Craig v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Magistrate Judge John H England, III on 9/8/2015. (KEK)

FILED
2015 Sep-08 PM 04:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
SHERRY LYNN CRAIG,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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Case Number: 4:14-cv-00297-JHE

MEMORANDUM OPINION 1
Plaintiff Sherry Lynn Craig (“Craig”) seeks review, pursuant to 42 U.S.C. § 405(g), §
205(g) of the Social Security Act, of a final decision of the Commissioner of the Social Security
Administration (“Commissioner”), denying her application for Supplemental Security Income
(“SSI”). (Doc. 1). Craig timely pursued and exhausted her administrative remedies. This case is
therefore ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3). The undersigned has carefully
considered the record and, for the reasons stated below, the Commissioner’s decision is
AFFIRMED.
I. Factual and Procedural History
Craig was a fifty-four-year-old female at the time of the Administrative Law Judge’s
(“ALJ”) decision. (Tr. 25 & 123). Craig completed at least four years of college, (tr. 197), and
obtained a master’s degree in physical education, (tr. 51). Her past work experience includes
employment as a “demo lady,” fitness club cleaner, caregiver, and substitute teacher. (Tr. 1611

In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 9).

66).
Craig filed her application for SSI on November 19, 2010. (Tr. 123). The Commissioner
initially denied Craig’s application, (tr. 67), and Craig requested a hearing before an ALJ, (tr. 78). After a hearing, the ALJ denied Craig’s claim on September 28, 2012. (Tr. 9-30). Craig
sought review by the Appeals Council, but it declined her request on December 27, 2013. (Tr. 16). On that date, the ALJ’s decision became the final decision of the Commissioner. On
February 19, 2014, Craig initiated this action. (See doc. 1).
II. Standard of Review 2
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 if the decision reached is reasonable and
supported by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983). Substantial evidence is “such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.”

Id.

It is “more than a scintilla, but less than a

preponderance.” Id.
This Court must uphold factual findings supported by substantial evidence. However, it
reviews the ALJ’s legal conclusions 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,

2

In general, the legal standards applied are the same whether a claimant seeks DIB or
SSI. However, separate, parallel statutes and regulations exist for DIB and SSI claims.
Therefore, citations in this opinion should be considered to refer to the appropriate parallel
provision as context dictates. The same applies to citations for statutes or regulations found in
quoted court decisions.
2

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, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d 1143,
1145-46 (11th Cir. 1991).
III. Statutory and Regulatory Framework
To qualify for disability benefits and establish his or her entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the Regulations
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 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 [Commissioner];
whether the claimant can perform his or 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 the formerly applicable C.F.R.
3

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499.
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section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (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 [Commissioner] 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 such work exists in the national economy in significant
numbers. Id.
IV. Findings of the Administrative Law Judge
After consideration of the entire record and application of the sequential evaluation
process, the ALJ made the following findings:
At Step One, the ALJ found that Craig did not engage in substantial gainful activity from
the application date of November 17, 2010. (Tr. 14). At Step Two, the ALJ found Craig has the
following severe impairments: fibromyalgia, osteoarthritis, anxiety, and depression. (Id.). At
Step Three, the ALJ found Craig does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. 20).
Before proceeding to Step Four, the ALJ determined Craig’s residual functioning
capacity (“RFC”), which refers to the most a plaintiff can do despite her impairments. See 20
C.F.R. § 404.1545(a)(1). The ALJ determined Craig has the RFC to perform light work as
defined in 20 C.F.R. 416.967(b), with specified limitations. (Tr. 21). She can only occasionally
lift and/or carry 20 pounds, and can lift 10 pounds frequently. (Id.). Further, she can sit six of
eight hours or walk six of eight hours; she should never climb ladders, ropes or scaffolds; and

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she can occasionally climb ramps and stairs or balance, stoop, crouch, kneel, and crawl. (Id.).
Craig must avoid concentrated exposure to workplace hazards such as dangerous machinery and
unprotected heights, and she should also avoid temperature extremes and vibration. (Id.). She
can maintain attention for two hours at a time, and she can perform jobs that do not require
working in close cooperation with coworkers. (Id.). She cannot perform jobs that require
interacting with the general public as a job duty but can have incidental, casual, and nonintensive contact with the general public, and she can understand, remember, and carry out
simple tasks and make simple work-related decisions. (Tr. 21-22).
At Step Four, the ALJ determined Craig has no past relevant work experience. (Tr. 24).
At Step Five, the ALJ determined, based on Craig’s age, education, work experience, and RFC,
that jobs exist in significant numbers in the national economy that Craig could perform. (Id.).
Therefore, the ALJ determined that Craig has not been under a disability and denied Craig’s
claim. (Tr. 25).
V. Analysis
Although the court may only reverse a finding of the Commissioner if it is not supported
by substantial evidence or because improper legal standards were applied, “[t]his 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)).
The court, however, “abstains from reweighing the evidence or substituting its own judgment for
that of the [Commissioner].” Id. (citation omitted).
Craig asserts two bases for reversing the ALJ’s decision: (1) the ALJ mischaracterized
her age as a “younger individual,” and this mischaracterization informed the ALJ’s decision to

