Capel v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 9/15/2015. (YMB)

FILED
2015 Sep-15 PM 04:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ELUSTER CAPEL,
Plaintiff,

vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)

Civil Action Number
2:14-cv-01581-AKK

MEMORANDUM OPINION
Plaintiff Eluster Capel (“Capel”) 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 his decision—which has become the decision of the Commissioner—is
supported by substantial evidence. Therefore, the court AFFIRMS the decision
denying benefits.
I. Procedural History
Capel filed his application for Title XVI Supplemental Security Income on
March 26, 2012 (R. 154-62), alleging a disability onset date of April 9, 2010, (R.
154), due to carpal tunnel, knee problems, and high blood pressure, (R. 196). After

Page 1 of 21

the SSA denied his application on May 24, 2012, (R. 104-108), Capel requested a
hearing. (R. 111). At the time of the hearing on July 12, 2013, Capel was 51 years
old, (R. 66, 154), had a twelfth-grade education, (R. 57, 65, 77, 197, 224), and had
past work experience as a trailer-truck driver, (R. 77-78, 197-98, 204, 211-13).
Capel has not engaged in substantial gainful activity since his alleged onset date.
(R. 54).
The ALJ denied Capel’s claim on August 22, 2013, (R. 52-66), which
became the final decision of the Commissioner on July 15, 2014 when the Appeals
Council refused to grant review. (R. 1-4). Capel then filed this action pursuant to
42 U.S.C. §1383(c)(3) and 42 U.S.C. § 405(g), on August 14, 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
Page 2 of 21

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.
Lastly, where, as here, a plaintiff alleges disability because of pain, he must
meet additional criteria. In this circuit, “a three part ‘pain standard’ [is applied]
when a claimant seeks to establish disability through his or her own testimony of
pain or other subjective symptoms.” Holt v. Barnhart, 921 F.2d 1221, 1223 (11th
Cir. 1991). Specifically,
The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the

Page 3 of 21

objectively determined medical condition is of such a severity that it
can be reasonably expected to give rise to the alleged pain.1
Id. However, medical evidence of pain itself, or of its intensity, is not required:
While both the regulations and the Hand standard require objective
medical evidence of a condition that could reasonably be expected to
cause the pain alleged, neither requires objective proof of the pain
itself. Thus under both the regulations and the first (objectively
identifiable condition) and third (reasonably expected to cause pain
alleged) parts of the Hand standard a claimant who can show that his
condition could reasonably be expected to give rise to the pain he
alleges has established a claim of disability and is not required to
produce additional, objective proof of the pain itself. See 20 C.F.R. §§
404.1529, 416.929; Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir.
1987).
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (parenthetical
information omitted) (emphasis added). Moreover, “[a] claimant’s subjective
testimony supported by medical evidence that satisfies the pain standard is itself
sufficient to support a finding of disability.” Holt, 921 F.2d at 1223. Therefore, if a
claimant testifies to disabling pain and satisfies the three-part pain standard, the
ALJ must find a disability unless the ALJ properly discredits the claimant’s
testimony.
Furthermore, when the ALJ fails to credit a claimant’s pain testimony, the
ALJ must articulate reasons for that decision:
It is established in this circuit that if the [ALJ] fails to articulate reasons for
refusing to credit a claimant’s subjective pain testimony, then the [ALJ], as a
matter of law, has accepted that testimony as true. Implicit in this rule is the

1

This standard is referred to as the Hand standard, named after Hand v. Heckler,
761 F.2d 1545, 1548 (11th Cir. 1985).
Page 4 of 21

requirement that such articulation of reasons by the [ALJ] be supported by
substantial evidence.
Hale, 831 F.2d at 1012. Therefore, if the ALJ either fails to articulate reasons for
refusing to credit the plaintiff’s pain testimony or if the ALJ’s reasons are not
supported by substantial evidence, the court must accept as true the pain testimony
of the plaintiff and render a finding of disability. Id.
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
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;
Page 5 of 21

