Kimbrell v. Social Security Administration, Commissioner
MEMORANDUM OPINION, as set out. Signed by Judge Sharon Lovelace Blackburn on 3/24/15. (CTS, )
2015 Mar-24 PM 03:49
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MARY A. KIMBRELL,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Case Number 2:13-cv-1515-SLB
Plaintiff Mary A. Kimbrell brings this action pursuant to 42 U.S.C. § 405(g), seeking
review of the final decision of the Commissioner of Social Security denying her application
for supplemental security income [“SSI”]. Upon review of the record, the submissions of the
parties, and the relevant law, the court is of the opinion that the Commissioner’s decision is
due to be affirmed.
I. PROCEDURAL HISTORY
On February 23, 2010, plaintiff filed an application for SSI, alleging a disability onset
date of January 1, 1997, which plaintiff later amended to February 16, 2010. (R. 166, 183.)1
This application was denied on July 27, 2010 by the Social Security Administration [“SSA”],
(R. 98), and plaintiff subsequently requested a hearing before an Administrative Law Judge
Reference to a document number, (“Doc.___”), refers to the number assigned to each
document as it is filed in the court’s record. References to page numbers in the
Commissioner’s record are set forth as (“R.___”).
[“ALJ”], which was held on December 8, 2011, (R. 62). After the hearing, the ALJ found
that plaintiff was capable of making a vocational adjustment to other occupations, such as
maid/cleaner, hand packer, and laundry worker, which are jobs that exist in significant
numbers in Alabama and in the national economy. (R. 48-49.) In light of these findings, the
ALJ denied plaintiff’s request for SSI on December 28, 2011. (R. 49.)
Plaintiff petitioned the Appeals Council to review the ALJ’s decision, and on May 11,
2013, the Appeals Council denied plaintiff’s request for review, thereby rendering the ALJ’s
decision the final decision of the Commissioner of Social Security. (R. 1.) Following denial
of review by the Appeals Council, plaintiff filed an appeal in this court on August 16, 2013.
II. STANDARD OF REVIEW
In reviewing claims brought under the Social Security Act, this court “is limited to an
inquiry into whether there is substantial evidence to support the findings of the
Commissioner, and whether the correct legal standards were applied.” Wilson v. Barnhart,
284 F.3d 1219, 1221 (11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir.
1988). The court gives deference to factual findings and reviews questions of law de novo.
Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). The court “may not decide the
facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner];
rather the court must scrutinize the record as a whole to determine if the decision reached is
reasonable and supported by substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983))
(internal quotations and other citation omitted). “The Commissioner’s factual findings are
conclusive if supported by substantial evidence.” Wilson, 284 F.3d at 1221 (citing Martin,
894 F.2d at 1529; Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987)). “Substantial evidence
is more than a scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178
(11th Cir. 2011) (internal quotations and citations omitted).
Conclusions of law made by the Commissioner are reviewed de novo. Cornelius, 936
F.2d at 1145. “[N]o . . . presumption of validity attaches to the [Commissioner’s] conclusions
of law.” Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
A. THE FIVE-STEP EVALUATION
The regulations require the Commissioner to follow a five-step sequential evaluation
to determine whether a claimant is eligible for DIB or SSI.2 See 20 C.F.R. § 404.1520(a)(1)-
The Regulations state:
The sequential evaluation process is a series of five “steps” that we follow in
a set order. . . . If we can find that you are disabled or not disabled at a step, we
make our determination or decision and do not go on to the next step. If we
cannot find that you are disabled or not disabled at a step, we go on to the next
step. Before we go from step three to step four, we assess your residual
functional capacity. . . . We use this residual functional capacity assessment at
both step four and step five when we evaluate your claim at these steps.
20 C.F.R. § 404.1520(a)(4).
(2); Bowen v. City of New York, 476 U.S. 467, 470 (1986). For the purposes of this
evaluation, the meaning of disability is the “inability 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 has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 416(i)(1); 42 U.S.C. § 423(d)(1)(A). The specific
steps in the evaluation process are as follows:
1. Substantial Gainful Employment
First, the Commissioner must determine whether the claimant is engaged in
“substantial gainful activity.” Bowen v. Yuckert, 482 U.S. 137, 137 (1987).3 If the claimant
is engaged in substantial gainful activity, the Commissioner will find that the claimant is not
The Regulations define “substantial gainful activity”:
(a) Substantial work activity. Substantial work activity is work activity
that involves doing significant physical or mental activities. Your work
may be substantial even if it is done on a part-time basis or if you do
less, get paid less, or have less responsibility than when you worked
(b) Gainful work activity. Gainful work activity is work activity that
you do for pay or profit. Work activity is gainful if it is the kind of work
usually done for pay or profit, whether or not a profit is realized.
