Ashcraft v. Social Security Administration, Commissioner

Filing 18

MEMORANDUM OPINION. Signed by Magistrate Judge John H England, III on 3/26/2019. (AFS)

FILED
2019 Mar-26 PM 03:18
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
ELTON ASHCRAFT,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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Case Number: 6:17-cv-02170-JHE

MEMORANDUM OPINION 1
Plaintiff Elton Ashcraft (“Ashcraft”) 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 his application for a period of disability, disability
insurance benefits (“DIB”), and supplemental security income (“SSI”). (Doc. 1). Ashcraft timely
pursued and exhausted his administrative remedies. This case is therefore ripe for review under 42
U.S.C. §§ 405(g), 1383(c)(3). The undersigned has carefully considered the record and, for the
reasons stated below, the Commissioner’s decision is REVERSED AND REMANDED.
I. Factual and Procedural History
On February 12, 2015, Ashcraft filed an application for a period of disability and DIB, as
well as an application for SSI. (Tr. 186-92). In both applications Ashcraft alleged disability
beginning January 16, 2015. (Id.). These claims were initially denied on June 19, 2015. (Tr. 13342). Thereafter, Ashcraft filed a written request for a hearing on July 16, 2015. (Tr. 143-44).

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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. 9).

Ashcraft, represented by counsel, appeared and testified at a hearing before an Administrative Law
Judge on August 23, 2016. (Tr. 79-100). After the hearing, the ALJ denied Ashcraft’s claim on
February 7, 2017. (Tr. 65-74). Ashcraft sought review by the Appeals Council, but it declined his
request on October 31, 2017. (Tr. 1-6). On that date, the ALJ’s decision became the final decision
of the Commissioner.

On December 26, 2017, Ashcraft initiated this action. (See doc. 1).

Ashcraft was fifty-nine-years-old when he allegedly became disabled, and sixty-one-yearsold at the time of the Commissioner’s decision. (Tr. 65-74, 85, 186). He has a high school
education and past relevant work experience as a salesclerk, store laborer, assistant grocery
manager, and construction worker. (Tr. 87-90, 98). Ashcraft alleges he is disabled due to a gastric
ulcer with perforation, bile leak, common bile duct obstruction, abdominal pain, low back pain,
right shoulder pain, and depression. (Tr. 86, 92-95, 206).
II. Standard of Review 2
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).
Substantial evidence is “such relevant evidence as a reasonable person would accept as adequate
to support a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.

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In general, 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 provision as
context dictates. The same applies to citations for statutes or regulations found in quoted court
decisions.
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This Court must uphold factual findings supported by substantial evidence. “Substantial
evidence may even exist contrary to the findings of the ALJ, and [the reviewing court] may have
taken a different view of it as a factfinder. Yet, if there is substantially supportive evidence, the
findings cannot be overturned.” Barron v. Sullivan, 924 F.2d 227, 230 (11th Cir. 1991). However,
the Court reviews the ALJ’s legal conclusions 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 the proper legal analysis
has been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d 1143,
1145-46 (11th Cir. 1991).
III. Statutory and Regulatory Framework
To qualify for disability benefits and establish his or her entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the Regulations
promulgated thereunder. 3 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 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

3

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R. Parts
400 to 499.
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disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in sequence:
(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 [Commissioner];
whether the claimant can perform his or 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 the formerly applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (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 [Commissioner] 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 such work exists in the national economy in significant numbers. Id.
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 Ashcraft met the insured status requirements of the Social
Security Act through December 31, 2017, and that Ashcraft had not engaged in substantial gainful
activity from his alleged onset date of January 16, 2015. (Tr. 67). At Step Two, the ALJ found
Ashcraft has the following severe impairments: peptic ulcer and back pain. (Id.). At Step Three,
the ALJ found Ashcraft did not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr.
68).

