Somerset v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Magistrate Judge Staci G Cornelius on 1/22/18. (MRR, )

FILED
2018 Jan-22 PM 03:14
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STERLING SOMERSET,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.

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) Case No.: 2:16-cv-01589-SGC
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MEMORANDUM OPINION1
The plaintiff, Sterling Somerset, seeks review of the final decision of the
Commissioner of Social Security denying his application for a period of disability
and Supplemental Security Income (“SSI”).

(Doc. 1).

Mr. Somerset timely

pursued and exhausted his administrative remedies, and the case is therefore ripe
for review pursuant to 42 U.S.C. § 405(g).
I. FACTS, FRAMEWORK, AND PROCEDURAL HISTORY
At the time he applied for benefits, June 13, 2013, Mr. Somerset was 59
years old. (R. 28, 65, 66). He is a high school graduate with one year of college.
(R. 159). Mr. Somerset previously worked as a bricklayer and a carpenter. (Id.).
Mr. Somerset alleged he stopped working in November 2012 due to high blood
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The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).
(Doc. 10).

pressure, severe arthritis, COPD, and hypoglycemia. (R. 158). After the Social
Security Administration (“SSA”) denied his application, Mr. Somerset requested a
hearing before an Administrative Law Judge (“ALJ”), which was held on
December 29, 2014. (R. 33, 76, 82). After the hearing, the ALJ found the plaintiff
did not have an impairment or a combination of impairments listed in, or medically
equivalent to, one listed in the Listings of Impairments. (R. 22). The ALJ further
found the plaintiff retained the residual functional capacity to perform a reduced
range of medium work and, while he could perform no past relevant work, jobs
exist in the national economy in significant numbers which the plaintiff could
perform. (R. 22, 28).

In light of these findings, the ALJ denied the plaintiff’s

request for a period of disability on April 16, 2015. (R. 29).
The plaintiff sought Appeals Council review of the ALJ’s decision, which
the Appeals Council denied. (R. 1, 14). Therefore, the ALJ’s decision is the final
decision of the Commissioner of Social Security. The plaintiff then filed the
appeal in this court on September 26, 2016, seeking reversal of the
Commissioner’s decision. (Docs. 1, 12).
The regulations require the Commissioner to follow a five-step sequential
evaluation to determine whether a claimant is eligible for a period of disability and
SSI. See 20 C.F.R. § 416.920(a)(1)-(2). First, the Commissioner must determine
whether the claimant is engaged in “substantial gainful activity.”
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Bowen v.

Yuckert, 482 U.S. 137, 140 (1987). 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 age, education, and work
experience. 20 C.F.R. § 416.920(b). 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
limit the claimant’s physical or mental ability to do basic work activities. 20
C.F.R. § 416.920(a)(4)(ii), (c). The burden is on the claimant to “provide medical
evidence showing ... impairment(s)” and the severity of them during the time the
claimant alleges disability. 20 C.F.R. § 416.912(c). An impairment is “severe” if
it “significantly limits [a] claimant’s physical or mental ability to do basic work
activities.” Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997). “An
impairment can be considered as not severe only if it 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.” Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984).
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. §

