Tillis v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION, as set out. An Order affirming the decision of the Commissioner will be entered contemporaneously with this Memorandum Opinion. Signed by Judge Sharon Lovelace Blackburn on 3/11/15. (CTS, )

FILED
2015 Mar-11 PM 02:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MINNIE LEE TILLIS,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case Number 2:13-cv-1718-SLB

MEMORANDUM OPINION
Plaintiff Minnie Tillis 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 a period of disability, disability insurance benefits [“DIB”], and 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
Plaintiff filed an application for a period of disability and DIB on June 4, 2010 and
an application for SSI on July 29, 2011, alleging a disability onset date of September 10,
2009. (R. 114, 151.)1 These applications were denied by the Social Security Administration
[“SSA”], (R. 71), and plaintiff subsequently requested a hearing before an Administrative

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.___”).
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Law Judge [“ALJ”], which was held on March 15, 2012, (R. 85). After the hearing, the ALJ
found that plaintiff was able to perform her past relevant work as a sales clerk. (R. 32.) In
light of this finding, the ALJ denied plaintiff’s request for a period of disability, DIB, and
SSI on April 19, 2012. (R. 33.)
On April 27, 2012, plaintiff petitioned the Appeals Council to review the ALJ’s
decision, (R. 17), and on July 16, 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 September 16, 2013. (Doc. 1.)
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))

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(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).
III. DISCUSSION
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)(2); Bowen v. City of New York, 476 U.S. 467, 470 (1986). For the purposes of this

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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).
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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
disabled, regardless of the claimant’s medical condition or her age, education, and work

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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
before.
(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
activity.
20 C.F.R. § 404.1572.
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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
September 10, 2009, the alleged onset date. (R. 27.)
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
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).

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).
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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.
The ALJ found that plaintiff had the following severe impairments: “coronary artery
disease, osteoarthritis of the knees and right shoulder, hypertension, diabetes mellitus,
cervical radiculopathy, carpal tunnel syndrome, and obesity.” (R. 27.) The ALJ also found

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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).
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that plaintiff had the following non-severe impairments: “a history of hyperlipidemia,
asthma/chemical burns of the lungs, history of h-pylori bacteria, back pain, diminished
vision, and depression.” (R. 28.)
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 F. 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. 28.)
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

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“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 made the following findings regarding plaintiff’s RFC:
[T]he claimant has the residual functional capacity to perform light
work . . . but must avoid all use of ladders, scaffolds, or ropes; can only
occasionally climb ramps and stairs; occasionally balance using a handheld assistive device; can occasionally stoop, kneel, crouch, and crawl;
must avoid concentrated exposure to extreme heat and humidity and all
exposure to hazardous moving machinery and unprotected heights; can
perform no more than frequent handling and fingering bilaterally.
(R. 30.) The ALJ consulted a Vocational Expert [“VE”] to determine if plaintiff could
perform any past relevant work, and the VE testified that an individual with plaintiff’s age,
education, and work experience could perform plaintiff’s past relevant work as a sales clerk.
(R. 65.) The ALJ found at step four that plaintiff was capable of performing past relevant
work and was not disabled and, therefore, did not proceed to step five. (R. 32-33.)

