Phillips v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 3/19/14. (CTS, )

FILED
2014 Mar-19 AM 11:17
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
BILLIE MICHELLE PHILLIPS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social
Security Administration,
Defendant.

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CASE NO. 6:13-CV-00110-SLB

MEMORANDUM OPINION
Plaintiff Billie Michelle Phillips brings this action pursuant to 42 U.S.C. § 405(g),
seeking review of the final decision of the Commissioner of Social Security denying her
application for a period of disability, disability insurance benefits [“DIB”], and supplemental
security income [“SSI”]. (Doc. 8.)1 Upon review of the record, the submissions of the parties,
and the relevant law, the court is of the opinion that the Commissioner’s decision is due to
be affirmed.
I. PROCEDURAL HISTORY
Plaintiff initially filed an application for a period of disability and DIB on November
12, 2009, alleging an onset date of June 29, 2007. (Doc. 5-6 at 2; R. 115.) On the same day,

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Reference to a document number, [“Doc. ___”], refers to the number assigned to
each document as it is filed in the court’s record. When the document cited is duplicated
in the bound physical copy of the transcript of the entire record of the proceedings, the
page number of that transcript is also included, [“Doc. ___; R ___.”].

plaintiff filed for SSI. (Id at 3-9; R. 116-122.) These claims were denied on March 5, 2010.
(Doc. 5-4 at 2-3 ; R. 99-100.) Plaintiff requested a hearing before an administrative law judge
[“ALJ”], (doc. 5-5 at 3; R. 102), which was held on May 10, 2011, (doc. 5-3 at 82; R. 81).
The ALJ rendered his decision on May 31, 2011, (doc. 5-3 at 32; R. 31), and on July 12,
2011 plaintiff filed an appeal with the Appeal Council, (Id at 31; R. 30). The Appeals
Council [“AC”] issued their opinion on February 15, 2011, which modified the ALJ’s
opinion as to plaintiff’s residual functional capacity [“RFC”], but affirmed his decision to
deny benefits. (Id at 14-20; R. 13-19.) The AC disagreed with the ALJ’s finding that plaintiff
had past relevant work experience, but still found the plaintiff disabled. (Id at 18; R. 17.) The
AC used the grid of Medical-Vocational Rule [“MVR”] 202.18 as a framework to find that
the plaintiff was capable of “light work”.2 (Id.)
The AC concluded that, despite plaintiff’s impairments, “there are a significant
number of jobs in the national economy which she could perform as the additional limitations
do not significantly erode the occupational base”. (Id at 19; R. 18.) The decision of the AC
represents the final decision of the Commissioner of Social Security, making this case ripe
for review by this court. (Id at 14; R. 13.) On January 2, 2013, the AC granted plaintiff an

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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 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. CFR §§ 404.1567(b), 416.967(b).
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extension of time to file a civil action appealing their decision. (Id at 2; R. 1.) Plaintiff filed
an appeal with this court on January 13, 2013. (Doc. 1.)
III. DISCUSSION
A.

The Five-Step Evaluation Defined
The regulations require the Commissioner to follow a five-step sequential evaluation

to determine whether a claimant is eligible for disability benefits. See 20 C.F.R. §§ 404.1520,
416.920; Bowen v. City of New York, 476 U.S. 467, 470 (1986). The specific steps in the
process are as follows:
(1)

The Commissioner must first determine whether the claimant is engaged in

substantial gainful activity.3 Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant
is working and the work is substantial gainful activity, the Commissioner must find that the
claimant is not disabled, regardless of the claimant’s medical condition or his age, education,
and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). A claimant who is unable to
work a full work day is deemed unable to engage in substantial gainful activity. Johnson v.
Harris, 612 F.2d 993, 998 (5th Cir. 1980).
(2)