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Before proceeding to Step Four, the ALJ determined Ashcraft’s residual functioning
capacity (“RFC”), which is the most a claimant can do despite his impairments. See 20 C.F.R. §
404.1545(a)(1). The ALJ determined that Ashcraft had the RFC to perform light work as defined
in 20 C.F.R. 404.1567(b) and 416967(b), and Ashcraft could occasionally push/pull and do
overhead reaching with the upper right extremity; he could do frequent reaching, handling, and
fingering with the right upper extremity; he should do no climbing of ladders, ropes, or scaffolds,
but could occasionally climb stairs or ramps; he could occasionally balance, crouch, crawl, or
stoop; he should avoid concentrated exposures to heat, cold, and vibrations; he should avoid all
hazardous machinery and unprotected heights. (Tr. 69-73).
At Step Four, the ALJ determined Ashcraft is capable of performing his past relevant work
as an assistant grocery manager and sales clerk. (Tr. 73). Accordingly, there was no need to
proceed to Step Five, and the ALJ determined Ashcraft was not disabled and denied Ashcraft’s
claim. (Id.).
V. Analysis
Although the court may only reverse a finding of the Commissioner if it is not supported
by substantial evidence or because improper legal standards were applied, “[t]his does not relieve
the court of its 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)). The court,
however, “abstains from reweighing the evidence or substituting its own judgment for that of the
[Commissioner].” Id. (citation omitted).
Ashcraft challenges the Commissioner’s decision on two specific grounds, contending the
ALJ erred: (1) when he found Ashcraft could perform his past relevant work as an assistant

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manager and sales clerk because the ALJ failed to consider the jobs together as a “composite job;”
and (2) by finding Ashcraft’s pain and fatigue not disabling. (Doc. 13 at 11-16).
A. The ALJ Failed to Consider Whether Ashcraft’s Past Relevant Work Was a
“Composite Job” and Whether Ashcraft Could Perform His Previous Work as
Actually Performed
When considering whether a claimant can return to past work, the ALJ must (1) consider
all the duties of the past relevant work and (2) evaluate the claimant’s ability to perform the duties
in light of his impairments. Lucas v. Sullivan, 918 F.2d 1567, 1574 n.3 (11th Cir. 1990). The
burden is on the claimant to show that he can no longer “perform his past kind of work, not that he
merely [is] unable to perform a specific job he held in the past.” Jackson v. Bowen, 801 F.2d 1291,
1293 (11th Cir. 1986) (citing 20 C.F.R. §§ 404.1520(e), 416.920(e) (1986)). When a claimant’s
prior job involved functional demands and duties significantly in excess of those generally required
for that type of work by employers in the national economy, it is not enough for the claimant to
show that he cannot perform the demands and duties actually involved in the job. Instead, he must
show that he cannot perform the functional demands and job duties of the position generally
required by employers nationwide. Jackson, 801 F.2d at 1293-94; SSR 82-61, 1982 WL 31387
(Jan. 1, 1982).
Ashcraft contends the ALJ erred when he found Ashcraft could return to his past work as
an assistant grocery store manager and sales clerk because they were “composite jobs” that
included duties beyond his RFC. (Doc. 13 at 11-13). A composite job is one that has “significant
elements of two or more occupations and, as such, [has] no counterpart in the DOT.” SSR 82-61,
1982 WL 31387 at *2. Past relevant work may qualify as a composite job “if it takes multiple
DOT occupations to locate the main duties of the [past relevant work] as described by the
claimant.” Program Operations Manual System (“POMS”) DI 25005.020. Notably, when the

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claimant’s previous work qualifies as a composite job the standard changes, and the ALJ must
consider the particular facts of the individual case to consider whether the claimant can perform
his previous work as actually performed. See SSR 82-61 at *2 (emphasis added).
On his disability report, Ashcraft indicated he worked forty hours a week in “retail
management” from January 2000 to January 2015. (Tr. 207). Ashcraft described his tasks as
walking for four hours, standing for four hours, and siting for one hour; frequently lifting ten
pounds. (Tr. 208). Ashcraft indicated the heaviest weight he lifted as sixty-five pounds, but stated
he only handled large objects for about half an hour per day. (Id.).

