Overstreet v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION Signed by Judge Virginia Emerson Hopkins on 5/29/12. (SAC )

FILED
2012 May-29 PM 04:50
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RUBY LEE OVERSTREET,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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) Case No.: 2:11-CV-1238-VEH
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MEMORANDUM OPINION
Plaintiff Ruby Lee Overstreet (“Ms. Overstreet”) brings this action pursuant
to 42 U.S.C. § 405(g), § 205(g) of the Social Security Act. She seeks review of a
final adverse decision of the Commissioner of the Social Security Administration
(“Commissioner” or “Secretary”), who denied her application for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”).1 Ms. Overstreet timely
pursued and exhausted her administrative remedies available before the

1

In general, the legal standards applied are the same regardless of whether a claimant
seeks DIB or SSI. However, separate, parallel statutes and regulations exist for DIB and SSI
claims. Therefore, citations in this opinion should be considered to refer to the appropriate
parallel provision as context dictates. The same applies to citations of statutes or regulations
found in quoted court decisions.

Commissioner. The case is ripe for review pursuant to 42 U.S.C. § 405(g), § 205(g)
of the Social Security Act.2
FACTUAL AND PROCEDURAL HISTORY
Ms. Overstreet was a 59-year-old female at the time of her hearing before the
administrative law judge (hereinafter “ALJ”). (Tr. 14). She has a high school
education. (Tr. 14). Her past work experiences include employment as a machine
tender, a cashier, and a sandwich maker. (Tr. 108–16). Ms. Overstreet claims she
became disabled on February 1, 2008, due to diabetes, kidney disease, obesity, and
hypertension. (Tr. 11). Her last period of work ended on February 1, 2008. (Tr. 11).
Ms. Overstreet concurrently filed applications for SSI and for a period of DIB
on March 27, 2008.

(Tr. 74–78). Her claims were denied by the Regional

Commissioner on April 23, 2008. (Tr. 40–48). Ms. Overstreet timely requested a
hearing, which was held by video on December 17, 2009, in Birmingham, Alabama.3
(Tr. 9, 49). The ALJ concluded that Ms. Overstreet was not disabled and issued his
written decision denying her applications for benefits on December 21, 2009. (Tr.
9–15). The ALJ’s decision became the final decision of the Commissioner when the

2

42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g)
fully applicable to claims for SSI.
3

Ms. Overstreet appeared for the hearing in Tuscaloosa, Alabama. (Tr. 9).
2

Appeals Council denied Ms. Overstreet’s request for review on February 4, 2011.
(Tr. 1–5).
Ms. Overstreet filed her Complaint on April 11, 2011, which asks this court to
review the ALJ’s decision. (Doc. 1). This court has carefully considered the record
and reverses the decision of the ALJ.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.
The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). This court will
determine that the ALJ’s opinion is supported by substantial evidence if it finds “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. Substantial evidence is “more than a scintilla, but less than a
preponderance.” Id. Factual findings that are supported by substantial evidence must
be upheld by the court. The ALJ’s legal conclusions, however, are reviewed de novo,
because no presumption of validity attaches to the ALJ’s determination of the proper
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legal standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993).
If the court finds an error in the ALJ’s application of the law, or if the ALJ fails to
provide the court with sufficient reasoning for determining that the proper legal
analysis has been conducted, the ALJ’s decision must be reversed. Cornelius v.
Sullivan, 936 F. 2d 1143, 1145-46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish her entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the
Regulations promulgated thereunder.4 The Regulations define “disabled” as “the
inability to do 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
twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to
disability benefits, a claimant must provide evidence about a “physical or mental
impairment” which “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.

4

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, revised as of April 1, 2007.
4

The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:
(1)
(2)
(3)
(4)
(5)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment
listed by the Secretary;
whether the claimant can perform her past work; and
whether the claimant is capable of performing any work in the
national economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to former applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir.
1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the
claimant has satisfied steps one and two, she will automatically be found disabled if
she suffers from a listed impairment. If the claimant does not have a listed
impairment but cannot perform her work, the burden shifts to the Secretary to show
that the claimant can perform some other job.” Pope, 998 F.2d at 477; accord Foote
v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner must further
show that such work exists in the national economy in significant numbers. Id.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
At step one, the ALJ found that Ms. Overstreet has not engaged in substantial
gainful activity since February 1, 2008. (Tr. 11). At step two, he found that the
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medical evidence supported a finding that Ms. Overstreet’s impairments of diabetes,
kidney disease, obesity, and hypertension were considered “severe” according to 20
C.F.R. § 404.1520(c) and 416.920(c). (Tr. 11).5 At step three, the ALJ held that
those medically determinable impairments, in combination, do not meet or medically
equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix I of
the Social Security Regulations. (Tr. 12). At step four, the ALJ considered the
objective medical evidence and found that Ms. Overstreet retained the residual
functional capacity (“RFC”) to perform a full range of sedentary work.6 (Tr. 12–14).
The vocational expert testified as to the RFC required for Ms. Overstreet’s past
relevant work, which the ALJ found that Ms. Overstreet could no longer perform.
(Tr. 14). Finally, at step five, the ALJ directly applied the Medical-Vocational
Guidelines (hereinafter “grids”) at 20 C.F.R. Part 404, Subpart P, Appendix 2, to
conclude that Ms. Overstreet could perform other jobs existing in significant numbers
in the national economy and was “not disabled.” Accordingly, the ALJ denied Ms.
Overstreet’s applications for disability benefits. (Tr. 15).

