Nelson v. Social Security Administration, Commissioner
Filing
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MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 9/30/2019. (AFS)
FILED
2019 Sep-30 AM 09:02
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
RICKEY WAYNE NELSON,
Plaintiff
vs.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant
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) Case No. 5:18-cv-00618-AKK
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MEMORANDUM OPINION
Rickey Wayne Nelson seeks judicial review of a final adverse decision of the
Commissioner of the Social Security Administration (“SSA”). The magistrate
judge entered a report recommending that the court affirm the SSA’s decision
denying benefits.
Doc. 22.
Nelson timely filed objections to the magistrate
judge’s report and recommendation, doc. 23, and the SSA has responded, doc. 25.
For the reasons explained below, the court finds that substantial evidence does not
support the Administrative Law Judge’s (“ALJ’s”) implicit conclusion that Nelson
is not illiterate, and the court rejects the magistrate judge’s finding that assessing
Nelson as illiterate would not impact the ALJ’s ultimate finding that Nelson is not
disabled.
As a result, the court finds that this case is due to be reversed and
remanded back to the ALJ for further proceedings to determine if Nelson is illiterate.
I.
STANDARD OF REIVEW
A district court “may accept, reject, or modify, in whole or part, the findings
or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C).
When a party objects to a report and recommendation, the district court must “make
a de novo determination of those portions of the report or specified proposed
findings or recommendation to which objection is made.” Id.
Additionally, federal district courts review the SSA’s findings of fact under
the “substantial evidence” standard of review. 42 U.S.C. §§ 405(g), 1383(c);
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The 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 Martin, 894 F.2d at 1529 (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.” Id. (internal citations omitted).
II.
ANALYSIS
Nelson contends that the magistrate judge erred by finding that the ALJ
properly relied upon testimony from a vocational expert (“VE”) in lieu of applying
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the Medical-Vocational Guidelines, commonly called the grids.
Doc. 23. 1
According to Nelson, the ALJ should have applied the grids, which would have
directed a finding of disability. Id. at 8. Specifically, Nelson contends that the
ALJ should have found that he is illiterate and, therefore, disabled based on MedicalVocational Guideline, or Rule, 201.17. Id. at 5-8.
A.
Whether the ALJ properly applied the grids
As the magistrate judge discussed, after an ALJ determines a claimant’s
residual functional capacity (“RFC”), the ALJ must determine whether the claimant
can return to his past relevant work. See doc. 22 at 2-4. If he cannot, the ALJ
proceeds to the fifth and final step of the disability inquiry, where the burden shifts
to the SSA “to show the existence of other jobs in the national economy which, given
the claimant’s impairments, the claimant can perform.”
Washington v. Comm’r of
Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018) (quotation omitted). The SSA can
meet its burden at step five through the use of the grids, or, when the grids are not
definitive, through the testimony of a VE.
The grids provide detailed tables
containing rules, which, “based on a claimant’s [RFC], age, education, and previous
work experience, direct a finding of disabled or not disabled.” Walker v. Bowen,
826 F.2d 996, 1002 (11th Cir. 1987). The disability decisions directed by the rules
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Nelson did not object to the remaining portions of the Magistrate Judge’s report. See doc. 23.
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reflect the SSA’s determination regarding whether a significant number of jobs exist
in the national economy that a claimant can perform considering the claimant’s RFC
level (i.e., sedentary, light, medium, heavy, and very heavy), age, education, and
work experience. See 20 C.F.R. Part 404, Subpart P, App’x 2 § 200.00(b). But,
“[t]he grids may be used only when each variable on the appropriate grid accurately
describes the claimant’s situation.”
Walker, 826 F.2d at 1003 (citing Smith v.
Bowen, 792 F.3d 1547, 1554 (11th Cir. 1986)).
Here, the ALJ found that Nelson has an RFC limiting him to, at most,
sedentary work with additional non-exertional limitations, including that Nelson
“can understand, remember, and apply one to two step directions; can maintain
concentration, persistence, and pace for one to two step tasks for two-hour periods
over the course of an eight-hour workday[] with customary breaks; can have
infrequent interaction with the general public, and occasional interaction with coworkers; can adapt to gradual and infrequent workplace changes; and may require
direct and tactful supervision.” Doc. 8-3 at 26. Based on this RFC, Nelson asserts
that the ALJ should have found him to be disabled under Grid Rule 201.17. Doc.
