Burroughs v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION Signed by Judge Virginia Emerson Hopkins on 6/19/12. (SAC )

FILED
2012 Jun-19 PM 05:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
JIMMY W. BURROUGHS,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner,
Social Security Administration,
Defendant.

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) Case No.: 5:11-CV-2541-VEH
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MEMORANDUM OPINION
Plaintiff Jimmy W. Burroughs (“Mr. Burroughs”) brings this action pursuant
to 42 U.S.C. §§ 216(i) and 223 of the Social Security Act (the “Act”). He seeks
review of a final adverse decision of the Commissioner of the Social Security
Administration (hereinafter “Commissioner” or “Secretary”), who denied his
application for Supplemental Security Income (“SSI”).1 Mr. Burroughs timely
pursued and exhausted his administrative remedies available before the

In general, the legal standards applied are the same regardless of whether a
claimant seeks SSI or disability insurance benefits (“DIB”) under the Act. 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.
1

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. Burroughs was a fifty-year-old male at the time of his hearing before the
administrative law judge (the “ALJ”) held on September 8, 2010. (Tr. 27, 30). In
terms of education, Mr. Burroughs did not complete high school, but he did obtain
a GED. (Tr. 30).
Mr. Burroughs’s prior work experience was for a limited period as a
construction laborer. (Tr. 32). Mr. Burroughs has spent a significant part of his adult
life in prison and was most recently released on March 19, 2009. (Tr. 31).
Mr. Burroughs protectively applied for SSI on December 16, 2008. (Tr. 12,
38). Mr. Burroughs maintains that he became disabled, as amended, on December 16,
2008, due to glaucoma and dysthymia. (Tr. 12, 30, 38). His claim was denied
initially on March 4, 2009. (Tr. 12, 38).
On March 31, 2009, Mr. Burroughs timely requested a hearing before an ALJ.
(Tr. 12, 55). A video hearing was held on September 8, 2010, in which Mr.
Burroughs appeared in Huntsville, Alabama, and the ALJ presided from Greenville,

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.
2

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South Carolina. (Tr. 12, 27).
On November 5, 2010, the ALJ concluded Mr. Burroughs was not disabled as
defined by the Act and denied his SSI application. (Tr. 12-23). On November 16,
2010, Mr. Burroughs submitted a request for review of the ALJ’s decision. (Tr. 7).
On May 10, 2011, the Appeals Council denied review, which resulted in the ALJ’s
disability determination that was adverse to Mr. Burroughs becoming the final
decision of the Commissioner. (Tr. 1).
On July 11, 2011, Mr. Burroughs initiated his lawsuit with this court asking for
a review of the ALJ’s decision. (Doc. 1). On December 19, 2011, Mr. Burroughs
filed a brief (Doc. 7) in support of his appeal, and on January 27, 2012, the
Commissioner answered with his responsive brief. (Doc. 9). Mr. Burroughs elected
not to file a reply brief. This court has carefully considered the record, and for the
reasons stated below, reverses the Commissioner’s denial of benefits, and remands
the case for further development and consideration.3
The undersigned has rendered several other comparable decisions which have
reversed the Commissioner due to an underdeveloped record and/or an inadequately
supported residual functional capacity (“RFC”) determination from which the
framework, analysis, and disposition of this case persuasively flow. See, e.g.,
Howard v. Astrue, No. 3:10-CV-527-VEH, (Docs. 15, 16) (Dec. 16, 2010) (reversing
and remanding when RFC finding is not supported by substantial evidence); Mahaley
v. Astrue, No. 5:09-CV-0347-VEH, (Docs. 12, 13) (N.D. Ala. Feb. 18, 2010) (same);
Glover v. Astrue, No. 3:09-CV-0033-VEH, (Docs. 15, 16) (N.D. Ala. Mar. 4, 2010)
(same); Cole-Smith v. Astrue, No. 2:11-CV-2857-VEH, (Docs. 11, 12) (N.D. Ala.
3