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deny Craig SSI; and (2) the ALJ should have recognized Craig was not only not a “younger
individual” but was also at the top of the “approaching advanced age” group and should have
categorized Craig as a person of “advanced age.” (Doc. 10 at 2-3). However, despite this
cascade failure, the asserted errors were harmless because substantial evidence supports the
ALJ’s determination that Craig failed to demonstrate a disability. See Wright v. Barnhart, 153 F.
App’x 678, 684 (11th Cir. 2005) (“[W]hen an incorrect application of the regulations results in
harmless error because the correct application would not contradict the ALJ’s ultimate findings,
the ALJ’s decision will stand.”) (citing Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983)).
A. The ALJ’s Error in Miscategorizing Craig’s Age Group Was Harmless Error.
In her decision, the ALJ stated Craig’s age was fifty-two at the time of her request for
SSI. (Tr. 24). However, the ALJ failed to correctly identify Craig’s age category under the
Medical-Vocational Guidelines (“the grids”). Instead of placing Craig within the “approaching
advanced age” category, as appropriate for a person within the age range of 50-54 years, the ALJ
stated Craig, as a fifty-two year old, was a “younger individual age 18-49.” (Id.). This statement
is obviously internally contradictory, as someone who is fifty-two does not fall into the age range
of 18-49. Craig should have been placed in the appropriate category on the grid: “approaching
advanced age.” 4
Nevertheless, this error is harmless and does not in and of itself warrant a reversal of the
ALJ’s decision. Even if the ALJ had correctly identified Craig’s age category as “approaching

4

The ALJ should have stated Craig’s age was fifty-four because a plaintiff’s age should
be measured from the date of the ALJ’s decision rather than the date of the initial application or
hearing. See Crook v. Barnhart, 244 F. Supp. 2d 1281, 1283 (N.D. Ala. 2003) (quoting Russell
v. Commissioner of Social Security, 20 F. Supp. 2d 1133, 1134 (W.D. Mich. 1998)
(quoting Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 780 (6th Cir. 1987))).
However, fifty-four years of age, like fifty-two, is still within the “approaching advanced age”
category.
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advanced age,” the ALJ would still have found that Craig was not disabled. Under the grid used
in the ALJ’s decision, § 202.20, an individual is not disabled if he is a younger individual,
graduated from high school, has no past relevant work, and can perform light work. 20 C.F.R. §
Pt. 404, Subpt. P, App. 2, Table No. 2, § 202.20. Other than the obvious error of Craig’s age
category, she meets the requirements under § 202.20, as she has graduated from high school, has
no past relevant work, and, according to medical testimony, can perform light work. (Tr. 24).
The corresponding grid rule for someone of Craig’s actual age is § 202.13, and it supports the
same result as § 202.20. See 20 C.F.R. § Pt. 404, Subpt. P, App. 2, Table No. 2, § 202.13.
Section 202.13 states that an individual is not disabled if he is closely approaching advanced age,
has a high school education, no past relevant work, and can perform light work. Id. As
previously stated, Craig has graduated from high school, has no passed relevant work, and is
cleared to perform light work. (Tr. 24). Thus, even under the standard of § 202.13, Craig would
not be considered disabled, and her claim for SSI would be due to be dismissed.
As there would be no substantive change in the ALJ’s ruling if the correct grid rule had
been applied, the error is harmless and does not warrant a reversal. Moreover, the ALJ did not
ultimately rely on the grids, as addressed more fully below.
B. The ALJ’s Failure to Identify and Consider Craig’s Age as a Borderline Situation Was
Also Harmless Error.
While the ALJ was not obligated to categorize Craig as being of “advanced age,” she was
obligated to at least consider the possibility of removal to the higher age category. If a plaintiff’s
age is considered borderline, then an ALJ must determine whether it would be more appropriate
to use the plaintiff’s chronological age or to apply the next highest category under the grid rules.
Crook v. Barnhart, 244 F. Supp. 2d at 1283. To identify a borderline situation that might merit
such application, an ALJ will apply a two-part test, considering first whether the plaintiff is
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within a few days or months of the next age bracket, and then determining whether an
adjustment to the next bracket would alter the outcome in the case. Id. (quoting Russell, 20 F.
Supp. 2d at 1135 (citing Appeals Council Interpretation II-5-302(A) (effective Nov. 2, 1993))).
If both answers are “yes,” “the adjudicator must decide whether it is more appropriate to use the
higher age or the claimant’s chronological age.” Id.
The ALJ is not required to automatically adjust the age bracket simply because a plaintiff
is close to reaching it and the adjustment would change the outcome, id. (“Use of the higher age
category is not automatic.”), and need not explain her decision to stay with the original age
bracket, see Bowie v. Comm’r of Soc. Sec., 539 F.3d 395, 403 (6th Cir. 2008) (holding that there
is no “per se procedural obligation to address explicitly a claimant’s borderline-age situation in
every borderline case”); HALLEX II-5-3-2 5 (stating that a judge “need not explain his or her use
of the claimant’s chronological age”).

