Williams v. Colvin

Filing 20

Order ent. that the decision of the Commissioner of Social Security denying Plaintiffs claim for a period of disability, disability insurance benefits, and supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 8/26/2014. (mjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MELISSA A. WILLIAMS,

*
*
Plaintiff,
*
*
vs.
*
*
CAROLYN W. COLVIN,
*
Commissioner of Social Security,*
*
Defendant.
*

Civil Action No. 13-00415-B

ORDER
Plaintiff

Melissa

A.

Williams

(hereinafter

“Plaintiff”)

brings this action seeking judicial review of a final decision
of the Commissioner of Social Security denying her claim for a
period

of

disability,

disability

supplemental security income

insurance

benefits,

and

under Titles II and XVI of the

Social Security Act, 42 U.S.C. §§ 401, et seq.

On May 1, 2014,

the parties consented to have the undersigned conduct any and
all proceedings in this case. (Doc. 17).

Thus, the action was

referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73.

Upon careful consideration

of the administrative record and the memoranda of the parties,
it is hereby ORDERED that the decision of the Commissioner be
AFFIRMED.

I.

Procedural History
Plaintiff protectively filed an application for a period of

disability,

disability

insurance

benefits,

and

supplemental

security income on June 21, 2010. (Doc. 13 at 1; Tr. 154-61).
Plaintiff alleges that she has been disabled since May 1, 2006
on

account

of

applications
granted
Katie

an
H.

Plaintiff,

her

were

back

pain.

denied

and

administrative
Pierce
her

(Tr.
upon

hearing

(hereinafter

attorney

and

45,
timely

before

“ALJ”)

a

on

vocational

“VE”) attended the hearing. (Id., at 39).

158).

Plaintiff’s

request,

she

was

Administrative

Law

January
expert

4,

2012.

(hereinafter

On March 19, 2012,

the ALJ issued an unfavorable decision finding that Plaintiff is
not

disabled.

(Id.,

at

21-32).

The

Appeals

Council

denied

Plaintiff’s request for review on June 13, 2013. (Id., at 1-3).
Thus, the ALJ’s decision dated March 19, 2012 became the final
decision of the Commissioner.

The parties waived oral argument

and agree that this case is now ripe for judicial review and is
properly before this Court pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). (Docs. 16, 18).
II.

Issue on Appeal
Whether
the
ALJ
erred
in
concluding
that
Plaintiff can return to her past relevant work,
without making specific findings regarding the
physical and mental demands of the work, as
required by SSR 82-62.

2

III. Factual Background
Plaintiff was born on April 11, 1967, and was 44 years of
age at the time of her administrative hearing on January 4,
2012. (Tr. 43).

Plaintiff testified at the hearing that she

completed 13 years of school and last worked as an operator at
International Paper in 2006. (Id.).

According to Plaintiff,

prior to that job, she worked as a cashier at Andrews Hardware
store checking out customers, stocking shelves with light bulbs,
making orders and assisting customers. (Id., at 44).
Plaintiff testified that her main problem is pressure in
her back that radiates down her legs, and causes a “nulling pain
in her left leg”. (Id., at 45-46).

Additionally, Plaintiff

testified that she suffers from headaches every day and that she
has not found anything that relieves the headaches. (Id., at
46).
On Plaintiff’s function report, she reported that her daily
activities include taking care of her personal needs, including
grooming,

with

assistance

from

her

daughter,

watching

television, washing dishes, walking to the mailbox, sitting and
talking with family, and sitting on the back porch watching her
grandson play. (Id., at 202, 205).
she

prepares

frozen

dinners,

Plaintiff also reported that

heats

her

lunch,

and

makes

sandwiches, and that she is able to do some shopping.

With

regard to social activities, Plaintiff reported that she goes to

3

church weekly and sings in the choir one Sunday a month, and
that she sits with her grandchildren and talks on the phone.
(Id., at 47, 206).

Plaintiff further reported that she is able

to lift “maybe 10 lbs” and walk 15-20 minutes at a time. (Id.,
at 207).
In addition to the foregoing facts, the ALJ discussed the
medical evidence and made the following relevant findings:
The claimant has the following severe impairments:
lumbar
spondylosis;
lumbar
radiculitis;
and
migraine
headaches
(20
CFR
404.1520(c)
and
416.920(c))1.
The claimant also suffers from obesity. However, the
medical evidence of record does not support a
finding that this impairment causes more than a
minimal limitation in the claimant’s ability to
perform basic work activities. Therefore, it is a
non-severe impairment. Nevertheless, the undersigned
considered this impairment when developing the
residual functional capacity described below.
...
(Id.,

at

26-27).

With

respect

to

Plaintiff’s

RFC,

the

ALJ

stated as follows:
After careful consideration
the undersigned finds that
residual capacity to perform
in 20 CFR 404.1567(b) and
1

of the entire record,
the claimant has the
light work as defined
416.967(b) except the

The ALJ also determined that Plaintiff has not engaged in
substantial gainful activity since May 1, 2006, and that she
does not have an impairment or combination of impairments that
meets or medically equals any of the listed impairments
contained in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id., at
26, 27).