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

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 Capel had not engaged in substantial gainful activity since his alleged onset
date and therefore met Step One. (R. 54). Next, the ALJ acknowledged that
Capel’s severe impairments of recurrent chest wall pain, hypertension,
gastroesophageal reflux disease (“GERD”), osteoarthritis, degenerative disc
disease, and allergies met Step Two. (R. 54). The ALJ then proceeded to the next
step and found that Capel did not satisfy Step Three, since he “[did] not have an
impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1.” (R. 56) (internal citations omitted). Although the ALJ answered Step
Page 6 of 21

Three in the negative, consistent with the law, see McDaniel, 800 F.2d at 1030, he
proceeded to Step Four, where he determined that Capel:
has the residual functional capacity [“RFC”] to perform light,
unskilled work as defined in 20 C.F.R. 404.1567(b) and 416.967(b)
except no climbing of ropes, ladders, or scaffolds; no work at
unprotected heights or with hazardous machinery; no more than
occasional stooping, crouching, crawling, or kneeling; no
concentrated exposure to dust, fumes, or other respiratory irritants; no
concentrated exposure to extreme heat; and no more than frequent
interaction with coworkers, supervisors and the general public.
(R. 57). In light of Capel’s RFC, the ALJ determined that Capel was “unable to
perform any past relevant work.” (R. 64). Accordingly, the ALJ turned to Step
Five, considered Capel’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 [Capel] can perform.” (R. 65).
Because the ALJ answered Step Five in the negative, he determined that Capel was
not disabled. Id.
V. Analysis
Capel raises multiple contentions of error which the court will outline and
address below. None of the contentions, however, establish that the ALJ
committed reversible error.

Page 7 of 21

1. The ALJ properly considered all of Capel’s impairments and their
combined effects.
Capel argues that the ALJ failed to consider the combined effect of his
impairments. He additionally argues that the ALJ failed to appropriately explain
his reasoning for denying Capel’s allegations of pain. The court disagrees.
When a claimant alleges several ailments, the Eleventh Circuit requires the
Commissioner to consider the impairments in combination to determine whether
the combined impairments render a claimant disabled. Jones v. Dep’t of Health &
Human Servs., 941 F.2d 1529, 1533 (11th Cir. 1991). The ALJ here considered all
of Capel’s impairments (whether severe or not) and determined that Capel “does
not have an impairment or combination of impairments that meets or medically
equals” the listing criteria. (R. 55-56). See Jones, 941 F.2d at 1533 (holding that
the ALJ’s finding that the claimant did not have “an impairment or combination of
impairments listed in, or medically equal to one [in the listings]” is sufficient to
show that the ALJ had considered the impairments in combination); Wilson v.
Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (same). Moreover, in making his
RFC determination, the ALJ thoroughly discussed Capel’s testimony and medical
records as they relate to his heart problems, shortness of breath, dizziness,
sweating, right hand and arm pain, anxiety, acid reflux, and anxiety. (R. 57-64). In
light of these “specific and well-articulated findings” by the ALJ, the court finds
no error in the ALJ’s evaluation of Capel’s carpal tunnel, knee problems, and high
Page 8 of 21

blood pressure. See Walker v. Bowen, 826 F.2d 996, 1001 (11th Cir. 1987)
(quoting Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984)).
Capel also argues generally that the ALJ failed to give his pain testimony
proper consideration. Doc. 10 at 7, 11. Capel correctly notes that the ALJ must
articulate “explicit and adequate reasons” for rejecting allegations of pain. See,
e.g., Holt v. Sullivan, 921 F.2d 1221, 1223-24 (11th Cir. 1991). However, Capel
fails to identify specifically where the ALJ’s findings regarding Capel’s complaints
of knee pain, heart pain, and hives fall short of substantial evidence and instead
merely asserts that he had alleged pain on multiple occasions. Under Eleventh
Circuit law, “[i]ssues raised in a perfunctory manner, without supporting argument
and citations to authorities, are generally deemed to be waived.” N.L.R.B. v.
McClain of Georgia, 138 F.3d 1418, 1422 (11th Cir. 1998). Even when Capel’s
brief is read liberally, however, the court notes that the ALJ specifically
accommodated for Capel’s chest wall pain and gastrointestinal pain when limiting
Capel to light work. (R. 63). Additionally, the ALJ investigated in detail the
inconsistencies between Capel’s complaints of knee and wrist pain and the doctors’
objective assessments of his condition during various visits, noting, for example,