(c) Some other activities. Generally, we do not consider activities like
taking care of yourself, household tasks, hobbies, therapy, school
attendance, club activities, or social programs to be substantial gainful
20 C.F.R. § 404.1572.
disabled, regardless of the claimant’s medical condition or her age, education, and work
experience. 20 C.F.R. § 404.1520(b); § 416.920(b). “Under the first step, the claimant has
the burden to show that she is not currently engaged in substantial gainful activity.”
Reynolds-Buckley v. Comm’r of Soc. Sec., 457 F. App’x 862, 863 (11th Cir. 2012).4
The ALJ found that plaintiff had not engaged in substantial gainful activity since
February 16, 2010, the alleged onset date. (R. 36.) While the ALJ noted that plaintiff
previously and currently worked up to twenty hours a week as a home health provider, the
ALJ found that plaintiff’s work activity did not rise to the level of substantial gainful activity,
considering plaintiff’s posted earnings and the record as a whole. (Id.)
2. Severe Impairments
If the claimant is not engaged in substantial gainful activity, the Commissioner must
next determine whether the claimant suffers from a severe impairment or combination of
impairments that significantly limits the claimant’s physical or mental ability to do basic
work activities. 20 C.F.R. § 404.1520(a)(4)(ii), (c); § 416.920(a)(4)(ii), (c). “[A] ‘physical
or mental impairment’ is an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3); § 1382c(a)(3)(D). The regulations
Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be unpublished
unless a majority of the panel decides to publish it. Unpublished opinions are not
considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2 (emphasis added).
provide: “[I]f you do not have any impairment or combination of impairments which
significantly limits your physical or mental ability to do basic work activities, we will find
that you do not have a severe impairment and are, therefore, not disabled. We will not
consider your age, education, and work experience.” 20 C.F.R. § 404.1520(c); § 416.920(c).
An impairment is “severe” if it “significantly limits [a] claimant’s physical or mental
ability to do basic work activities.”5 Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir.
1997); 20 C.F.R. § 404.1520(c); 20 C.F.R. § 404.1521(a). When an impairment “is a slight
abnormality which has such a minimal effect on the individual that it would not be expected
to interfere with the individual’s ability to work, irrespective of age, education, or work
experience,” it will be classified as non-severe. Brady v. Heckler, 724 F.2d 914, 920 (11th
Cir. 1984); see also SSR 85-28, 1985 WL 56856 (1985). A claimant may be found disabled
based on a combination of impairments even though none of the individual impairments
alone are disabling. Walker v. Bowen, 826 F.2d 996, 1001 (11th Cir. 1987); see also 20
C.F.R. § 404.1523; § 416.923. A claimant has the burden to show that she has a severe
impairment or combination of impairments. Reynolds-Buckley, 457 F. App’x at 863.
Basic work activities include:
(1) Physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling; (2) [c]apacities for
seeing, hearing, and speaking; (3) [u]nderstanding, carrying out and
remembering simply instructions; (4) [u]se of judgment; (5)
[r]esponding appropriately to supervision, co-workers and usual work
situations; and (6) [d]ealing with changes in a routine work setting.
20 C.F.R. § 404.1521(b)(1)-(6).
The ALJ found that plaintiff had severe impairments of “osteoarthritis, diabetes, posttraumatic stress disorder, major depressive disorder, panic disorder with agoraphobia, and
obesity.” (R. 36.)
3. The Listings
If the claimant has a severe impairment, the Commissioner must then determine
whether the claimant’s impairment meets the duration requirement and whether it is
equivalent to any one of the listed impairments. 20 C.F.R. § 404.1520(a)(4)(iii), (d)-(e);
§ 404.1525; § 404.1526. Listed impairments are so severe that they prevent an individual
from performing substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii), (d)-(e); see 20
C.F.R. pt. 404, Subpart P, Appendix 1 [The Listings]. If the claimant’s impairment meets or
equals a Listing, the Commissioner must find the claimant disabled, regardless of the
claimant’s age, education, and work experience. 20 C.F.R. § 404.1520(d); § 416.920(d). The
claimant has the burden of proving that her impairment meets or equals the criteria contained
in one of the Listings. Reynolds-Buckley, 457 Fed. App’x. at 863.
