Collier v. Astrue

Filing 21

MEMORANDUM AND OPINION entered that the decision of the Commissioner be REVERSED and that this action be REMANDED for further proceedings not inconsistent with the Orders of the Court, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 3/13/2012. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KIRK BERNARD COLLIER,

:
:
Plaintiff,
:
:
vs.
:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,:
:
Defendant.
:

CIVIL ACTION 11-0559-M

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. § 1383(c)(3), Plaintiff
seeks judicial review of an adverse social security ruling which
denied a claim for Supplemental Security Income (hereinafter
SSI) (Docs. 1, 14).

The parties filed written consent and this

action has been referred to the undersigned Magistrate Judge to
conduct all proceedings and order the entry of judgment in
accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc.
19).

Oral argument was waived in this action (Doc. 20).

Upon

consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be REVERSED and that this action be REMANDED for further
proceedings not inconsistent with the Orders of the Court.
This Court is not free to reweigh the evidence or
1

substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
evidence.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires "that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance."

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205
(D. Md. 1982).
At the time of the administrative hearing, Plaintiff was
forty-nine years old, had completed a ninth-grade education (Tr.
40), and had previous work experience as a construction worker
(Tr. 41).

In claiming benefits, Collier alleges disability due

to cataracts, headaches, fatigue, hypertension, bronchitis,
shortness of breath, muscle cramps, and pain in his neck, back,
and chest (Doc. 14 Fact Sheet).
The Plaintiff filed a protective application for SSI on
November 13, 2008 (see Tr. 18).

Benefits were denied following

a hearing by an Administrative Law Judge (ALJ) who determined
that although Collier could not perform his past relevant work,
there were specific sedentary jobs which he could perform (Tr.
2

18-30).

Plaintiff requested review of the hearing decision (Tr.

13-14) by the Appeals Council, but it was denied (Tr. 1-6).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
alleges that:

Specifically, Collier

(1) The ALJ did not properly consider his

complaints of pain; (2) the ALJ did not properly consider his
mental limitations and non-exertional limitations; (3) he is not
capable of performing sedentary work; and (4) the ALJ improperly
found that his noncompliance with prescribed treatment
disqualified him from disability (Doc. 14).

Defendant has

responded to—and denies—these claims (Doc. 15).
Collier has claimed that he cannot perform sedentary work
(Doc. 14, pp. 7-9).1

The social security regulations instruct us

that

Sedentary work involves lifting no more
than 10 pounds at a time and occasionally
lifting or carrying articles like docket
files, ledgers, and small tools. Although a
sedentary job is defined as one which
involves sitting, a certain amount of
walking and standing is often necessary in
carrying out job duties. Jobs are sedentary
if walking and standing are required
occasionally and other sedentary criteria
are met.
1

Though Collier raises four claims, it is unnecessary for the
Court to discuss the remaining three claims in light of its ruling on
this one.

3

20 C.F.R. § 404.1567(a) (2011).
The ALJ found that Plaintiff had the residual functional
capacity (hereinafter RFC) to perform:

less than the full range of sedentary work
as defined in 20 C.F.R. 416.967(a). The
claimant can lift and/or carry 10 pounds
occasionally and frequently. He can stand/
walk for 6-hours and sit for 2-hours in an
8-hour workday. The claimant should avoid
work requiring the use of his bilateral
hands for constant handling, fingering and
feeling. He would be limited to those
limitations on a frequent basis. He should
avoid work requiring pushing and/or pulling
of the upper extremities against resistance,
but he can perform reaching with the
bilateral arms. He should avoid
concentrated exposure to extreme cold, heat,
wetness, humidity or noxious, chemical
fumes, dust and gases. He should avoid all
work around moving machinery, unprotected
heights or driving. He could not perform
reading above an elementary level. He would
have some mild-to-moderate impairment due to
pain, medicinal side effects and other
factors. This deficit in concentration,
persistence or pace could be expected to
cause him to be off task or at an
unproductive pace for approximately 5% of
the workday.

(Tr. 20-21).

The Court further notes that, in the concluding

remarks of the determination, the ALJ found that Collier had an
RFC “for the full range of sedentary work” (Tr. 30).
4

At the evidentiary hearing, the ALJ posed hypothetical
questions about Plaintiff’s abilities and limitations to a
vocational expert (hereinafter VE) (Tr. 57-62).

In those

questions, the ALJ told the VE to “assume an individual the same
age, education, work background as the Claimant” (Tr. 57).

The

ALJ further instructed the VE to assume that the individual was
limited to either light or sedentary work, depending on the
hypothetical (see Tr. 57-62).

The VE answered the questions

and, based on that testimony, the ALJ determined that Plaintiff
was capable of specified jobs (Tr. 30).
The problem arises in that the ALJ’s specific RFC falls
outside of the definition of a full range of sedentary work.

In

her hypothetical questions posed to the VE, the ALJ placed
restrictions on Collier’s abilities that were reflected in the
RFC, but she did not state that Collier had the ability to
stand/walk for six hours and sit for two hours during an eighthour day as found in the RFC.
Defendant has asserted that this is a scrivener’s error as
the ALJ has transposed the six and two; the argument is that the
ALJ meant to say that Plaintiff had the ability to stand/walk
for two hours and sit for six hours during an eight-hour day
(Doc. 15, p. 10).

The Government admits the error, though, but
5

further argues that this is no basis for an award of benefits
(Doc. 15, pp. 10-11).
The Court agrees with the Government that an award of
benefits is not appropriate.

However, the Court cannot find

that the ALJ’s opinion is supported by substantial evidence as
long as there is some doubt as to the true intent of the ALJ.
While Defendant may be correct that this is merely a scrivener’s
error, the Court cannot say with certainty that this is so.

As

the questions posed to the VE did not include the abilities
indicated in the RFC, the Court cannot find that the decision is
supported by substantial evidence.
Therefore, it is ORDERED that the action be REVERSED and
REMANDED to the Social Security Administration for further
administrative proceedings consistent with this opinion, to
include, at a minimum, a supplemental hearing for the gathering
of evidence as to what work Collier can perform.

Final judgment

will be entered by separate Order.
DONE this 13th day of March, 2012.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

6