previously, the Court finds
this argument insufficient to present a claim that the ALJ improperly applied the pain
standard or otherwise rendered a faulty credibility determination. Moreover, Plaintiff does
not point to any part of the record as indicative that the ALJ’s RFC formulation is not
supported. Indeed, the ALJ’s findings are supported by substantial evidence in the record,
including the consultative examination report of Dr. Badewa (Tr. 310-313), the physical RFC
assessment of Dr. Whitehead (Tr. 314-321), and the consultative examination report of Dr.
Chivukula (Tr. 411-418), which the ALJ relied upon extensively in formulating Plaintiff’s
RFC. Tr. 25. Given the weight of this evidence and Plaintiff’s failure to identify any
contrary record evidence or otherwise more fully develop this claim, the Court finds that the
ALJ’s RFC determinations are supported by substantial evidence.
VI.

CONCLUSION
The Court has carefully and independently reviewed the record and concludes that,

for the reasons given above, the decision of the Commissioner is supported by substantial
evidence and is AFFIRMED. A separate judgment will issue.
DONE this 6th day of July, 2011.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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