If the claimant is not engaged in substantial gainful activity, the Commissioner

must next determine whether the claimant suffers from a severe impairment or combination
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Substantial gainful activity is work that involves significant mental and physical
activities and is usually performed for pay or profit. The following factors are considered: time
spent in the work; quality of the work performance; whether the worker is self-employed; the
need for special conditions or supervision; use of experience, skills, and responsibilities; and
whether the worker contributes substantially to the operation of the business. Johnson v. Sullivan,
929 F.2d 596, 597 (11th Cir. 1991).
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of impairments which significantly limits the claimant’s physical or mental ability to do basic
work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c).4 An impairment is not severe if it is
a slight abnormality having a minimal effect on the individual’s ability to work. Brady v.
Heckler, 724 F.2d 914, 920 (11th Cir. 1984). A claimant may be found disabled based on a
combination of impairments even though none of the individual impairments is disabling.
Walker v. Bowen, 826 F.2d 996, 1001 (11th Cir. 1987).
(3)

If the claimant has a severe impairment, the Commissioner must then determine

whether the claimant’s impairment meets the durational requirement and is equivalent to any
one of the number of listed impairments. 20 C.F.R. § 404.1520(a)(4)(iii), (d)-(e); § 404.1525;
§ 404.1526. Listed impairments are so severe that they prevent an individual from
performing substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii), (d)-(e); see 20 C.F.R.
pt. 404, Subpart P, Appendix 1. If the claimant’s impairment meets or equals an impairment
listed in the regulations, the Commissioner must find the claimant disabled, regardless of the
claimant’s age, education, and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(d).
(4)

If the claimant’s impairment does not satisfy one of the listed impairments, the

Commissioner must then review the claimant’s residual functional capacity (“RFC”), along
with the physical and mental demands of the claimant’s prior work experience, to determine
whether the claimant is capable of performing the kind of work performed in the past. If the
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The regulations provide: “if you do not have any impairment or combination of
impairments which significantly limits your physical or mental ability to do basic work activities,
we will find that you do not have a severe impairment and are, therefore, not disabled. We will
not consider your age, education, and work experience.” 20 C.F.R. §§ 404.1520(c), 416.920(c).
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claimant’s RFC is sufficient to perform past work, the Commissioner will not find the
claimant disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e). As with the first three elements,
the claimant bears the burden of establishing that the impairment prevents him from
performing past work. Yuckert, 482 U.S. at 146 n.5.
(5)

Finally, if the claimant meets his burden and establishes the inability to do the

kind of work he performed in the past, the burden shifts to the Commissioner to prove that
the claimant, based on a review of the claimant’s RFC, age, education, and work experience,
is capable of performing any other work that exists in the national economy.5 Yuckert, 482
U.S. at 146 n.5; Chester v. Bowen, 792 F.2d 129, 131. If the claimant is not capable of
performing any other jobs in the economy, then the Commissioner must find the claimant
disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f).
B.

The Five-Step Evaluation Applied
Applying the steps of the sequential evaluation, the ALJ first found that plaintiff had

not been engaged in substantial gainful activity since June 29, 2007. (Doc. 5-3 at 37; R. 36.)
At step (2), the ALJ further found that plaintiff had the following severe impairments:
depressive disorder, NOS, in partial remission, borderline personality disorder, and history
of THC and alcohol abuse. (Id.) However, applying step (3), these impairments did not meet
or medically equal any listed impairment in 20 CFR Part 404, Subpart P, Appendix 1. (Id at