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The ALJ also evaluated the diagnoses of anemia, uterine leiomyoma, and mild coronary
artery diseases that were present in Ms. Overstreet’s medical records, but found that these did not
constitute “severe” impairments for the purposes of her disability claims. (Tr. 12). Notably, Ms.
Overstreet offered no testimony at the hearing as to these impairments.
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Sedentary work involves lifting no more than 10 pounds at a time, occasionally lifting
or carrying articles like docket files, ledgers, and small tools, and occasionally walking and
standing. See 20 C.F.R. §§ 404.1567(a), 416.967(a).
6

ANALYSIS
Ms. Overstreet’s sole argument on this appeal is that this case should be
reversed because the ALJ did not properly consider her age in applying the grids.
(Doc. 12 at 2).
The grids require the ALJ to “consider [a claimant’s] chronological age in
combination with [his or her] residual functional capacity, education, and work
experience” to determine vocational ability. 20 C.F.R. § 404.1563(a). However, in
applying the grids, the Regulations provide that the Secretary “will not consider [a
claimant’s] ability to adjust to other work on the basis of [his or her] age alone”;
instead, the Secretary is directed to “consider advancing age to be an increasingly
limiting factor in the person’s ability to make such an adjustment.” Id. The
Regulations set out the following age categories for use in applying the grid rules:
a “younger person” is under age 50; a “person approaching advanced age” falls within
the bracket of 50 to 54 years of age; and a “person of advanced age” is age 55 or
older. Id. § 404.1563(c), (d), and (e). The Regulations further provide:
We will use each of the age categories that applies to you during the
period for which we must determine if you are disabled. We will not
apply the age categories mechanically in a borderline situation. If you
are within a few days to a few months of reaching an older age category,
and using the older age category would result in a determination or
decision that you are disabled, we will consider whether to use the older
age category after evaluating the overall impact of all the factors of your
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case.
Id. § 404.1563(b) (emphasis added).
Here, Ms. Overstreet contends that her age qualified as a “borderline situation”
and that the ALJ erroneously applied the grids in a mechanical fashion. Ms.
Overstreet was born on May 17, 1960. At the time of the hearing before the ALJ on
December 17, 2009, she was 49 years old. She was still 49 when the ALJ issued his
written decision on December 21, 2009.
The ALJ’s decision reflects that he analyzed Ms. Overstreet’s age as of the date
she claimed she became disabled rather than the hearing date or the date upon which
his decision was rendered. (Tr. 14 (“The claimant was born on May 17, 1960 and was
47 years old, which is defined as a younger individual age 45–49, on the alleged
disability onset date.”) (emphasis added)). Presumably because the ALJ considered
Ms. Overstreet’s age to be 47 for the purposes of his grid analysis, the ALJ’s opinion
does not indicate that he considered her age as a “borderline situation” as
contemplated by the Regulations. Indeed, if age 47 were the proper age for the ALJ
to apply in his grid analysis, it would not qualify as a borderline situation because it
would be more than “a few days” or “a few months” from the next age category,
50–54. See 20 C.F.R. § 404.1563(b).
The key question, therefore, is when the ALJ should measure the claimant’s
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age for the purposes of applying the grids? This appears to be an open question in
the Eleventh Circuit.7 However, Judge Guin squarely addressed this question in
Crook v. Barnhart, 244 F. Supp. 2d 1281 (N.D. Ala. 2003) and persuasively
reasoned8 that the claimant’s age should be measured from the decision date rather
than the date of the claimant’s application for social security benefits or even the date
of the first hearing. Id. at 1283. The undersigned has previously acknowledged her
agreement with Judge Guin’s well-reasoned and persuasive opinion in Crook. See
Sellers v. Astrue, Case No. 07-cv-1131-VEH, Doc. 10 at 6 n.3 (N.D. Ala. March 10,
2008) (“Neither side has cited nor has the Court been able to independently locate any