23 at 5. That rule directs a finding of disability for a younger claimant (i.e., one
who is 45-49) whose RFC limits him to sedentary work, who is illiterate or unable
to communicate in English, and whose prior work experience was unskilled. 20
C.F.R. part 404, subpt. 2, app’x 2 § 201.17. Thus, based on Nelson’s RFC, age,
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prior work experience, 2 and the magistrate judge’s determination that Nelson “may
have been illiterate,” the magistrate judge correctly noted that the “grids ostensibly
would direct a finding of disability” based on Rule 201.17. Doc. 22 at 11.
Nevertheless, the magistrate judge determined that the ALJ did not err by
relying on the testimony of a VE to find that Nelson is not disabled because
“[e]xclusive reliance on the grids is not appropriate either when [the] claimant is
unable to perform a full range of work at a given residual functional level or when a
claimant has non-exertional impairments that significantly limit basic work skills.”
Doc. 22 at 12 (quoting Phillips v. Barnhart, 357 F.3d 1232 at 1242 (11th Cir. 2004)
(emphasis in original)). But, Phillips is distinguishable because the ALJ in Phillips
relied exclusively on the grids to determine that the claimant was not disabled. See
Phillips, 357 at 1239-40. The Eleventh Circuit held that before relying exclusively
on the grids in that situation, the ALJ must first determine whether the claimant’s
non-exertional limitation significantly limits her basic work skills, thereby
preventing the claimant from performing a wide range of work at a given exertional
level.
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Id. at 1243-44.
If the non-exertional limitation significantly limits the
Nelson has prior work experience involving semi-skilled work as a tack welder, fabricating
welding assembler, and furniture assembler. Doc.8-3 at 30. But, as the magistrate judge aptly
noted, “Dr. Robert Estock opined Nelson would be limited to unskilled work due to his
impairments,” and “SSR 82-41 provides that if the claimant cannot use his work skills in skilled
or semi-skilled work, the Commissioner considers the claimant’s work background the same as
unskilled.” Doc. 22, n.6.
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claimant’s basic work skills, then the ALJ must consult a VE to determine whether
a significant number of jobs exist in the national economy that the claimant can
perform. Id. See also Wolfe v. Chater, 86 F.3d 1072, 1078-79 (11th Cir. 1996)
(citing Welch v. Bowen, 854 F.2d 436, 439-40 (11th Cir. 1988)).
On the other hand, as the ALJ noted in this case, SSA Rule 83-14 provides
that when the grids direct a conclusion of disabled based on a claimant’s exertional
limitation, age, education, and work experience, “there is no need to consider the
additional effects of a non-exertional impairment since consideration of it would add
nothing to the fact of disability.” SSR 83-14. See doc. 8-3 at 30. This is logical.
A finding of disability directed by the grids reflects the SSA’s determination that a
significant number of jobs do not exist in the national economy that the claimant
could perform based on her exertional limitations, age, education, and prior work
experience. See 20 C.F.R. Part 404, Subpart P, App’x 2 § 200.00(b). And, the
claimant’s non-exertional limitations would only further limit the number of jobs
that she could perform, meaning there would still not be a significant number of jobs
in the national economy that the claimant could perform if the ALJ considered those
limitations. In other words, if the grids direct a finding that the claimant is disabled
based on her exertional limitations, age, education, and prior work experience, the
claimant would still be disabled if she also suffers from non-exertional limitations.
Welchance v. Bowen, 731 F. Supp. 806, 810 (M.D. Tenn. 1989). Consequently, if
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Rule 201.17 applies in this case, then the ALJ should have found that Nelson is
disabled, and the ALJ would have erred by relying on VE testimony to find
otherwise.
The ALJ did not apply Rule 201.17, however, but instead applied Rule 201.19.
Doc. 8-3 at 30.
Rule 201.19 directs a finding of not disabled for an individual
Nelson’s age (i.e., 45-49), who is limited to sedentary work, who has a limited
education or less, and who has skilled or semi-skilled prior work experience without
transferrable skills. 20 C.F.R. Part 404, Subpart P, App’x 2 § 201.19. If Rule
201.19 applies, then, in light of Nelson’s non-exertional limitations, the ALJ could
not rely exclusively on the Rule to conclude that Nelson is not disabled. Instead,
the ALJ must consult a VE to determine whether jobs exist in the national economy
that Nelson could perform. Phillips, 357 F.3d at 1242; Wolfe, 86 F.3d at 1078-79.