416.920(a)(4)(iii), (d)-(e); § 416.925; § 416.926. Listed impairments are so severe
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that they prevent an individual from performing substantial gainful activity. 20
C.F.R. § 416.920(d); 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. § 416.920(d). If the impairment does not meet or equal the
criteria of any Listing, the claimant must prove that his impairment prevents him
from performing his past relevant work. See 20 C.F.R. § 416.920(a)(4)(iv), (f).
At step four, the Commissioner “will first compare [the Commission’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. §
416.960(b). If the claimant is capable of performing his past relevant work, the
Commissioner will find he is not disabled. 20 C.F.R. § 416.960(b)(3). If the
claimant establishes he is unable to perform his past relevant work, the
Commissioner must show that the claimant—in light of his RFC, age, education,
and work experience—is capable of performing other work that exists in
substantial numbers in the national economy. 20 C.F.R. § 416.960(c)(1). If the
claimant is not capable of performing such other work, the Commissioner must
find the claimant is disabled. 20 C.F.R. § 416.920(g).
Applying these steps, the ALJ determined the plaintiff had not engaged in
substantial gainful employment since his alleged onset date. (R. 21). At step two,
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the ALJ found the plaintiff suffered from the severe impairments of scoliosis,
degenerative disease of the lumbar spine, degenerative joint disease of the right
knee, skin carcinoma, and hypertension. (Id.). The ALJ found the plaintiff’s
seborrheic keratosis, alcohol dependence, and anxiety to be non-severe
impairments because they did not cause more than minimal limitation in the
plaintiff’s ability to perform work related activities. (Id.). Next, the ALJ found the
plaintiff did not have an impairment or combination of impairments that met or
medically equaled any Listing. (R. 22). The ALJ determined the plaintiff had the
RFC to perform medium work, as defined in 20 C.F.R. § 416.967(c), with the
following limitations: frequent use of right foot controls; frequent climbing of
ramps and stairs; no climbing ladders or scaffolding; occasionally crouching,
kneeling, and crawling; and only routine and repetitive tasks and simple workrelated decisions.

(R. 22-23).

Considering this RFC, at step four the ALJ

determined the plaintiff could not perform past relevant work but found at step
five, through the use of Vocation Expert (“VE”) testimony, that the plaintiff could
perform jobs which exist in the national economy in significant numbers, such as
sandblaster, factory helper, and washer. (R. 28-29).
II. STANDARD OF REVIEW
In reviewing claims brought under the Social Security Act, this court is
limited to an inquiry into whether substantial evidence exists to support the
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findings of the Commissioner and whether the correct legal standards were
applied. Stone v. Comm’r of Soc. Sec., 544 F. App’x 839, 841 (11th Cir. 2013)
(citing Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)).
The court gives deference to the factual findings of the Commissioner but reviews
questions of law de novo. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1260
(11th Cir. 2007). The court “may not decide the facts anew, reweigh the evidence,
or substitute [its] judgment for that of the [Commissioner],” Dyer v. Barnhart, 395
F.3d 1206, 1210 (11th Cir. 2005), rather it must “scrutinize the record as a whole
to determine if the decision reached is reasonable and supported by substantial
evidence.” Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015).
“The Commissioner’s factual findings are conclusive if supported by substantial
evidence.”

Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).

“Substantial evidence is less than a preponderance, but rather such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
III. DISCUSSION
The plaintiff contends the ALJ’s determination of the plaintiff’s RFC is not
consistent with the requirements of medium work or the medical evidence. (Doc.
12 at 7-8). The plaintiff continues that, because he should have been found to be
limited to light work, and based on his age, he then would have been found
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disabled under the Medical Vocations Rules (the “Grids”), specifically Rule
202.06. (Id., at 9). Moreover, the plaintiff asserts the ALJ should have obtained a
medical source opinion (“MSO”) for assistance in determining the plaintiff’s RFC.
(Id., at 10).

The Commissioner responds that substantial evidence supports the

ALJ’s RFC determination, the ALJ properly relied on the VE’s testimony rather
than the Grids, and the ALJ was not obligated to obtain additional evidence from a
medical expert. (Doc. 14 at 5, 14, 17, 21).
A. Substantial Evidence Supports the ALJ’s RFC Determination
Essentially, the plaintiff asserts that the ALJ’s finding he can perform a
limited range of medium work was in error, he should have been found limited to
light work, and if he had been found limited to light work, the Grids would dictate
a finding of “disabled.” However, as the Eleventh Circuit has explained:
“The grids are based on the claimant’s residual functional capacity,
age, education and work experience, and in cases where they apply,
they direct a conclusion on the issue of whether the claimant is
capable of performing substantial gainful activity in the national
economy.” [Patterson v. Bowen, 799 F.2d 1455, 1458 (11th Cir.
1986).] However, “[e]xclusive reliance on the grids is not appropriate
either when [a] claimant is unable to perform a full range of work at a
given functional level or when a claimant has non-exertional
impairments that significantly limit basic work skills.” Walker v.
Bowen, 826 F.2d 996, 1002–03 (11th Cir. 1987) (quotation omitted).
“When the grids are not controlling, the preferred method of
demonstrating job availability is through expert vocational
testimony.” Id. at 1003.
Miller v. Comm’r of Soc. Sec., 241 F. App’x 631, 634 (11th Cir. 2007) (alterations
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in orginal).
Here, because the ALJ determined the plaintiff could perform less than the
full range of medium work, he could not rely on the Grids but instead was required
to consider the testimony of a VE. Miller, 241 F. App’x at 635; see also Watson v.
Astrue, 376 F. App’x 953, 956 (11th Cir. 2010).
The medical evidence supporting the plaintiff’s claim of disability is sparse.
It begins in November 2012 when the plaintiff was hospitalized for malignant
hypertension. (R. 201). Those records reflect that the plaintiff had been diagnosed
with high blood pressure ten years earlier but quit taking medication for this
condition because the medication made him tired.

