Blackwell v. Colvin

Filing 25

MEMORANDUM OPINION AND ORDER that the Commissioner's decision denying plaintiff benefits is REVERSED and REMANDED pursuant to sentence four of 42:405(g) for further proceedings. Signed by Magistrate Judge Katherine P. Nelson on 11/18/2014. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
HAROLD G. BLACKWELL,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Civil Action No. 13-00564-N

MEMORANDUM OPINION AND ORDER
Plaintiff Harold G. Blackwell (“Blackwell”) has brought this action under 42
U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision of the
Commissioner of Social Security (“the Commissioner”) denying his application for
disability insurance benefits (“DIB”) and supplemental security income (“SSI”). By the
consent of the parties (see Doc. 22), the Court has designated the undersigned United
States Magistrate Judge to conduct all proceedings and order the entry of judgment in
this civil action under 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.1 (See
Doc. 24).
With leave of the Court, the parties have jointly waived oral argument. (See
Docs. 21, 23). Upon consideration of the administrative record (hereinafter cited as “R.
[page number(s)]”) (Docs. 12-15) and the parties’ briefs (Docs. 16, 19), the Court finds
that the Commissioner’s decision denying Blackwell benefits is due to be REVERSED
and REMANDED.

Thus, an appeal taken from the judgment entered in this action may be made directly to
the Eleventh Circuit Court of Appeals. See § 636(c)(3); Fed. R. Civ. P. 73(c).

1

I.

Procedural Background

On March 17, 2010, Blackwell filed an application for DIB2 and SSI3 (R. 210-74),
alleging disability due to paranoid schizophrenia/anxiety stress disorder and arthritis
with an onset date of November 1, 2006 (see R. 210, 214, 251). After his application
was initially denied on June 3, 2010 (R. 159-63), Blackwell timely requested a hearing
(R. 165-67). A hearing on Blackwell’s application was held before an Administrative
Law Judge (“ALJ”) in Mobile, Alabama, on August 16, 2011, at which Blackwell
appeared and testified.

(See R. 101-26).

On August 25, 2011, the ALJ issued an

unfavorable decision on Blackwell’s application, finding that Blackwell was not disabled
as defined in the Social Security Act. (R. 32-46). Blackwell requested review of the
ALJ’s decision by the Appeals Council (see R. 31). On October 16, 2013, the Appeals
Council issued its decision declining review (R. 1-7), thus making the ALJ’s decision the
Commissioner’s final decision. See 20 C.F.R. § 404.981 (2014) (“The Appeals Council's
decision, or the decision of the administrative law judge if the request for review is
denied, is binding unless you or another party file an action in Federal district court, or
the decision is revised. You may file an action in a Federal district court within 60 days
after the date you receive notice of the Appeals Council's action.”); Crow v. Comm'r,
Soc. Sec. Admin., No. 13-14813, 2014 WL 3035602, at *3 (11th Cir. July 7, 2014) (per
curiam) (unpublished) (“When the Appeals Council denies review of the ALJ's decision,
we review the ALJ's decision as the Commissioner's final decision.” (citing Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001)).

2

Under Title II of the Social Security Act, 42 U.S.C. §§ 401-433.

3

Under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c.

2

On November 18, 2013, Blackwell timely filed this action for judicial review of
the Commissioner’s final decision under § 405(g). (See Doc. 1).
II.

Standard of Review

In all Social Security cases, a plaintiff (sometimes referred to as a claimant)
bears the burden of proving that he or she is unable to perform his or her previous
work. 4 Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether
that burden has been met, and thus whether a claimant has 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, see id.; and, in
turn,
uses a five-step sequential evaluation to determine whether the claimant
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 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
4

The Social Security Act's general disability insurance benefits program
(“DIB”) provides income to individuals who are forced into involuntary,
premature retirement, provided they are both insured and disabled,
regardless of indigence. See 42 U.S.C. 423(a). The Social Security Act's
Supplemental Security Income (“SSI”) is a separate and distinct program.
SSI is a general public assistance measure providing an additional resource
to the aged, blind, and disabled to assure that their income does not fall
below the poverty line. Eligibility for SSI is based upon proof of indigence and
disability. See 42 U.S.C. 1382(a), 1382c(a)(3)(A)-(C). However, despite the fact
they are separate programs, the law and regulations governing a claim for
DIB and a claim for SSI are identical; therefore, claims for DIB and SSI are
treated identically for the purpose of determining whether a claimant is
disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.1 (11th Cir.1986).
Sanders v. Astrue, Civil Action No. 11-0491-N, 2012 WL 4497733, at *3 (S.D. Ala. Sept. 28,
2012).