4

claimant is limited to work which will require the
claimant to:
occasionally push/pull hand and foot
controls; occasionally stoop, kneel, crouch, crawl,
balance
and
climb
ramps/stairs;
never
climb
ladders/ropes/scaffolds; work in a well-ventilated
area; have concentrated exposure of no more than 5
minutes to fumes, odors, gases and temperature
extremes; never work around unprotected heights;
and never operate dangerous equipment or automotive
equipment.
In making this finding, I have considered all
symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the
objective medical evidence and other evidence,
based on the requirements of 20 CFR 404.1529 and
416.929 and SSRs 96-4p and 96-7p. The undersigned
has also considered opinion evidence in accordance
with the requirements of 20 CFR 404.1527 and
416.927 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p.
...
In sum, the above residual functional capacity
assessment is supported by the medical evidence of
record, medical opinions as discussed above, the
medical course of treatment established by the
record, the claimant’s activities of daily living,
and the claimant’s work history.
(Id., at 27-30).
After outlining Plaintiff’s RFC assessment, the ALJ found
Plaintiff capable of performing her past relevant work as a
cashier.

He explained as follows:

The claimant is capable of performing past relevant
work as a cashier (DOT Code 211.462-010). This work
does not require the performance of work-related
activities precluded by the claimant’s residual
functional capacity (20 CFR 404.1565 and 416.965).
The vocational expert testified the claimant’s past
relevant work includes working as a cashier.
He
testified this is a light, semi-skilled occupation.
5

The vocational expert testified a hypothetical
individual with the claimant’s vocational profile
(i.e. same age, education, work experience, and
residual functional capacity) would be able to
perform the duties of this occupation.
(Id., at 30-31).
In

addition

to

finding

that

Plaintiff

is

capable

of

performing her past relevant work as a cashier, the ALJ made
alternative
testimony,

findings
the

at

ALJ

step

five.
that

concluded

Relying

on

considering

the

VE’s

Plaintiff’s

residual functional capacity for a reduced range of light work,
as well as her age, education, and work experience, there are
other jobs existing in the national economy that Plaintiff is
able to perform, such as a companion, a teacher’s aid, and a
desk

clerk.

(Id.,

at

31-32).

The

ALJ

thus

concluded

that

Plaintiff is not disabled. (Id., at 32).
IV.

Analysis
A.

Standard of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

determining

limited
1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.2 Martin v. Sullivan, 894 F.2d 1520,

2

This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).

6

1529 (11th Cir. 1990).

A court may not decide the facts anew,

reweigh the evidence, or substitute its judgment for that of the
Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir.
1986).

The Commissioner’s findings of fact must be affirmed if

they are based upon substantial evidence. Brown v. Sullivan, 921
F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983) (holding substantial evidence
is

defined

as

preponderance”
reasonable

“more
and

person

conclusion.”).

than

a

consists

of

would

In

scintilla,
“such

accept

determining

as

but

relevant
adequate

whether

less

than

evidence
to

as

support

substantial

a
a
a

evidence

exists, a court must view the record as a whole, taking into
account

evidence

favorable,

as

well

as

unfavorable,

to

the

Commissioner’s decision. Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

prove

404.1512, 416.912.

his

or

her

disability.

20

C.F.R.

§§

Disability is defined as the “inability to

engage in 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

7

months.”

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

423(d)(1)(A);

a

The

see

Social

sequential

also

20

Security

evaluation

C.F.R.

§§

regulations
process

for

determining if a claimant has proven his disability. 3 20 C.F.R.
§§ 404.1520, 416.920.
In

this

case,

Plaintiff

asserts

that

the

ALJ

erred

in

summarily concluding that she can return to her past relevant
work

as

a

cashier

without

making

any

specific

findings

or

analysis regarding the physical and mental demands of the work
3

The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
or
equals
a
listed
impairment,
then
the
claimant
is
automatically found disabled regardless of age, education, or
work experience.
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the
examiner must consider the following four factors: (1) objective
medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age,
education and work history. Id.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
kind
of
substantial
gainful
employment
which
exists
in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

8

as required by SSR 82-62. (Doc. 13 at 2).

Defendant contends

that based on the ALJ’s reference to the DOT’s description of
the demands of cashier work coupled with the ALJ’s reference to
the VE’s testimony that a hypothetical person with Plaintiff’s
RFC can perform cashier work, the ALJ properly analyzed the job
demands of the cashier work. (Doc. 14 at 6).

The Court agrees.

A plaintiff bears the burden of showing that she can no
longer perform her past relevant work as she actually performed
it, or as it is performed in the general economy. Waldrop v.
Comm’r. of Soc. Sec., 379 F. App’x 948, 953 (11th Cir. 2010).
Even though a plaintiff has the burden of showing she can no
longer perform her past relevant work, the Commissioner has the
obligation to develop a full and fair record. Schnorr v. Bowen,
816

F.2d

578,

581

(11th

Cir.

1987)

(citations

omitted).