(R. 203).

During that

hospitalization, the plaintiff was encouraged to quit smoking and was noted to be
at risk for DTs due to his regular alcohol consumption. (R. 206-207). The plaintiff
was discharged with prescriptions for hypertension medications and aspirin and
was instructed to follow up with a primary care physician. (R. 201, 218, 222). He
was released to activity as tolerated and noted to have a pain level of 0. (R. 220).
A consultative examination in August 2013 noted the plaintiff’s complaints
to be right knee and foot pain, high blood pressure, and COPD. (R. 243). That
record noted the plaintiff had worked two weeks earlier putting a roof on a
boathouse and one week prior cutting grass. (R. 244). The plaintiff was noted to
walk without discomfort and with a normal gait, sat comfortably, and got on and
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off the examination table without trouble. (Id.). Squatting and bending were
limited by pain in the plaintiff’s right knee. (R. 245). The diagnoses from that
examination were out of control blood pressure with the plaintiff non-compliant
with treatment, low back pain unsupported by any objective findings, skin cancer,
right foot pain objectively supported by a limited range of motion, right knee pain,
report of COPD with no objective findings, and nicotine addiction. (R. 247-248).
The plaintiff was deemed able to walk and stand for up to six hours with no
limitations on sitting, lifting, carrying, reaching, use of ladders and scaffolds,
climbing, stooping, crouching, kneeling, and crawling. (R. 248). August 2013 Xrays found moderate osteoarthritic changes in the plaintiff’s right knee, and mild
scoliosis and severe degenerative changes in the plaintiff’s lumbar spine. (R. 24950).
The plaintiff began seeking routine medical care in September 2013. (R.
292). At the time, he was noted to suffer only from hypertension. (Id.). He had a
normal range of motion in all extremities with no pain upon examination. (R.
294). The following month, the plaintiff’s hypertension was stable. (R. 288). In
February 2014, the plaintiff had multiple basal cell carcinomas removed from his
arms and face. (R. 313). In April 2014, the plaintiff was noted to be anxious, was
still smoking and drinking daily, and his medical problems were limited to
hypertension, tobacco abuse, and an elevated PSA. (R. 279, 281). The plaintiff’s
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July 2014 visit listed the same issues. (R. 274). The October 2014 records reflect
the plaintiff’s medical problems were unchanged. (R. 265-266). His pain level
was recorded as a 0 out of 10.2 (R. 270). Those records also reflect the plaintiff
was prescribed Chantix to help him quit smoking but never had that filled; he did
not have a biopsy of his prostate because he did not have the money; he never
followed up on the skin cancers because he had no money; and he did not fill out
the paperwork for charity medical care. (R. 272). The following month, the
plaintiff had been drinking prior to his medical appointment, still had not followed
up on his skin cancers, and was noted to be anxious. (R. 262).
After reviewing all of the above medical records and the plaintiff’s hearing
testimony, the ALJ determined the evidence did not support the limitations the
plaintiff claimed. (R. 26). The ALJ assigned significant weight to the limitations
set forth by the consultative examiner but also found the plaintiff had more
significant limitations based on the knee and back X-rays from August 2013. (R.
27). Hence, the ALJ ascribed greater limitations to the plaintiff based on the X-ray
evidence and the plaintiff’s allegations of knee and back pain. (R. 27-28). The
plaintiff does not point to any error in the ALJ’s analysis but instead alleges the
ALJ erred in relying on VE testimony that the job of sandblaster could
2