3

claimant’s RFC, age, education and work experience, there are other jobs
the claimant can perform.
Watkins v. Comm’r of Soc. Sec., 457 F. 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).5
If, in steps one through four of the above-articulated five-step evaluation, a
plaintiff proves that he or she cannot do his or her past relevant work, it then becomes
the Commissioner’s burden, at the fifth step, 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 on judicial review 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.”
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Courts are precluded, however,
The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing individual
steps of this five-step sequential evaluation.

5

4

from “deciding the facts anew or re-weighing the evidence.” Davison v. Astrue, 370 F.
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. Comm’r of Soc. Sec., 363 F.3d 1155, 115859 (11th Cir. 2004)) (emphasis added).
III.

Claims on Appeal

(1)

“The ALJ reversibly erred in awarding ‘significant weight’ to the opinion
of examining professional, John S. Marshall, III, certified counselor but
failing to address the portions of Mr. Marshall’s opinion that state
[Blackwell] would often have deficiencies of concentration, persistence,
and pace, that [Blackwell] would have repeated expected episodes of
decompensation, and that [Blackwell] would have a marked limitation in
completing work-related tasks in a normal workday or workweek.” (Doc.
16 at 1-2).

(2)

“The ALJ reversibly erred in failing to ask the vocational expert a
question that fully encompassed [Blackwell]’s residual functional
capacity…” (Id. at 2).
IV.

Analysis

First Claim of Error
At Step Four,
the ALJ must assess: (1) the claimant's residual functional capacity
(“RFC”); and (2) the claimant's ability to return to her past relevant work.
20 C.F.R. § 404.1520(a)(4)(iv). As for the claimant's RFC, the regulations
define RFC as that which an individual is still able to do despite the
limitations caused by his or her impairments. 20 C.F.R. § 404.1545(a).
Moreover, the ALJ will “assess and make a finding about [the claimant's]
residual functional capacity based on all the relevant medical and other
evidence” in the case. 20 C.F.R. § 404.1520(e). Furthermore, the RFC
determination is used both to determine whether the claimant: (1) can
return to her past relevant work under the fourth step; and (2) can adjust
to other work under the fifth step, discussed below. 20 C.F.R. §
404.1520(e).
If the claimant can return to her past relevant work, the ALJ will

5

conclude that the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv)
& (f). If the claimant cannot return to her past relevant work, the ALJ
moves on to step five.
In determining whether [a claimant] can return to her past relevant work,
the ALJ must determine the claimant's RFC using all relevant medical
and other evidence in the case. 20 C.F.R. § 404.1520(e). That is, the ALJ
must determine if the claimant is limited to a particular work level. See
20 C.F.R. § 404.1567.4 Once the ALJ assesses the claimant's RFC and
determines that the claimant cannot return to her prior relevant work,
the ALJ moves on to the fifth, and final, step.
Phillips, 357 F.3d at 1238-39 (footnote omitted).
The ALJ, “[a]fter careful consideration of the entire record,…f[ound] that
[Blackwell] has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except [Blackwell] can only perform work that will
allows [sic] for mildly to moderately impairment [sic] in responding appropriately to
supervision, co workers and work pressures in a work setting[, and] is limited to
performing simple routine repetitive task [sic] with no more than occasional interaction
with others…”6 (R. 38-39).
In making this determination, the ALJ “considered all symptoms and the extent
to which these symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence,” as well as “opinion evidence,” based on the
requirements of relevant regulations and agency rulings.

The ALJ specifically

considered, inter alia, the testimony of Blackwell and the reports of Dr. John W. Davis
and Mr. John S. Marshall, III.
Regarding Mr. Marshall, the ALJ’s decision stated as follows:

“To determine the physical exertion requirements of different types of employment in the
national economy, the Commissioner classifies jobs as sedentary, light, medium, heavy, and
very heavy.” Phillips, 357 F.3d at 1239 n.4.