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The court notes that Plaintiff’s opening brief to the court mistakenly refers to Judge
Guin’s decision in Crook v. Barnhart, 244 F. Supp. 2d 1281 (N.D. Ala. 2003) as Eleventh Circuit
authority. However, the opinions of other district court judges, even in the Northern District of
Alabama, are not binding on this court. Fishman & Tobin, Inc. v. Tropical Shipping & Const.
Co., Ltd., 240 F.3d 956, 965 (11th Cir. 2001) (“[T]he district court cannot be said to be bound by
a decision of one of its brother or sister judges” although such decisions may be persuasive).
8

Judge Guin persuasively adopted the reasoning of a published Sixth Circuit decision in
holding that “[f]or purposes of determining age under the grids, ‘the claimant’s age at the time of
the decision governs.’” Crook, 244 F. Supp. 2d at 1283 (quoting Varley v. v. Sec'y of Health &
Human Servs., 820 F.2d 777, 780 (6th Cir. 1987)) (emphasis in original). As the court in Varley
observed:
This interpretation is consistent with the general thrust of the regulations. The
relevant inquiry is whether the claimant has the ability to engage in substantial
gainful activity. The fact that a claimant who is unable to engage in such activity at
the time of the decision may have been able to do so at some point in the past goes
to the question of the onset date, not the question of disability.
Varley, 820 F.2d at 780-81. Absent any contrary authority from the Eleventh Circuit, this court
agrees with the reasoning of both Crook and Varley.
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controlling authority on this issue [of how to determine when a borderline age
situation exists]. The Court agrees with Judge Guin’s reasoning in Crook.”).
Moreover, topical secondary sources such as Social Security Law & Practice
persuasively explain that the claimant’s age should be measured from the decision
date rather than the disability onset date. 3 Soc. Sec. Law & Prac. § 43:153 (2012)
(“The SSA considers a borderline situation to exist where a claimant is within a few
days to a few months of reaching an older age category and where using the older age
category would result in finding the claimant to be disabled. In such cases, the
claimant's age is to be determined as of the time of the decision, rather than the
disability onset date, the date of application, or the hearing date. (footnotes omitted)
(emphasis added)). Accordingly, the court finds that the appropriate measuring date
for a claimant’s age for purposes of grid analysis is the date that the ALJ’s decision
is rendered.
The court notes that the Commissioner’s briefing likewise reflects the court’s
understanding that the ALJ’s decision date is the governing date for measurement of
Ms. Overstreet’s age when applying the grid rules. (See Doc. 13 at 5 (measuring
Plaintiff’s age from “the time of [the ALJ’s] decision” and “on the date of the [ALJ’s]
decision”)). The Commissioner, however, maintains that the ALJ in this case did
consider Ms. Overstreet’s age as of the date of his decision. (Doc. 13 at 5 (“Thus, the
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ALJ’s decision reflects that he recognized [Ms. Overstreet] was approaching age 50
but was still 49 (a younger person) at the time of his decision.” (citing Tr. 15)). The
court disagrees with that interpretation of the ALJ’s decision because nowhere in his
opinion did the ALJ express his consideration of Ms. Overstreet’s age at the time of
the hearing (49) or as of the date of his decision. Instead, the only explicit reference
to Ms. Overstreet’s age is when the ALJ described her as “47” when classifying her
as a “younger individual” in application of the grid rules. (Tr. 14). The court will not
read into the ALJ’s opinion an implicit consideration that Ms. Overstreet “was
approaching age 50” at the time of his decision, as the Commissioner seems to invite
the court to do.
Therefore, despite the Commissioner’s arguments to the contrary, the court
finds that it is clear that the ALJ applied the wrong age in his grid analysis. At the
time of the ALJ’s decision, Ms. Overstreet was approximately five months away from
her fiftieth birthday. Upon turning 50, Ms. Overstreet would have been classified as
a “person closely approaching advanced age,” which could have materially altered
the ALJ’s determination under the grids. Because the ALJ found Ms. Overstreet (at
age 47) to be classified as a “younger individual,” he applied Rule 201.21, which
directed a finding of “not disabled.” (Tr.15). However, it is significant to note that
he did so without expressly making a finding on the transferability of Ms.
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Overstreet’s job skills because that issue was immaterial to his application of Rule
201.21 (to be applied where skills are not transferable) versus Rule 201.22 (to be
applied where skills are transferable), as both rules direct a finding of “not disabled.”
(Tr. 14 (“Transferability of job skills is not material to the determination of disability
because applying the [grids] directly supports a finding of “not disabled,” whether or
not the claimant has transferable job skills.”)).
Hypothetically speaking, if Ms. Overstreet were found to qualify for the
“person closely approaching advanced age” category, application of the relevant rules
– Rule 201.14 or Rule 201.15 – could result in a finding of “disabled” (if her job
skills are found to be not transferable) or “not disabled” (if her job skills are found
to be transferable). Therefore, consideration of Ms. Overstreet’s age is, at the least,
a potentially dispositive issue that merits remand for further factual findings.
On remand, the ALJ should expressly consider (1) whether Ms. Overstreet’s
age at the time of his initial decision constituted a “borderline situation” as
contemplated by the Regulations discussed in this opinion9; (2) if so, whether, based
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The court notes here that, based on its research, courts will generally recognize a
borderline situation where a person whose age falls within six months or less of the next highest
age category. See, e.g., Pettway v. Astrue, CIV.A 10-127-C, 2010 WL 3842365, at *3 (S.D. Ala.
Sept. 27, 2010) (“Based on my review of the cases, the consensus among federal courts appears
to be that six months from the older age category is the extent to which courts will recognize a
borderline age situation.” (citing cases)); Harrison v. Astrue, No. 3:09cv509/LAC/EMT, 2011
WL 1158750, at *9 n.14 (N.D. Fla. Feb. 24, 2011) (citing cases). However, the court recognizes
that “[i]n applying the Grids, the ALJ has the discretion to determine whether, under the
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on the particular facts and testimony of this case, the ALJ finds that the next age
category should apply; and (3) if it is determined that Ms. Overstreet should qualify
for the “person closely approaching advanced age” category, whether her job skills
are transferable as contemplated by the grids. These queries should guide the ALJ
in correct interpretation and application of the grids to the facts of this case,
considering age as a potentially dispositive factor.
Further, on remand, the parties should be mindful of the burden-shifting
evidentiary framework set out by the Eleventh Circuit in Reeves:
In Broz v. Schweiker, 677 F.2d 1351 (11th Cir.1982), vacated and
remanded sub nom. Heckler v. Broz, ––– U.S. ––––, 103 S. Ct. 2421, 77
L. Ed. 2d 1311, adhered to, 711 F.2d 957, modified, 721 F.2d 1297
(11th Cir. 1983), this court held that the Secretary could not use the
grids that the Secretary had adopted concerning age to establish
conclusively a claimant's ability to adapt to a new work environment
because the age factor was not amenable to legislative factfinding and
had to be determined on an individual basis. Broz I, 677 F.2d at 1360.
We expressly declined to decide how individual consideration of the
age/ability to adapt factor should be done. Id. at 1361.
Under the statutory scheme, once a claimant has proved that he can no
longer perform his past relevant work, the burden shifts to the Secretary
to prove that claimant can perform substantial gainful activity that exists
in the national economy. Id. at 1355. In discharging this burden the
Secretary may use the age factor as applied in the grids as evidence of
the claimant's ability to adapt to a new work environment, but this age