Two months later at his December 2014 hearing, the plaintiff stated his back and knee hurt too
badly for him to work. (R. 48). The plaintiff also testified he could lift no more than a gallon or
two of milk, rather than the 75 pounds he had stated in his functional report a year and a half
earlier. (R. 55).

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accommodate the RFC set forth by the ALJ. (Doc. 12 at 8).
Specifically, the plaintiff asserts the X-rays of his right knee and lumbar
spine demonstrate he is more limited than the ALJ determined. (Doc. 12 at 8).
The plaintiff states that medium work, with its requirement of lifting up to 50
pounds, requires flexibility of the knees and torso that cannot be reconciled with
the ALJ’s limitation of only occasional crouching.

(Id.).

Despite the VE’s

testimony that jobs with these very limitations exist in significant numbers in the
national economy, the plaintiff argues the VE’s testimony was incorrect, given the
job duties for a sandblaster listed in the Dictionary of Occupational Titles
(“DOT”). (Id.). However, the plaintiff fails to point to any particular job duty that
exceeds the RFC of the ALJ, instead suggesting that shoveling abrasives into a
machine hopper would require more than occasional crouching.

(Id.).

The

Commissioner responds by noting the DOT listing for sandblaster states crouching
is not a job requirement. (R. 14 at 20). Moreover, the Commissioner also notes
that the plaintiff does not contend the factory worker or washer jobs identified by
the VE would not be available. (Id.). Because substantial evidence supports the
ALJ’s determination that the plaintiff could perform a limited range of medium
work, the finding of not disabled, without reference to the Grids, is reasonable and
supported by substantial evidence. See e.g, Henry v. Comm’r of Soc. Sec., 802
F.3d 1264, 1267 (11th Cir. 2015).
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B. Medical Source Opinion Not Required
The plaintiff argues the August 2013 X-rays demonstrate far greater
limitations than those afforded by either the consultative examiner or the ALJ and,
therefore, the ALJ should have obtained an MSO to clarify the record. (Doc. 12 at
10). However, the X-rays showed greater arthritis and degenerative disease than
even the plaintiff’s complaints or activities would suggest. The ALJ took into
account the objective findings of the X-rays rather than the absence of subjective
complaints of pain by the plaintiff. In contrast to the plaintiff’s assertion this
somehow required an MSO for clarification, it demonstrates that the ALJ properly
ascribed limitations based on the X-rays and other evidence.

See Phillips v.

Banhart, 357 F.3d 1232, 1238 (11th Cir. 2004) (“[T]he ALJ must determine the
claimant’s RFC using all relevant medical and other evidence in the case.”).
Because the record contained sufficient evidence for the ALJ to make a
determination, he was not required to obtain additional medical opinions. See
Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1269 (11th Cir. 2007); Smith v.
Comm’r, 501 F. App’x 875, 878 (11th Cir. 2012).
Ultimately, the plaintiff bears the burden of proving he is disabled and
producing evidence in support of his claim.

20 C.F.R. § 416.912; Ellison v.

Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003). The plaintiff failed in his burden.
While the plaintiff asserts the ALJ “ignor[ed] any objective findings that would
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support a less than medium RFC and an application of the MVR at the light level,”
no objective evidence in the record supports a limitation to the light level. (Doc.
12 at 11). Given this absence of evidence, the ALJ’s determination that the
plaintiff could perform a limited range of medium work was not error.
IV. CONCLUSION
For the reasons set forth above, the court finds the decision of the
Commissioner is supported by substantial evidence and due to be affirmed. An
order in accordance will be entered contemporaneously with this Memorandum
Opinion.
DONE this 22nd day of January, 2018.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

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