3

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
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
May 29, 2012) (same).
4

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 her entitlement for a period of
disability, the claimant must be disabled as defined by the Act and the Regulations
promulgated thereunder.4 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:

The “Regulations” promulgated under the Act are listed in 20 C.F.R. Parts
400 to 499, as current through June 7, 2012.
4

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(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.
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. Burroughs had not engaged in substantial gainful activity
since the amended onset date of his disability, i.e., December 16, 2008. (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
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severe impairments: affective disorders, personality disorders, disorders of the spine,
and glaucoma[.]” (Tr. 14 ¶ 2). Accordingly, the ALJ concluded that Mr. Burroughs
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. Burroughs did not have an
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. 16 ¶ 3). Mr.
Burroughs does not contest this determination on appeal.
The ALJ then evaluated Mr. Burroughs’s RFC at step four, and the claimant
was found to have:
[T]he residual functional capacity to perform less than the full range of
light work . . . . I find claimant can frequently lift or carry 10 pounds,
occasionally lift or carry 20 pounds, sit for 6 hours of an 8 hour
workday, and stand or walk for 6 hours of an 8 hour workday. I also
find that claimant is limited to performing simple, routine, repetitive
tasks for 2 hour periods with occasional public interaction. I further find
claimant must avoid even moderate exposure to hazards and can never
climb ladders, ropes, and scaffolds.
(Tr. 20 ¶ 4).5
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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 this
category when it requires a good deal of walking or standing, or when
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The ALJ determined that Mr. Burroughs “has no past relevant work[.]” (Tr. 22
¶ 5). Against this backdrop and relying upon the Medical-Vocational Guidelines
(“MVG”) without the benefit of any testimony from a vocational expert, the ALJ
concluded that Mr. Burroughs’s impairments did not prevent him from performing
“jobs that exist in significant numbers in the national economy . . . .” (Id. ¶ 9). The
ALJ made this determination despite recognizing that Mr. Burroughs was unable to
perform the full range of light work on the basis that “the additional limitations have
little or no effect on the occupational base of unskilled light work.” (Tr. 23).
Because the ALJ ultimately relied directly on an application of the MVG
(versus indirectly, as a frame of reference) in reaching his disability determination,
he did not identify any specific unskilled light positions suitable for Mr. Burroughs.
Accordingly, the ALJ concluded that Mr. Burroughs was not disabled as defined by
the Act, and denied his SSI claim. (Tr. 23; id. ¶ 10).

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 June 7, 2012).
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ANALYSIS
In this appeal, Mr. Burroughs generally challenges whether substantial
evidence supports the Commissioner’s denial of his disability application and raises
several separate issues, including whether the ALJ erred (i) in the determination of
Mr. Burroughs’s RFC and (ii) in his use of the MVG when deciding the fifth
disability step without the benefit of a vocational expert. (Doc. 7 at 1, 12). The court
turns to the lack of any underlying medical opinion by a physician in support of the
ALJ’s RFC determination that Mr. Burroughs is capable of performing light work
with additional restrictions given his severe physical impairments of disorders of the
spine, glaucoma, and the additional condition of left knee degenerative joint disease,
which the ALJ identified but never separately expressly determined whether it was
severe or non-severe (Tr. 16) as he did with other identified ailments,6 and agrees
with Mr. Burroughs that, under the circumstances of his case, the Commissioner has
committed reversible error. Alternatively, the court concludes that the ALJ erred in
his exclusive reliance upon the MVG without the benefit of any testimony from a

When finding other physical conditions to be non-severe, the ALJ pointed out
the lack of any complaints made by Mr. Burroughs regarding them. With respect to
Mr. Burroughs’s knee disorder, however, the ALJ made no similar observation and
instead indicated in a different section of his decision that Mr. Burroughs had
complained that “his conditions affected his ability to squat, bend, sit, kneel, climb
stairs . . . .” (Tr. 14).
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vocational expert when deciding the fifth step of the disability sequential process due
to Mr. Burroughs’s multiple non-exertional limitations.7
I.

