Blackburn v. Social Security Administration, Commissioner

Filing 9

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 2/14/2013. (JLC)

FILED
2013 Feb-14 PM 05:00
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
JAMES GLYN BLACKBURN,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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) Case No.: 3:11-CV-4369-VEH
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MEMORANDUM OPINION
Plaintiff James Glyn Blackburn (“Mr. Blackburn”) brings this action pursuant
to 42 U.S.C. § 405(g), § 205(g) of the Social Security Act (the “Act”). He seeks
review of a final adverse decision of the Commissioner of the Social Security
Administration (the “Commissioner” or “Secretary”), who denied his application for
Supplemental Security Income (“SSI”).1

Mr. Blackburn timely pursued and

In general, the legal standards applied are the same regardless of whether
a claimant seeks SSI or Disability Insurance Benefits (“DIB”). However, separate,
parallel statutes and regulations exist for SSI and DIB claims. Therefore, citations
in this opinion should be considered to refer to the appropriate parallel provision
as context dictates. The same applies to citations of statutes or regulations found
in quoted court decisions.
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exhausted his administrative remedies available before the Commissioner. The case
is ripe for review pursuant to 42 U.S.C. § 405(g), § 205(g) of the Act.2
FACTUAL AND PROCEDURAL HISTORY
Mr. Blackburn was a 48 year-old male at the time of his hearing before the
administrative law judge (the “ALJ”) held on May 9, 2011. (Tr. 52, 24). In terms of
education, Mr. Blackburn graduated from high school and spent some time in college,
but did not ever obtain a graduate degree. (Tr. 30). Mr. Blackburn’s prior work
experience over the past fifteen years was as a tree trimmer (classified as a heavy,
semi-skilled position by the vocational expert), and as a hand packer (classified as a
medium, unskilled job). (Tr. 43).
Mr. Blackburn protectively applied for SSI on February 19, 2009. (Tr. 12, 52).
Mr. Blackburn maintains that he became disabled on March 1, 1999, due to
degenerative joint disease of his right shoulder and knee, obesity, and a generalized
anxiety disorder. (Tr. 14, 52). His claim was denied initially on June 24, 2010. (Tr.
12, 52).
Mr. Blackburn timely filed a request for a hearing that was received by the
Social Security Administration on July 1, 2010. (Tr. 12, 61). A hearing was held on

42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42
U.S.C. § 405(g) fully applicable to claims for SSI.
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May 9, 2011, in Florence, Alabama. (Tr. 12, 24).
On June 22, 2011, the ALJ concluded Mr. Blackburn was not disabled as
defined by the Act and denied his SSI application. (Tr. 12-20). On July 20, 2011,
Mr. Blackburn submitted a request for review of the ALJ’s decision. (Tr. 7). On
October 28, 2011, the Appeals Council denied review, which resulted in the ALJ’s
disability determination that was adverse to Mr. Blackburn becoming the final
decision of the Commissioner. (Tr. 1).
On December 30, 2011, Mr. Blackburn initiated his lawsuit with this court
asking for a review of the Commissioner’s decision. (Doc. 1). Mr. Blackburn did not
file a brief in support of his appeal. On July 23, 2012, the Commissioner filed his
brief (Doc. 8), and the appeal is now under submission. This court has carefully
considered the record, and for the reasons stated below, affirms the Commissioner’s
denial of benefits.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed.
The function of this court is to determine whether the decision of the Commissioner
is supported by substantial evidence and whether proper legal standards were applied.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219,
1221 (11th Cir. 2002). This court must “scrutinize the record as a whole to determine
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if the decision reached is reasonable and supported by substantial evidence.”
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). This court will
determine that the ALJ’s opinion is supported by substantial evidence if it finds “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. Substantial evidence is “more than a scintilla, but less than a
preponderance.” Id. Factual findings that are supported by substantial evidence must
be upheld by the court.
The ALJ’s legal conclusions, however, are reviewed de novo, because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the
court finds an error in the ALJ’s application of the law, or if the ALJ fails to provide
the court with sufficient reasoning for determining that the proper legal analysis has
been conducted, the ALJ’s decision must be reversed. Cornelius v. Sullivan, 936 F.
2d 1143, 1145-46 (11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits and establish an entitlement for a period of
disability, the claimant must be disabled as defined by the Act and the Regulations