circumstances of the particular case before him, a claimant's age should be considered borderline,
and if so, which Grid Rule(s) should be applied” and that “[t]here are no fixed guidelines as to
when a borderline situation exists.” Harrison, 2011 WL 1158750, at *9 (citations omitted).
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factor shall not be conclusive. If the claimant then proffers substantial
credible evidence that his ability to adapt is less than the level
established under the grids for persons his age, the Secretary cannot rely
on the age factor of the grids and must instead establish the claimant's
ability to adapt to a new work environment by independent evidence. Cf.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101
S. Ct. 1089, 67 L. Ed. 2d 207 (1981) (establishing a tripartite scheme of
burden of production in Title VII cases). Applied specifically to this
case, this burden of production scheme allows the Secretary to rely in
the first instance on the age grids, but, if [Ms. Overstreet] introduces
evidence that [her] ability to adapt is more limited than that presumed
by the grids for [49] year-olds, the Secretary must prove [Ms.
Overstreet]’s ability to adapt by other evidence.
Reeves v. Heckler, 734 F.2d 519, 525-26 (11th Cir. 1984) (footnote omitted)
(emphasis added); see also Garner v. Heckler, 735 F.2d 1291, 1292 (11th Cir. 1984)
(finding that the ALJ mechanically applied the grids to a claimant who was age 49
and 10 months at the time of the adjudication and remanding case to give claimant the
opportunity to make a proffer under Reeves framework).
CONCLUSION
The Court concludes that the ALJ’s determination that Ms. Overstreet is not
disabled is not supported by substantial evidence because improper legal standards
were applied in reaching this determination. The Commissioner’s final decision is
therefore due to be reversed and remanded, and a separate order consistent with this
Memorandum Opinion will be entered.

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DONE and ORDERED this the 29th day of May, 2012.

VIRGINIA EMERSON HOPKINS
United States District Judge

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