The ALJ found that plaintiff did not have an impairment or combination of
impairments that met or medically equaled a Listing. (R. 36.)
4. Residual Functional Capacity and Past Relevant Work
If the impairment does not meet or equal the criteria of a Listing, the claimant must
prove that her impairment prevents her from performing her past relevant work. See 20
C.F.R. § 404.1520(a)(4)(iv), (f); § 416.920(a)(4)(iv), (f). At step four, the Commissioner
“will first compare [the Commissioner’s] assessment of [the claimant’s] residual functional
capacity [“RFC”] with the physical and mental demands of [the claimant’s] past relevant
work.” 20 C.F.R. § 404.1560(b); § 416.960(b). “Past relevant work is work that [the claimant
has] done within the past 15 years, that was substantial gainful activity, and that lasted long
enough for [her] to learn to do it.” 20 C.F.R. § 404.1560(b)(1); § 416.960(b)(1). If the
claimant is capable of performing her past relevant work, the Commissioner will find that
she is not disabled. 20 C.F.R. § 404.1560(b)(3); § 416.920(f). The claimant bears the burden
of establishing that the impairment prevents her from performing past work.
Reynolds-Buckley, 457 F. App’x at 863.
The ALJ found that plaintiff has a limited education and was 54 years old, which is
defined as an individual closely approaching advanced age, on the alleged onset date. (R. 48.)
The ALJ also found that plaintiff was unable to perform any past relevant work. (R. 47.) The
ALJ made the following findings regarding plaintiff’s RFC:
[T]he claimant has the residual functional capacity to perform light
work . . . except she can never climb ladders, ropes, or scaffolds. She
can occasionally bend. She can frequently climb ramps, climb stairs,
balance, stoop, kneel, crouch, and crawl. The claimant is limited to oneand two-step tasks in a low stress job with only occasional decision
making required, only occasional changes in the work setting, and no
strict production rate requirements. She is limited to only occasional
interaction with the public.
5. Other Work in the National Economy
If the claimant establishes that she is unable to perform her past relevant work, the
Commissioner must show that the claimant—in light of her RFC, age, education, and work
experience—is capable of performing other work that exists in substantial numbers in the
national economy. Reynolds-Buckley, 457 F. App’x at 863; see also 20 C.F.R.
§ 404.1520(c)(1); § 416.920(g). The regulations provide:
If we find that your residual functional capacity does not enable you to do any
of your past relevant work . . . we will use the same residual functional
capacity assessment when we decide if you can adjust to any other work. We
will look at your ability to adjust to other work by considering your residual
functional capacity and the vocational factors of age, education, and work
experience . . . . Any other work (jobs) that you can adjust to must exist in
significant numbers in the national economy (either in the region where you
live or in several regions in the country).
20 C.F.R. § 404.1560(c)(1); § 416.960(c)(1). If the claimant is not capable of performing
such other work, the Commissioner must find the claimant disabled. 20 C.F.R.
§ 404.1520(g); § 416.920(g).
The ALJ consulted a Vocational Expert [“VE”] to determine whether any jobs exist
in the national economy that plaintiff could perform, considering her RFC, age, education,
and work experience. The VE testified that an individual with plaintiff’s limitations and
vocational factors could perform the jobs of maid/cleaner, hand packer, and laundry worker,
which are jobs that exist in significant numbers in Alabama and in the national economy. (R.
90.) Because the ALJ found that jobs consistent with plaintiff’s RFC and vocational factors
exist in significant numbers, the ALJ found that plaintiff was not disabled. (R. 49.)
B. MS. KIMBRELL’S CLAIMS
Plaintiff argues that (1) the ALJ erred in discrediting plaintiff’s complaints of pain,
(2) the ALJ erroneously relied on VE testimony that conflicted with plaintiff’s RFC
assessment to find that plaintiff could perform other work in the national economy, and (3)
even if the court affirms the ALJ’s RFC findings, the court should remand for a
determination of plaintiff’s proper age category at the time of the ALJ decision. (Doc. 10 at
11, 16.) Upon reviewing the record and the parties’ briefs, the court finds that the
Commissioner’s decision is due to be affirmed.
