Harrell v. Colvin

Filing 24

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner of Social Security denying plaintiff benefits be REVERSED and REMANDED pursuant to sentence four of 42:405(g) for further proceedings not inconsistent with this decision. Signed by Magistrate Judge Katherine P. Nelson on 5/20/2014. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JEANELLE D. HARRELL,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Civil Action No. 13-00453-N

MEMORANDUM OPINION AND ORDER
Plaintiff Jeanelle Harrell brings this action, pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of
Social Security denying her application for supplemental security income (“SSI”).
The parties have consented to the exercise of jurisdiction by, and this case has been
ordered referred to, the undersigned United States Magistrate Judge for all
proceedings in this Court pursuant to 28 U.S.C. § 636(c). (See Doc. 23.)
Upon consideration of the administrative record (“R.”) (Doc. 18), Harrell’s
brief (Doc. 19), the Commissioner’s brief (Doc. 20), and the arguments presented at
the hearing held May 13, 2014 (cf. Doc. 21), the Court has determined that the
Commissioner’s decision denying Harrell benefits should be REVERSED and
REMANDED for further proceedings not inconsistent with this decision.1

Any appeal taken from this memorandum opinion and order and
simultaneously entered separate judgment shall be made directly to the Eleventh Circuit
Court of Appeals. (See Doc. 23.)
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I.

Procedural Background

Harrell protectively filed an application for SSI on January 4, 2011 (R.
128-133), alleging a disability onset date of December 1, 2009 (see R. 128). Her
application was initially denied. (See R. 70-75.)

A hearing was then conducted

before an Administrative Law Judge on May 10, 2012. (See R. 35-60.)

On July 9,

2012, the ALJ issued a decision finding Harrell not disabled (R. 17-34), and Harrell
sought review from the Appeals Council. The Appeals Council issued its decision
declining to review the ALJ’s determination on August 2, 2013 (see R. 1-6)—making
the ALJ’s determination the Commissioner’s final decision for purposes of judicial
review, see 20 C.F.R. § 404.981—and a complaint was filed in this Court on
September 13, 2013 (see Doc. 1).
II.

Standard of Review and Claim on Appeal

In all Social Security cases, a plaintiff (sometimes referred to herein as a
claimant) bears the burden of proving that he or she is unable to perform his or her
previous work.

Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986).

In

evaluating whether a plaintiff has met this burden, and thus proven that he or she is
disabled, the examiner (most often an ALJ) 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 plaintiff’s age, education, and work
history. Id. An ALJ, in turn,
uses a five-step sequential evaluation to determine whether the
[plaintiff] is disabled, which considers: (1) whether the claimant is
engaged in substantial gainful activity; (2) if not, whether the claimant
has a severe impairment; (3) if so, whether the severe impairment
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meets or equals an impairment in the Listing of Impairments in the
regulations; (4) if not, whether the claimant has the [residual functional
capacity, or] RFC[,] to perform her past relevant work; and (5) if not,
whether, in light of the claimant’s RFC, age, education and work
experience, there are other jobs the claimant can perform.
Watkins v. Commissioner of Soc. Sec., 457 Fed. App’x 868, 870 (11th Cir. Feb. 9,
2012) (per curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f);
Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted).
If a plaintiff proves that he or she cannot do his or her past relevant work, it
then becomes the Commissioner’s burden to prove that the plaintiff is
capable—given his or her age, education, and work history—of engaging in another
kind of substantial gainful employment that exists in the national economy.

Id.;

Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 764 F.2d 834,
836 (11th Cir. 1985). Finally, but importantly, although “the [plaintiff] bears the
burden of demonstrating the inability to return to [his or] her past relevant work,
the Commissioner of Social Security has an obligation to develop a full and fair
record.”

Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted).

The task for this Court, then, is to determine whether the Commissioner’s
decision to deny a plaintiff benefits is supported by substantial evidence.
Substantial evidence is defined as more than a scintilla, and means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971).

“In determining whether

substantial 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.”

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Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).

Courts are precluded,

however, from “deciding the facts anew or re-weighing the evidence.”

Davison v.

Astrue, 370 Fed. App’x 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)).

And, “[e]ven if the evidence

preponderates against the Commissioner’s findings, [a court] must affirm if the
decision reached is supported by substantial evidence.”

Id. (citing Crawford v.

Commissioner of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)) (emphasis
added).
On appeal to this Court, Harrell presents a single reason why the
Commissioner’s decision to deny her benefits is in error (i.e., is not supported by
substantial evidence): at the fifth step of the sequential analysis, the ALJ erred in
applying the medical vocational guidelines (the “grids”) instead of relying on the
testimony of the vocational expert (the “VE”).2
III.

