Gregg v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Magistrate Judge John H England, III on 9/21/2015. (KEK)
2015 Sep-21 AM 11:22
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
DEBRA ANN GREGG,
CAROLYN W. COLVIN,
Commissioner of Social Security,
Case Number: 6:14-cv-00302-JHE
MEMORANDUM OPINION 1
Plaintiff Debra Ann Gregg (“Gregg”) 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 applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”). Gregg timely pursued and exhausted her
administrative remedies, and the decision of the Commissioner is ripe for review pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). After careful consideration of the record, and for the reasons
stated below, the Commissioner’s decision is AFFIRMED.
I. Factual and Procedural History
Gregg was fifty-five years old, having been born August 31, 1957, at the time of her
hearing before the Administrative Law Judge (“ALJ”), on January 7, 2013. (Tr. 28, 48). Gregg
has approximately four years of college education, with an associate’s degree in liberal arts, (tr.
28), and previously worked as a stock clerk, a cashier, and a library assistant. (Tr. 31).
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. 11).
Gregg applied for DIB on September 22, 2011, and SSI on July 10, 2012, alleging an
initial onset date of May 15, 2010.2 (Tr. 40, 48-49). Gregg’s DIB application was denied on
May 17, 2012. (Tr. 50-55).
Gregg’s application for SSI was subsequently denied on July 10,
2012. (Tr. 49). Gregg requested a hearing on June 27, 2012. (Tr. 60). After a hearing on both
applications, the ALJ denied Gregg’s claim on April 4, 2013. (Tr. 13-21). Gregg sought review
by the Appeals Council, but the Council denied her request on December 18, 2013. (Tr. 1-3).
On that date, the ALJ’s decision became the final decision on the Commissioner. Gregg then
initiated this action on February 19, 2014. (Doc. 1).
II. Standard of Review 3
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 the proper legal standards were applied.
See Wilson v.
Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). The 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) (citations omitted).
This Court will determine the ALJ’s decision 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.”
For purposes of DIB, Gregg’s date of last insured was June 30, 2012. (Tr. 40).
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 provisions as
context dictates. The same applies to citations for statutes or regulations found in quoted court
Id. The Court must uphold factual findings supported by substantial evidence. The ALJ’s legal
conclusions, however, are reviewed de novo, “because no presumption of validity attached 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 failed to provide the Court with sufficient reasoning for determining the proper legal
analysis has been conducted, the ALJ’s decision must be reversed. See Cornelius v. Sullivan,
936 F.2d 1143, 1145-46 (11th Cir. 1991).
III. Statutory and Regulatory Framework
To establish entitlement for a period of disability, DIB and SSI, a claimant must be
disabled as defined by the Social Security 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 12 months.” 20 C.F.R. §§ 404.1505 (a); 416.905(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); 416.920(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,
revised April 1, 2014.
(1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant’s alleged impairment (or combination of impairments)
(3) whether the claimant’s severe impairment satisfies or medically equals an
impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1;
(4) whether the claimant has the residual functional capacity to perform past
relevant work; and
(5) whether the claimant can perform other work in the national economy given
[her] residual functional capacity, age, education, and work experience.
Frame v. Commissioner, Social Sec. Admin., 596 Fed. App’x 908, 910 (11th Cir. 2015) 5 (quoting
§§ 404.1520(a)(4)(i)-(iv), 416.920(a)(4)(i)-(v)). If the claimant has satisfied steps one and two,
she will automatically be found disabled at step three if she suffers from a listed impairment. See
e.g., Dixon v. Astrue, 312 Fed. App’x 226, 227 (11th Cir. 2009) (citing Jones v. Apfel, 190 F.3d
1224, 1228 (11th Cir. 1999). If the claimant does not have a listed impairment but cannot
perform her past work, the burden shifts to the Commissioner to show that the claimant can
perform some other available job. Id. at 227-228. The Commissioner must further show that
such work exists in the national economy. Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).
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 Gregg had not engaged in substantial gainful activity
since her alleged onset date. (Tr. 15). At Step Two, the ALJ found that Gregg has the severe
Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered
binding precedent; however, they may be cited as persuasive authority. 11th Cir. R. 36–2.
impairments of diabetes mellitus, obesity, and polymyositis. (Tr. 16). The ALJ noted Gregg’s
diagnoses of depressive and anxiety disorders were also medically determinable mental
impairments, but rated them as non-severe, finding they caused only minimal limitations. (Id.)