1. Credibility Determination
Plaintiff argues that the ALJ did not rely on substantial evidence in discrediting her
complaints of pain. (Doc. 10 at 16.) Social Security Ruling 96-7p explains the two step
process set out in 20 C.F.R. § 404.1529 and § 416.929 that the ALJ must follow6: “First, the
adjudicator must consider whether there is an underlying medically determinable physical
or mental impairment—i.e., an impairment(s) that can be shown by medically acceptable
clinical and laboratory diagnostic techniques—that could reasonably be expected to produce
Apparently the Eleventh Circuit considers the standard set out in the regulations and the
standard in Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.1991), as one and the same.
Wilson v. Barnhart, 284 F.3d 1219, 1226 (11th Cir. 2002) (“Furthermore, the ALJ cites to
20 C.F.R.§ 404.1529, which contains the same language [as Holt] regarding the subjective
pain testimony that this Court interpreted when initially establishing its three-part pain
standard. In citing to § 404.1529 and based on the findings and discussion, it is clear that the
ALJ applied this Circuit's pain standard [from Holt].”). Because SSR 96-7p offers an indepth explanation of the regulations and is more recent than Holt, the court looks to it for
the individual’s pain or other symptoms.” This determination does not consider the
“intensity, persistence, or functionally limiting effects of the individual’s symptoms.” SSR
96-7p. If the ALJ finds that the plaintiff’s case survives the first step, then
the adjudicator must evaluate the intensity, persistence, and
limiting effects of the individual’s symptoms to determine the
extent to which the symptoms limit the individual’s ability to do
basic work activities. For this purpose, whenever the
individual’s statements about the intensity, persistence, or
functionally limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, the adjudicator
must make a finding on the credibility of the individual’s
statements based on a consideration of the entire case record.
SSR 96-7p. The ALJ found that, under step one, “the claimant’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms,” but under step
two, “the claimant’s statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent with the above residual
functional capacity assessment.” (R. 40.)
First, plaintiff argues that the ALJ improperly relied on plaintiff’s failure to follow her
prescribed treatment. (Doc. 10 at 19.) Specifically, plaintiff argues that the ALJ could not
rely on plaintiff’s failure to follow prescribed treatment to determine that plaintiff was not
disabled without “evidence from a treating source that such treatment would restore
[plaintiff’s] ability to work.” (Doc. 10 at 21.) The Commissioner may rely on a claimant’s
failure to follow prescribed treatment only if the following requirements are met:
1. The evidence establishes that the individual's impairment precludes
engaging in any substantial gainful activity (SGA) . . . ; and
2. The impairment has lasted or is expected to last for 12 continuous months
from onset of disability or is expected to result in death; and
3. Treatment which is clearly expected to restore capacity to engage in any
SGA . . . has been prescribed by a treating source; and
4. The evidence of record discloses that there has been refusal to follow
Where SSA makes a determination of “failure,” a determination must also
be made as to whether or not failure to follow prescribed treatment is
SSR 82-59; see also Lucas v. Sullivan, 918 F.2d 1567, 1572 (11th Cir. 1990) (“[T]he
Secretary may not deny SSI disability benefits on the basis of noncompliance with treatment
unless it is shown that compliance would restore the claimant’s ability to work . . . .”).
Contrary to defendant’s argument, the ALJ did not properly consider plaintiff’s
noncompliance with her prescribed mental health treatment. The ALJ stated:
To obtain disability benefits, a claimant must follow treatment prescribed if
that treatment would restore the claimant’s ability to work. If the claimant
does not follow prescribed treatment without a good reason, the claimant will
not be found disabled. The regulations do not list financial inability to pay for
treatment as an acceptable excuse for failing to follow prescribed treatment.
(20 C.F.R. § 404.1530, 416.930). The claimant is also able to afford
cigarettes. She has continuously worked and earned some income.
(R. 44.) The ALJ erred in relying on plaintiff’s noncompliance because the ALJ did not
determine that plaintiff was under a disability or that compliance would restore plaintiff’s
ability to work. The court agrees with defendant that the ALJ “considered [p]laintiff’s
noncompliance only as evidence undermining [p]laintiff’s credibility.” (See Doc. 11 at 8.)
However, an ALJ is not permitted to rely on a claimant’s noncompliance for this reason. See
Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988) (“In order to deny benefits on the
ground of failure to follow prescribed treatment, the ALJ must find that had the claimant
followed the prescribed treatment, the claimant's ability to work would have been restored.”)
Therefore, plaintiff’s argument on this point is meritorious. Nevertheless, because the
ALJ did not primarily base her disability determination on plaintiff’s noncompliance and
additionally relied on substantial evidence in assessing plaintiff’s credibility, the court will
not remand for a correction of the ALJ’s error. See Mack v. Comm’r of Soc. Sec., 420 F.
