Wehrenbert v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 07/26/12. (CVA)

FILED
2012 Jul-26 AM 10:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ERIC E. WEHRENBERG,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
ADMINISTRATION,
Defendant.

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Civil Action Number
2:10-cv-02610-AKK

MEMORANDUM OPINION
Plaintiff Eric E. Wehrenberg (“Plaintiff”) brings this action pursuant to
Section 205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 1383(c),
seeking review of the final adverse decision of the Commissioner of the Social
Security Administration (“SSA”). This court finds that the Administrative Law
Judge’s (“ALJ”) decision - which has become the decision of the Commissioner is supported by substantial evidence. Therefore, for the reasons elaborated herein,
the Court will AFFIRM the decision denying benefits.
I. Procedural History
The SSA granted Wehrenberg Child’s Supplemental Security Income

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(“SSI”) in June 2004, (R. 526), for disability that began in October 2003, (R. 528).
In February 2005, when he turned eighteen, the SSA reevaluated Wehrenberg’s
claim of disability under the adult standard. 42 U.S.C. § 1382c(a)(3)(H)(iii); 20
C.F.R. § 416.987. As a result, on September 7, 2005, the SSA notified
Wehrenberg that it no longer classified him as disabled. (R. 532-534). Thereafter,
Wehrenberg requested and received a hearing on April 8, 2008. (R. 780-808). At
the time of the hearing, Wehrenberg was 21 years old, had a special education
high school diploma, and no past relevant work. (R. 790, 793). Wehrenberg had
not engaged in substantial gainful activity since February 20, 2005, the date of his
eighteenth birthday. (R. 334).
On June 27, 2008, the ALJ found that Wehrenberg is not disabled as an
adult, (R. 332-340), which became the final decision of the Commissioner when
the Appeals Council refused to grant review on June 26, 2010, (R. 324-326).
Wehrenberg then filed this action pursuant to section 1631 of the Act, 42 U.S.C. §
1383(c)(3). Doc. 1.
II. Standard of Review
The only issue before this court is whether the record contains substantial
evidence to support the ALJ’s decision. See 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982). Title 42 U.S.C. §§ 405(g) and
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1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
engage in any substantial gainful activity by reason of any medically determinable
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physical or mental impairments 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 twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(I). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis.
20 C.F.R. § 404.1520(a)-(f). Specifically, the Commissioner must determine in
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “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 ‘not disabled.’” Id. at 1030 (citing 20

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C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
IV. The ALJ’s Decision
The court turns now to the ALJ’s decision to ascertain whether Wehrenberg
is correct that the ALJ committed reversible error. In that regard, the court notes
that, performing the five step analysis, initially, the ALJ determined that
Wehrenberg had not engaged in substantial gainful activity since February 20,
2005, the date of Wehrenberg’s eighteenth birthday. (R. 334). Next, the ALJ
acknowledged that Wehrenberg’s severe impairment of mild mental
retardation/borderline intellectual functioning met Step Two. Id. The ALJ then
proceeded to the next step and found that Wehrenberg did not satisfy Step Three
since he “does not have an impairment or combination of impairments that meets
or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (20 C.F.R. [§§] 404.1520(d), 404.1525, 404.1526, 416.925 and
416.926.” (R. 335). Although the ALJ answered Step Three in the negative,
consistent with the law, see McDaniel, 800 F.2d at 1030, the ALJ proceeded to
Step Four, where he determined that Wehrenberg
has the residual functional capacity [“RFC”] to perform a full range
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of work at all exertional levels. As to his mental [RFC], . . .
[Wehrenberg] has the abilities to understand, carry out and remember
simple instructions; respond appropriately to supervision, coworkers
and usual work situations; and deal with changes in a routine work
setting.
(R. 337). The ALJ then moved on to Step Five where he considered Wehrenberg’s
age, education, work experience, and RFC, and determined that there are “jobs
that exist in significant numbers in the national economy that [Wehrenberg] can
perform.” (R. 339). As a result, the ALJ answered Step Five in the negative, and
determined that Wehrenberg is not disabled. (R. 340); see also McDaniel, 800
F.2d at 1030.
V. Analysis
Wehrenberg contends that the ALJ committed reversible error because (1)
the ALJ failed to demonstrate that Wehrenberg showed medical improvement; (2)
retroactive recoupment is not permitted unless Wehrenberg engaged in fraud; and
(3) the ALJ ceased Wehrenberg’s benefits before Wehrenberg found substantial
gainful activity. Doc. 11 at 5-8. The court addresses each contention below.
A.

