Walker v. Berryhill

Filing 15

MEMORANDUM OPINION: It is, therefore, ORDERED that the decision of the Commissioner is AFFIRMED; A separate judgment is entered herewith. Signed by Honorable Judge Terry F. Moorer on 8/21/2018. (alm, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
TONY RICHMOND WALKER,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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CASE NO. 3:17-cv-395-TFM
[wo]

MEMORANDUM OPINION
Following administrative denial of his application for Disability Insurance
Benefits and Supplemental Security Income benefits under Title XVI of the Social
Security Act, Troy Walker, (“Walker” or “Plaintiff”) received a requested hearing
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 AFFIRMS the decision by the
Commissioner to deny him disability insurance benefits and supplemental security
income benefits.

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I. NATURE OF THE CASE
Walker seeks judicial review of the decision by the Commissioner of Social
Security Administration to deny his application for disability insurance benefits
and supplemental security income 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
circumscribed.

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 substantial
evidence.”

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

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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 F. App’x
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 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)).

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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 1
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.2
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.3 Childhood disability
insurance benefits (“CDIB”) are rendered to a disabled adult under the old-age and
1

For the purposes of this appeal, the Court utilizes the versions effective until March 27, 2017 as
that was the version in effect at the time the claim was filed. See 20 C.F.R. Part 404 and 416,
effective March 27, 2017; see also https://www.ssa.gov/disability/professionals/bluebook/revisionsrules.html Q. 3.
2
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
http://www.ssa.gov/OP_Home/handbook/handbook.html
3
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 http://www.ssa.gov/OP_Home/handbook/handbook.html
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survivors insurance benefits section of the Social Security Act. See 42 U.S.C. §
402(d). In order to receive CDIB as a disabled adult, a claimant must establish that
he or she is the child of an individual who is entitled to old-age or disability
insurance benefits and is dependent on the insured, is unmarried, and was under a
disability as defined in the Act that began before he attained the age of twenty-two.
See 42 U.S.C. §§ 402(d)(1), 423(d)(1)(A); 20 C.F.R. § 404.350.
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). 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). 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

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which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
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 F. App’x
456, (11th Cir. 2015). The ALJ determines:
(1)

Whether the claimant is currently engaged in substantial gainful
activity;

(2)

Whether the claimant has a severe impairment or combination of
impairments;

(3)

Whether the impairment meets or exceeds one of the impairments in
the listings;

(4)

Whether the claimant can perform past relevant work; and

(5)

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,

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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 determinations”).
The burden of proof rests on the claimant through Step 4. See Ostborg v.
Comm’r of Soc. Sec., 610 F. App’x 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

Guidelines4 (“grids”) or call a vocational expert. Id. at 1239-40.

4

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 Cir. 1987)).

IV. BACKGROUND AND PROCEEDINGS
On August 12, 2014, Walker initially filed an application for disability
insurance benefits based on disability. R. 194-197. The same day, Walker filed an
application for supplemental security income. R. 198-204. In both applications,
Walker alleged disability beginning July 15, 2014 due to physical or cognitive
issues. Following initial administrative denials of his claim, Walker requested a
hearing before an administrative law judge (“ALJ”). ALJ Renita Barnett-Jefferson
(“the ALJ”) convened an evidentiary hearing on November 12, 2015. R. 49-82.

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Walker and his attorney chose to appear via teleconference from his attorney’s
office. The ALJ received direct testimony from Walker and a Vocational Expert
(“VE”). The remaining evidentiary record consisted of medical records, reports
from consultative sources, and residual functional capacity assessments completed
by agency consultants after reviewing Walker’s records.5 The ALJ rendered an
unfavorable verdict on April 27, 2016. R. 24-42. On February 28, 2014, the
Appeals Council denied Walker’s request for review. R. 7-9. This Social Security
Appeal was filed on June 19, 2017. See Doc. 1, Complaint.
V. ADMINISTRATIVE DECISION
Employing the five step process, the ALJ found that Walker has not engaged
in substantial gainful activity since the alleged onset date (Step 1); has severe
impairments (Step 2);6 the impairments, considered individually and in
combination, do meet or equal in severity any impairment set forth in the listings
(Step 3); Walker has past relevant work (Step 4); and a significant number of jobs
are available in the national economy which Walker could perform with his
residual functional capacity (Step 5). R. 27-42.
5

Ivan L. Slavich, M.D. . “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).

6

The ALJ found the following “severe” impairments: right carpal tunnel syndrome(CTS); right
peroneal nerve neuropathy; spina bifida; spinal degenerative disc disease; chronic obstructive
pulmonary disorder (COPD); depression, phonological disorder; and borderline intellectual
functioning. R. 30.
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At Step Four, the ALJ found Walker has the RFC to perform light work. R.
33.