IN THE ABSENCE OF A SUPPORTING MEDICAL SOURCE
STATEMENT OR A PHYSICAL CAPACITIES EVALUATION
BY A PHYSICIAN THAT CONSIDERS THE IMPACT OF MR.
BURROUGHS’S PHYSICAL IMPAIRMENTS OF LEFT KNEE
DEGENERATIVE JOINT DISEASE AND SEVERE SPINE
DISORDERS AS WELL AS GLAUCOMA, THE ALJ’S RFC
DETERMINATION THAT HE CAN PERFORM A REDUCED
RANGE OF LIGHT UNSKILLED WORK IS NOT SUPPORTED
BY SUBSTANTIAL EVIDENCE.
In support of his RFC determination for Mr. Burroughs, the ALJ did not

identify a medical source opinion8 or a physical capacities evaluation conducted by
a physician that substantiates Mr. Burroughs’s ability to perform a reduced range of
light work given his physical impairments of left knee degenerative joint disease and
severe spine disorders as well as severe glaucoma.9 Such an omission from the record

As a result, the court does not reach the merits of the other issues presented
on appeal.
7

“Medical source statements are ‘medical opinions submitted by acceptable
medical sources, including treating sources and consultative examiners, about what
an individual can still do despite a severe impairment(s), in particular about an
individual’s physical and mental abilities to perform work-related activities on a
sustained basis.’” SSR 96-5p.
8

The record does contain a physical functional assessment made by a state
agency consultant, but the ALJ did not refer to it in his decision. Further, this record
does not reflect that such consultant is a physician, but rather a disability specialist.
(Tr. 117).
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is significant to the substantial evidence inquiry pertaining to the ALJ’s RFC
determination. See, e.g., Rohrberg v. Apfel, 26 F. Supp. 2d 303, 311 (D. Mass. 1998)
(“The ALJ failed to refer to-and this Court has not found-a proper, medically
determined RFC in the record.”).
The court acknowledges that the ALJ did refer within his opinion to several
records from various medical providers pertaining to Mr. Burroughs. (Tr. 15-16
(summarizing pertinent medical evidence and citing to Ex. 1F-4F, 6F, 8F, 10F-11F,
13F)). However, for the most part, such documentation is reported merely as raw
medical findings applicable to Mr. Burroughs. (See, e.g., Tr. 134-35 (office treatment
records from Callahan Eye Foundation Hospital); Tr. 136-213 (office treatment
records from Kilby Correctional Facility); Tr. 214-225 (office treatment records from
IMC Family Medical Clinic); Tr. 226-27 (office treatment records from Palmer
Psychiatric Services); Tr. 232-37 (consultative visual examination records); Tr. 24347 (consultative mental status examination); Tr. 249-262 (psychiatric review
technique);Tr. 268-275 (office treatment records from DeKalb Mental Heath Center)).
Moreover, none of these records includes an opinion about the impact of Mr.
Burroughs’s physical impairments in vocational terms or attaches a physical

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capacities evaluation of him.10 See, e.g., Rohrberg, 26 F. Supp. 2d at 311 (“Where
the ‘medical findings in the record merely diagnose [the] claimant’s exertional
impairments and do not relate these diagnoses to specific residual functional
capabilities such as those set out in 20 C.F.R. § 404.1567(a) . . . [the Commissioner
may not] make that connection himself.’”) (citation omitted). Instead, the only
functional capacity assessment upon which the ALJ did expressly rely in formulating
Mr. Burroughs’s RFC is the one completed by Dr. Linda Duke (see Tr. 21
(referencing Ex. 11 F)), which is strictly limited to an assessment of Mr. Burroughs’s
mental abilities. (Tr. 263-66).
As another district judge of this court aptly explained the RFC issue in the
context of an ALJ who comparably determined, without the benefit of a physical

