Burns v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 11/13/2014. (PSM)
2014 Nov-13 AM 09:50
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Civil Action Number
Plaintiff Charlene Burns (“Burns”) brings this action pursuant to 42 U.S.C.
§1383(c)(3) and 42 U.S.C. § 405(g), seeking review of the final adverse decision
of the Commissioner of the Social Security Administration (“SSA”). This court
finds that the Administrative Law Judge (“ALJ”) applied the correct legal standard
and that her decision—which has become the decision of the Commissioner—is
supported by substantial evidence. Therefore, the court AFFIRMS the decision
I. Procedural History
Burns filed her application for Title XVI Supplemental Security Income on
April 19, 2010 (R. 159), alleging a disability onset date of March 17, 2010, id., due
to breast cancer in remission, migraines, scoliosis, a “bad disk,” carpel tunnel
syndrome, and high blood pressure, (R. 180). After the SSA denied her application
on August 25, 2010 (R. 89), Burns requested a hearing, (R. 98). At the time of the
hearing on March 12, 2012, Burns was 49 years old, (R. 34, 37), had a sixth grade
education, and past work experience as a housekeeper, a cafeteria worker, a line
worker, and as a production worker. (R. 38, 69, 163, 181-182). Burns has not
engaged in substantial gainful activity since her application date. (R. 13).
The ALJ denied Burns’s claim on May 14, 2012, (R. 11–24), which became
the final decision of the Commissioner when the Appeals Council refused to grant
review on November 12, 2013, (R. 1-3). Burns then filed this action pursuant to 42
U.S.C. §1383(c)(3) and 42 U.S.C. § 405(g), on January 10, 2014. Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 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
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
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i)(I)(A). 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
whether the claimant is currently unemployed;
whether the claimant has a severe impairment;
whether the impairment meets or equals one listed by the Secretary;
whether the claimant is unable to perform his or her past work; and
whether the claimant is unable to perform any work in the national
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
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
In performing the Five Step sequential analysis, the ALJ initially determined
that Burns had not engaged in substantial gainful activity since her application date
and therefore met Step One. (R. 13). Next, the ALJ acknowledged that Burns’
severe impairments of carcinoma of the breast in remission, chronic obstruction
pulmonary disease (“COPD”), depression, degenerative disc disease, and migraine
headaches met Step Two. (R. 13). The ALJ then proceeded to the next step and
found that Burns did not satisfy Step Three since she “[did] not have an
impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1.” Id. (internal citations omitted). Although the ALJ answered Step Three in the
negative, consistent with the law, see McDaniel, 800 F.2d at 1030, she proceeded
to Step Four, where she determined that Burns
has the residual functional capacity [“RFC”] to perform sedentary
work as defined in 20 CFR 416.967(a) except the claimant can
occasionally climb stairs, and ramps, but never ladders, ropes, or
scaffolds. . . . can frequently balance, stoop and kneel; occasionally
crouch; but never crawl. . . . can frequently reach, handle, finger, and
feel with the upper extremities-bilaterally. . . . can frequently
push/pull with the upper and lower extremities-bilaterally. The
claimant can never work in environments with concentrated exposure
to extreme heat, cold, humidity, wetness and/or pulmonary irritants. . .
. with a noise intensity level greater than three or moderate as
described in the Selected Characteristics of Occupations. The
claimant can understand, remember, and carryout simple; but not
detailed or complex instructions. . . . can perform work that needs
little or no judgment and make simple work-related decisions. Any
work place changes should be infrequent and introduced gradually.
The claimant can interact frequently with the public on a casual basis,
. . . with co-workers and supervisors. The claimant is able to sustain
concentration and attention for two hours at one time with normal
breaks throughout an eight–hour workday.
(R. 16). In light of Burns’ RFC, the ALJ determined that Burns “[was] unable to
perform any past relevant work.” (R. 22). Accordingly, the ALJ turned to Step
Five, considering Burns’s age, education, work experience, RFC, and the
testimony of a vocational expert (“VE”), and determined that “there are jobs that
exist in significant numbers in the national economy that [Burns] can perform.” (R.
23). Because the ALJ answered Step Five in the negative, she determined that
Burns was not disabled. Id.
The court now turns to Burns’ sole contention on appeal - i.e. that the ALJ
misapplied the SSA’s Medical Vocational Guidelines (“grids”) and inappropriately
categorized Burns as a “Younger Individual” between 45 and 49 years of age.1 20
C.F.R. Part 404, Subpart P, Appendix 2. For the reasons stated below, the court
finds that the ALJ applied the correct legal standards and her opinion is supported
by substantial evidence.