6

6

Reporting on the Mental Status Examination of July 13, 2009, John S.
Marshall III, a Nationally Certified Counselor, reported that the claimant
has Schizophrenia, Paranoid Type (by history), and Alcohol Abuse (by
history). He assigned the claimant a Global Assessment of Functioning
Score of 65. In the Diagnostic and Statistical Manual of Mental
Disorders-Fourth Edition (DSV-IV, [sic] it stipulates that a GAF score
of 51 through 60 is indicative of moderate limitations in social, academic
or occupational functioning. A GAF score of 64 is indicative of “mild”
limitations in this areas [sic], which coincide, with the assessment of Dr.
Davis.[7] Moreover, Mr. Marshall in fact stated that the claimant had
mild limitations in maintaining concentration, persistence or pace
resulting in failure to complete tasks. He also opined that the claimant
would have mild difficulties in responding appropriately to supervisors
and to co-workers. He felt, however, that the claimant would “likely”
experience moderate difficulties responding appropriately to work
pressure primarily based on the intensity and place of episodes of his
schizophrenia. He added that simple tasks would pose mild problems for
him. Intricate and detailed repetitive tasks would likely result in
moderate difficulties (Exhibit B-6F).
The assessment is afforded
significant weight.
(R. 39-40).
Blackwell argues that “[a] full reading of the Mental Residual Functional
Capacity Evaluation completed by Counselor Marshall shows that []he opined that
[Blackwell], secondary to his schizophrenia, would often have deficiencies of
concentration, persistence, and pace, that [Blackwell] would have repeated expected
episodes of decompensation, and that [Blackwell] would have a marked limitation in
completing work-related tasks in a normal workday or workweek.” (Doc. 16 at 3 (citing
R. 333-43)). Blackwell claims that “[i]f, as stated in the opinion, significant weight was
given to Mr. Marshall’s report, these limitations would significantly erode the
occupational based [sic].” (Id.). Thus, Blackwell argues, remand is warranted because
“[m]ore clarification is needed on what weight was given the entirety [sic] to Mr.

Clinical psychologist John Davis, Ph.D., conducted a consultative mental examination of
Blackwell on May 5, 2009. (R. 328-32).

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Marshall’s report.” (Id.).
As the Commissioner points out, a certified counselor such as Mr. Marshall is
not included in the Social Security regulations as an “acceptable medical source[] to
establish whether [a claimant] ha[s] a medically determinable impairment(s)…” 20
C.F.R. § 404.1513(a) (emphasis added).

See also 20 C.F.R. § 416.913(a); Crawford v.

Comm'r Of Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) (per curiam) (“[T]he ALJ's
decision to discount chiropractor Reckford's opinion was supported by substantial
evidence…First, Reckford is not considered an ‘acceptable source’ and, thus, his opinion
cannot establish the existence of an impairment. See 20 C.F.R. §§ 404.1513(a),
416.913(a) (excluding chiropractors from the list of ‘acceptable medical sources’ whose
opinions may be considered in determining the existence of an impairment).”); Szilvasi
v. Comm'r, Soc. Sec. Admin., 555 F. App'x 898, 901 (11th Cir. 2014) (per curiam) (“As a
preliminary matter, because McCartney is a therapist, not a physician, his opinions are
not an acceptable medical source to establish the existence of a medical impairment.
See 20 C.F.R. § 404.1513(a), (d)(1).”).
Pursuant to the regulations, in addition to evidence from acceptable
medical sources, the ALJ “may also use evidence from other sources to
show the severity” of the claimant's impairment and how it affects her
ability to work. 20 C.F.R. § 404.1513(d)…Social Security Ruling 06–03p
provides that
Although there is a distinction between what an adjudicator must
consider and what the adjudicator must explain in the disability
determination or decision, the adjudicator generally should explain
the weight given to opinions from these “other sources,” or
otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer
to follow the adjudicator's reasoning, when such opinions may have
an effect on the outcome of the case.
SSR 06–03p.