To

develop a full and fair record, an ALJ must consider all of the
duties of that past relevant work and evaluate a plaintiff’s
ability

to

perform

the

past

relevant

work

in

spite

of

the

impairments. Levie v. Comm’r of Soc. Sec., 514 F. App’x 829, 831
(11th Cir. 2013) (citing Lucas v. Sullivan, 918 F.2d 1567, 1574
n.3 (11th Cir. 1990).
SSR 82-62 requires the ALJ to make the “following specific
findings of fact: 1. A finding of fact as to the individual’s
RFC. 2. A finding of fact as to the physical and mental demands
of

the

past

job/occupation.

3.

9

A

finding

of

fact

that

the

individual’s RFC would permit a return to his or her past job or
occupation.”

A plaintiff is the primary source for vocational

documentation, and “statements by the claimant regarding past
work are generally sufficient for determining the skill level;
exertional demands and nonexertional demands of such work.” Id.
As noted, the plaintiff must show that she is not “able to
perform [her] past kind of work, not that [s]he merely [is]
unable

to

perform

a

specific

job

[s]he

held

in

the

past.”

Douglas v. Comm’r of Soc. Sec., 486 F. App’x 72, 74 (11th Cir.
2012).
The

undersigned

Plaintiff

has

not

notes,

pointed

to

as

a

threshold

anything

in

the

matter,

that

record,

which

indicates that she cannot perform any of the requirements of the
cashier

job

either

as

she

performed

it,

or

as

it

is

being

performed in the general economy. Nobles v. Astrue, 2009 U.S.
Dist. LEXIS 9389 (M.D. Ala. Feb. 5, 2009) (where the claimant
failed to identify any requirements of past relevant work that
she

was

unable

to

perform,

she

did

not

meet

burden

of

demonstrating an inability to return to her past relevant work).
Moreover, the Court finds that the ALJ adequately explained her
determination that Plaintiff could return to her previous work
as a cashier.

A review of the record reflects that Plaintiff

herself provided the vocational documentation for the cashier
position as required by SSR 82-62, through her submission of the

10

work history report, and in her testimony at the administrative
hearing before the ALJ. (Tr. 43-44, 167, 170).
the

administrative

hearing,

Plaintiff

Indeed, during

testified

that

while

employed at Andrews Hardware, she worked as a cashier and her
duties included mainly checking out customers, stocking shelves
with light bulbs, making orders, and assisting customers (Id.,
at 43-44).

In her work history report, Plaintiff reported that

her cashier work required her to lift up to 20-50 pounds, with
frequent

lifting

of

up

to

10

pounds.

(Id.,

at

170).

This

evidence clearly demonstrates that a description of Plaintiff’s
past work as a cashier was obtained from Plaintiff, just as the
Social Security regulations allow. See SSR 82-62; 20 C.F.R. §
404.1560(b)(2) (“We will ask you for information about work you
have done in the past.”).
Additionally, the ALJ relied on the testimony of a VE, who
had

the

benefit

of

both

Plaintiff’s

testimony

and

her

work

history report, and opined that Plaintiff’s RFC permitted her to
return to her past relevant work as a cashier. (Tr. 55-56).

The

ALJ also referenced the DOT, which provides documentation on the
skill level and exertional demands of cashier work. DOT Code
211.462-010.
The ALJ complied with the requirements of SSR 82-62 by
determining Plaintiff’s RFC based on Plaintiff’s testimony and
the

medical

evidence,

obtaining

11

a

description

of

Plaintiff’s

past work as a cashier from Plaintiff herself and other sources,
and specifically finding that Plaintiff retains the RFC to meet
the physical and mental demands of her past work.
Plaintiff

has

failed

to

identify

—

much

less

As noted,

show

—

which

requirements of her past relevant work she is unable to perform.
Accordingly, she has not met her burden to prove that she is
disabled.
Furthermore, assuming arguendo that the ALJ erred by not
providing

a

Plaintiff’s

more
past

exhaustive

work,

analysis

Plaintiff

prove that she is disabled.

has

of

the

demands

nevertheless

failed

of
to

In her decision, the ALJ made

alternative findings at step five.

Relying on the testimony of

the VE, the ALJ determined that Plaintiff retains the residual
functional capacity to perform the light, un-skilled jobs of
companion, teacher’s aid, and desk clerk. (Tr. 57).

In her

brief, Plaintiff does not challenge the ALJ’s RFC assessment of
a reduced range of light work or her finding that there are
other jobs in the national economy that she can perform with the
RFC.

Because the ALJ’s findings are supported by substantial

evidence of record, the Court must affirm the ALJ’s decision
denying Plaintiff’s request for benefits, as the alleged error
regarding
Heckler,
incorrect

SSR
721

82-62
F.2d

would

726,

application

of

be

728
the

harmless

(11th

Cir.

regulations

12

at
1983)

best.

Diorio

(when

results

in

an

v.

ALJ’s

harmless

error because the correct application would not contradict the
ALJ’s ultimate findings, the ALJ’s decision will stand).
V.
For

Conclusion
the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for a
period

of

disability,

disability

insurance

benefits,

and

supplemental security income be AFFIRMED.
DONE this 26th day of August, 2014.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

13