Elliott v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 08/14/12. (CVA)

FILED
2012 Aug-14 AM 10:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
CLIFFORD EARL ELLIOTT,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
ADMINISTRATION,
Defendant.

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Civil Action Number
6:11-cv-2286-AKK

MEMORANDUM OPINION
Plaintiff Clifford Earl Elliott (“Elliott”) 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 and, therefore, AFFIRMS the decision denying
benefits.
I. Procedural History
Elliott filed his applications for Title II disability insurance benefits and

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Title XVI Supplemental Security Income on August 20, 2008, alleging a disability
onset date of March 30, 2007. (R. 118-128). Elliott alleges that he is unable to
work due to depression, “a constant need to go to the bathroom,” pain while
standing, and prostatitis. (R. 159). After the SSA denied his applications on
November 6, 2008, (R. 63-72), Elliott requested a hearing on November 10, 2008,
(R. 77), which he received on June 14, 2010, (R. 30). At the time of the hearing,
Elliott was 55 years old, (R. 36), had a college degree, (R. 37), and past relevant
work that included heavy, semi-skilled work as a stocker, heavy, unskilled work as
a delivery driver and general laborer, and medium, semiskilled work as a
correction/detention officer. (R. 55-56). Elliott has not engaged in substantial
gainful activity since March 30, 2007. (R. 18, 159).
After the ALJ denied Elliott’s claims on July 27, 2010, (R. 13-29), Elliott
submitted to the Appeals Council new evidence and a Request for Review on
August 13, 2010, (R. 11). The Appeals Council refused “to reopen and change the
decision.” (R. 1, 3). Elliott then filed this action pursuant to section 1631 of the
Act, 42 U.S.C. § 1383(c)(3). 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.
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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)
and 1383(c) mandate 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.
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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
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative

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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
The ALJ initially determined that Elliott had not engaged in substantial
gainful activity since his alleged onset date, and therefore met Step One. (R. 18).
Next, the ALJ acknowledged that Elliott’s severe impairments of benign prostatic
hypertrophy and depression met Step Two. Id. The ALJ then proceeded to the
next step, where she discussed only Elliott’s depression, and found that Elliott did
not satisfy Step Three since he “does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments.” (R.
19). 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 Elliott
has the RFC [residual functional capacity] to perform a full range of
work at all exertional levels. [Elliott] is limited to repetitive, routine
tasks. He is able to perform work that needs little or no judgment and
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make simple, work-related decisions. [Elliott] can never interact with
the public, but can occasionally interact with supervisors. [Elliott]
can be around employees throughout the workday with occasional
conversations and interpersonal interaction. Finally, [Elliott] is able
to sustain concentration and attention for two hours at one time with
normal breaks throughout an eight-hour workday. [Elliott] requires
up to five restroom breaks during the day; three occurring during his
regularly scheduled breaks with two additional unscheduled breaks.
(R. 21). In light of Elliott’s RFC, the ALJ held that Elliott was “capable of
performing past relevant work as a general laborer. This work does not require the
performance of work-related activities precluded by [Elliott’s RFC].” (R. 24).
Although a negative answer at Step Four requires a finding that a claimant is not
disabled, see McDaniel, 800 F.2d at 1030 (“A negative answer to any question,
other than step three, leads to a determination of ‘not disabled.’”), the ALJ
proceeded nonetheless to Step Five where she consulted with the vocational expert
(“VE”):
To determine the extent to which [Elliott’s] limitations erode the
occupational base of unskilled work at all exertional levels, the [ALJ]
asked the [VE] whether jobs exist in the national economy for an
individual with [Elliott’s] age, education, work experience, and
[RFC]. The [VE] testified that given all of these factors the
individual would be able to perform the requirements of
representative occupations such as cleaner, medium and unskilled [ ];
dishwasher, medium and unskilled [ ]; and machine tender, medium
and unskilled [ ].
(R. 25-26). Based on the VE’s testimony, the ALJ concluded that, considering

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Elliott’s age, education, work experience, and RFC, Elliott “is capable of making a
successful adjustment to other work that exists in significant numbers in the
national economy.” (R. 26). Because the ALJ answered Steps Four and Five in
the negative, the ALJ determined that Elliott is not disabled. (R. 26); see also
McDaniel, 800 F.2d at 1030. It is this finding that Elliott challenges.
V. Analysis
Elliott contends that the ALJ committed reversible error by failing to (1)
consider at Step Three his impairments in combination, (2) clarify the VE’s
testimony regarding daily restroom breaks and Elliott’s RFC, and (3) consider at
Step Five Elliott’s impairments in combination based on the VE’s testimony
regarding Elliott’s ability to work. Doc. 8 at 5-8. For the reasons stated below,
this court finds that the ALJ’s opinion is supported by substantial evidence.
A.