At the hearing, Ashcraft

testified that his work as an assistant grocery store manager was “very, very strenuous” and,
“[e]ven though it was a management job, required him to perform physical tasks, including
stocking, unloading trucks, helping on the register and other duties. (Tr. 89). Ashcraft also
testified that his part-time work at Dollar General as “sales clerk” included both stocking and
cashier-type work. (Tr. 88). He further testified that his last day at Dollar General was January
10, 2015, and that on January 16, 2015, he had to go to the emergency room and ended up staying
in the hospital for eight weeks. (Id.). Ashcraft’s testimony suggests that his duties in these
positions may have exceeded the exertional demands of light work activity.
For Ashcraft to prove that his past relevant work as an assistant grocery store manager was
a composite job, involving tasks as both an assistant manager and a store laborer, Ashcraft must
prove that the non-management physical demands were “main duties” of his position as an
assistant grocery store manager. The VE classified Ashcraft’s previous work as an assistant
grocery store manager as DOT code 189.167-018 “Management Trainee (any industry),” which
defines the position as follows:
Performs assigned duties, under direction of experienced personnel, to gain
knowledge and experience required for promotion to management positions:
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Receives training and performs duties in several departments, such as credit,
customer relations, accounting, or sales, to become familiar with line and staff
functions, operations, management viewpoints, and company policies and practices
that affect each phase of business. Observes experienced workers to acquire
knowledge of methods, procedures, and standards required for performance of
departmental duties. Workers are usually trained in functions and operations of
related departments to facilitate subsequent transferability between departments
and to provide greater promotional opportunities. May be required to attend
company-sponsored training classes.
It is apparent that the definition for “Management Trainee (any industry)” does not cover the main
duties Ashcraft described when testifying about his assistant grocery store manager job. (Tr. 89).
To the contrary, it appears a person would need to look to the store laborer job, which includes
distributing products within the establishment, conveys items and materials from receiving, sorts
and places materials or items on racks, shelves or bins according to a predetermined sequence,
etc., see DOT 922.687-058, to find significant elements of Ashcraft’s job as an assistant grocery
store manager. 4
Despite Ashcraft’s testimony, the ALJ did not address whether Ashcraft’s past work as an
assistant grocery store manager and a sales clerk were composite jobs. This action will be
REMANDED for the ALJ to consider whether Ashcraft’s previous work as an assistant grocery
store manager and a sales clerk qualify as composites jobs, and, if so, to apply the proper standard
to determine if Ashcraft can perform his past relevant work.
B. The ALJ Properly Applied the Eleventh Circuit Pain Standard
Ashcraft also argues the ALJ erred during his evaluation of Ashcraft’s subjective
complaints of pain and fatigue. (Doc. 13 at 14-16). When a claimant attempts to establish a
disability through subjective complaints of pain or other symptoms, he or she is required to show:

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This same analysis applies to Ashcraft’s work as a “sales clerk” at Dollar General where
his testimony shows he performed both stocking and cashier type work. (Tr. 88).
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(1) evidence of an underlying medical condition, and either (2) objective medical evidence that
confirms the severity of the alleged pain or other symptoms arising from that condition, or (3) that
the objectively determined medical condition is of such a severity that it can reasonably be
expected to give rise to the alleged pain or other symptoms. See 20 C.F.R. §§ 404.1529(a), (b),
416.929(a), (b); Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002).
Here, the ALJ recognized Ashcraft’s underlying medical impairments and found that
although Ashcraft’s “medically determinable impairments could reasonably be expected to cause
the alleged symptoms,” his “statements concerning the intensity, persistence and limiting effects
of these symptoms are not entirely consistent with the medical evidence and other evidence in the
record . . . .” (Tr. 71). As required, the ALJ clearly articulated reasons for finding Ashcraft’s
complaints of disabling pain and fatigue not consistent with the record. Ashcraft complained of
back pain since at least 2011. (Tr. 771-77).