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promulgated thereunder.3 The Regulations define “disabled” as the “inability to do
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 (12) months.” 20
C.F.R. § 404.1505(a). To establish an entitlement to disability benefits, a claimant
must provide evidence of a “physical or mental impairment” which “must result from
anatomical, physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. §
404.1508.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in
sequence:
(1)
(2)
(3)
(4)
(5)

whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the Secretary;
whether the claimant can perform her past work; and
whether the claimant is capable of performing any work in the national
economy.

Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to former applicable C.F.R.
The “Regulations” promulgated under the Act are listed in 20 C.F.R.
Parts 400 to 499, as current through January 24, 2013. See, e.g., 20 C.F.R. § 401.5
(“Current through February 7, 2013”).
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section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir.
1999); accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the
claimant has satisfied steps one and two, she will automatically be found disabled if
she suffers from a listed impairment. If the claimant does not have a listed
impairment but cannot perform her work, the burden shifts to the Secretary to show
that the claimant can perform some other job.” Pope, 998 F.2d at 477; accord Foote
v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner must further
show that such work exists in the national economy in significant numbers. Foote,
67 F.3d at 1559.
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
The ALJ found Mr. Blackburn had not engaged in substantial gainful activity
since the date of his SSI application, i.e., February 19, 2010. (Tr. 14 ¶ 1). Thus, the
claimant satisfied step one of the five-step test. 20 C.F.R. § 404.1520(b).
Under step two, the ALJ concluded that “[t]he claimant has the following
severe impairments: degenerative joint disease of his right shoulder and knee,
obesity, and a generalized anxiety disorder[.]” (Tr. 14 ¶ 2). Accordingly, the ALJ
concluded that Mr. Blackburn satisfied the second step of the sequential disability
evaluative process. 20 C.F.R. § 404.1520(c).
At step three, the ALJ determined that Mr. Blackburn did not have an
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impairment or a group of impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 14 ¶ 3; Tr. 14-15).
The ALJ then evaluated Mr. Blackburn’s residual functional capacity (“RFC”),
and the claimant was found to have the capacity:
[T]o perform light work . . . lifting and carrying up to 20 pounds
occasionally and up to 10 pounds frequently. He can stand and/or walk
for 6 hours in an 8-hour workday and sit for 6 hours in an 8-hour
workday, with normal breaks. He can frequently perform activities
involving climbing of ramps/stairs and climbing of
ladders/ropes/scaffolding. He can also frequently perform activities
involving balancing and stooping, but can only occasionally kneel,
crouch, and crawl. He would have some limitation with reaching in all
directions, but would have no limitations with handling, fingering, or
feeling. He should avoid all exposure to hazardous conditions, such as
work around machinery or work at heights. In addition, he can
understand and remember simple instructions, but should not have work
with detailed instructions. He can also carry out simple instructions and
sustain attention to perform routine or familiar tasks for extended
periods. He would function best in his own work area, without close
proximity to others. He can tolerate ordinary work pressures, but should
not be involved in work activities that require close coordination with
others, work activity involving contact with crowds, or work activity
that requires multiple demands. Any contact with the public should be
non-intensive and contact with co-workers should be casual. Any
changes in work activity should be infrequent and well explained.
(Tr. 15 ¶ 4).4
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The Regulations define light work as:

(b) Light work. Light work involves lifting no more than 20 pounds
at a time with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job is in
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The ALJ next determined that Mr. Blackburn’s impairments prevented him
from performing his past relevant employment as a tree trimmer and hand packer.
(Tr. 19; id. ¶ 5). Because the ALJ found that Mr. Blackburn was unable to perform
past relevant work, it was necessary to continue to step five of the sequential analysis.
(Tr. 19-20).
Relying upon vocational expert testimony and using the medical-vocational
rules as a framework, the ALJ determined that Mr. Blackburn was “capable of making
a successful adjustment to other work that exists in significant numbers in the
national economy.” (Tr. 20). Examples of such positions included employment as
a hand packer (in a light exertional capacity as opposed to Mr. Blackburn’s former
hand packer position which had a medium exertional level) (compare Tr. 45 with Tr.
43), an assembler, and a machine tender. (Tr. 20). Accordingly, the ALJ concluded
that Mr. Blackburn was not disabled as defined by the Act, and denied his SSI claim.

this category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the
ability to do substantially all of these activities. If someone can do
light work, we determine that he or she can also do sedentary work,
unless there are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
20 C.F.R. § 404.1567(b) (current through February 7, 2013).
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(Tr. 20; id. ¶ 10).
ANALYSIS
The court can reverse a finding of the Secretary if it is not supported by
substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th
Cir. 1980)).5
Here, the Commissioner contends that substantial evidence supports the ALJ’s
decision that Mr. Blackburn is not disabled, and Mr. Blackburn, in the absence of
filing a brief, has not pointed to any specific evidentiary or legal flaws for the court
to consider. In its review of the record, this court finds that the ALJ has committed
no reversible error and has supported his disability decision with substantial evidence.
In particular, in formulating Mr. Blackburn’s RFC, the ALJ expressly relied
upon the physical functional findings made by consultative examiner Brad M.
Ginevan, M.D. (“Dr. Ginevan”) on April 29, 2010. (Tr. 17-18; see also Tr. 206
(“FUNCTIONAL RESTRICTIONS: Based on today’s exam, the client is unable to
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc), the Eleventh Circuit adopted as binding precedent all decisions of the
former Fifth Circuit handed down prior to October 1, 1981.
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squat or do any heavy lifting or reaching.”)). The ALJ also gave considerable weight
to the physical capacity assessment completed by Robert H. Heilpern, M.D. on June
24, 2010. (Tr. 18; see also Tr. 227-234).
Further, with respect to Mr. Blackburn’s vocational limitations related to his
anxiety disorder, the ALJ specifically referenced the mental functional findings made
by consultative examiner Bonnie L. Atkinson, Ph.D., L.L.C. (“Dr. Atkinson”) on
April 27, 2010, including Mr. Blackburn’s Global Assessment Functioning (“GAF”)
score of 65.6 (Tr. 17-18; see also Tr. 201 (“The claimant does have sufficient
judgment to make simple work decisions.”); Tr. 202 (“Axis V: 65”)). The ALJ also
placed considerable weight upon the mental capacity assessment completed by Gloria
Roque, Ph.D. on May 10, 2010. (Tr. 18; see also Tr. 221-24).
Thus, the ALJ’s RFC determination is not based solely upon raw and unfiltered
medical data contained in the record.

Instead, the administrative finding is

substantially supported by consultative medical proof confirming Mr. Blackburn’s
vocational abilities given his collection of severe physical and mental impairments.

A GAF of 65 falls within a range of scoring that indicates “mild symptoms
with some difficulty in social and occupational functioning.” Jarrett v.
Commissioner of Social Security, 422 Fed. App’x 869, 873 (11th Cir. 2011)
(citing American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental
Disorders 34 (4th ed. 2000)).
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Furthermore, the court sees no other possible basis for remand. Accordingly, the case
is due to be affirmed on appeal.
CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the
Commissioner’s brief, the court concludes that the Commissioner’s final decision is
supported by substantial evidence and applies the proper legal standards.
Accordingly, the decision of the Commissioner will be affirmed by separate order.
DONE and ORDERED this the 14th day of February, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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