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B. MS. TILLIS’S CLAIMS
Plaintiff argues that (1) the ALJ’s RFC findings were not based on substantial
evidence, and (2) the ALJ erred in failing to apply the Medical Vocational Rules (“MVR”)
favorably. (Doc. 9 at 6-8.) Upon reviewing the record and the parties’ briefs, the court finds
that the Commissioner’s decision is due to be affirmed.
1. Substantial Evidence Supporting the ALJ’s RFC Findings
To support her argument that the ALJ did not rely on substantial evidence in assessing
plaintiff’s RFC, plaintiff states:
An RFC assessment for light work was prepared at the State Agency in the
format required under SSR 96-8p on 8/27/10 (R. 320). However it was
authored by a non M.D. disability examiner (R. 327) whose opinion is not
entitled to any weight as a non medical source (20 CFR 404.1513), and the
ALJ accordingly gave this opinion no weight (R. 32). The ALJ gave partial
weight to two opinions by State Agency medical consultants (R. 32).
However, neither of these opinions directly comprised RFC information, one
being merely a series of checked agree/disagree boxes with no direct
reference to the RFC (R. 331) and the other merely stating a light RFC is
appropriate (R. 330). An opinion from a non examining reviewing physician
is in any event entitled to little weight. ([Swindle v. Sullivan], 914 F.2d 222
[(11th Cir. 1990]).
The ALJ’s RFC otherwise lacks clarity on the issue of a need for a cane. The
ALJ found the claimant capable of occasional balancing with a hand held
assistive device (R. 30) but did not explain why the assistive device would not
be necessary for ambulation. Generally, in light of so many restrictions,
particularly postural, the ALJ’s RFC would better comport with a sedentary
RFC which would readily lead to a finding of disability regardless of age
category under the Medical Vocational Rules (MVR).
(Doc. 9 at 7.) The court agrees with defendant that, while plaintiff’s argument is not clear,
plaintiff appears to argue that the ALJ was required to rely on more substantial medical
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opinion evidence in assessing plaintiff’s RFC. (See Doc. 10 at 10.) The court finds that
plaintiff’s argument is without merit, as the law is clear that an ALJ is not required to rely
on medical opinion evidence in assessing a claimant’s RFC. See Green v. Soc. Sec. Admin.,
223 F. App’x 915, 923-24 (11th Cir. 2007) (finding no error where the ALJ rejected the only
medical opinion evidence of record and relied on non-opinion evidence in assessing the
plaintiff’s RFC); SSR 96-5p (“Giving controlling weight to [treating source] opinions would
. . . confer upon the treating source the authority to make the determination or decision about
whether an individual is under a disability, and thus would be an abdication of the
Commissioner’s statutory responsibility to determine whether an individual is disabled.”).
Plaintiff next argues that the RFC assessment does not clearly define plaintiff’s need
for a cane. (Doc. 9 at 7.) The RFC assessment provides that plaintiff can “occasionally
balance using a hand-held assistive device,” and while plaintiff is correct that it does not state
whether plaintiff requires a cane to ambulate, the RFC does not preclude plaintiff from using
a cane to ambulate. (R. 30; see Doc. 9 at 7.) Plaintiff also argues that given the number of
restrictions in the ALJ’s RFC assessment, the “RFC would better comport with a sedentary
RFC which would readily lead to a finding of disability regardless of age category under the
Medical Vocational Rules.” (Doc. 9 at 7.) To the extent plaintiff “is seeking an independent
determination by this court that the ALJ’s findings lead to the conclusion that [her] RFC
actually limits [her] to sedentary work, . . . [p]laintiff is mistaken about this court’s scope of
review.” Stogner v. Astrue, 2013 WL 3816559, at *8 (N.D. Ala. July 22, 2013). “[T]his court

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is limited to review whether substantial evidence supports the Commissioner’s findings, and
whether the correct legal standards were applied.” Id.
Defendant contends that the following findings are based on substantial evidence:
(1) the ALJ found the medical evidence shows [p]laintiff had good recovery
from her coronary problems citing consultative examiner Dr. James Lott,
M.D., who determined on examination that [p]laintiff showed good physical
results with some problems in her knees and shoulder (Tr. 31, 316-17); (2) the
ALJ considered and gave great weight to State agency psychological examiner
Dale Leonard, Ph.D.’s opinion that [p]laintiff has little history of mental health
diagnosis, treatment or medical prescriptions and that she has a broad range of
independent daily living activities with substantial demonstrated abilities in all
functional domains (Tr. 31, 300-13); (3) the ALJ gave some weight to State
agency medical consultant Robert Singleton, M.D.’s opinion that despite
diagnoses and impairments [p]laintiff is able to work at a light level of
exertion with additional postural and environmental limitations (Tr. 32, 32830), but did not give his opinion great weight because he endorsed visual
limitations, which the ALJ found were not supported by the record (Tr. 32,
328-30); (4) the ALJ gave partial weight to State agency medical consultant
Dr. Jayant Desai, M.D.’s opinion that [p]laintiff did not require manipulative,
visual, communicative, or environmental limitations (Tr. 32, 331); (5) the ALJ
found the evidence shows [p]laintiff did not have substantial breathing
problems following resolution of her h-pylori bacteria infection (Tr. 32, 277,
280); (6) the ALJ found [p]laintiff’s statements concerning the intensity,
persistence and limiting effects of her symptoms were not fully credible, to the
extent they are inconsistent with the ALJ’s RFC finding (Tr. 31); and (7) the
ALJ found [p]laintiff was able to perform an extremely broad range of daily
living activities, including using a computer, living independently, reading,
and watching television, which the ALJ found shows she retains sufficient
visual acuity and visual fields needed to read written instructions and to avoid
ordinary hazards in the workplace, as prescribed by SSR 85-15p (Tr. 31, 178180).
(Doc. 10 at 7-9 (footnotes omitted).) The court agrees and finds that substantial evidence
supports the ALJ’s RFC findings, including the finding that plaintiff can perform light work.