Burns has not raised any other bases for this appeal and, therefore, has waived
other grounds upon which she might challenge the ALJ’s decision. See Outlaw v.
Barnhart, 197 Fed. App’x 825, 828 n.3 (11th Cir. 2006) (claimant waived an issue
because he did not elaborate on the claim or provide citation to authority regarding
the claim); N.L.R.B. v. McClain of Georgia, 138 F.3d 1418, 1422 (11th Cir. 1998)
(“Issues raised in a perfunctory manner, without supporting arguments and citation
to authorities, are generally deemed to be waived.”)
Burns argues that the ALJ committed reversible error because she
erroneously applied the grids at Step Five. Specifically, Burns claims that because
she was 49 ½ years old at the time of the ALJ’s decision, the ALJ should have
categorized her as “an individual approaching advanced age” (age 50-54) rather
than a “Younger Individual” (age 45-49) for purposes of 20 CFR Part 404, Subpart
P, Appendix 2, Table 1, thereby qualifying her as “disabled” pursuant to rule
201.10. See doc. 12 at 14. As a basis for her argument, Burns notes that, according
to 20 CFR § 404.1563, the Commissioner will not apply the age categories
“mechanically in a borderline situation.” Burns also points out that the date that a
claimant’s age is to be determined, for purposes of the grids, is the date of the
ALJ’s decision rather than the date of the application or the date of the hearing. See
Crook v. Barnhart, 244 F. Supp. 2d 1281, 1283 (N.D. Ala. 2003). In other words,
the ALJ’s use of Burns’ chronological age of 49 ½ rather than 50, the age Burns
was approaching at the time of the ALJ’s decision, purportedly represented a
mechanical application of the grids that resulted in Burns being deemed notdisabled.
Contrary to Burns’ contention, the effect of Burns’ age categorization is
“essentially theoretical” because the ALJ did not base her final determination on
the grids. Miller v. Commissioner of Social Security, 241 Fed. App’x 631, 635
(11th Cir. 2011). Rather, where, as here, a claimant is unable to perform the full
range of work at a particular functional level or has non-exertional impairments
that significantly limit basic work skills 2, in addition to the grids, the ALJ must
also consider testimony of a VE to establish job availability. See, e.g. Walker v.
Bowen, 826 F.2d 996, 1002-03 (11th Cir. 1987). As the ALJ noted, because Burns’
“ability to perform all or substantially all of the requirements of [the sedentary]
level of work has been impeded by additional limitations,” (R. 23), consistent with
established legal precedent, she turned to a VE to determine whether jobs existed
in the national economy for an individual with Burns’ age, education, work
experience, and RFC, id. The ALJ then noted the VE’s opinion that Burns could
work as an addressing clerk, button reclaimer, and dowel inspector and determined
that, based on the VE’s opinion and Burns’ RFC, age, education, and work
experience, she was “capable of making a successful adjustment to other work that
exists in significant numbers in the national economy.” Id. at 23-24. In other
words, even if the ALJ improperly determined Burns’ age category, because the
opinion of a VE is substantial evidence supporting the ALJ’s finding that Burns
was not disabled, the ALJ’s error, if any, was harmless and, therefore, insufficient
to reverse or remand the case. See Miller, 241 Fed. App’x at 635 n.1. (“Even
At Step Five, the ALJ noted that, “if the claimant had the residual
functional capacity to perform the full range of sedentary work, a finding of ‘not
disabled’ would be directed by the Medical-Vocational Rule 201.19. However, the
claimant’s ability to perform all or substantially all of the requirements of this level
of work has been impeded by additional limitations.” (R. 23)
assuming without deciding that the ALJ’s finding that [plaintiff] was a person
closely approaching advanced age was erroneous, that error was harmless because
substantial evidence (e.g., the VE’s testimony and Miller’s RFC) supported the
finding that other jobs were available that miller could perform.”). Accordingly,
“[g]iven the VE’s testimony that there existed three types of jobs in significant
numbers in the national economy that a person with [Burns’] RFC could perform,
substantial evidence supports the ALJ’s conclusion that, because the
Commissioner met its burden at step five, [Burns] did not demonstrate that [she]
was disabled.” Id. at 635.
Based on the foregoing, the court concludes that the ALJ’s determination
that Burns 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 13th day of November, 2014.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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