App’x 881, 883 (11th Cir. 2011) (“Because (1) the ALJ did not significantly base his
determination that Mack was not disabled on her noncompliance with prescribed treatment;
and (2) there is no dispute that substantial evidence supports the ALJ’s credibility finding,
the ALJ’s assessment of both the medical evidence and Mack’s RFC, and the VE’s testimony
. . . , we affirm.”).
Plaintiff next contests the ALJ’s reliance on plaintiff’s conservative treatment history
and hearing testimony. The ALJ found that:
[t]he claimant has not generally received the type of medical treatment one
would expect for a totally disabled individual. The bulk of the records reveal
that she was treated for routine medical issues and not with the frequency one
would expect considering the allegedly disabling nature of her impairments.
Her physical treatment has been essentially routine and/or conservative in
nature, consisting only of medications. She never sought or received treatment
from a specialist such as a rheumatologist or pain management doctor; all
treatment has been rendered by a general practitioner. Treatment notes indicate
medication has been generally successful in controlling her symptoms.
(R. 44.) The ALJ also noted that:
[plaintiff’s] description of the severity of her pain has been so extreme as to
appear implausible. Treatment notes do not describe pain or physical
examination findings consistent with the claimant’s allegation she could only
stand about fifteen to twenty minutes, sit about thirty minutes, or walk four
to five feet. In fact she only described her pain as a 4 on a scale of 1-10.
Plaintiff argues that, contrary to the ALJ’s determination, plaintiff stated she could
walk a block before her knees and hips hurt, rather than only four or five feet, and the court
agrees. At the hearing, plaintiff stated that she walked four to five feet from her car to the
front steps of the residence where plaintiff provided home health care. (R. 72-73.) She did
not indicate that four or five feet was the maximum distance she could walk, and she had
previously stated in a Function Report that she could walk a block before she was in pain.
(See id.; R. 197.) Despite this error, the ALJ relied on substantial evidence in finding that
plaintiff’s impairments were not as limiting as alleged.
Treatment notes from March 19, 2010 showed that plaintiff’s diabetes and
hyperlipidemia were at the “goal” level and that the doctor treated plaintiff through
prescription medication. (R. 302.) Physicians at the Good Samaritan Health Clinic repeatedly
treated plaintiff with medication, and on November 29, 2011, plaintiff stated that the
medications helped with her pain. (R. 358, 362, 363, 457.) She also indicated on March 10,
2010 that the medications Seroquel and Lexapro helped stabilize her psychiatric impairments,
(R. 309), and on February 3, 2011, plaintiff appeared “elated” at her therapy session and
stated she felt Klonopin was helping her, (R. 396). Additionally, the ALJ noted that the
treating notes in the record do not contain any restrictions on plaintiff. (R. 45.) While the
record does show that plaintiff sought treatment for both her physical and mental
impairments with regularity, plaintiff’s treatment regime consisting primarily of medication,
which appears to have alleviated plaintiff’s pain, supports the ALJ’s conclusion that
plaintiff’s impairments were not as limiting as alleged.
Plaintiff also challenges the ALJ’s finding that the limited nature of plaintiff’s
activities could not be attributed to plaintiff’s medical impairments, as opposed to other
reasons, and could not be objectively verified. (Doc. 10 at 17.) While the ALJ did not support
this finding with specific evidence from the record, the ALJ made additional findings
regarding plaintiff’s daily activities, stating that plaintiff did not limit her daily activities “to
the extent one would expect, given the complaints of disabling symptoms and limitations.”
(R. 46.) The ALJ relied on plaintiff’s testimony that she shopped for groceries about once
or twice a week, prepared small meals for herself, and drove herself around. (R. 46, 73, 195.)
Plaintiff also reported that she completed her daily activities without assistance, attended
church, and visited with two of her neighbors. (R. 311.)
Additionally, in 2010, plaintiff worked part-time as a care provider for two disabled
Veterans Affairs clients. (R. 193.) She helped the men maintain hygiene and helped one man
move from his wheelchair to the bed if he could not stand. (Id.) She was fired in early 2011.
(R. 65.) Although plaintiff stated that she no longer wanted to work as a caregiver, she
reported working as a care provider for a woman in a wheelchair in June 2011, a few months
after she was fired from her previous job, and plaintiff maintained this job until at least
October 2011. (R. 386, 393, 447.) The ALJ noted that plaintiff’s ability to work as a care
provider “at that time strongly suggests that [plaintiff’s impairments] would not currently
prevent work.” (R. 47.) Plaintiff’s activities of daily living support a finding that her
complaints of pain are not fully credible.