Page 9 of 21

that Capel had a normal range of motion in his musculoskeletal system and that he
had displayed 5/5 grip strength in his right hand. (R.58-64). 1
2. The ALJ acted within his discretion when he did not order an additional
consultative exam.
Capel also argues that the ALJ erred by failing to order a consultative
examination after he filed for his claim in March of 2012 and by allowing Dr.
William Donnelan’s June 2010 consultative examination to be considered. Doc. 10
at 7-8.The court notes at the threshold that, while the ALJ does have an obligation
to develop a “full and fair record,” ultimately the claimant “bears the burden of
proving that he is disabled” and is therefore responsible for producing evidence
accordingly. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). Capel
simply failed to meet his burden in this case.
Capel’s argument that the ALJ should have ordered a consultative
examination is unavailing for a number of reasons. First, Capel has failed to
identify an obligation under which the ALJ should have ordered another consult.
While Capel does emphasize that a consultative examination may be sought if
“there is an indication of a change in [the claimant’s] condition . . . but the current

1

Capel also seems to generally assert that the ALJ inadequately addressed his
complaints of fatigue. However, this assertion similarly fails because it is too
conclusory. N.L.R.B., 138 F.3d at 1422 (“Issues raised in a perfunctory manner,
without supporting argument and citations to authorities, are generally deemed to
be waived.”).
Page 10 of 21

severity of [the] impairment is not established,” 20 C.F.R. § 404.1519a, he neglects
to identify how this rule establishes reversible error by the ALJ. Second, Capel’s
representative seemed to concede at Capel’s hearing that Donnelan’s consult was
sufficient for this case; indeed, she told the court, “[W]e’re fortunate enough to
have a prior [consultative exam] . . . which does document some RFC information .
. . .” (R. 75). It would encourage duplicity to permit parties to indicate at their
hearings that the medical record was sufficient to support their claim and then to
allow them to challenge the purported insufficiency of the same medical record on
appeal. Third, and perhaps most importantly, the record did not require a second
consultation because the ALJ not only had the benefit of Donnelan’s 2010
consultation, but also the records from fourteen medical visits in the thirty-seven
months between Donnelan’s examination and Capel’s hearing.2 (R. 58-61). This
medical evidence, which the ALJ examined in detail, provided sufficient
information upon which he could base his determination, and, as such, the ALJ had
no obligation to order an additional consultative examination. See Wilson v. Apfel,
179 F.3d 1276, 1278 (11th Cir. 1999) (“[W]e cannot agree . . . that the ALJ was

2

While only three of these medical visits occurred prior to Capel’s application for
benefits, the medical record is nonetheless a complete record for the year prior to
Capel’s application. As Capel’s representative stated at his hearing, there was
“really no medical during [2011].” (R. 75). See 20 C.F.R. § 416.912(d) (“Before
we make a determination . . . we will develop your complete medical history for at
least the 12 months preceding the month in which you file your application . . . .”).
Page 11 of 21

obligated to seek independent, additional expert medical testimony before
concluding that [the claimant’s] impairment was not severe” when the existing
medical record was sufficient for a decision.); Good v. Astrue, 240 F. App’x. 399,
404 (11th Cir. 2007).
3. The ALJ acted within his discretion when giving “little weight” to Dr.
Donnelan’s medical opinions.
Capel asserts next that the ALJ erred by affording little weight to
Donnelan’s opinions, whom Capel describes as his treating physician, doc. 10 at
13-14, and, alternatively, an examining physician, id. at 8. According to Capel, the
medical record (which consists of Capel’s knee surgery, complaints of severe left
knee pain during October and November 2012 medical visits, diagnosis of pes
aserine bursitis and patellar grind from Cooper Green, and a referral to physical
therapy) supports Donnelan’s findings of a left knee impairment. Id. Consequently,
Capel argues that the ALJ erred in deeming Donnelan’s medical opinion worthy of
only “little weight.” Id. at 8-9. The court disagrees.
The court first finds that Donnelan is neither Capel’s treating physician 3 nor
entitled to great weight because he only conducted a consultative examination on
Capel as part of Capel’s prior application for benefits. (R. 58, 291-96). A one-time

The Eleventh Circuit requires that an ALJ give “substantial or considerable
weight” to the medical opinion of the claimant’s treating physician unless “good
cause” is shown. Phillips v. Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004).