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“[W]ork which exists in the national economy” is defined as “work which exists in
significant numbers either in the region where such individual lives or in several regions of the
country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
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38; R. 37.)
At step (4), the ALJ determined that plaintiff possessed the RFC to perform the full
range of “light work”. (Id at 40; R. 39.) The ALJ found that plaintiff could “understand,
remember, and carry out instructions” and “respond appropriately to supervision, co-workers,
usual work situations, and deal with changes in a routine work setting.” (Id.) The ALJ found
that the plaintiff was capable of “performing past relevant work as a fast food worker which
is classified as light and unskilled.” (Id at 42; R. 41.) The AC disagreed with the ALJ, finding
that the plaintiff had not worked as a “fast food worker” long enough for that work to qualify
as past relevant work. (Id at 18; R. 17.) Because the ALJ had found the plaintiff capable of
performing previous relevant work, he did not continue to the fifth step of the analysis.
The AC then continued to step (5), applying the MVR 202.18 grid as a framework to
find that “there are a significant number of jobs that claimant is capable of performing based
upon her age, education, work experience and residual functional capacity.” (Id.) The AC
found that “the additional limitation that claimant can understand, remember, and carry out
simple, routine instructions and unskilled work do not significantly erode the occupational
base.” (Id.) Based on these findings, the AC concluded that plaintiff was not under a
disability as defined in the Social Security Act at any time through the date of the decision.
(Id at 19; R. 18.) Accordingly, the AC upheld the ALJ’s decision that plaintiff was not
entitled to a period of disability, DIB, or SSI. (Id at 14; R. 13.)

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C.

Plaintiff’s Contentions
Plaintiff alleges that the AC improperly relied on the MVR grids in determining that

plaintiff was not disabled and that plaintiff’s “moderate” difficulties with concentration,
persistence, or pace are incompatible with the AC’s finding that plaintiff’s impairments did
not significantly affect her ability to work.
Plaintiff alleges that the AC improperly relied on the RFC grids found in MVR 202.18
in finding the plaintiff not disabled. (Doc 8 at 10.) These tables are known as the “grids”.
They lay out different findings of disability based on the plaintiff’s age, education, and work
experience. “Approximately 1,600 separate sedentary and light unskilled occupations can be
identified in eight broad categories, each occupation representing numerous jobs in the
national economy.” 20 C.F.R. § 404, subpt. P, app. 2 § 200.00(a). The grid rules provide that
“[t]he functional capacity to perform a wide or full range of light work represents substantial
work capability compatible with making a work adjustment to substantial numbers of
unskilled jobs”. 20 C.F.R. § 404, subpt. P, app. 2 § 200.00(b). Therefore, a claimant who
falls into one of the grid categories is capable of performing a substantial number of jobs in
the national economy.
The AC, in demonstrating that one of the grids is applicable to plaintiff, correctly
found that numerous jobs exist in the national economy that plaintiff can perform. The AC,
using the grids as a framework, found that MVR grid 202.18 applied to plaintiff, based on
her age, education, work experience, and RFC. (Doc. 5-3 at 18; R. 17.) The application of

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the grid meant that plaintiff was not disabled because there were jobs in the national
economy she could perform.
Plaintiff argues that the grids cannot be applied to plaintiffs with non-exertional
impairments such as those suffered by the plaintiff. (Doc. 8 at 10.) However, “non-exertional
limitations can cause the grid to be inapplicable only when the limitations are severe enough
to prevent a wide range of gainful employment at the designated level.” Murray v. Heckler,
737 F.2d 934, 935 (11th Cir. 1984). The question, therefore, is whether the plaintiff suffered
a non-exertional impairment severe enough to prevent a wide range of gainful employment.
There is substantial evidence supporting the ALJ’s finding that plaintiff suffered
moderate difficulties only with regards to concentration, persistence, and pace. (Doc. 5-3 at
39; R. 38.) The ALJ cites to Dr. Gragg’s finding that plaintiff had “no indication of
significant psychiatric or psychological issues.” (Doc. 5-8 at 31; R. 241.) Dr. Gragg also
stated that “there do not seem to be any intellectual or psychological features that would
interfere with her ability to function in a work environment.” (Id.) The ALJ correctly points
out that impairments “must be established by medical evidence consisting of signs,
symptoms, and laboratory findings, not only your statement of symptoms.” 20 C.F.R. §
404.1508. The ALJ did not assign significant weight to the opinion of Dr. Blotcky because
it was based largely on statements made by the plaintiff and was inconsistent with the record
as a whole. (Doc. 5-3 at 41; R. 40.)
The plaintiff’s own statements were also given little weight by the ALJ because “the