Analysis

The Commissioner concedes that the ALJ erred by relying on the grids, yet
In “certain circumstances,” the use of the grids allows an ALJ to fulfill his or
her step-five duty without obtaining VE testimony. See Justiniano v. Commissioner of Soc.
Sec., No. 6:11–cv–1576–Orl–GJK, 2013 WL 625545, at *4 (M.D. Fla. Feb. 20, 2013) (“In
1978, the Secretary of the Department of Health and Human Services promulgated the
medical vocational guidelines, which may, in certain circumstances, allow an ALJ to
determine at step-five whether a claimant may engage in other kinds of substantial gainful
work existing in significant numbers in the national economy based upon the Claimant’s
age, education, work experience, and RFC without introducing testimony from a VE.” (citing
Heckler v. Campbell, 461 U.S. 458, 460-62 (1983) (in which the Supreme Court stated the
grids were promulgated “[t]o improve both the uniformity and efficiency of [the VE
determination of suitable jobs in the national economy]”))); see also id. (“When the grids are
properly used, there is no need to introduce independent evidence of specific jobs that are
available in significant number that the claimant can perform.” (citing Gibson v. Heckler,
762 F.2d 1516, 1520 (11th Cir. 1985))).
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nevertheless contends that the decision should be affirmed. (See Doc. 20 at 3.)

As

this Court has held, to carry his or her burden at the fifth step of the sequential
analysis, “to establish that Plaintiff could perform other work that exists in the
national economy[,]” an ALJ
can either exclusively rely on the grids when each variable on the
appropriate grid accurately describes the plaintiff’s situation or call a
VE. See Phillips, 357 F.3d at 1239-40. However, exclusive reliance
on the grids is only appropriate when the plaintiff is able to perform a
full range of work at a given functional level or when a plaintiff has
nonexertional impairments that do not significantly limit basic work
skills. Id. at 1243; Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir.
1999); Wolfe v. Chater, 86 F.3d 1072, 1077 (11th Cir. 1996); Walker v.
Bowen, 826 F.2d 996, 1003 (11th Cir. 1987) (“The grids may be used
only when each variable on the appropriate grid accurately describes
the claimant’s situation.”).
Jones v. Astrue, 863 F. Supp. 2d 1142, 1150 (S.D. Ala. 2012) (Bivins, M.J.) (internal
citations modified and footnote omitted); see also Justiniano v. Commissioner of Soc.
Sec., No. 6:11–cv–1576–Orl–GJK, 2013 WL 625545, at *8-9 (M.D. Fla. Feb. 20, 2013)
(“[A]n ALJ must first determine whether a claimant is capable of performing
unlimited types of work or a full range of work at a given exertional level based
solely on the claimant’s exertional limitations. If a claimant’s exertional limitations
are such that he cannot perform a full range of work at the given exertional level, the
ALJ must consult a VE. If a claimant’s exertional limitations permit a full range of
work at a given functional level, then the ALJ must analyze whether the
nonexertional impairments further limits the claimant’s ability to work at that
exertional functional level. . . . If the ALJ determines that the nonexertional
limitations prevent a wide range of work at the exertional level, the ALJ may not

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rely upon the grids as a framework and must consult a VE.” (citing Phillips, 357 F.3d
at 1242-43)).3
Applying this framework, the Court first notes that the ALJ determined
Harrell “has the [RFC] to perform a full range of medium work as defined in 20 CFR
416.967(c) except” for eleven more lines of detailed additional limitations. (R. 24
(emphasis added).)4

Even if all these additional limitations—some related to her

ability to climb and work around heights and her need to “change positions
throughout the workday” (“stand up and move around, walk instead of stand, or sit
instead of walk”)—are classified as strictly nonexertional limitations, they almost
certainly prevent, as is clearly shown in the ALJ’s assigned RFC, a wide range of
work at the assigned (medium) exertional level. See, e.g., Payton v. Astrue, Civil
Action No. 8:10–cv–2276–DCN–JDA, 2012 WL 630218, at *9-11 (D.S.C. Feb. 10,
2012) (in which the ALJ limited the plaintiff to sedentary work, but then “reduced”
As this Court noted in Jones, “[a]n ‘exertional impairment’ for social security
disability purposes is an impairment which places limits on an individual’s ability to meet
job strength requirements[,]” whereas “[n]onexertional limitations affect an individual’s
ability to meet other work-related demands, and include pain, side effects from medications,
colon discomfort, mental impairments, tolerating environmental working conditions,
hearing or speaking, and the inability to walk without an assistive device.” 863 F. Supp. 2d
at 1150 n.11 (citing Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995); Phillips, 357 F.3d
at 1241 & n.11; Watson v. Astrue, 376 Fed. App’x 953, 957 n.7 (11th Cir. Apr. 28, 2010) (per
curiam)).
3