On January 16, 2015, Ashcraft presented to the

emergency room with increasing abdominal pain.

(Tr. 418).

Treating physicians initially

determined Ashcraft to have gallstones and scheduled a laparoscopy cholecystectomy for the next
day. (Tr. 704-06, see 414-702). Upon starting the surgical procedure, doctors observed a leading
duodenal ulcer with a walled off abscess, requiring open surgery. (Id.). Continuing to decline
post-surgery, Ashcraft underwent a second operation on January 23, 2015, to correct a
subdiapragmatic hypoalbuminemia. (Id.). With slow progress, Ashcraft was moved out of
intensive care on January 29, 2015, and began tolerating some food. (Id.). Due to pain, Ashcraft
refused physical therapy. (Id.). Ashcraft then developed pneumonia, which complicated his
recovery. (Id.). By March 12, 2015, laboratory testing showed sufficient improvement for
Ashcraft to be discharged. (Id.). Ashcraft presented to the emergency room for abdominal pain
on May 10, 2015, and a CT performed on May 11, 2015 indicated no evidence of biliary

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obstruction or recurrent bile lead and no other acute intraabdominal or pelvic finding. (Tr. 80001, 867).
At the request of the state agency, on June 2, 2015, Dr. Hirenkumar Jani consultatively
examined Ashcraft. (Tr. 761-66). Dr. Jani noted Ashcraft’s complaints of back pain, abdominal
pain, and numbness in the right hand and fifth finger. (Tr. 762). On examination, Ashcraft was
5’10” in height and weighed 151 pounds, with a blood pressure of 109/66. (Tr. 763). Dr. Jani
noted an essentially normal examination as to eyes, ears, nose, throat, neck, chest, heart, and lungs.
(Tr. 764).

He noted the abdominal scar was well-healed, with positive bowel sounds, no

hepatosplenomegaly5 or masses palpated. (Id.).

Ashcraft could heel-toe walk, and there was no

evidence of any muscle spasm, localized tenderness, or crepitation and handgrip. (Tr. 765). There
was no abnormality noted in the sensory exam or reflexes. (Id.). Dr. Jani’s diagnostic assessment
included mid-back pain, chronic abdominal pain, and tingling and numbness in the right ring and
little finger, etiology unknown, with good grip. (Id.). Dr. Jani opined that Ashcraft could walk
and stand at least six hours with no restrictions, could sit with no restrictions, and required no
assistive device. (Id.). Dr. Jani further opined that Ashcraft could lift fifty pounds frequently and
one hundred pounds occasionally with no postural, manipulative, or environmental restrictions.
(Id.).
June 25, 2015 x-rays confirmed a moderate amount of AC joint arthritis in Ashcraft’s
shoulder with a probable rotator cuff tear. (Tr. 813). Dr. Robert Sorrell noted significant limitation
in the motion of Ashcraft’s shoulder and a marked amount of weakness. (Id.). Dr. Sorrell wanted
to attempt to repair the shoulder, and Ashcraft said he would call Dr. Sorrell if he decided to repair