The ALJ found no medical evidence to support the plaintiff’s allegations of fibromyalgia and
PTSD. (Tr. 16-17). At Step Three, the ALJ found Gregg had no impairment or combination of
impairments that meets or medically equals any of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. 17). The ALJ next determined that Gregg retained the residual
functional capacity (“RFC”) to perform a full range of medium work. (Id.) Thus, at Step Four,
the ALJ found that Gregg could return to her past relevant work as a cashier and a library
assistant, eliminating the need for the ALJ to reach Step Five. (Tr. 21). Therefore, Gregg was
found not to be under as disability at any time through the date of the decision.
This Court is limited in its review of the Commissioner’s decision in that the
Commissioner’s findings of fact must be reviewed with deference. See Martin v. Sullivan, 894
F.2d 1520, 1529 (11th Cir. 1990) (citing Graham v. Bowen, 790 F.2d 1572, 1574-75 (11th Cir.
1986)). In contrast to factual findings, the Commissioner’s conclusions of law are subject to an
“exacting examination” or de novo review. See Martin, 894 F.2d at 1529 (citing Gibson v.
Heckler, 779 F.2d 619, 622 (11th Cir. 1986) (“The Secretary’s failure to apply the correct legal
standards or to provide the reviewing court with sufficient basis for a determination that proper
legal principles have been followed mandates reversal.”) (citations omitted). This Court has a
“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)). However, the court
“abstains from reweighing the evidence or substituting its own judgment for that of the
[Commissioner].” Id. (citation omitted).
Gregg contends the ALJ erred by rendering a decision not supported by substantial
evidence. Specifically, Gregg claims the ALJ’s RFC finding she could perform the full range of
medium level work was erroneous because the “Medical Vocation Rules (MVR) may be applied
only when additional limitations to a range of work . . . are purely non exertional or have little or
no effect on the occupational base . . .” and here “[t]he likelihood of there being no postural or
other limitations of any kind to medium work appears slim....” (Doc. 13 at 7). Gregg argues her
severe impairments of obesity and polymyositis cause greater limitations than the ALJ found.
(Doc. 13 at 7-8). Gregg points to no medical evidence in support of this argument. Instead,
Gregg cites only to the consultative physician’s finding that she has “joint tenderness.” (Doc. 15
at 7; tr. 201).
Gregg’s treating physician’s records reflect diagnoses of diabetes, chronic anxiety,
depression, obesity, and neuropathy. (Tr. 179-183, 185-188, 239).
However, during her
consultative physical examination, Gregg had full range of motion in her back, hips, knees,
ankles, shoulders, elbows, and wrists. (Tr. 196-197). Despite her complaints of wide-spread
severe pain and tenderness at multiple trigger points, the consultative examiner noted Gregg had
a normal gait and could heel toe walk, squat, rise, normal dexterity in her hands, and full motor
Upon psychological examination, Gregg had no major affective
disorder and no significant anxiety disorder. (Tr. 204). Dr. Jerry Gragg, Psy.D., noted Gregg
had a fairly long history of depressive mood, but found it to be adequately treated. (Tr. 205).
Dr. Gragg opined that Gregg’s depression did not impede her employability and thought gainful
employment “would be helpful to her.” (Id.)
During the hearing, Gregg testified she was fired from her job as a cashier because she
missed too many days from work, but then collected unemployment benefits. (Tr. 29-30). She
alleged her hands stayed numb from diabetic neuropathy, interfering with her ability to do
anything with her hands. (Tr. 34-35). When asked about her allegations of fibromyalgia, Gregg
testified she has nightmares and sleeplessness from it, as well as a burning pain in her back and
legs. (Tr. 35). However, when she was hospitalized due to diabetes in July 2012, Gregg did not
complain of pain.
Although those records reflect “[Gregg] verbalized some
generalized achy feeling that she states is from fibromyaligia” (tr. 213-214), she was noted to
have no tenderness in her back and normal range of motion in all extremities. (Tr. 220).
Thus, while Gregg does suffer from severe impairments, there is no record evidence these
impairments impede her ability to engage in work-related activity. For example, while Gregg
argues Social Security Ruling 02-1p recognizes “that obesity can cause limitations in all
exertional and postural functions, (doc. 13 at 8), the record contains no medical evidence that
Gregg has any such limitations.