Elliott’s impairments in combination
As it relates to Step Three, Elliott contends that the ALJ only considered his

depression in finding that he does not have a combination of impairments that
meets or equals a listing. Doc. 9 at 9. This argument is unpersuasive because the
ALJ’s statement that Elliott does not have an impairment or combination of
impairments that meets or medically equals a listing “evidences [the ALJ’s]
consideration of the combined effect of [the claimant’s] impairments.” Jones v.
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Dep’t of Health and Human Serv., 941 F.2d 1529, 1533 (11th Cir. 1991).
Moreover, the ALJ only discussed Elliott’s depression because there is no medical
listing or equivalent for benign prostatic hypertrophy. See 20 C.F.R. Part 404,
Subpart P, Appendix 1 (Genitourinary Impairments 6.0 and 106). In other words,
because Elliott cannot establish that he meets or equals a listing and is therefore
disabled based on his benign prostatic hypertrophy, the ALJ had no reason to
discuss it. Accordingly, the ALJ’s finding that Elliott does not have “an
impairment or combination of impairments that meets of medically equals” a
listing is supported by substantial evidence.
B.

The ALJ’s Step Five Decision is supported by substantial evidence.1
1.

Daily Restroom Breaks

As it relates to Step Five of the sequential process, Elliott contends that the
ALJ improperly relied on the VE’s testimony that an employer of an unskilled
general laborer would “probably” tolerate two unscheduled breaks per day because
the testimony (1) was not “an unqualified endorsement of [Elliott’s] ability to
work if he needs five bathroom breaks per day,” and (2) “assumes that [Elliott] can

1

The ALJ found at Step Four the Elliott could perform his past relevant work and,
therefore, was not disabled. (R. 25). However, because “there are other jobs existing in the
national economy that [Elliott] is able to perform,” in the alternative, the ALJ continued to Step
Five. Id.
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time his rest room visits to correspond exactly with his break times, or never need
a sixth rest room break.” Doc. 9 at 10. This contention ignores that “[w]hether or
how an employer might be willing (or required) to alter job duties to suit the
limitations of a specific individual would not be relevant because [the ALJ’s]
assessment must be based on broad vocational patterns . . . rather than on any
individual employer’s practices.” Memorandum from Daniel L. Skoler, Associate
Commissioner for Hearings and Appeals to Administrative Appeals Judges,
reprinted in 2 SOCIAL SECURITY PRACTICE GUIDE, App. § 15C(9), pp. 15401 to 15-402 (2011). Rather, “[t]o support a fifth-step finding that an individual
can perform ‘other work,’ the evidence (e.g., [VE] testimony) would have to show
the job, which is within the individual’s capacity because of the employer
modifications, is representative of a significant number of such jobs in the national
economy.” Id.; see also Eback v. Chater, 94 F.3d 410, 412 (8th Cir. 1996).
Based on the record before this court, the ALJ properly relied on the VE in
making such a finding. At the hearing, Elliott testified that his benign prostatic
hypertrophy causes urinary frequency that (1) is dependent on his fluid intake, (R.
40), (2) causes a “sensation” below the waist when he lifts objects between 40 and
50 pounds, (R. 42), and (3) required him to leave his job post once per hour to
urinate, (R. 41). Subsequently, after the VE testified regarding Elliott’s past
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relevant semi-skilled and unskilled work, the ALJ presented the VE the following
hypothetical:
ALJ If we had an [inaudible] He had no exertional limitations, who
performed routine repetitive tasks, and who performed work
that needed little or no judgment, comparably made simple
work related decisions, any work sensitivity should be
infrequent and [inaudible]. This individual should have no
interaction with the public, could interact very simple, okay,
with occasional conversations and interpersonal interaction,
[inaudible] as well. This individual will be able to sustain
attention and concentration for two hour blocks of time with
normal breaks in an eight hour day. Would this individual be
able to perform his independent past work?
VE

This person as you’ve described in this hypothetical could
return to his work [inaudible].

ALJ And would there be other work that this individual can
perform?
VE

Yes, ma’am. You want examples?

ALJ Yes, sir.
VE

Examples include [ ] cleaner. . . . This person could function as
a dishwasher. . . . This person could function as a machine
tender. . . .