The ALJ was Not Required to Show Medical Improvements
Wehrenberg’s first contention is that “the agency failed to demonstrate that

[Wehrenberg] had shown marked improvements and was no longer under a
disability in conformity with Listing 12.05.” Doc. 11 at 5. This contention misses
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the mark because a showing of medical improvement is not required for age
eighteen redeterminations: “[w]here an individual was eligible for SSI benefits as
a child, the Commissioner must, for the month preceding the month in which [he]
attains age eighteen, re-determine h[is] disability. A showing of medical
improvement is not required in these redetermination cases. Instead, the
definition of disability used for adults who file new applications for SSI benefits
based on disability applies.” Wells v. Comm’r of Soc. Sec., No. 6:09-cv-1669-Orl28DAB, 2011 WL 722764 *3 (M.D. Fla. January 21, 2011) (emphasis added); see
also 42 U.S.C. § 1382c(a)(3)(H)(iii).1 Accordingly, the ALJ had no obligation to

1

42 U.S.C. § 1382c(a)(3)(H)(iii) provides:

If an individual is eligible for benefits under this subchapter by reason of
disability for the month preceding the month in which the individual attains the
age of 18 years, the Commissioner shall redetermine such eligibility-(I) by applying the criteria used in determining initial eligibility for
individuals who are age 18 or older; and
(II) either during the 1-year period beginning on the individual's 18th
birthday or, in lieu of a continuing disability review, whenever the
Commissioner determines that an individual’s case is subject to a
redetermination under this clause.
With respect to any redetermination under this clause, paragraph (4) shall not
apply. (emphasis added).
Paragraph (4) provides, in relevant part that:
A recipient of benefits based on disability under this subchapter may be
determined not to be entitled to such benefits on the basis of a finding that the
physical or mental impairment on the basis of which such benefits are provided
has ceased, does not exist, or is not disabling only if such finding is supported by-Page 7 of 10

show medical improvement.
B. The ALJ Did Not Try to Recapture Payments
Wehrenberg’s contends next that the SSA continued to pay Wehrenberg
benefits after his eighteen birthday and “[o]n June 27, 2008, . . . the ALJ ruled to
recapture those payments in the amount of $19,259.12 even though the claimant
had never engaged in any work activity.” Doc. 11 at 1. Wehrenberg further
alleges that “[r]etroactive recoupment of benefits is not permitted unless [he] has
engaged in some type of fraud and the record does not reflect that [Wehrenberg]
did so.” Id. at 6. This argument is not properly before this court because the
ALJ’s June 27, 2008, decision, which is the basis for the appeal to this court, is
silent on retroactive recoupment of benefits. See generally (R. 334-340). In fact,
the opinion fails to even address Wehrenberg’s assertion that he received
$19,259.12 in benefits after his eighteenth birthday. Id. As such, the court cannot

(A) in the case of an individual who is age 18 or older-(i) substantial evidence which demonstrates that-(I) there has been any medical improvement in the
individual's impairment or combination of impairments
(other than medical improvement which is not related to the
individual's ability to work), and
....
42 U.S.C.A. § 1382c(a)(4)(A)(i)(I) (emphasis added).

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address recoupment because the court’s only duty is to review the ALJ’s final
decision as a whole and determine if the decision is “reasonable and supported by
substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
C. Wehrenberg’s Work After Cessation of Benefits is Not at Issue
Finally, Wehrenberg contends that the ALJ erred because “[a]fter cessation
of benefits [Wehrenberg] found sheltered work for a ‘trial work period’ on a parttime basis; he should not have been ‘cut off’ until such time as his employment
became substantially full-time . . . . As such, he should have continued to receive
social security disability benefits until his earnings constituted ‘substantial gainful
activity.’” Doc. 11 at 8. Once again, Wehrenberg’s argument is incorrect. First,
the ALJ did not rely on Wehrenber’s employment history and, in fact, specifically
found that “[Wehrenberg] has no past relevant work.” (R. 338); see also (R. 334340). Second, in determining Wehrenberg’s disability, the ALJ considered the
jobs Wehrenberg can perform in the national economy at the age of eighteen. The
ALJ has no obligation to determine what jobs Wehrenberg can perform after the
cessation of benefits. See McDaniel, 800 F.2d at 1030. In that regard, whether
Wehrenberg was performing “part-time” or “substantial gainful activity” at the
time the benefits ceased was irrelevant to the ALJ’s analysis. Id. In short, the ALJ
committed no error because he never considered the jobs Wehrenberg performed
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in making his disability determination.
VI. CONCLUSION
Based on the foregoing, the court concludes that the ALJ’s determination
that Wehrenberg is not disabled is supported by substantial evidence, and that the
ALJ applied proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.
DONE the 26th day of July, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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