The ALJ determined that Harrell has the following severe impairments:
“interstitial cystitis, history of urinary tract infections and bladder tack, arthralgias,
anxiety, depression, and personality disorder.” (R. 22.) These impairments, recognized as
“severe,” are clearly nonexertional. While the last three listed are mental impairments, the
others are arguably related to “colon discomfort,” in that interstitial cystitis, the Court
notes, is a long-term inflammation of the bladder wall; bladder tack, the Court further notes,
is a surgical procedure performed to reduce leakage in the urinary column and/or due to
urinary incontinence; and arthralgia, the Court also notes, is joint pain.
4

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the RFC “because of some measure of subjective pain to include significant
limitations in the amount she could stand, walk, lift, carry, reach overhead with the
right arm, push/pull, climb, stoop and crouch, considering, in particular, the
relatively minimal exertional requirements of sedentary work as further reduced by
the various additional limitations within the [RFC]”), report and recommendation
adopted, 2012 WL 638734 (D.S.C. Feb. 27, 2012).
In Payton, the court concluded that
while the courts have recognized that not every nonexertional
limitation or malady rises to the level of a nonexertional impairment so
as to preclude reliance on the grids, the proper inquiry is “whether a
given nonexertional condition affects an individual’s residual functional
capacity to perform work of which he is exertionally capable.” There is
no discussion in the ALJ’s decision[—there, just like here (see R.
29)—]regarding the effect of these nonexertional limitations on
Plaintiff’s ability to perform work within a particular grid category.
For these reasons, the Court cannot conclude the ALJ’s decision with
respect to Plaintiff’s ability to perform other work is supported by
substantial evidence, and accordingly, the Court recommends the
Commissioner’s decision be reversed and remanded.
Id. at *11 (quoting Smith v. Schweiker, 719 F.2d 723, 725 (4th Cir.1984)). Thus, the
undersigned agrees with the Commissioner that it was clearly error for the ALJ to
rely on the grids to fulfill her fifth step burden.
The undersigned, however, does not agree with the Commissioner that the
ALJ’s error is harmless. The ALJ failed to carry her burden “to establish that
[Harrell] could perform other work that exists in the national economy[.]”

Jones,

863 F. Supp. 2d at 1150. It is to no avail that the ALJ may have elicited testimony
from a VE at the hearing regarding work Harrell could perform because the ALJ,
for whatever reason, chose not to rely on that testimony in her decision denying
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Harrell benefits. For that reason, the Commissioner’s argument that this Court
should “read between the lines” and affirm the ALJ’s decision anyway because “the
ALJ already obtained vocational expert testimony, which[—counsel for the
Commissioner on appeal, not the ALJ, believes—]clearly established that [Harrell]
was not disabled” (Doc. 20 at 3) must be rejected. See Justiniano, 2013 WL 625545,
at *9 n.10 (“Although the Commissioner acknowledges that the ALJ did not rely
upon the testimony of the VE at step-five, the Commissioner maintains that the VE’s
testimony supports the ALJ’s ultimate findings. However, the Eleventh Circuit has
recently stated that ‘a court may not accept appellate counsel’s post hoc
rationalizations for agency actions,’ and ‘[i]f an action is to be upheld, it must be
upheld on the same bases articulated in the agency’s order.’” (quoting Baker v.
Commissioner of Soc. Sec., 348 Fed. App’x 893, 896 (11th Cir. June 23, 2010) (per
curiam) (citing FPC v. Texaco Inc., 417 U.S. 380, 397 (1974))) (emphasis added)); see
also Messer v. Astrue, No. 5:11–CV–00088–RLV–DSC, 2012 WL 6553125, at *3
(W.D.N.C. Dec. 14, 2012) (also addressing a harmless error argument in context of a
fifth-step determination—“the Court rejects the Commissioner’s harmless-error
argument. A reviewing court ‘must judge the propriety of [agency] action solely by
the grounds invoked by the agency.

If those grounds are inadequate or improper,

the court is powerless to affirm the administrative action by substituting what it
considers to be the more adequate or proper basis.’” (quoting Security & Exch.
Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947))).

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IV.

Conclusion

It is accordingly ORDERED that the decision of the Commissioner of Social
Security denying Harrell benefits be REVERSED and REMANDED pursuant to
sentence four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89 (1991), for
further proceedings not inconsistent with this decision. The remand pursuant to
sentence four of § 405(g) makes the plaintiff a prevailing party for purposes of the
Equal Access to Justice Act, 28 U.S.C. § 2412, see Shalala v. Schaefer, 509 U.S. 292
(1993), and terminates this Court’s jurisdiction over this matter.

DONE and ORDERED this the 20th day of May, 2014.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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