Luster v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 7/1/2015. (KAM, )

FILED
2015 Jul-01 PM 03:37
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VICKY LUSTER,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case No. 2:14-cv-01067-JEO

MEMORANDUM OPINION
Plaintiff Vicky Luster brings this action pursuant to 42 U.S.C. § 405(g), seeking
review of the final decision of the Acting Commissioner of Social Security
(“Commissioner”) denying her application for disability insurance benefits. (Doc. 1).1
This case has been assigned to the undersigned United States Magistrate Judge
pursuant to this court’s general order of reference. The parties have consented to the
jurisdiction of this court for the disposition of the matter. (Doc. 9). See 28 U.S.C.
§ 636(c), FED. R. CIV. P. 73(a). Upon review of the record and the relevant law, the
undersigned finds that the Commissioner’s decision is due to be affirmed.
I. PROCEDURAL HISTORY
Plaintiff filed her application for disability insurance benefits under Title II of

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References herein to “Doc. ___” are to the electronic numbers at the top of each
pleading that are assigned by the Clerk of the Court.

the Social Security Act on December 7, 2011, alleging that she became disabled
beginning July 1, 2011. (R. 140).2 Her application was initially denied. (R. 18). On
April 12, 2013, following a hearing, an Administrative Law Judge (“ALJ”) denied
Plaintiff’s application for disability benefits, concluding that she is not disabled under
the Social Security Act. (R. 24). The Appeals Council declined to grant review of the
ALJ’s decision. (R. 1-5). Plaintiff then field this action for judicial review pursuant
to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). (Doc. 1).
II. STANDARD OF REVIEW
In reviewing claims brought under the Social Security Act, this court’s role is
a narrow one. “Our review of the Commissioner’s decision 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 plaintiff must demonstrate that the decision of the Commissioner is not
supported by substantial evidence. See, e.g., Allen v. Schweiker, 642 F.2d 799 (5th Cir.
1981). “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
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References herein to “R. ___” are to the administrative record located at Document 6
(Answer of the Commissioner).
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citations omitted). 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 [it] 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. 1982))(internal quotations
and other citations omitted); see also Dyer v. Barnhart, 395 F. 3d 1206, 1210 (11th
Cir. 2005). As noted above, conclusions of law made by the Commissioner are
reviewed de novo. Cornelius, 936 F.2d at 1145. Accordingly, “[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.

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 12 months.” 42 U.S.C.
§ 423(d)(1)(A); 42 U.S.C. § 416(i). A physical or mental impairment is “an
impairment that results from anatomical, physiological, or psychological

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abnormalities which are demonstrable 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). Specifically, the Commissioner must determine in sequence:
whether the claimant: (1) is unable to engage in substantial gainful
activity; (2) has a severe medically determinable physical or mental
impairment; (3) has such an impairment that meets or equals a Listing
and meets the duration requirements; (4) can perform his past relevant
work, in light of his residual functional capacity; and (5) can make an
adjustment to other work, in light of his residual functional capacity, age,
education, and work experience.
Evans v. Comm’r of Soc. Sec., 551 F. App’x 521, 524 (11th Cir. 2014) (citing 20
C.F.R. § 404.1520(a)(4)). “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.’” McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “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). The Commissioner must further show that
such work exists in the national economy in significant numbers. Id.; Evans, 551 F.
App’x at 524.

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IV. DISCUSSION
A. Facts
Plaintiff was 52 years old at the time of the ALJ’s decision. (R. 15, 140). She
has a high school education and past relevant work history as a deli worker and
deliverer/courier. (R. 24, 65, 164, 172-79). As noted previously, she alleges a
disability onset date of July 1, 2011. (R. 140).
Plaintiff alleged in her initial disability report that she was unable to work due
to bad knees, hypertension, and diabetes. (R. 163). At her administrative hearing, she
testified that her medication prevented her from working because “it just knocks me
out for hours.” (R. 57). She also complained about her left knee, back, and tendinitis
in her right shoulder. (Id. at 50-57). She stated that she had to lie down for two to
three hours a day due to pain and the side effects of her medication. (R. 50). She also
stated that her left knee would flare up and give out on her about three times a week.
(R. 50-53). She rated her back pain as a seven on a scale of one to ten. (R. 56). The
pain is treated with ibuprofen.3 (Id.) She stated she could stand for about two hours
and sit for about three hours in an eight-hour day. (R. 61-62). The remainder of the
time during the day, she would rest in bed. (R. 62). Finally, she stated that she is
unable to lift a ten pound bag of dog food. (R. 63).
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The ibuprofen does not help according to Plaintiff. (R. 56). She also testified that she
had a steroid shot in 2012. (R. 57).
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Following Plaintiff’s hearing, the ALJ found that she had the severe
impairments of osteoarthritis, diabetes mellitus, morbid obesity, headaches, and
hypertension. (R. 20). Additionally, she found that Plaintiff retained the residual
functional capacity (RFC) to perform light work with limitations in sitting, standing,
and walking. (R. 20-21). She also concluded that Plaintiff could perform her past
relevant work as a deli worker and deliverer/courier. (R. 24). Finally, she found that
Plaintiff was not disabled during the relevant period. (Id.)
B. Plaintiff’s Claim
Plaintiff asserts that the ALJ failed to properly evaluate the medical evidence
from Dr. Evan Alston. (Doc. 11 at 6). The Commissioner retorts, “Regardless of
whether the ALJ erred in evaluating consultative examiner Dr. Evan Alston’s opinion,
Plaintiff did not establish disability because she did not prove that she could not
perform her past work as a deliverer/courier in the manner she [previously] performed
it.” (Doc. 13 at 4 (citing R. 24)).
To properly evaluate Plaintiff’s claim, it is necessary to place it in context.
Plaintiff’s past work history includes, among other positions, a job as a courier for
Montgomery Armored Car Services, Inc. (“MACS”) from 2005 to 2007. (R. 65, 12324, 164, 172). She described her position there as a “driver” transporting bank bags
from the car to the bank. (R. 174). She stated that while doing the job, she would sit