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evidence of record does not reflect any evidence of consistent treatment for any mental
impairment” and “the evidence does not show her to have sought any charitable assistance
for her impairments.” (Id.) Plaintiff had been admitted to a hospital for mental problems only
twice in the past, and each time was released after a day or less. (Doc. 5-8 at 29; R. 239.)
Plaintiff’s also voluntarily stopped taking her medications for depression. (Doc. 5-3 at 92;
R. 91.) There is substantial evidence to support the ALJ’s assignment of little weight to the
subjective statements of the plaintiff because the record did not evince a history consistent
with a significant mental impairment. Based on these findings, there was substantial evidence
to support the ALJ in finding the plaintiff to have moderate restriction in only concentration,
persistence, or pace.
Plaintiff contends that even if the ALJ was correct in finding a moderate restriction
in only that area, the AC should have found that such a restriction severely limited plaintiff’s
ability to work. In Scott v. Commissioner of Social Security, the 11th Circuit held that
plaintiff “could engage in simple, routine tasks or unskilled work despite moderate
limitations in concentration, persistence, and pace”. Scott v. Comm. of Social Sec., 495
Fed.Appx 27, 29 (11th Cir. 2012). In that case, as here, the medical evidence showed that
plaintiff could do unskilled work, and thus was not disabled. The court did not find that a
moderate restriction in concentration, persistence, or pace automatically resulted in a severe
limitation on plaintiff’s ability to work. Id. Therefore plaintiff’s argument that a moderate
difficulty in that area necessitates a finding of a severe impact on ability to work at a

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designated RFC is without merit.
In Murray v. Heckler, the court held that “non-exertional limitations can cause the
grid to be inapplicable only when the limitations are severe enough to prevent a wide range
of gainful employment at the designated level.” Murray, 737 F.2d at 935. The AC evaluated
the claimant’s RFC on appeal and disagreed with the ALJ’s finding concerning past relevant
work. (Doc. 5-3 at 18; R. 17.) On review, the AC adopted the ALJ’s RFC and, applying
MVR 202.18 as a framework, found the plaintiff not disabled, non-exertional impairments
notwithstanding. (Id.)
The AC held that “additional limitations that claimant can understand, remember, and
carry out simple, routine instruction and unskilled work do not significantly erode the
occupational base.” (Id.) The AC adopted the ALJ’s factual findings in regards to plaintiff’s
impairments. (Id at 17; R. 16.) Therefore the AC based its findings off the same information
as the ALJ, namely that Dr. Gragg found plaintiff to have moderate difficulties in only one
area, (Doc. 5-8 at 31; R. 241), plaintiff had not followed or attempted to follow a course of
treatment consistent with her alleged disability, (Doc. 5-3 at 40; R. 41), the fact that plaintiff
stated she quit her last job because she could not find childcare, not because of disability,
(doc. 5-8 at 24, 28; R. 234, 238), and the general lack of evidence of the claimed disabilities,
(doc. 5-3 at 42; R. 41). The applicable regulation states that the “functional capacity to
perform a wide or full range of light work represents substantial work capability”. 20 C.F.R.
§ 404, subpt. P, app. 2 § 200.00(b)

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Here the plaintiff was capable of performing at least a “wide” range of light work,
therefore, the AC properly determined her to be not disabled. Substantial evidence supported
the AC’s finding that plaintiff’s limitations did not significantly reduce the number of jobs
available at her designated RFC. By showing that plaintiff was capable of performing other
work in the national economy, the Commissioner satisfied his burden under step (5) of the
analysis.
V. CONCLUSION
Based on the reasons stated above, this court is of the opinion that the Commissioner’s
decision is in accordance with the correct legal standards and supported by substantial
evidence. The decision is due to be AFFIRMED. An Order in accordance with this
Memorandum Opinion will be entered contemporaneously herewith.
DONE this 19th day of March, 2014.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

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