3

Page 12 of 21

visit for treatment or for a consultative examination is insufficient to render
treating physician status. See, e.g., Saucier v. Comm’r of Soc. Sec. Admin., 552 F.
App’x. 926, 929 (11th Cir. 2014) (requiring that a treating physician have, or
previously have had, an “ongoing treatment relationship” with the claimant); see
McNamee v. Soc. Sec. Admin., 164 F. App’x. 919, 923 (11th Cir. 2006) (finding
that a doctor cannot be a treating physician – and thus benefit from this deferential
standard – when he has examined the claimant for the purpose of a consultative
examination). Moreover, because Donnelan only examined Capel once, the ALJ
had no obligation to defer to him. See, e.g., Crawford v. Comm’r of Soc. Sec., 363
F.3d 1155, 1160 (11th Cir. 2004) (holding that, because the physician had
examined the claimant “on only one occasion, her opinion was not entitled to great
weight”); McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987) (noting that two
examining physicians’ opinions are “not entitled to deference because as one-time
examiners they [are] not treating physicians”).
The ALJ’s decision to afford Donnelan’s opinion little weight is also
supported by substantial evidence given the inconsistencies between Donnelan’s
opinions and the objective medical evidence.4 Indeed, an ALJ is free to reject the

4

The ALJ explained that Donnelan’s opinion regarding Capel’s left knee
limitations was inconsistent with objective medical evidence such as “x-ray
imaging showing only mild degenerative changes in [Capel’s] knee and x-ray
imagining of the claimant’s lumbar spine showing his gross alignment to be good,
Page 13 of 21

opinion of any physician when evidence supports a contrary conclusion. Syrock v.
Heckler, 764 F.2d 834, 835 (11th Cir. 1985). By elaborating on the reasons behind
his decision to afford Donnelan’s opinions little weight, the ALJ satisfied his
obligation to “state with particularity” the weight he has assigned each medical
opinion as well as the reasons for so assigning. See Sharfaz v. Bowen, 825 F.2d
278, 279 (11th Cir. 1987).
4. The ALJ properly considered the physicians’ opinions at Cooper Green
Hospital, University of Alabama at Birmingham Hospital, and
Birmingham Health Care.
Capel also argues that the ALJ failed to properly consider the opinions of the
physicians at Cooper Green Hospital, University of Alabama at Birmingham
Hospital (“UAB”), and Birmingham Health Care. According to Capel, the ALJ
should have given “controlling weight” to these physicians’ opinions, and he
asserts that the ALJ failed to appropriately address their opinions regarding Capel’s
chest pain and the anterior fascicular block diagnosis from Cooper Green on March
12, 2012. Doc. 10 at 10; see (R. 302).
These contentions miss the mark, in part, because Capel lacked the “ongoing
relationship” necessary for these physicians to qualify as his treating physicians.
As such, the ALJ had no obligation to give additional deference to their opinions.

his posterior elements to be grossly intact, and his disc spaces to be preserved.” (R.
64).
Page 14 of 21