8

De Olazabal v. Soc. Sec. Admin., Com'r, No. 13-15285, 2014 WL 4364889, at *4 (11th
Cir. Sept. 4, 2014) (per curiam) (unpublished).8 “The ruling states that the factors
outlined for determining the weight to afford a medical opinion in 20 C.F.R. §§
404.1527(d) and 416.927(d)[9], ‘can be applied to opinion evidence from “other sources,”
[’] and ‘these factors represent basic principles that apply to consideration of all
opinions from medical sources who are not “acceptable medical sources.” [’]
Additionally, ‘[t]he evaluation of an opinion from a medical source who is not an
“acceptable medical source” depends on the particular facts in each case’ and ‘[n]ot
every factor for weighing opinion [ ] evidence will apply in every case.’ ” Butler v.
Astrue, Civil Action No. 11-00295-C, 2012 WL 1094448, at *3 (S.D. Ala. Mar. 30, 2012)
(quoting SSR 06–03p, 2006 WL 2329939, at *4 (Aug. 9, 2006)) (Cassady, M.J.) (internal
citation and some quotations omitted). The relevant weighing factors include:
• How long the source has known and how frequently the source has seen
the individual;
• How consistent the opinion is with other evidence;
• The degree to which the source presents relevant evidence to support an
opinion;
• How well the source explains the opinion;
• Whether the source has a specialty or area of expertise related to the
individual's impairment(s); and
“ ‘Social Security Rulings are agency rulings published under the authority of the
Commissioner of Social Security and are binding on all components of the Administration.’
Sullivan v. Zebley, 493 U.S. 521, 531 n.9, 110 S. Ct. 885, 891 n.9, 107 L. Ed. 2d 967 (1990)
(internal quotations omitted). Although SSA rulings are not binding on this Court, we
accord the rulings deference. See Fair v. Shalala, 37 F.3d 1466, 1468–69 (11th Cir. 1994).”
De Olazabal, 2014 WL 4364889, at *4.

8

In the most current versions of 20 C.F.R. §§ 404.1527 and 416.927 (effective Aug. 24,
2012), the weighing factors are in section (c) rather than (d).

9

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• Any other factors that tend to support or refute the opinion.
SSR 06-03P, 2006 WL 2329939, at *4-5.
Contrary to Blackwell’s assertion, the ALJ at Step Four specifically noted
Marshall’s

finding

that

Blackwell

“had

moderate

limitations

in

maintaining

concentration, persistence or pace resulting in failure to complete tasks” and gave it
“significant weight.” (R. 40). This opinion is consistent with that of Dr. John W. Davis,
Ph.D., an examining clinical psychologist, and therefore “an acceptable medical source,”
see 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2), who “reported that [Blackwell]’s ability to
show concentration, persistence or pace in an age appropriate manner was from mild to
moderately impaired…” (R. 38. See also R. 328-32).
As for episodes of decompensation, the ALJ determined, at Step Two, that
Blackwell had “experienced no episodes of decompensation, which have been of an
extended duration.” (R. 38).

This finding is inconsistent with Marshall’s opinion, who

found that “episodes of decomposition of workability would likely occur at least on 3
occasions in a year.” (R. 338, 340). However, Marshall, not being an “accepted medical
source,” could not establish the existence of the impairment of decomposition. See 20
C.F.R. § 404.1513(a).

Rather, his opinion could only be offered to demonstrate the

severity and the effect on the claimant’s daily life of the impairment of decomposition
once the existence of that impairment had been established by an “accepted medical
source.” See 20 C.F.R. § 404.1513(d); De Olazabal, 2014 WL 4364889, at *4. The ALJ,
in Step Two, had determined that Blackwell did not suffer from an impairment of
decomposition, and Blackwell has pointed to no record evidence from another “accepted
medical source” indicating that this finding was error; as such, there was no need to

10

consider Marshall’s opinion regarding the severity or effect of an impairment whose
existence had not been shown.
Regarding Blackwell’s ability to complete work-related tasks in a normal
workday or workweek, Marshall wrote in his report:
Mr. Blackwell will likely have Mild difficulties understanding, carrying
out and remembering instructions. He will probably have Mild difficulties
responding appropriately to supervision and to co-workers.
He would likely experience Moderate difficulties responding appropriately
to work pressures primarily based on the intensity and phase of his
schizophrenia. Simple tasks would pose Mild problems for him, if at all.
However, the more intricate and detailed repetitive tasks would likely
result in his having Moderate difficulties (In extreme periods of psychosis
the difficulties may become Marked).
Overall his complete work related activities would probably result in
Marked difficulties.
(R. 338-39.).