However, in a borderline situation, “according to

Interpretation II-5-302(A), it must be determined which category to use, carefully avoiding a
‘mechanical’ application of the Regulations § 404.1563(a).” Crook, 244 F. Supp. 2d at 1283.
Here, the ALJ did not have to discuss her reasoning for not adjusting to “advanced age.” Nor
was she required to automatically adjust to the “advanced age” category simply because Craig
was two months from reaching that age group. However, since the ALJ determined Craig’s age
made her a “younger individual,” she clearly did not recognize that Craig’s age presented a
borderline situation between “approaching advanced age” and “advanced age” and, therefore,
could not have made a determination whether it was more appropriate to use the higher age
category. The question then is whether the ALJ’s error in miscategorizing Craig’s chronological

5

As of July 16, 2015, the cited portion of the Social Security Administration’s Hearings,
Appeals,
and
Litigation
Law
Manual
(HALLEX)
could
be
viewed
at
http://www.ssa.gov/OP_Home/hallex/II-05/II-5-3-2.html.
8

age group—and thereby failing to determine the appropriate age group for a borderline case—
affected the result or was merely harmless error.
On this question, the Commissioner cites Miller v. Commissioner of Social Security, 241
F. App’x 631, 636 (11th Cir. 2007), 6 for the proposition it is harmless error. (Doc. 12 at 9). The
Miller court noted that, under the five-step sequential evaluation process, the ALJ may not
always exclusively rely on the grids but, “where a claimant is unable to perform a full range of
work at a given functional level,” should rely on a VE to establish job availability. 241 F. App’x
at 635. The ALJ in Miller determined that, under the grids, the plaintiff was not disabled but,
because the plaintiff’s ability to perform light work was impeded by further limitations, a VE’s
testimony was necessary. Id. The plaintiff did not challenge the ALJ’s findings regarding his
RFC or the conclusion he could not perform a full range of light work; therefore, because the VE
testified there were three types of jobs in significant numbers in the national economy that a
person with that RFC could perform, substantial evidence (i.e., the VE’s testimony and the RFC)
supported the ALJ’s decision. Id. “As such, the ALJ’s decision was not made in reliance upon
the grids and, thus, a determination of whether [the plaintiff] was a person of advanced age or
closely approaching advanced age was not necessary.” Id.
Like the ALJ in Miller, the ALJ here did not rely exclusively on the grid rules in her
decision but instead relied on the vocational expert’s testimony in finding Craig was not
disabled. (Tr. 25). As discussed in the previous section, although the ALJ consulted the wrong
grid (§ 202.20) in determining Craig was “not disabled,” the result would have been the same
had she consulted the correct one (§ 202.13). Having found Craig “not disabled” under the grids,
the ALJ determined that, because Craig had additional limitations on her ability to perform light
6