See Saucier, 552 F. App’x. at 929. More importantly, however, the ALJ did in fact
take these physicians’ opinions into consideration when determining Capel’s
limitations; the ALJ explicitly stated that he had “accounted for the claimant’s
history” of recurrent chest wall pain, GERD, and hypertension “by limiting him to
light work. . . .” (R. 63, 64). Additionally, the ALJ discussed the physicians’
diagnoses at length in his analysis of Capel’s condition. (R. 57-64).
Moreover, the ALJ’s decision regarding the severity and intensity of Capel’s
limitations is supported by substantial evidence – including the records of the
Cooper Green, UAB, and Birmingham Health Care physicians. The ALJ examined
in detail the objective medical evidence regarding Capel’s heart pain, noting that at
various visits to these hospitals, Capel presented with a regular heart rhythm, no
acute findings, and no signs of “acute infarct or ischemic.” (R. 329-31, 345, 353,54, 368, 396, 399, 429). As for Capel’s knee complaints, the ALJ investigated
Capel’s medical history, ultimately noting that “x-ray imaging of his left knee was
normal except for a small spur on the patella.” (R. 62); see (R. 431). The ALJ also
observed that these physicians had documented that Capel had a normal range of
motion, (R. 62); see (R. 443), that a heating pad “really helps” with his pain, (R.
62); see (R. 457), and that he had accomplished his rehabilitation goals, (R. 62);
see (R. 453). Next, regarding Capel’s complaints of chest pain, hypertension, and
GERD, the ALJ not only described the objective medical evidence that indicated
Page 15 of 21

Capel’s symptoms were not disabling, but he still specifically accommodated for
those complaints by limiting Capel to light work.5 (R. 63-64). These findings are
sufficient for the ALJ to conclude that Capel’s limitations were not as severe as
Capel contended.6
5. The ALJ erred in relying on Dr. Estock’s testimony, but that error was
harmless.
Capel argues that the ALJ erred by affording great weight to Dr. Robert
Estock’s opinions regarding Capel’s limitations. Capel is correct that the ALJ
could not afford great weight to Estock’s opinion, but the reasons Capel advances
– that the report of a reviewing non-examining physician cannot constitute
5

The ALJ noted that, during many medical visits in 2012 and 2013, Capel
presented with normal gastrointestinal statistics. (R. 298, 306, 368, 399, 415, 425,
428). As to Capel’s hypertension, the ALJ reported that during multiple doctor
visits in 2012, Capel’s blood pressure was described as “benign.” (R. 400, 415,
420, 429). Nonetheless, as indicated above, the ALJ still accounted for these
ailments by limiting Capel to light work. (R. 63-64).
6
Capel also argues that he should be deemed disabled because he could not afford
more expensive treatments and that the typical course of treatment is “closed to
him due to poverty.” Doc. 10 at 11. Capel is correct that “when a claimant cannot
afford the prescribed treatment and can find no way to obtain it, the condition that
is disabling in fact continues to be disabling in law.” Dawkins v. Bowen, 848 F.2d
1211, 1213 (11th Cir. 1988) (quoting Taylor v Bowen, 782 F.2d 1294, 1298 (5th
Cir. 1986) (internal quotations omitted)). However, there is no evidence here that
Capel failed to get treatment because of poverty or that the ALJ based his findings
on noncompliance with treatment. To the contrary, the ALJ based his finding on
the fact that the objective medical evidence contradicts Capel’s statements of the
intensity and severity of his limitations. The ALJ’s finding of “not disabled”
additionally relied on testimony of a VE and of Capel’s RFC, age, educational
background, and work experience. (R. 65-66). While the court is sympathetic to
Capel’s economic hardship, that hardship cannot be the basis of remand here.
Page 16 of 21

substantial evidence on which the ALJ can base his decision, doc. 10 at 9, – are not
those that underpin the court’s decision today. As the Commissioner’s brief
detailed, the ALJ relied on the opinion of a “single decision maker” 7 (“SDM”)
rather than Estock’s opinion. (R. 375-395). In doing so, the ALJ erred because, as
Judge Karon Bowdre explained when faced with similar facts, “The
Commissioner’s policy is that, on appeal, the opinion of a non-examining state
agency single decision maker is entitled to no weight.” Stewart v. Astrue, 2013 WL
5355571 (N.D. Ala. Sept. 24, 2013); see also Program Operations Manual System
DI 24510.05, 2001 WL 1933365. However, ALJs’ mistakes are subject to the
harmless error rule; that is, if the ALJ’s findings do not contradict his ultimate
findings, his decision will stand. Caldwell v. Barnhart, 261 F. App’x. 188, 190
(11th Cir. 2008). Here, although the ALJ improperly gave “great weight” to
Estock’s determination that Capel could perform light work, (R. 64), as discussed
above, the remaining record provided substantial evidence to support a finding that
Capel was capable of performing a range of light work. Accordingly, the ALJ’s
error here was harmless.

