Sweetwyne v. Colvin
MEMORANDUM OPINION AND ORDER: it is ORDERED that the Commissioner's 11 motion to remand be and is hereby GRANTED. This case will be reversed and remanded to the Commissioner with directions for an award of benefits. Signed by Honorable Judge Charles S. Coody on 4/29/2016. Copies mailed to SSA Chief Judge and SSA Office of Hearings and Appeals (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,1
CIVIL ACTION NO. 3:15cv218-CSC
MEMORANDUM OPINION and ORDER
The plaintiff applied for supplemental security income benefits under Title XVI of the
Social Security Act, 42 U.S.C. § 1381 et seq., and disability insurance benefits pursuant to
Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., alleging that he was unable to
work because of a disability. This is not the first time he has had to seek relief from this
court because of an error made by the Commissioner. See Sweetwyne v. Colvin, 3:13cv356CSC (M.D. Ala. 2013). The plaintiff’s most recent application was also denied.2 The
Appeals Council rejected a subsequent request for review of the final determination by the
Administrative Law Judge (“ALJ”). Consequently, the ALJ’s latest decision became the
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
The plaintiff filed his initial application on January 9, 2009. On May 18, 2011, the Appeals
Council remanded his case back to the Administrative Law Judge (“ALJ”) for further consideration. The
ALJ issued an unfavorable determination on January 19, 2012. This court remanded the matter to the
Commissioner on October 1, 2013.
final decision of the Commissioner of Social Security (“Commissioner”).3 See Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
The case is now before the court for review pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). On October 14, 2015, the defendant filed a motion to remand pursuant to
sentence four of 42 U.S.C. § 405(g). (Doc. # 11). The plaintiff objects to the remand, as
requested by the defendant. (Doc. # 14). The court held oral arguments on the motion to
remand on April 28, 2016. Based on the court’s review of the record in this case, the briefs
of the parties, and oral argument, the court concludes that the Commissioner’s motion to
remand is due to be granted4 and this case must be reversed and remanded with directions to
In his opinion, the Administrative Law Judge found that the plaintiff had the
following residual functional capacity (“RFC”):
[S]ince March 22, 2009,6 Claimant can: frequently lift up to 10 pounds;
occasionally lift 11 to 20 pounds; frequently carry up to 10 pounds;
occasionally carry 11 to 20 pounds; sit for 5 hours at one time without
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.
Pursuant to 42 U.S.C. § 405(g), this court has the power to enter a judgment affirming, modifying,
or reversing the decision of the Commissioner, with or without remanding the cause for rehearing.
The parties have consented to the United States Magistrate Judge conducting all proceedings in
this case and ordering the entry of final judgment, pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1.
The plaintiff amended his onset date of disability to March 22, 2009. See Doc. # 14 at 2.
interruption; stand for 2 hours at one time without interruption; walk for 30
minutes at one time without interruption; sit for 5 hours during an eight-hour
work day; stand for 2 hours during an eight-hour work day; walk for 1 hour
during an eight-hour work day; frequently reach (overhead) with the right
hand; frequently reach (all other) with the right hand; frequently handle with
the right hand; frequently finger with the right hand; continuously feel with the
right hand; occasionally push/pull with the right hand; occasionally reach
(overhead) with the left hand; occasionally reach (all other) with the left hand;
frequently handle with the left hand; frequently finger with the left hand;
continuously feel with the left hand; occasionally push/pull with the left hand;
frequently operate foot controls with the right foot; frequently operate foot
controls with the left foot; occasionally climb stairs and ramps; occasionally
climb ladders and scaffolds; never balance; never stoop; never kneel; never
crouch; and never crawl; frequently tolerate exposure to unprotected heights;
frequently tolerate exposure to moving mechanical parts; occasionally tolerate
exposure to operating a motor vehicle; frequently tolerate exposure to humidity
and wetness; frequently tolerate exposure to dust, odors, fumes, and pulmonary
irritants; frequently tolerate exposure to extreme cold; frequently tolerate
exposure to loud (jackhammer) noise. Claimant can: perform activities such
as shopping, travel without a companion for assistance; ambulate without
using a wheelchair, walker, or 2 canes, or 2 crutches; walk a block at a
reasonable pace on rough or uneven surfaces, use standard public
transportation, climb a few steps at a reasonable pace with the use of a single
handrail, prepare a simple meal and feed himself; care for personal hygiene;
and sort, handle, use paper/files. Claimant retains the ability to hear and
understand simple oral instructions and to communicate simple information.
Claimant can use a telephone to communicate. Claimant is able to avoid
ordinary hazards in the workplace, such as boxes on the floor, doors ajar, or
approaching people or vehicles. Claimant can read very small print with
eyeglasses. Claimant can read ordinary newspaper or book print. Claimant is
able to view a computer screen. Claimant is able to determine the differences
in shape of small objects such as screws, nuts, or bolts; however, he cannot
determine differences in color. Any work performed by Claimant must require
no more than frequent interaction with co-workers, supervisors, and the
(R. 530) (footnote added).
Relying on written interrogatories propounded to the vocational expert, the ALJ
identified three jobs that exist in the national economy that the plaintiff could perform:
Cashier II, Mail Clerk, and Sales Attendant. (R.547). However, the plaintiff’s ability to
perform those jobs is based on a RFC not adopted by the ALJ. Compare R. 774-776 with
R. 777-779. Based on the RFC adopted by the ALJ for the period of disability beginning
March 22, 2009, the vocational expert indicated that the plaintiff could not perform his past
relevant work and no jobs existed in the national economy that the plaintiff could perform.
See R. 777-779.
The Commissioner seeks a remand to “reassess whether, since March 22, 2009, there
is other work Plaintiff can perform at step five of the sequential evaluation process given
Plaintiff’s limitations.” (Doc. # 12). The plaintiff objects to a remand for any purpose other
than an award of benefits. The plaintiff argues that based on the vocational expert’s
interrogatories and the RFC as determined by the ALJ, there are no jobs in the national
economy that he can perform, and thus, he is entitled to an award of benefits. (Doc. # 14).
At oral argument, the Commissioner offered no cogent reason why the case should not be
remanded for an award of benefits or what she would reassess to determine if Sweetwye
could work. Apparently, the Commissioner has a different interpretation of the term “no
jobs” than the court. There is no need to further delay the obvious. Based on RFC adopted
by the ALJ coupled with the testimony and interrogatory answers of vocational expert, there
is no sedentary unskilled work with occasional reaching with the left hand available to the
plaintiff in the national economy. (R. 779).
For the reasons as stated, the court concludes that it is appropriate to reverse the
decision of the Commissioner so that benefits may be awarded to the plaintiff. See Davis v.
Shalala, 985 F.2d 528, 534 (11th Cir. 1993) (reversal with award of benefits appropriate
where the Commissioner has already considered the essential evidence and it is clear that the
evidence establishes disability without any doubt); See also Lamb v. Bowen, 847 F.2d 698,
701 (11th Cir. 1988) (failure to apply the correct legal standards is grounds for reversal and
an award of benefits).
Accordingly, it is
ORDERED that the Commissioner’s motion to remand (doc. # 11) be and is hereby
GRANTED. This case will be reversed and remanded to the Commissioner with directions
for an award of benefits.
A separate order will be entered.
Done this 29th day of April, 2016.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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