Lastly, plaintiff challenges the ALJ’s finding that the objective medical evidence did
not support plaintiff’s contention that her pain prevented her from working. Plaintiff argues
that an x-ray of plaintiff’s lumbar spine revealed that plaintiff’s spine lacks a normal lordotic
curvature and that this impairment, known as flat back syndrome,7 “can reasonably be
expected to produce pain.”8 (Doc. 10 at 22-23.) Plaintiff is correct that medical literature on
lumbar “flat back syndrome” supports her argument that plaintiff’s impairment could
reasonably cause plaintiff pain. (Id.) However, defendant is also correct that “the finding that
an impairment could reasonably be expected to produce pain does not involve a
determination as to the intensity, persistence, or functionally limiting effects of the
symptoms.” (Doc. 11 at 10.) The ALJ discredited plaintiff’s complaints about the limiting
effects of her pain because, in addition to plaintiff’s daily activities suggesting a greater
“Flat back syndrome refers to a loss of normal lumbar lordosis or swayback appearance.”
(Doc. 10 at 23 (quoting Lumbar Flat Back Syndrome, VIRGINIA SPINE INSTITUTE).)
Plaintiff attached two medical articles discussing flat back syndrome as exhibits to
supplement her argument.
ability than that alleged by plaintiff, an x-ray of plaintiff’s lumbar spine revealed that, while
normal lordotic curvature of the lumbar spine was not present, only mild arthritic changes
were noted. (R. 45, 338.) Dr. Bharat Vakharia also found that movement of plaintiff’s
cervical spine was near normal and that plaintiff’s gait was normal. (R. 334.)
Regarding plaintiff’s complaints of pain in her hands, a medical examination by Dr.
Vakharia showed that plaintiff has 4/5 grip strength in both hands and, although Dr. Vakharia
found evidence of osteoarthritis in plaintiff’s DIP joints, there were no signs of “muscle
wasting” in plaintiff’s hands. (R. 41, 334.) The medical evidence of record also did not
support plaintiff’s complaints of hip pain. Dr. Vakharia found that plaintiff’s hip movements
were “minimally limited and painful,” (R. 334), and an x-ray of plaintiff’s right hip joint
“revealed interarticular joint space is normal[, and] [b]ony structure is normal. There is no
evidence of fracture or dislocation. There is no significant degenerative arthritic changes
noted,” (R. 338). The court finds that substantial evidence supports the ALJ’s credibility
2. Vocational Expert Testimony
Plaintiff next contends that two of the three jobs the VE testified that plaintiff could
perform require a reasoning level of two, which exceeds plaintiff’s RFC limiting her to “oneand two-step tasks.” (Doc. 10 at 13-14.)
[A]t step five of the sequential evaluation process, the Commissioner has the
burden of proving that the plaintiff is capable of engaging in another kind of
substantial gainful employment which exists in significant numbers in the
national economy, given the claimant's residual functional capacity, age,
education, and work history. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). An ALJ may make this determination by relying on the testimony of a
VE. Leigh v. Commissioner of Social Security, 496 Fed. App'x 973 (11th Cir.
2012) (per curiam) (citing Jones v. Apel, 190 F.3d 1224, 1230 (11th Cir. 1999)).
For a VE's testimony to constitute substantial evidence, the ALJ must pose a
hypothetical question that comprises all of the plaintiff's impairments. Id., 496
Fed. App'x 973, 190 F.3d at 1229. If there is a conflict between the [Dictionary
of Occupational Titles (“DOT”)] and the jobs identified by the VE, the VE
trumps the DOT because the DOT is not the sole source of admissible
information concerning jobs. Id.; Robinson v. Astrue, 2011 U.S. Dist. LEXIS
68974, (M.D. Ala. June 27, 2011) (citing Jones v. Apfel, supra); Social Security
Ruling 00–4p, 2000 SSR LEXIS 8.
Morgan v. Colvin, Civil Action No. 12-00204-B, 2013 WL 5445690, at *6 (S.D. Ala. Sept.
30, 2013). Further, Social Security Ruling 00-4p requires an ALJ to affirmatively ask the VE
whether a conflict exists between the VE’s testimony and the DOT.