The court acknowledges that the ALJ stated in support of his physical RFC
determination that Mr. Burroughs “reported that he could lift up to 30 pounds.” (Tr.
21). The full context of Mr. Burroughs’s self-reporting actually indicated that “[i]f
[he] move[d] wrong then [he] will have sharp pains going down [his] right side of
[his] back” and that he “was sleeping on an egg crate mattress for [his] back and [he]
can’t do any lifting or standing for long periods of time. [He] can’t lift anything over
30 lbs.” (Tr. 91 (emphasis added)). Moreover, the ALJ rejected Mr. Burroughs’s
credibility because of his “history of dishonest criminal activity.” (Tr. 21). The ALJ,
therefore, appears to have only believed Mr. Burroughs when such subjective
reporting was arguably consistent with his ability to perform a light exertional level
of work. Under such circumstances, the court finds that the information contained
in the disability report provided by Mr. Burroughs (Tr. 90-97) cannot serve as
substantial evidence supporting the ALJ’s conclusion that Mr. Burroughs can perform
a reduced range of light work.
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capacities evaluation conducted by a physician, that the claimant was not disabled:
While the Record contains Ms. Rogers’ [s] medical treatment
history, it lacks any physical capacities evaluation by a physician. The
ALJ made his residual functional capacity evaluation without the benefit
of such evaluation. An ALJ is allowed to make some judgments as to
residual physical functional capacity where so little physical impairment
is involved that the effect would be apparent to a lay person.
Manso-Pizarro v. Secretary of Health and Human Services, 76 F.3d 15
(1st Cir. 1996). In most cases, including the case at bar, the alleged
physical impairments are so broad, complex, and/or ongoing that a
physician’s evaluation is required. Id. In order to have developed a full,
fair record as required under the law, the ALJ should have re-contacted
Ms. Roger’s [sic] physicians for physical capacities evaluations and/or
sent her to physicians for examinations and physical capacities
evaluations. Further, Ms. Rogers’ [s] ability to lift and to manipulate
objects must be thoroughly evaluated by at least one physician. These
evaluations shall be obtained upon remand. Ms. Rogers’ [s] residual
functional capacity was not properly determined nor supported by
substantial evidence in this case.
Rogers v. Barnhart, No. 3:06-CV-0153-JFG, (Doc. 13 at 5) (N.D. Ala. Oct. 16, 2006)
(emphasis added); see also Manso-Pizarro, 76 F.3d at 17 (“With a few exceptions
(not relevant here), an ALJ, as a lay person, is not qualified to interpret raw data in
a medical record.”) (emphasis added) (citations omitted); Rohrberg, 26 F. Supp. 2d
at 311 (“An ALJ is not qualified to assess a claimant’s RFC on the basis of bare
medical findings, and as a result an ALJ’s determination of RFC without a medical
advisor’s assessment is not supported by substantial evidence.”) (emphasis added)
(citation omitted); cf. Giddings v. Richardson, 480 F.2d 652 (6th Cir. 1973) (“To

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meet such a prima facie case it is not sufficient for the government to rely upon
inconclusive medical discussion of a claimant’s problems without relating them to the
claimant’s residual capacities in the field of employment.”) (emphasis added).
Comparable to Rogers, Manso-Pizarro, and other similar cases, a lay person
such as an ALJ is not able to discern Mr. Burroughs’s work-related exertional
abilities and appropriate non-exertional restrictions based upon the unfiltered
information contained in his medical records. Moreover, the lack of a medicallydetermined physical RFC that supports the ALJ’s RFC determination is particularly
critical here when, undisputably, Mr. Burroughs has no relevant past vocational
experience. As the undersigned has previously recognized in another fifth-step
burden decision that similarly resulted in a remand for further development of the
claimant’s functional abilities:
The Eleventh Circuit has held that the absence of a physician’s opinion
regarding a plaintiff’s functional limitations does not morph into an
opinion that the plaintiff can work. Lamb v. Bowen, 847 F.2d 698, 703
(11th Cir. 1988). “Such silence is equally susceptible to either
inference, therefore, no inference should be taken.” Id.
Clemmons v. Barnhart, No. 3:06-CV-1058-VEH, (Doc. 22 at 11) (N.D. Ala. June 11,
2007); cf. Reeves v. Heckler, 734 F.2d 519, 522 n.1 (“It is reversible error for an ALJ
not to order a consultative examination when such an evaluation is necessary for him
to make an informed decision.” (citing Ford v. Sec’y of Health & Human Servs., 659
14