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for eight hours a day. (Id.) However, she also noted that she lifted and carried bank
bags from the car to the bank, obviously requiring her to do more than just sit for eight
hours. (Id.)
Premised on her physical complaints, Plaintiff was evaluated by Dr. Alston in
January 2012. He found that she could
stand or walk for 4-6 hours during an 8 hour workday with frequent
breaks. She could sit for 6-8 hours without frequent breaks. [Plaintiff]
requires no assistive devices, but has difficulty bending/stooping/
crouching due to back pain induced by these movements. [Plaintiff] is
able to lift/carry 10 lbs infrequently. No environmental and manipulative
limitations apply.
(R. 294).
The ALJ found that Plaintiff could perform light work except that she could,
in pertinent part, only lift and carry twenty pounds occasionally and ten pounds
frequently; sit for six hours in an eight hour day; stand and walk for only six hours in
an eight hour day; only occasionally climb ramps and stairs and balance, stoop,
crouch, kneel, and crawl; and maintain concentration and attention for only two hours
at a time. (R. 20-21). The ALJ also found that Plaintiff could perform her past
relevant work as a deliverer/courier and as a deli worker. (R. 24).
Plaintiff argues that because Dr. Alston concluded that she “could stand or walk
for 4-6 hours during an 8 hour workday but would require frequent breaks,” which
is more than the VE determined would be allowed, “Plaintiff is limited to a sedentary
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or less level of physical exertion.” (Doc. 11 at 7 (bold in original)). Additionally,
Plaintiff notes that the ALJ did not “address the conflict between her conclusions and
the fact that Dr. Alston’s opinion does NOT allow for a light level of physical
exertion.” (Id. (Emphasis in original)). Plaintiff argues that “based upon her age,
education, and past relevant work experience at the light level, Plaintiff would meet
the Medical-Vocational Guidelines at 201.14 and should be found ‘disabled.’ ” (Id.
at 7-8 (citing 20 C.F.R. Part 404, Subpart P, Appendix 2)). She concludes that “for
misstating and failing to properly evaluate the opinion of her own consultative
examiner, Dr. Alston, and for failing to properly report and consider the opinion of her
vocational expert, the ALJ’s decision cannot be based on substantial evidence” and
“Plaintiff should be found to be disabled.” (Id. at 8, 10).
The ALJ’s decision is unclear as to the meaning of “frequent breaks” with
regard to the finding that Plaintiff could stand or walk “for 4-6 hours during an 8 hour
work day.” Whether this means frequent breaks from work or whether it means
frequent breaks from walking or standing – a sit-stand option – is not clear. However,
ultimately, it is harmless error because Plaintiff has not demonstrated that she cannot
perform her past work as a deliverer/courier in the manner she previously performed
it. (R. 24 (“the undersigned finds that [P]laintiff is able to perform the above past
relevant work as they were actually and are generally performed”). Thus, she is not

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disabled.
The record demonstrates that Plaintiff worked for an armored car service for
about two years.4 (R. 65, 124, 164, 172, 174). Plaintiff stated on her job history
report that while performing this job, she drove to various banks, delivering “bank
bag[s] from [the] car to [the] bank.” (R. 174). She also indicated that she “sat” for
eight hours each day.5 (Id.) Thus, the record does not support her contention that she
is disabled. To the contrary, it provides substantial evidence in support of the ALJ’s
decision that Plaintiff can perform her past relevant work as a “deliverer/courier.”6
(R. 24). Thus, she was not disabled. (Id.) Accordingly, any error is harmless. See
Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (ALJ’s consideration of past
work “in contravention of the regulations that prohibit consideration of any job held
more than fifteen years ago” was harmless); Gray v. Comm’r of Soc. Sec., 550 F.
App’x 850, 852 (11th Cir. 2013) (citing Diorio); Ostborg v. Comm’r Soc. Sec., — F.
App’x ––, 2015 WL 3429099, *10 (11th Cir. May 29, 2015) (“The ALJ’s discussion
of other inconsistent statements..., even if erroneous, was harmless, since substantial

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The record is difficult to follow regarding Plaintiff’s work history due to the
incompleteness of many of her answers. (See R. 172-78). However, through a close
examination of the entire “Work History Report,” the history can be pieced together. (Id.)
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As noted, the record also demonstrates that Plaintiff also lifted and carried “bank bag[s]”
from the car to the banks. (R. 174).
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The VE testified that Plaintiff could perform her past relevant work. (R. 24, 65).
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evidence supports the ALJ’s credibility finding”).
V. CONCLUSION
The Commissioner determined that Plaintiff was not disabled under the Social
Security Act. For the reasons set forth above, the undersigned finds that the
Commissioner’s decision is due to be affirmed.
DATED, this the 1st day of July, 2015.

__________________________
JOHN E. OTT
Chief United States Magistrate Judge

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