Whether the ALJ should have applied Rule 201.17 or Rule 201.19, and thus,
whether the ALJ properly relied on VE testimony to find that Nelson is not disabled,
hinges on Nelson’s literacy. And, a finding that Nelson is illiterate may well “alter
the ALJ’s conclusion as to whether [Nelson] was disabled pursuant to the . . .
‘grids.’” Doc. 22 at 11. Therefore, the court turns to whether substantial evidence
supports the ALJ’s finding that Nelson is not illiterate.
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B.
Whether substantial evidence supports the ALJ’s finding that
Nelson is not illiterate
The SSA “consider[s] someone illiterate if the person cannot read or write a
simple message such as instructions or inventory lists even though the person can
sign his or her name.”
20 C.F.R. § 404.1564(b)(1).
Although the SSA
regulations note that “[g]enerally, an illiterate person has had little or no formal
schooling,” id., the amount of schooling is not necessarily determinative, see Wolfe,
86 F.3d at 1076-77 (quoting Glenn v. Sec’y of Health and Human Servs., 814 F.2d
387, 390 (7th Cir. 1987)).
See also 20 C.F.R. 404.1564(b).
And, the SSA’s
“regulation provides for use of numerical grade level to determine [a claimant’s]
educational abilities only if there is no other evidence to contradict it.” Wolfe, 86
F.3d at 1077 (quotation omitted).
By applying Rule 201.19 instead of Rule 201.17, the ALJ implicitly found
that Nelson is not illiterate, but the ALJ did not make an explicit finding on the issue.
See doc. 8-3 at 30. As the magistrate judge found, however, the record in this case
reflects that Nelson may have been illiterate at the time of the ALJ’s decision. Doc.
22 at 11. Indeed, Nelson testified that he is not able to read or write well, cannot
read newspaper headlines, and that he had to take an oral exam in order to obtain his
driver’s license.
Doc. 8-3 at 42-44, 52.
Nelson also testified that his limited
reading and writing skills prevent him from doing office work. Id. In addition,
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an SSA disability report based on a face-to-face interview with Nelson notes that he
“could not/would not read, and had a difficult time understanding most questions . .
. , [and Nelson] stated he could write his name but not much else.” Doc. 8-7 at 20.
When asked during the interview if he could read and understand English, or write
more than his name in English, Nelson responded in the negative, and Nelson
identified his “learning difficulty” as a condition limiting his ability to work. Id. at
22.
Finally, Nelson’s testimony is supported by his wife, who completed the
written function report for Nelson, and who reported that Nelson cannot handle a
savings account or use a checkbook because he cannot read or write. Id. at 44, 48,
50.
All of this evidence suggests that Nelson may be illiterate. And, although
Nelson completed the tenth grade, which supports the ALJ’s finding that Nelson
achieved a limited education, Nelson attended special education classes in English
from the third through the tenth grade. Docs. 8-3 at 52; 8-7 at 24. Moreover,
Nelson’s years of formal schooling are not dispositive when the records contains
contrary evidence indicating that he may, in fact, be illiterate. See Wolfe, 86 F.3d
at 1077. Critically, however, the ALJ did not analyze this evidence, or explain why
he rejected the evidence that Nelson cannot read, before finding that Nelson is not
illiterate such that Rule 201.19 applies in this case. See doc. 8-3 at 21-31. Thus,
based on the foregoing, the court concludes that substantial evidence does not
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support the ALJ’s implicit finding that Nelson is not illiterate.
III.
CONCLUSION
After careful consideration of the record in this case, the magistrate judge’s
report and recommendation, Nelson’s objections, and the SSA’s response, the court
ADOPTS sections II-V of the magistrate judge’s report, doc. 22 at 13-32, which
Nelson did not object to, see doc. 23. For the reasons discussed above, the court
REJECTS section I of the magistrate judge’s report concluding that the ALJ
properly accepted VE testimony to find that Nelson could perform other work and
is not disabled, doc. 22 at 8-13. Accordingly, the Commissioner’s final decision is
REVERSED and REMANDED for the ALJ to reassess whether Nelson is illiterate
and which Medical-Vocational Guideline applies in this case, and to seek further
evidence, if necessary, to make those determinations.
The court will enter a
separate order in conformity with this Memorandum Opinion.
DONE the 30th day of September, 2019.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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