F.2d 66, 69 (5th Cir. 1981) (Unit B))).11
Therefore, in the absence of a medical source statement and/or any physical
capacities evaluation conducted on Mr. Burroughs by a physician that corroborates
the ALJ’s determination that he is capable of performing light work with certain nonexertional restrictions despite his physical impairments of left knee degenerative joint
disease and severe spine disorders as well as severe glaucoma, the record has not
been adequately developed. See, e.g., Cowart v. Schweiker, 662 F.2d 731, 732 (11th
Cir. 1981) (citing Thorne v. Califano, 607 F.2d 218, 219 (8th Cir. 1979)); see also
Sobolewski v. Apfel, 985 F. Supp. 300, 314 (E.D.N.Y. 1997) (“The record’s virtual
absence of medical evidence pertinent to the issue of plaintiff’s RFC reflects the
Commissioner’s failure to develop the record, despite his obligation to develop a
complete medical history.”) (citations omitted).
Likewise, the ALJ’s determination that Mr. Burroughs can perform light work
with certain non-exertional restrictions is not supported by substantial evidence.
Accordingly, the decision of the Commissioner is due to be reversed, and the case
remanded for further proceedings consistent with this memorandum opinion.

In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982), the
Eleventh Circuit adopted as binding precedent all decisions of the Unit B panel of the
former Fifth Circuit handed down after September 30, 1981.
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II.

ALTERNATIVELY, THE ALJ COMMITTED LEGAL ERROR IN
HIS EXCLUSIVE RELIANCE UPON THE MVG WITHOUT THE
BENEFIT OF ANY TESTIMONY FROM A VOCATIONAL
EXPERT WHEN DECIDING THE FIFTH STEP OF THE
DISABILITY SEQUENTIAL PROCESS.
Alternatively, the court concludes that the ALJ committed reversible error in

his exclusive use of the MVG to conclude that Mr. Burroughs was not disabled in the
context of all the non-exertional circumstances, which the ALJ found to be
appropriately placed on him. As the Eleventh Circuit analyzed in Foote:
I. Did the ALJ prove “other work” that Foote could do
Once the finding is made that a claimant cannot return to prior
work the burden of proof shifts to the Secretary to show other work the
claimant can do. Gibson v. Heckler, 762 F.2d 1516 (11th Cir.1985). The
Secretary bears the burden of establishing that Appellant, who could not
perform her past work, could perform alternative work in the national
economy. Although this burden can sometimes be met through
straightforward application of the Medical–Vocational Guidelines (the
“grids”), the regulations regarding the implementation of the grids
caution that they are only applicable under certain conditions. For
example, the claimant must suffer primarily from an exertional
impairment, without significant non-exertional factors. 20 C.F.R. Part
404, Subpart P, Appendix 2, § 200.00(e). Exclusive reliance on the grids
is appropriate in cases involving only exertional impairments
(impairments which place limits on an individual's ability to meet job
strength requirements). Heckler v. Campbell, 461 U.S. 458, 103 S. Ct.
1952, 76 L.Ed.2d 66 (1983). Pain is a nonexertional impairment.
Walker, 826 F.2d at 1003. Exclusive reliance on the grids is
inappropriate when a claimant has a nonexertional impairment that
significantly limits the claimant's basic work activities. Swindle v.
Sullivan, 914 F.2d 222, 226 (11th Cir. 1990) (ALJ improperly
discounted claimant’s testimony about pain and dizziness; on remand,
16