The ALJ’s RFC assessment limited plaintiff to “one- and two-step tasks,” which
plaintiff argues should limit her to only jobs requiring a reasoning level of one, defined as
“[applying] commonsense understanding to carry out simple one- or two-step instructions
[and dealing] with standardized situations with occasional or no variables in or from these
situations encountered on the job.” See 1991 WL 672783. The VE testified that, given
plaintiff’s age, education, work experience, and RFC, including plaintiff’s limitation to oneand two-step jobs, plaintiff could perform the jobs of maid/cleaner (DOT 323.687-014), hand
packer (DOT 920.686-083), and laundry worker (DOT 361.687-014). (R. 90.) The jobs of
hand packer and laundry worker require a reasoning level of two, which entails “[applying]
commonsense understanding to carry out detailed but uninvolved written or oral instructions
[and dealing] with problems involving a few concrete variables in or from standardized
situations.” See 1991 WL 687959; 1991 WL 672991. Before relying on the VE’s testimony
regarding the jobs plaintiff could perform, the ALJ asked the VE if his testimony was
consistent with the DOT, and the VE responded that there was no conflict. (R. 95.)
First, the court finds that no conflict exists between plaintiff’s RFC limiting her to
one- and two-step tasks and the VE’s testimony that plaintiff is capable of performing jobs
requiring a reasoning level of two. “Most courts which have addressed this issue have held
that the requirement of Reasoning Level 2 or 3 is not inconsistent with the ability to perform
only simple tasks.” Riddle v. Colvin, Civil Action No. 1:12-cv-787-WC, 2013 WL 6772419,
at *6 (M.D. Ala. Dec. 20, 2013) (citations and internal quotations omitted); see also
Campbell v. Colvin, Civil Action No. 12-00656-B, 2014 WL 1315600, at *12 (S.D. Ala. Mar.
28, 2014) (finding that the plaintiff failed to show a conflict between her RFC limitation of
“very short and simple instructions” and the VE’s testimony that plaintiff could perform jobs
requiring level two reasoning, “given that the level two reasoning requirement of these jobs
is consistent with carrying out simple, one and two step tasks and instructions”); George v.
Astrue, Civil Action No. 10-00113-B, 2011 WL 4550131, at *5 (S.D. Ala. Sept. 30, 2011)
(holding that plaintiff’s RFC limiting him “to carrying out simple one and two step tasks and
instructions” did not conflict with the VE’s testimony that plaintiff could perform a job
requiring a reasoning level of two).
However, even assuming a conflict exists, the ALJ fulfilled her duty under SSR 00-4p
by asking the VE if his testimony was consistent with the DOT. When the VE responded that
it was, the ALJ was entitled to rely on the VE’s testimony. See SSR 00-4p; see also
Leigh v. Comm’r of Soc. Sec., 496 F. App’x 973, 975 (11th Cir. 2012) (rejecting an argument
that the ALJ erroneously relied on the VE’s testimony, where the ALJ inquired about any
inconsistencies between the VE’s opinion and the DOT, and the plaintiff did not offer
evidence controverting the VE’s testimony). Furthermore, “SSR 00-4p requires only that the
ALJ resolve an ‘apparent unresolved conflict.’” Campbell, 2014 WL 1315600, at *13.
Because the VE responded that his testimony was consistent with the DOT and plaintiff did
not offer evidence challenging the VE’s opinion on the record, no “apparent unresolved
conflict” existed for the ALJ to resolve. The court finds that the VE did not identify jobs
beyond plaintiff’s ability level and that, even if he did, the ALJ did not err in relying on the
VE’s testimony to find that plaintiff could perform other work in the national economy.
3. Remand for a Determination of Plaintiff’s Age Category
Lastly, plaintiff argues that, even if the court affirms the ALJ’s RFC determination,
the court should remand this case for a determination of plaintiff’s proper age category as of
the date of the ALJ’s decision. (Doc. 10 at 16.) At the time of the ALJ’s decision, plaintiff
was 54 years old, which is defined as a person closely approaching advanced age. (R. 48;
see 20 C.F.R. § 416.963(d) (the category for “closely approaching advanced age”
encompasses ages 50-54) .) According to plaintiff, the ALJ should have applied the Medical
Vocational Guidelines (“the Grids”) Rule 202.06 for a claimant of advanced age because
plaintiff was within six months of turning 55 years old9 and, thereby, entering the advanced
age category at the time of the ALJ’s decision. (Doc. 10 at 15.)
