Penn v. Colvin

Filing 24

MEMORANDUM OPINION AND ORDER entered. Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out in order. Signed by Magistrate Judge Bert W. Milling, Jr on 11/18/2013. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHARLES E. PENN,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commission of Social Security,
Defendant.

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CIVIL ACTION 13-0082-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g), Plaintiff seeks
judicial review of an adverse social security ruling which
denied a claim for disability insurance benefits (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. 23).
argument was waived in this action (Doc. 22).

Oral

Upon

consideration of the administrative record and the memoranda of
the parties, 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
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

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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
sixty-two years old, had completed a high school education1 (Tr.
41), and had previous work experience as a security guard,
general laborer, and a maintenance repairer (Tr. 55).

In

claiming benefits, Plaintiff alleges disability due to
degenerative changes of the knees and hypertension (Doc. 14 Fact
Sheet).
The Plaintiff filed an application for disability benefits
on January 25, 2010 (Tr. 109-12; see also Tr. 26).

Benefits

were denied following a hearing by an Administrative Law Judge
(ALJ) who determined that Penn was capable of performing his
past relevant work as a security guard (Tr. 26-33).

Plaintiff

requested review of the hearing decision (Tr. 21-22) by the
Appeals Council, but it was denied (Tr. 1-5).

1Error!
 Main
 Document
 Only.Plaintiff testified that he had received a

Graduate Equivalency Degree (Tr. 41).

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Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Penn alleges

(1) The ALJ erred in finding that although he could only

work for six hours of an eight-hour day, he was nonetheless not
disabled; (2) the ALJ’s residual functional capacity assessment
is unsupported by the evidence; and (3) the ALJ improperly
rejected the conclusions of his treating physician (Doc. 14).
Defendant has responded to—and denies—these claims (Doc. 18).
Penn’s first claim is that the ALJ erred in finding that
although he could only work for six hours of an eight-hour day,
he was nonetheless not disabled (Doc. 14).

This claim is based

on the following language in the ALJ’s decision:
After careful consideration of the
entire record, the undersigned finds that,
through the date last insured, the claimant
had the residual functional capacity to
perform light work as defined in 20 C.F.R.
404.1567(b). The claimant is limited to
lifting and carrying 20 pounds occasionally
and 10 pounds frequently. He can sit, stand
and/or walk, with normal breaks for a total
of 6-hours during an 8-hour workday. He
should not perform pushing or pulling of leg
controls. He should never climb ladders,
ropes, or scaffolds. He can only
occasionally climb ramps/stairs, crouch,
kneel or crawl. Due to potential medication
side effects and hypertension, the claimant
should not work at unprotected heights. Due
to effects and hypertension, the claimant
should not work at unprotected heights. Due
to pain, potential medicinal side effects,
and other factors, the claimant could be
expected to have some mild to moderate

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impairment in terms of concentration,
persistence and pace, which could cause him
to be off task for a non-productive pace for
up to 5% of the workday.
(Tr. 29) (emphasis added).
Social security regulations state that “[o]rdinarily,
[residual functional capacity] is an assessment of an
individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing
basis.

A ‘regular and continuing basis’ means 8 hours a day,

for 5 days a week, or an equivalent work schedule.”
Titles II and XVI:

SSR 96-8p,

Assessing Residual Functional Capacity in

Initial Claims, 1996 WL 374184, *1 at ¶ 1.
The ALJ’s RFC finding clearly states that Penn “can sit,
stand and/or walk, with normal breaks, for a total of 6-hours
during an 8-hour day” (Tr. 29).

This is less than full-time

employment and does not satisfy the requirements of SSR 96-8p.
The Commissioner

“acknowledge[s] that the ALJ failed to

specify that Plaintiff could both sit for six hours and stand
and/or walk for six hours in an eight-hour workday” (Doc. 18, p.
6).

However, the Government argues that this language is merely

a scrivener’s error as “the ALJ did not intend to limit
Plaintiff to part-time work” (Doc. 18, p. 6).

Defendant goes on

to argue that this action should not be remanded in light of the
millions of claims handled annually by the Social Security

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Administration.
The Government may, in fact, be correct in arguing that
this may be an error on the ALJ’s part.

The Court notes,

however, that Penn raised this claim in a brief to the Appeals
Council (Tr. 157; see generally Tr. 156-58).

The Appeals

Council found no basis for changing the ALJ’s decision while
acknowledging that it was aware of Plaintiff’s claim (Tr. 1-5).
This Court is charged with reviewing the ALJ’s decision and
determining whether that decision, as rendered, is supported by
the substantial evidence of record.

The Court cannot say that

that the ALJ’s decision that Penn can return to his past
relevant work as a security guard is supported by the evidence
of record if he can only work six hours per day.
Based on review of the entire record, the Court finds that
the Commissioner's decision is not 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 of what work Plaintiff can perform.

Judgment will

be entered by separate Order.
DONE this 18th day of November 2013.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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