Barnard v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 6/4/2014. (PSM)
2014 Jun-04 PM 01:30
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ARDEN D. BARNARD,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, )
CIVIL ACTION NO.
Plaintiff Arden D. Barnard (“Barnard”) brings this action pursuant to
Section 205(g) of the Social Security Act (“the Act”), 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’s
(“ALJ”) decision - which has become the decision of the Commissioner - is
supported by substantial evidence. Therefore, for the reasons elaborated herein, the
Court will affirm the decision denying benefits.
I. Procedural History
Barnard filed applications for Title II disability insurance benefits and Title
XVI Supplemental Security Income, on March 25, 2009, alleging a disability onset
date of July 31, 2007, due to a neck injury, arthritis, a pinched sciatic nerve, bone
spurs in his elbows, bursitis, and tendinitis. (R. 10, 167). After the SSA denied
Barnard’s claim, he requested a hearing before an ALJ. (R. 10). The ALJ
subsequently denied Barnard’s claim, (R. 7-18), which became the final decision of
the Commissioner when the Appeals Council refused to grant review. (R. 1-6).
Barnard then filed this action for judicial review pursuant to § 205(g) of the Act, 42
U.S.C. § 405(g). 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)
mandates 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 impairments 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). 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 analysis, the ALJ initially determined that
Barnard met the insured status requirements of the Act through December 31, 2012.
(R. 12). Moving to the first step, the ALJ found that Barnard had not engaged in
substantial gainful activity since July 31, 2007, and, therefore, met Step One. Id.
Next, the ALJ found that Barnard satisfied Step Two because he suffered from the
severe impairments of degenerative disc disease in the lumbar and cervical spine,
and obesity. Id. The ALJ then proceeded to the next step and found that Barnard
failed to satisfy Step Three because he “does not have an impairment or
combination of impairments that meets or medically equals one of the listed
impairments.” (R. 13). Although the ALJ answered Step Three in the negative,
consistent with the law, see McDaniel, 800 F.2d at 1030, the ALJ proceeded to
Step Four where he determined that Barnard
has the residual functional capacity to perform less than the full range
of sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and
416.967(a). The Claimant should alternate between sitting and
standing positions every thirty to sixty minutes throughout the work
day while remaining at his work station. The Claimant can
occasionally balance, stoop, crouch, and climb stairs and ramps. The
Claimant cannot kneel, crawl, or climb ropes, ladders, or scaffolds.
The Claimant can frequently reach in all directions with both upper
extremities. The Claimant can frequently handle and manipulate
objects with both hands. The Claimant should avoid concentrated
exposure to extreme cold. The Claimant should avoid all exposure to
hazardous machinery and unprotected heights. The Claimant is
limited to performing simple, routine, and repetitive one to two step
tasks in a low stress job, which is defined as requiring only occasional
decision making and involving only occasional changes in the work
Id. As of the date of the ALJ’s decision, Barnard was 49 years old, (R. 16), and had
past relevant work that included very heavy unskilled work as a laborer, medium
semi-skilled work as a delivery driver, heavy unskilled work as a lumber handler,
and medium semi-skilled work as a forklift operator. Id. In light of Barnard’s
RFC, the ALJ found that he “is unable to perform any past relevant work.” Id.
Lastly, in Step Five, the ALJ considered Barnard’s age, education, work
experience, and RFC and determined “there are jobs that exist in significant
numbers in the national economy [Barnard] can perform.” (R. 17). Therefore, the
ALJ found that Barnard “was not under a disability, as defined in the Social
Security Act, from July 31, 2007, through the date of this decision.” (R. 18).
Barnard raises only one issue on appeal, i.e., that the ALJ “never asked the
vocational expert a hypothetical question based on the Claimant’s residual
functional capacity found by the [ALJ].” Doc. 8 at 4. Barnard’s argument is based
on a difference in wording between the ALJ’s RFC finding and the hypothetical
question posed to the VE. Specifically, Barnard argues the ALJ found he had an
RFC for “less than the full range of sedentary work,” but asked the VE to consider
an individual with “sedentary restrictions.” See doc. 8 at 2, 8. However, a careful
review of both the ALJ’s RFC assessment, and the restrictions in the hypothetical
question posed to the VE, shows that there is no meaningful difference between the
The hypothetical question relied upon by the ALJ to find Barnard could do
other work began as a question asking the VE to assume an individual of Barnard’s
“age, education, and work experience, [who] is able to operate at the light
exertional limits.” (R. 87). To this, the ALJ added the following additional
Furthermore, this individual has a sit-stand option [allowing
him] to alternate between sitting and standing positions at 30 to 60
minute intervals. Certainly standing and sitting at the appropriate
amount of time to meet the exertional limitations of the body.
Further limited to posturally occasional climbing ramps and
stairs, never climbing ladders, ropes or scaffolds, occasionally
balancing, stooping and crouching, never kneeling or crawling.
Manipulatively this individual’s limited to frequent bilateral
reaching in all directions, including overhead, and frequent bilateral
handling and fingering for objects.
Environmentally limited to avoiding concentrated exposure to
extreme cold, and then avoiding all exposure to hazardous machinery
and unprotected heights.
And lastly, this person is limited to simple, routine, repetitive
one and two-step tasks. And [low pressure] jobs [with] only
occasional decision-making required, [and] only occasional changes
in the work setting.
(R. 87-88).1 The ALJ next asked the VE a hypothetical question that “reduced this
individual to sedentary, keeping all the past limitations the same.” (R. 88-89)
(emphasis added). It was the VE’s answer to this second hypothetical question that
the ALJ relied on to find Barnard could perform other work. (R. 17, 89).
Consequently, the only difference between the ALJ’s RFC assessment and the
hypothetical question posed to the VE is the inclusion of “less than the full range of
sedentary work” in the ALJ’s RFC assessment. However, this difference is
immaterial because SSR 96-9p states that the full range of sedentary work requires
an individual to be able to remain in a seated position for approximately six hour of
These additional limitations were substantively the same as those included in the
ALJ’s RFC finding. The only difference is that ALJ’s RFC finding provided that
Barnard can frequently “manipulate” objects, while the hypothetical question provided
for frequent “fingering” of objects.” (R. 13, 88). However, for vocational purposes,
these terms are synonymous. See Social Security Ruling (SSR) 96-9p, 1996 WL 374185
at *8 (“Manipulative limitations: Most unskilled sedentary jobs require good use of both
hands and the fingers; i.e., bilateral manual dexterity.”).
an eight-hour workday, with customary breaks, and further explains that if the
“need to alternate the required sitting of sedentary work by standing . . . cannot be
accommodated by scheduled breaks and a lunch period, the occupational base for a
full range of unskilled sedentary work will be eroded.” SSR 96-9p at *6, *7.
Therefore, the ALJ’s inclusion of “less that the full range of sedentary work” in his
RFC assessment merely clarified that Barnard was restricted in his ability to sit for
extended periods because of the need for a sit/stand option. In other words, the
ALJ’s RFC finding did not impose any restrictions not accounted for in the
hypothetical question posed to the VE, and, thus, it properly accounted for
Barnard’s limitations. Consequently, the testimony of the VE provides substantial
evidence to support the ALJ’s finding that Barnard could do other work.
Based on the foregoing, the court concludes that the ALJ’s determination
that Barnard 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 4th day of June, 2014.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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