The Eleventh Circuit has explained:
[T]he Commissioner “may not apply the grids in a mechanistic fashion on the
basis of a claimant's age, in order to establish conclusively a claimant's
adaptability to a new work environment.” [Walker v. Bowen, 826 F.2d 996,
1002 (11th Cir. 1987).] While the Commissioner may rely upon the
claimant's age as evidence of adaptability to a new work environment, the
claimant may then proffer “substantial credible evidence that his ability to
adapt is less than the level established under the grids for persons his age.”
Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir.1984). If the claimant
presents such evidence, the Commissioner “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” and, thus, the district court
would be required to remand the case to the Commissioner for
reconsideration of the issue. Id.; see also Patterson [v. Bowen], 799 F.2d
[1455,] 1458–59 [(11th Cir. 1986)]. “If, on the other hand, the claimant does
not make such a proffer, the ALJ's mechanistic use of the age grids would be
harmless error and there would be no need to remand to the
[Commissioner].” Patterson, 799 F.2d at 1459.
Miller v. Comm’r of Soc. Sec., 241 F. App’x 631, 634 (11th Cir. 2007); see also 20 C.F.R.
§ 416.963(b) (“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 case.”). To show that plaintiff’s ability to adapt to
Plaintiff turned 55 years old, defined as a person of advanced age, approximately three
months after the ALJ’s decision. (See R. 48-49.)
new work at the time of the ALJ decision was less than the ability level associated with
individuals closely approaching advanced age, plaintiff proffers evidence that she had flat
back syndrome, characterized by a lack of “normal lordotic curvature in her spine,” and
debilitating pain in her knees, hips, and hands, and that she could not sit longer than thirty
minutes due to low back pain. (Doc. 13 at 3.)
First, the court finds that the ALJ did not rely solely on the Grids in deciding that
plaintiff was not disabled, and thus, the ALJ was not required to determine in which age
category plaintiff belonged. (See R. 48-49.)
The ALJ should not rely exclusively on the grids when the claimant has a
nonexertional impairment that significantly limits his basic work skills or the
claimant cannot perform a full range of employment at the appropriate level
of exertion. If nonexertional impairments exist, the ALJ may use the grids as
a framework to evaluate vocational factors but also must introduce
independent evidence, preferably through a vocational expert’s testimony, of
the existence of jobs in the national economy that the claimant can perform.
Wolfe v. Chater, 86 F.3d 1072, 1077-78 (11th Cir. 1996) (internal and other citations
omitted). The ALJ found that, under the Grids, if plaintiff were capable of performing a full
range of light work, the ALJ would be required to find plaintiff “not disabled.” (R. 48.)
However, the ALJ found that plaintiff’s limitations impeded her ability to perform all or
substantially all of the requirements of light work, so the ALJ used the Grids only as a
framework and introduced VE testimony regarding plaintiff’s ability to make a vocational
adjustment to other work. (Id.) Relying on the VE testimony, the ALJ found that plaintiff was
capable of making a vocational adjustment to other work that existed in significant numbers
in the national economy. (R. 49.) The ALJ properly relied on VE testimony that, given
plaintiff’s age, education, work experience, and RFC, plaintiff could perform three jobs that
exist in significant numbers in Alabama and the national economy.
However, even assuming the ALJ relied exclusively on the Grids to make a disability
determination, the ALJ correctly determined that plaintiff, who was 54 years old at the time
of the ALJ’s decision, was an individual closely approaching advanced age. To warrant
remand, plaintiff must proffer evidence showing that her “ability to adapt was less than the
level established under the grids for persons [her] age.” Miller, 241 F. App’x at 636. Plaintiff
proffered evidence that she had a lesser ability to adapt because of knee, hip, hand, and back
pain and an inability to sit longer than thirty minutes. Plaintiff is right that age categories
should not be mechanically applied, see 20 C.F.R. § 416.963(b), but as defendant points out,
“simply because a claimant is close to an older age category does not mean that the claimant
should be mechanically placed in the older age category.” (Doc. 11 at 15.) The court finds
that substantial evidence supports the ALJ’s finding that plaintiff’s allegations of pain were
not fully credible, and therefore, plaintiff’s proffered evidence does not establish that her
ability to adapt to new work was less than other individuals closely approaching advanced
age. To the extent the ALJ relied on the Grids, any mechanistic application of the Grids was
harmless error, and remand is not warranted.
Based on the reasons set forth above, the decision of the ALJ, as adopted by the
Commissioner, denying plaintiff’s claim for SSI is due to be affirmed. An Order affirming
the decision of the Commissioner will be entered contemporaneously with this
DONE this 24th day of March, 2015.
SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE
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