Specifically, after evaluating the entire record, the ALJ determined the

following
[T]he claimant has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b) except with
occasional pushing and pulling of foot controls with the right lower
extremity. The claimant is limited to occasional reaching overhead
with the right upper extremity. The claimant is limited to occasionally
climbing ramps and stairs, balancing, stooping, kneeling, crouching,
and crawling, never climbing ladders and scaffolds, and he can never
working [sic] in environments of unprotected heights or around
hazardous moving mechanical parts. The claimant should not operate
a motor vehicle for commercial purposes. The claimant should avoid
concentrated exposure to dust, fumes, gases, odors and poor
ventilation. The claimant is limited to simple, routine, and repetitive
work with few changes in the work setting. The claimant is limited to
jobs that would allow the option to sit or stand in the performance of
the job task.
R. 33.
The ALJ determined Walker had past relevant work as a Slasher, which is
heavy skilled work; Production assembler washing tubes, which is light and
unskilled work, Order puller which is medium and unskilled work and Hand
Packager which is medium unskilled work. R. 40. Therefore, the ALJ moved to
Step Five to determine whether Walker could perform other jobs in the national
economy and determined there are jobs that exist in significant numbers in the
national economy that Walker could perform. R. 41-42. The ALJ utilized the
Medical-Vocational Rules and Vocational Expert testimony regarding jobs in

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existing in the national economy which Walker could perform. The VE provided
several examples of jobs which Walker could perform such as marker, labeler,
assembler, packer, machine tender, small products assembler.

R. 77-78.

Consequently, the ALJ found Walker has not been disabled since the alleged onset
date. R. 42.
VI. ISSUES
Walker characterizes the issue on appeal as, “The Commissioner failed to
recognize the differences between activities of daily living and activities in a full
time job; assumed the opinion of a medical professional; provided jobs in the
national economy that do not match the RFC given at the hearing; and refused this
Attorney’s request for consultative IQ examination based on the fact that the
Appellant ‘graduated’ from high school.
The ALJ correctly distinguished between activities of daily living and activities
related to full time work. Plaintiff cites Nichols v. Colvin, 10 F. Supp. 3d 895
(N.D. Ill. 2014) for the proposition that even disabled persons may perform
activities of daily living yet be disabled under the Act. Nichols is not persuasive or
illustrative in this context. First, ample circuit precedent indicates that activities of
daily living can be considered by the ALJ in deciding whether a claimant meets the
Listings. Rodriguez v. Comm’r of Soc. Sec., 633 F. App’x 770, 773-774 (11th Cir.
2015). Here, unlike Nichols, the ALJ had and relied on substantial activities of

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daily living along with other evidence.

For instance, Walker helps get his

daughters ready for school, helps take care of his wife and children, prepares meals
and goes to church. R. 250-254. In addition, Walker held a skilled job, Slasher, for
almost a decade and a half. The Court finds that the ALJ had more than minimal
activities of daily living which, considered in the context of the entire record,
supports the finding that Walker is not disabled.
The ALJ did not assume the opinion of a medical professional.

It is

undisputable that the Commissioner/ALJ has the responsibility to evaluate
objective and subjective medical evidence to determine whether a claimant is
disabled under the Act. Here the ALJ had a plethora of reliable, objective, medical
evidence to support the finding Walker is not disabled. R. 33-40. 317-318, 322,
323.

Walker submitted nothing the court finds credible to reverse the ALJ

particularly in light of the fact that Walker has the burden of proof.
The ALJ had enough evidence without an IQ examination to determine
whether Walker is disabled under the Act. Walker argues the ALJ should have
ordered an IQ test inasmuch as Walker has a high school certificate, not a diploma,
and a psychologist diagnosed Walker as suffering from depressive disorder, NOS,
phonological disorder, NOS, and probable borderline intellectual function and ruleout mental retardation. Whatever mental limitations Walker might have, the record
is clear that Walker has adapted well enough to engage in skilled labor for almost a

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decade and a half. Walker has thus demonstrated his IQ does not disable him. An
ALJ has a duty to develop a full and fair record. Graham v. Apfel, 129 F. 3d 1420,
1422 (11th Cir. 1997). An ALJ may order a consultative examination “where one
is necessary to make an informed decision” and is “one means by which an ALJ
discharges his duty to fully develop the record.” McCray v. Massanari, 175 F.
Supp. 2d 1329, 1338 (M.D. Ala. 2001) (citing Reeves v. Heckler, 734 F.2d 519,
522 n. 1 (11th Cir. 1984)).

Federal regulations may require a consultative

examination when a conflict or inconsistency arises in the record, or the evidence
is not sufficient to support a finding. 20 C.F.R. § 404.1519a(b). It is reversible
error for an ALJ to refuse to order a CE when “such an evaluation is necessary for
him to make an informed decision.” Reeves, 734 F.2d at 522 n. 1. However, the
Eleventh Circuit has further stated that when there is enough evidence in the record
to make a decision, the ALJ is not required to order a second consultative
examination, as long as that evidence is consistent and “sufficient for the [ALJ] to
make an informed decision.” Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d
1253, 1269 (11th Cir. 2007).
Ultimately, the burden rests with Walker to demonstrate his disability.
Doughty v. Apfel, 245 F.3d 1274, 1276 (11th Cir. 2001). The Court concludes
Walker has not met his burden and other weighty evidence was before the ALJ to
conclude substantial evidence supports the Commissioner’s decision that Walker is

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not disabled under the Act and its attendant regulations.
VIII. CONCLUSION
Pursuant to the findings and conclusions detailed in this Memorandum
Opinion, the Court concludes that the ALJ’s non-disability determination and
denial of benefits is supported by substantial evidence and no legal error was
committed. It is, therefore, ORDERED that the decision of the Commissioner is
AFFIRMED. A separate judgment is entered herewith.
DONE this 21st day of August, 2018.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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