Morrison v. Astrue

Filing 21

MEMORANDUM OPINION AND ORDER entered, Upon consideration of the administrative record, the memoranda of the parties, and oral argument, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 5/22/2012. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VALERIE ANN MORRISON,

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

CIVIL ACTION 11-0581-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, 12).

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.
20).

Oral argument was waived in this action (Doc. 19).

Upon

consideration of the administrative record, the memoranda of the
parties, and oral argument, it is ORDERED that the decision of
the Commissioner be AFFIRMED and that this action be DISMISSED.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
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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
fifty years old and had completed some college coursework (Tr.
34). In claiming benefits, Morrison alleges disability due to
diabetes mellitus, hypertension, obesity, and possible foot
neuropathy (Doc. 12 Fact Sheet).
The Plaintiff filed a protective application for SSI on
March 19, 2009 (Tr. 123-25; see Tr. 17).

Benefits were denied

following a hearing by an Administrative Law Judge (ALJ) who
determined that Morrison was capable of returning to her past
relevant work as well as other jobs in the national economy (Tr.
17-25).

Plaintiff requested review of the hearing decision (Tr.

8-9, 12-13) by the Appeals Council, but it was denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
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supported by substantial evidence.
alleges that:

Specifically, Morrison

(1) The ALJ did not properly assess her residual

functional capacity; and (2) she cannot return to her past
relevant work (Doc. 12).

Defendant has responded to—and denies—

these claims (Doc. 15).
Morrison first claims that the ALJ did not properly assess
her residual functional capacity (hereinafter RFC), arguing that
there is no medical evidence to support the ALJ’s findings (Doc.
12, pp. 8-17).

In her brief before the Court, Morrison

summarized the evidence provided by the one-time consultative
examiner, Dr. Elmo Ozment, Jr., noting that no physical
capacities evaluation was provided even though the ALJ gave the
opinion significant evidentiary weight (Doc. 12, pp. 9-10; cf.
Tr. 23, 216-19).

Plaintiff also pointed out that the only

physical capacities evaluation of record was completed by a nonexamining physician, Dr. Gregory K. Parker (Doc. 12, pp. 10-11;
cf. Tr. 221-28).
In reaching his decision, the ALJ found that Morrison had
the RFC “to perform light work as defined in 20 C.F.R.
416.967(b) except mild to moderate postural limitations; mild to
moderate manipulative limitations” (Tr. 19).
been defined as follows:
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Light work has

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.

20 C.F.R. § 416.967(b) (2011).

As pointed out by Plaintiff, the

ALJ gave significant evidentiary weight to the opinion of Dr.
Ozment and noted that the opinion of Dr. Parker supported his
RFC findings (Tr. 23).
The Court notes that the ALJ is responsible for determining
a claimant=s RFC.

20 C.F.R. ' 416.946 (2011).

The Court also

notes that the social security regulations state that Plaintiff
is responsible for providing evidence from which the ALJ can
make an RFC determination.

20 C.F.R. § 416.945(a)(3).1

The

Court further notes that the burden is on the claimant to prove

1

The Court notes that this regulation also states that the ALJ is
responsible for developing the claimant’s complete medical history.
Though Morrison has asserted that the ALJ failed in this regard, the

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that she is disabled.

See 20 C.F.R. § 416.912(a) (2011); see

also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).
In this action, Morrison has not directed this Court’s
attention to any medical evidence which disputes the ALJ’s RFC
findings; Plaintiff has not even questioned the findings of
either Drs. Ozment or Parker.

Rather, Morrison has only

questioned the correctness of the ALJ’s conclusion that she can
perform a reduced range of light work.

Without more, Morrison’s

claim must fail.
Plaintiff also claims that she cannot return to her past
relevant work.

More specifically, Morrison asserts that the ALJ

incorrectly found that she had past relevant work as a teacher’s
aide (Doc. 12, pp. 3-8).
With regard to a claimant's past work, the Eleventh Circuit
Court of Appeals has held that

[a]lthough a claimant bears the burden of
demonstrating an inability to return to his past
relevant work, the Secretary has an obligation to
develop a full and fair record. Nelms v. Bowen, 803
F.2d 1164, 1165 (11th Cir. 1986); Cowart v. Schweiker,
662 F.2d 731, 735 (11th Cir. 1981). Where there is no
evidence of the physical requirements and demands of
the claimant's past work and no detailed description
of the required duties was solicited or proffered, the
Secretary cannot properly determine whether the
Court finds no merit in the claim, noting that there is sufficient
evidence from which the ALJ was able to form his decision.

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claimant has the residual functional
capacity to perform his past relevant work.
Nelms, 803 F.2d at 1164.

Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987).
The ALJ specifically found that Morrison could return to
her past relevant work as a teacher’s aide, noting that she had
performed it within the past fifteen years and for long enough
for her to know how to perform it (Tr. 23).

Defendant has

conceded, in his brief before the Court, that Plaintiff has not
performed this work within the past fifteen years (Doc. 15, p.
11; cf. Tr. 135, 143), but correctly notes that the ALJ went on
to find, based on evidence provided by a vocational expert, that
there were other jobs in the national economy which she could
perform.

Specifically, the ALJ found that Plaintiff could

perform the light work jobs of housekeeper, mail clerk (nonpostal), and cafeteria attendant (Tr. 24-25).
Plaintiff has correctly shown that the ALJ’s determination
that she could perform her past work as a teacher’s aide was in
error.

However, it was only harmless error.

In light of the

ALJ’s alternative finding that there were specific jobs which
she could do, the Court finds that Morrison’s claim is without
merit.
Plaintiff has raised two different claims in bringing this
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action.

Both are without merit.

Upon consideration of the

entire record, the Court finds "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion."

Perales, 402 U.S. at 401.

Therefore, it is

ORDERED that the Secretary's decision be AFFIRMED, see
Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), and
that this action be DISMISSED.

Judgment will be entered by

separate Order.
DONE this 22nd day of May, 2012.

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

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