if such pain is found to significantly limit claimant's activities, the court
should use a vocational expert).
If the grids are inapplicable, the Secretary must seek expert
vocational testimony. Normally, when nonexertional limitations are
alleged, “the preferred method of demonstrating that the claimant can
perform specific work is through the testimony of a vocational expert.”
MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir.1986) (affirming
district court reversal of ALJ who applied grids). “ ‘It is only when the
claimant can clearly do unlimited types of light work, ... that it is
unnecessary to call a vocational expert to establish whether the claimant
can perform work which exists in the national economy.’ ” Allen v.
Sullivan, 880 F.2d 1200, 1202 (11th Cir.1989) (quoting Ferguson v.
Schweiker, 641 F.2d 243, 248 (5th Cir. Unit A, March 1981)). “The
burden of showing by substantial evidence that a person who can no
longer perform his former job can engage in other substantial gainful
activity is in almost all cases satisfied only through the use of vocational
expert testimony.” Chester v. Bowen, 792 F.2d 129, 132 (11th Cir.1986)
(also quoting Ferguson v. Schweiker). . . .
The ALJ must “ ‘make a specific finding as to whether the
nonexertional limitations are severe enough to preclude a wide range of
employment at the given work capacity level indicated by the exertional
limitations.’ ” Johnson v. Shalala, 1993 U.S.Dist. LEXIS 8553 (S.D.
Ala. May 27, 1993) (quoting Welch v. Bowen, 854 F.2d 436, 439 (11th
Cir.1988)).
Foote, 67 F.3d at 1559 (emphasis added).
Here, in an effort to substantiate his exclusive reliance on the MVG, the ALJ
stated:
If the claimant had the residual functional capacity to perform the full
range of light work, considering the claimant’s age, education, and work
experience, a finding of “not disabled” would be directed by MedicalVocational Rule. 202.20 and Rule 202.13. However, the additional
17

limitations have little or no effect on the occupational base of unskilled
light work. The inability to ascend and descend ladders or scaffolding,
and restrictions against unprotected elevations and proximity to
dangerous moving machinery are not significant (SSRs 83-14 and 8515). Also, claimant is able to carry out simple instructions, make simple
work-related decisions, respond appropriately to supervision, coworkers and usual work situations, and deal with changes in a routine
work setting. Such are the mental activities generally required by
competitive unskilled work (SSRs 85-15 and 96-9p). A finding of “not
disabled” is therefore appropriate under the framework with these rules.
(Tr. 23 (emphasis added)).
However, as Mr. Burroughs points out (Doc. 7 at 8), earlier in his decision, the
ALJ acknowledged Mr. Burroughs’s “history of anger and impulse problems” (Tr. 20)
and, as a result, limited Mr. Burroughs’s interaction with the public to only
occasionally, but then, contradictorily and confusingly, the ALJ did not mention,
much less apparently factor in, this non-exertional restriction’s impact “on the
occupational base of light unskilled work” when relying on the MVG. (Compare Tr.
20, with Tr. 23). Similarly, the court cannot tell to what extent the ALJ determined
that a limiting of Mr. Burroughs to only “2 hour periods” of “simple, routine,
repetitive tasks” would have “on the occupational base of light unskilled work.”
(Compare Tr. 20, with Tr. 23).
Therefore, the court finds that the ALJ’s exclusive reliance on the MVG
constitutes reversible error because the ALJ has not adequately shown an

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insignificant erosion in the pool of unskilled light jobs appropriate for Mr. Burroughs
when considering all of his non-exertional limitations. Thus, the ALJ’s disability
determination is not supported by substantial evidence for this alternative
independent reason.
CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the
submissions of the parties, the court finds that the Commissioner’s final decision is
not supported by substantial evidence.

Accordingly, the decision of the

Commissioner will be remanded by separate order.
DONE and ORDERED this the 19th day of June, 2012.

VIRGINIA EMERSON HOPKINS
United States District Judge

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