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2. Medical Vocational Rules
Plaintiff next contends that the ALJ failed to apply the MVR favorably to plaintiff.
(Doc. 9 at 8.) Additionally, plaintiff argues that the ALJ erred in defining plaintiff’s past
relevant work as a sales clerk as an “unskilled position requiring a light level of exertion”
because a sales clerk position has a specific vocational preparation (“SVP”) level of three,
thereby indicating that it is semi-skilled work. (Id. at 8-9; see SSR 00-4p (“semi-skilled work
corresponds to an SVP of 3-4”).) Plaintiff argues that, not only was the ALJ’s statement
incorrect, but the ALJ’s finding that plaintiff can return to past relevant work is inconsistent
with the testimony and not based on substantial evidence. (Doc. 9 at 9.)
First, defendant responds that the MVR do not apply in this case because they apply,
“if at all, only after finding a claimant unable to perform her past work at step four, when
determining whether she can perform other work at step five.” (Doc. 10 at 12.) The
Introduction to the MVR states:
The following rules reflect the major functional and vocational patterns which
are encountered in cases which cannot be evaluated on medical considerations
alone, where an individual with a severe medically determinable physical or
mental impairment(s) is not engaging in substantial gainful activity and the
individual’s impairment(s) prevents the performance of his or her vocationally
relevant past work. They also reflect the analysis of the various vocational
factors (i.e., age, education, and work experience) in combination with the
individual’s residual functional capacity (used to determine his or her
maximum sustained work capability for sedentary, light, medium, heavy, or
very heavy work) in evaluating the individual’s ability to engage in substantial
gainful activity in other than his or her vocationally relevant past work.

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20 C.F.R. Part 404, Subpart P, App’x 2 § 200.00 (emphasis added). The court agrees with
defendant that the MVR do not apply in this case, as the ALJ found that plaintiff could
perform past relevant work and, therefore, properly concluded his analysis at step four of the
sequential evaluation process without proceeding to step five— the step at which an ALJ
applies the MVR.
Regarding plaintiff’s next argument, plaintiff is correct that the ALJ improperly
identified her past work as a sales clerk as “an unskilled position,” but the court finds that
this error is harmless. The ALJ found that plaintiff was able to perform light exertional work
with several limitations: plaintiff “must avoid all use of ladders, scaffolds, or ropes; can only
occasionally climb ramps and stairs; occasionally balance using a hand-held assistive device;
can occasionally stoop, kneel, crouch, and crawl; must avoid concentrated exposure to
extreme heat and humidity and all exposure to hazardous moving machinery and unprotected
heights; [and] can perform no more than frequent handling and fingering bilaterally.” (R. 30.)
Plaintiff’s past work as a sales clerk requires light work, defined as “[e]xerting up to 20
pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time)
and/or up to 10 pounds of force frequently (Frequently: activity or condition exists from 1/3
to 2/3 of the time) and/or a negligible amount of force constantly (Constantly: activity or
condition exists 2/3 or more of the time) to move objects.” DICOT 290.477-014 (G.P.O.),
1991 WL 672554.

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The court finds that the ALJ’s RFC assessment is consistent with plaintiff’s past
relevant work as a sales clerk, performed at the light exertional level, and thus, the ALJ’s
RFC findings, which are based on substantial evidence as discussed above, support the ALJ’s
finding that plaintiff could perform past relevant work. The court agrees with defendant that
the ALJ’s statement that plaintiff’s past work was unskilled does not “contradict or
undermine the substantial evidence supporting [the ALJ’s] finding that [p]laintiff is able to
perform her past work as a sales clerk.” (Doc. 10 at 14.) Therefore, the court finds no
reversible error.
IV. CONCLUSION
Based on the reasons set forth above, the decision of the ALJ, as adopted by the
Commissioner, denying plaintiff’s claim for a period of disability, DIB, and SSI is due to
be affirmed. An Order affirming the decision of the Commissioner will be entered
contemporaneously with this Memorandum Opinion.
DONE this 11th day of March, 2015.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

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