See e.g., Moore v. Barnhart, 405 F.3d 1208, 1213 n. 6 (11th
Cir. 2005) (per curiam) (noting that the mere existence of impairments does not reveal the extent
to which they limit the claimant’s ability to work). Because no record evidence supports a
finding that Gregg could not return to her past relevant work as a cashier and a library assistant,
the fact that Gregg has impairments which could produce limitations which prevent such work is
not a relevant consideration. See e.g., Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003)
(“it is the claimant’s responsibility to introduce evidence in support of her application for
Gregg further argues that by applying the Medical-Vocations Guidelines (“the Grids”) to
his determination, the ALJ impliedly found she could maintain the mental activities required for
competitive employment. 6 (Doc. 13 at 9).
See 20 C.F.R. pt. 404, subpt. P, app. II. She
contends that, if she was limited to simple unskilled work because of an inability to maintain
persistence and pace, she would meet the Grid for a finding of disability if limited to sedentary or
light work. Id. There is no record evidence suggesting Gregg is so limited. Gregg points to no
evidence to support a finding that she is unable to perform the mental demands of work because
of the combined effects of her conditions. Gregg testified she has had anxiety attacks once or
twice a month for the past ten or eleven years, and takes medicine when this occurs. (Tr. 32).
However, she receives no mental health treatment. (Tr. 33). Although Gregg states she went to
a mental health professional and was diagnosed with PTSD due to past abuse, (tr. 33), there is no
evidence of this visit in the record. 7 Upon examination, Dr. Gragg, found Gregg to be poised
and cooperative, well-oriented in all spheres, suffering from no memory impairments and to have
good attention and concentration as well as normal mood and affect. (Tr. 204). No doctor had
opined that Gregg’s abilities to carry out and remember instructions, use judgment, respond
The Grids provide an algorithm to determine claimants’ ability to engage in employment other
than their past work based on factors such as a person’s age, education, previous employment,
and maximum physical capabilities. Gibson v. Heckler, 762 F.2d 1516, 1520 (11th Cir.1985).
Each variable on the appropriate Grid must “accurately [describe] the claimant's situation.”
Walker v. Bowen, 826 F.2d 996, 1003 (11th Cir. 1987). “Where a plaintiff’s qualifications
correspond to the job requirements identified by a [grid] rule, the guidelines direct a conclusion
as to whether work exists that the plaintiff could perform. If such work exists, the plaintiff is not
considered disabled.” Heckler v. Campbell, 461 U.S. 458, 462 (1983).
The only evidence of any mental health treatment in the record is contained in Gregg’s treating
physician’s office records. From an April 26, 2010, office visit the record reflects “anxious,
stressed – she has been seen in Hope Clinic at Jasper – .” (Tr. 188). Over two years later, on
June 22, 2012, another record states, “[s]he has run out of insulin and is not taking anything but
metaformin and glipizide ... Very depressed. Suicidal thoughts. Going to go to counseling.”
appropriately to supervision, or deal with changes in a routine work setting were in any way
limited. See 20 C.F.R §§ 404.1521(b); 416.921 (b).
Moreover, as the defendant responds, (doc. 15 at 5-6), the Grids are applied at Step Five
of the ALJ’s analysis, in relation to whether a claimant can adjust to other work in the national
economy, after a finding that a claimant cannot return to past relevant work at Step Four. See
e.g., Norton v. Commissioner, — Fed. Appx. —, 2015 WL 1600426, *2 (11th Cir. 2015);
Phillips v. Barnhart, 357 F.3d 1232, 1239-40 (11th Cir. 2004). Once the ALJ determined that
Gregg could return to her past work as a cashier or a library assistant, at Step Four, he properly
did not undertake any determination in regard to Step Five. Because Gregg failed to show that
any of her diagnoses significantly limited her ability to engage in her past relevant work, she has
not shown any error in the ALJ’s conclusion.
Having reviewed the evidence in the record, the undersigned finds the decision of the
ALJ was supported by substantial evidence.
For the reasons set forth herein, the decision of the Commissioner is AFFIRMED and
this action is due to be DISMISSED WITH PREJUDICE. A separate order will be entered.
DONE this 21st day of September 2015.
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE
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