7

As the Commissioner’s brief explains, the SDM program, “part of an experiment
to expedite the processing of an applications, [allows] SDM[s to] make the initial
disability determination in Alabama without the signature of a medical consultant.”
Doc. 11 at 14 n. 3; see 20 C.F.R. § 404.906(b)(2).
Page 17 of 21

6. The ALJ did not err in his application of the Medical-Vocational
Guidelines.
Capel argues that the ALJ committed reversible error by erroneously
applying the Medical-Vocational grids at Step Five. Specifically, Capel claims that
the ALJ failed to give appropriate credence to Capel’s age at filing (50 years old)
and instead considered medical history from a year earlier. (R. 13). In his brief,
Capel also seems to assert that, by using the onset date of April 9, 2010, the ALJ
had “effectively reopened” an earlier benefit application that Capel had filed 8 that
also alleged an April 9, 2010 onset date. Doc. 10 at 13; see (R. 64-65).
These arguments are unavailing for a number of reasons. First, the ALJ
considered Capel’s age at the time of the hearing, noting initially that Capel was 48
years old on the alleged onset date but then stating that Capel had “subsequently
changed age category to closely approaching advanced age.” (R. 64-65). Second,
neither age category would have affected Capel’s disability determination. As the
ALJ and the Commissioner both observed, Capel would not be deemed disabled
under the designation of either “closely approaching advanced age” (50-54) or
“younger individual” (age 18-49). See 20 C.F.R. Part 404, Subpart P, Appendix 2,
Rules 202.14, 202.21 (finding no disability for either age group); (R.64-65); Doc.
11 at 22-23. Third, the ALJ appropriately used the onset date of April 9, 2010 for
8

Capel filed for SSD and SSI benefits in 2010 but was denied. He did not appeal
that denial. Doc. 10 at 12; see (R. 192-94)
Page 18 of 21

his analysis because that date is the onset date that Capel listed on his benefits
application. (R. 154).
Finally, the effect of Capel’s age categorization is “essentially theoretical”
because the ALJ did not base his final determination on the grids. Miller v.
Comm’r of Soc. Sec., 241 Fed. App’x 631, 635 (11th Cir. 2011).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, 9 the
ALJ must also consider testimony of a VE in addition to the grids when
determining job availability. See, e.g., Walker, 826 F.2d at 1002-03. Indeed,
consistent with the regulations and established legal precedent, after finding that
Capel’s “ability to perform all or substantially all of the requirements of [light]
level of work [was] impeded by additional limitations,” (R. 65), the ALJ turned to
a VE to determine whether jobs existed in the national economy for an individual
with Capel’s age, education, work experience, and RFC. Id. at 65-66. The ALJ
then noted the VE’s opinion that Capel could work as an assembler, inspector, and
sorter. Id. Consequently, based on the VE’s opinion and Capel’s RFC, age,
education, and work experience, the ALJ determined that Capel was “capable of
9

At Step Five, the ALJ stated, “If the claimant had the residual functional capacity
to perform the full range of light work, a finding of ‘not disabled’ would be
directed by Medical-Vocational Rule 202.21 and Rule 202.14. 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. 65).
Page 19 of 21

making a successful adjustment to other work that exists in significant numbers in
the national economy.” Id.
In other words, even if the ALJ had improperly determined Capel’s age
category and if that age category had indicated that Capel might be disabled,
because the opinion of a VE is substantial evidence supporting the ALJ’s finding
that Capel was not disabled, the ALJ’s error, if any, was harmless. See Miller, 241
Fed. App’x at 635 n.1 (“Even 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, in light of the VE’s testimony that significant
numbers of jobs exist in the national economy that a person with Capel’s RFC
could perform, substantial evidence supports the ALJ’s conclusion that Capel
failed to demonstrate that he was disabled. See id. at 635.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Capel 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.
Page 20 of 21

DONE the 15th day of September, 2015.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

Page 21 of 21