ALJ Now, in these positions, he had his past work at general labor,
and the other position that you just indicated, or occupations,
what would be the general allowance for restroom breaks? Is
there a general standard, or would they allow for, you know, a
certain number of . . .
VE

Generally they would, generally an employer, and this is not
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governed by the [Dictionary of Occupational Titles] of course - Based on my experience with employers in Alabama,
normally they expect employees to go to the bathroom on their
regularly scheduled break, . . . . The one in the morning, the
one at lunch time, and the one in the afternoon. However, if
they had to go, they would tolerate, probably, two additional
rest room visits - - during the day. Of course they were brief - ALJ Okay, was it as unscheduled breaks?
VE

Correct. For unskilled ones.
****
ALJ All right. If we continue with that same individual, but they
now would be off track 25% of the day, in addition to the
regularly scheduled breaks, would they be able to sustain the
work that you previously indicated?
VE

No, ma’am.

(R. 56-58).
In light of the VE’s testimony, the ALJ “conclude[d] that, considering
[Elliott’s] age, education, work experience, and [RFC], [Elliott] is capable of
making a successful adjustment to other work that exists in significant numbers in
the national economy.” (R. 26). The ALJ’s reliance on the VE’s opinion to
determine that Elliott can do past relevant work was proper. Significantly, the VE
made clear that his opinion was “based on [his] experience with employers in
Alabama.” (R. 57). In other words, the VE’s testimony is based on his personal
knowledge of broad vocational patterns of individuals employed in unskilled

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positions and, as such, was proper testimony for the ALJ to accept. See Jones v.
Apfel, 174 F.3d 692, 693 (5th Cir. 1999) (holding that the VE’s testimony is
proper where he stated that “allowing for an employee to alter between sitting and
standing is a prevalent accommodation in the workplace.”). Therefore, the ALJ’s
reliance on the VE’s testimony was supported by substantial evidence.
As it relates to restroom breaks, Elliott contends also that he can not
maintain concentration if required to wait to use the restroom only on breaks.
Doc. 9 at 11. However, Elliott failed to cite any evidence in the record that
substantiates his claim, and this court found none. In fact, Elliott’s history of noncompliance with his medications, (R. 218, 237, 264, 283, 296, 319), further
supports the ALJ’s finding that Elliott’s urological impairment does not impede
his ability to work. Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003)
(“[R]efusal to follow prescribed medical treatment without a good reason will
preclude a finding of disability.”) (citation omitted). Therefore, the ALJ properly
considered Elliott’s impairments and the ALJ’s decision is supported by
substantial evidence.
2.

The VE’s hypothetical did not exclude improperly Elliott’s alleged
lifting restriction.

Elliott contends next that the ALJ’s hypothetical failed to include Elliott’s
lifting restrictions based on his “uncontradicted testimony that lifting anything
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between 40 and 50 pounds would give him a sensation of needing to go to the
bathroom immediately.” Doc. 9 at 11; see also R. 41-42. The ALJ’s hypothetical
accounted for Elliott’s depression (simple work decisions, no interaction with the
public, occasional conversations and interpersonal interaction) and urinary
frequency (regular and unscheduled breaks). (R. 56-58). To the extent the ALJ
was required to account for Elliott’s sensation when lifting, it is accounted for
implicitly as it relates to Elliott’s urinary frequency. Further, although this
sensation may be uncomfortable, Elliott has not suggested how it limits his ability
to work. Indeed, Elliott’s hearing testimony is the only evidence in the record
related to Elliott’s sensation while lifting.2 Therefore, the ALJ’s hypothetical
considered both of Elliott’s impairments and constitutes substantial evidence.
Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002) (citation omitted).
C.

The ALJ’s hypothetical considered Elliott’s impairments in combination
Lastly, Elliott contends that the ALJ “ignored the combination of

impairments” when she “ignored the VE’s testimony” that a claimant “off track
25% of the day” could not sustain employment. Doc. 9 at 11; (R. 58). Again,
Elliott ignores that the ALJ’s hypothetical included Elliott’s depression, benign
prostatic hypertrophy, and RFC, and that the ALJ prefaced the additional facts by

2

Elliott testified that there is no pain associated with his urological issues. (R. 39).
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stating that the hypothetical “continue[d] with that same individual.” (R. 58).
Further, to the extent that Elliott contends that he would be “off track 25% of the
day” due to his restroom breaks and, therefore, could not sustain employment,
again, the record evidence fails to establish that Elliott’s impairments require that
level of absenteeism.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Fuller 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 14th day of August, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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