Unpublished opinions are not considered binding authority; however, they may be cited
as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.
9

work, she must consult a VE to determine whether substantial jobs existed for a person with
Craig’s RFC. (Tr. 25). The VE testified a person with those limitations would be able to
perform requirements of three representative occupations for which there were thousands of jobs
in Alabama and in the nation. (Id.; tr. 64-65). Based on that testimony, the ALJ found Craig not
disabled. (Tr. 25). Because the ALJ’s decision was not made in reliance on the grids, the
determination of whether Craig should have been raised to the “advanced age” group, which
Craig asserts the ALJ reversibly erred by failing to make, was not necessary. See Miller, 241 F.
App’x at 635.
Craig does not address Miller but cites three other cases in support of her contention the
ALJ should be reversed. All three are distinguishable. First, she states this Court in Crook held
“a disability claimant who was 54 and one-half years of age at the time of the Administrative
Law Judge’s decision should have been considered a person of advanced age (the next higher
age category) under the Medical/Vocational Guidelines . . . .” (Doc. 10 at 9). 7 The court in
Crook made that holding but gave no explanation why reversal, instead of remand, was
appropriate on this point. 244 F. Supp. at 1284. Presumably, it was because the court also held
the ALJ’s RFC to perform a full range of “light work” was contradicted by attending-physician
evidence and was due to be reversed and benefits awarded three years even further back. Id. at
1284-85. In this case, as in Miller, the ALJ did not rely on the grids but held, based on a
substantially supported RFC and the testimony of a VE, that work was available for a person
7

Craig also asserts Crook supports her contention the ALJ mechanically applied the age
guidelines, (doc. 10 at 9), but it is unclear how this could be the case since, unlike in Crook (in
which the ALJ found the plaintiff capable of a full range of light work and therefore ruled him
not disabled under the grids), the ALJ here did not rely on the grids but, having found Craig
incapable of a full range of light work, relied on a VE to determine whether jobs were available
for someone capable of doing what the medical evidence supported Craig being capable of
doing. This is exactly what the Eleventh Circuit requires the ALJ to do to not mechanically
apply the grids. See Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir. 1984).
10

with that RFC. As a result, unlike in Crook, substantial evidence supports the ALJ’s ultimate
holding and no determination of the age category was necessary. See Miller, 241 F. App’x at
635.
The second case Craig cites is Garner v. Heckler, 735 F.2d 1291, 1292 (11th Cir. 1984),
for the proposition “a disability claimant age 49 years and 10 months old should have been
considered in the next higher or older age category,” (doc. 10 at 9); however, the Heckler court,
in fact, remanded for a determination of whether the higher age category should be applied, 735
F.2d at 1292. The Garner court noted the ALJ had relied on a vocational expert’s testimony to
determine the proper age category but then applied the age grid mechanically, instead of
allowing the plaintiff to proffer evidence of his inability to adapt to new work environments in
conformity with the grid. Id. If the plaintiff could proffer such evidence, the ALJ would have to
rely on independent evidence, not the grids. Id. (citing Reeves, 734 F.2d at 525-26). The ALJs
in Miller and in this case, on the other hand, did not apply the grids, assumed (based on their
prior RFC determinations) that the plaintiffs could not adapt as stated in the grids, and based
their determinations of disability on independent evidence (from the VE) that work was available
to someone with that RFC.
The last case Craig relies on is Varley v. Secretary of Health & Human Services, 820
F.2d 777, 780 (6th Cir. 1987), for the proposition Appeals Council interpretation II-5-302 “stated
in substance that generally establishing an onset date of disability of up to 6 months prior to the
attainment of the specified age in the Medical/Vocational Guidelines would be reasonable.”
(Doc. 10 at 9). Varley, however, does not address interpretation II-5-302 and appears to have
been confused with Russell v. Commissioner of Social Security, 20 F. Supp. 2d 1133 (W.D.
Mich. 1998), which was quoted in Crook as having quoted Varley for another proposition and

11

which ultimately cited Appeals Council interpretation II-5-302 for the proposition “the Appeals
Council believes there is a six month window in which a claimant’s situation is ‘borderline.’” Id.
at 1134-35. This is not inconsistent with the findings of the ALJs in Miller and in this case that
the plaintiffs could find work despite their ages being borderline.
Substantial evidence supports the ALJ’s decision the Commissioner proved Step Five of
the analysis, that Craig is capable of performing work in the national economy. Therefore, even
though the ALJ’s previous harmless error in determining the correct age group prevented her
from determining whether Craig should have been in an even higher age group, the latter
decision was ultimately unnecessary and the failure to make it harmless error.
VI. Conclusion
For the reasons set forth herein, and upon careful consideration of the administrative
record and memoranda of the parties, it is hereby ORDERED that the decision of the
Commissioner of Social Security denying Plaintiff’s claim for supplemental security income be
AFFIRMED and this action is due to be DISMISSED WITH PREJUDICE. A separate order
will be entered.
DONE this 8th day of September 2015.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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