5

Hepatosplenomegaly is a disorder where both the liver and spleen swell beyond their
normal size. See www.healthline.com/health/hepatosplenomegaly
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the shoulder. (Id.). After further discussion, Ashcraft told Dr. Sorrell he wanted to have surgery.
(Id.). They also discussed an injection, which Ashcraft declined. (Id.). Dr. Sorrell prescribed
Flexeril for muscle spasms, but declined Ashcraft’s request for pain medicine and made a plan to
contact a pain management specialist instead. (Id.). X-rays of Ashcraft’s cervical spine indicated
mild arthritis at C5-C6 and C6-C7. (Id.).
On February 9, 2016, Ashcraft presented to the emergency room complaining of abdominal
pain and pleural fluid. Again, CT scans and laboratory testing yielded negative results. Ashcraft
was discharged with medication and instructions to make a follow-up appointment. (Tr. 767-70,
855-66).
In his brief, Ashcraft points to his weight loss after having gastric issues and subjective
complaints of stomach pain due to scar tissue from surgery. (Doc. 13 at 15). He asserts he has
arthritis and a probable rotator cuff tear. (Id.). He points to his testimony that when he left work
in January 2015, he was missing work at least one day a week because of fainting spells and pain,
and, later that month, ended up in the hospital for eight weeks where he had several gastric
procedures. (Id. at 16). Ashcraft also complains of pain, fatigue, and nausea since his surgery.
(Id.). Ashcraft asserts that the consultative examiner, Dr. Hirenkumar Jani “does not discredit
these symptoms alleged by plaintiff.” (Id.).
The ALJ found that Ashcraft’s subjective complaints were not entirely consistent with the
medical and other evidence in the record and clearly articulated his reasoning. (Tr. 71). Initially,
the ALJ found sufficient, objective medical evidence to support that Ashcraft experiences some
pain resulting from his degenerative disc disease in his thoracic and cervical spine. (Id.). Pointing
to the MRIs and x-rays indicating arthritis and mild degenerative joint disease as well as minimal
treatment despite continued complaints, the ALJ found the severity of the complaints inconsistent

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with the objective evidence. (Id.). The ALJ further noted that Dr. Hirenkumar Jani’s examination
showed that Ashcraft had 5/5 motor strength bilaterally in all extremities, and Dr. Jani opined that
Ashcraft could walk and stand for at least six hours without restriction, sit without restriction, lift
fifity pounds frequently, and had no manipulative or environmental restrictions. (Tr. 72, 763-65).
Additionally, the ALJ noted that the medical record shows that Ashcraft is “status post
peptic ulcer.” (Id.). Despite Ashcraft’s continued complaints of pain, the record notes that the
condition is resolved. (Id.). Dr. Jani observed Ashcraft’s abdomen was not tender and his scar
from gastric surgery was well-healed with no external signs or abnormalities. (Tr. 70-71, 764).
The ALJ also considered that CT scans and laboratory testing in February 2016, yielded negative
results. (Tr. 71, 855-66). The ALJ stated that he fully considered Ashcraft’s complaints of pain
by assessing only light work with additional restrictions. 6 (Tr. 72).
The ALJ did not err when he considered Ashcraft’s subjective complaints of pain. The
ALJ properly considered the combination of Ashcraft’s mild degenerative disc disease, the status
post peptic ulcer, and the non-severe arthritis of the rotator cuff by placing additional specific
restrictions on the “light work” RFC, and his reasoning is supported by substantial evidence. (Tr.
69, 72).
VI. Conclusion
For the reasons set forth herein, and upon careful consideration of the administrative record

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Ashcraft argues the ALJ erred because the evidence, specifically Dr. Jani’s examination
and opinion, does not “discredit” his alleged symptoms. (Doc. 13 at 16). As articulated above,
this is not the correct standard, and the ALJ articulated his reasons for finding Ashcraft’s
complaints inconsistent with the record. Additionally, although doctors noted Ashcraft was
“thin” and “need[ed] to gain weight” in April 2015, those same doctors noted Ashcraft was
“well-developed.” (Tr. 793-94). Furthermore, records indicate that Ashcraft went from
weighing 145 and 149 pounds in April 2015 to weighing 160 pounds in February 2016. (Tr.
793-94, 856). At the time of briefing in July 2018, Ashcraft asserted he weighed 165 to 170
pounds.
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and memoranda of the parties, the decision of the Commissioner of Social Security denying
Ashcraft’s claim for a period of disability, DIB, and SSI is REVERSED and REMANDED for
further proceedings consistent with this opinion.
DONE this 26th day of March, 2019.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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