This assessment was also reflected on a Mental Residual Functional

Capacity Questionnaire attached to the report. (R. 340-41).
Essentially, in this claim of error, Blackwell “faults the ALJ for not explicitly
assigning weight to every part of [Mr. Marshall]'s opinion and for not discussing [Mr.
Marshall]'s finding that [Blackwell would have a marked limitation in completing
work-related tasks in a normal workday or workweek]. However, ‘there is no rigid
requirement that the ALJ specifically refer to every piece of evidence in his decision[.]’ ”
Newberry v. Comm'r, Soc. Sec. Admin., 572 F. App'x 671 (11th Cir. 2014) (11th Cir. July
14, 2014) (per curiam) (unpublished) (quoting Dyer v. Barnhard, 395 F.3d 1206, 1211
(11th Cir. 2005) (per curiam)) (alterations added).
Moreover, “even if the ALJ erroneously failed to explicitly assign weight to and
discuss every aspect of [Marshall]’s opinion, this error was harmless because it is still

11

clear that the ALJ's rejection of the portions of [Marshall]’s opinion that are
inconsistent with the ALJ's ultimate conclusion was based on substantial evidence, see
Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (classifying certain errors as
harmless in the context of the substantial-evidence standard).” Id. As noted by the
ALJ, on May 15, 2009, Dr. Davis “reported that despite the claimant’s Schizophrenia,
he was only mild to moderately limited and could still perform simple repetitive tasks.”
(R. 39 (citing R. 328-32)). The ALJ found Blackwell’s own testimony “concerning the
intensity, persistence and limiting effects of” his reported symptoms to be “not credible
to the extent they are inconsistent with” the ALJ’s RFC assessment (R. 39), and
Blackwell does not challenge this determination on appeal.
Dr. John Pybass, M.D., had provided responses to a Mental Residual Functional
Capacity Questionnaire identical to the one attached to Marshall’s report.10 (R. 86566). Like Marshall’s report, Dr. Pybass’s questionnaire indicated that Blackwell would
have “marked” ability to “[c]omplete work related activities in a normal workday or
workweek.” (R. 866). Regarding Dr. Pybass’s assessment, the ALJ wrote in Step Four:
Although [Dr. Pybass] indicated several marked areas of functioning and
frequent deficits of concentration, persistence or pace, there is no
accompanying narrative of treatment and these marked categories are
contradictory to more recent Psychological Evaluations as discussed above
(Exhibit B-16F[11]). (See also Exhibit B-3F[12] and B-5F[13]), as well as the
The ALJ’s decision states that Dr. Pybass’s questionnaire was completed on July 16, 2009
(see R. 40) – three days after the date of Marshall’s report. However, the questionnaire
itself appears to be dated “7/16/08” (R. 866) – approximately one year before the date of
Marshall’s report.

10

11

Dr. Pybass’s July 16, 2009 questionnaire (R. 865-66).

July 6, 2007 examination report of Dr. David Formwalt, Psy.D., a clinical psychologist (R.
311-15).

12

13

Dr. Davis’s May 15, 2009 report (R. 328-32).

12

moderate limitations imposed on the Psychiatric Review Technique form
by the State agency reviewing psychologist Dr. Joanna Koulianos
(Exhibits B-9F and B-10-F[14]).
(R. 40).
Marshall’s assessment of a “marked” limitation in completing work-related tasks
in a normal workday or workweek is merely cumulative of Dr. Pybass’s assessment,
and Blackwell does not contest on appeal the ALJ’s rejection of Dr. Pybass’s “marked”
assessments in favor of the lesser assessments of other physicians – indeed, he does not
argue that any of the ALJ’s stated evidentiary determinations at Step Four are
erroneous. “[T]he ALJ “is free to reject the opinion of any physician when the evidence
supports a contrary conclusion.’ ” Hughes v. Comm'r of Soc. Sec. Admin., 486 F. App'x
11, 13 (11th Cir. 2012) (per curiam) (quoting Sryock v. Heckler, 764 F.2d 834, 835 (11th
Cir. 1985) (per curiam) (quotation omitted)). The Eleventh Circuit law is clear that,
“[e]ven if the evidence preponderates against the Commissioner's findings, [the court]
must affirm if the decision reached is supported by substantial evidence.” Crawford,
363 F.3d at 1158-59 (alterations added) (quotation omitted). Here, the ALJ cited to
record evidence medical evidence in rejecting a finding of “marked” limitations for
Blackwell, and Blackwell does not contest the propriety of that evidence. Accordingly,
as substantial evidence supports the ALJ’s determination that Blackwell did not suffer
from “marked” limitations, any failure to specifically cite Marshall’s assessment to the
contrary was harmless.
Second Claim of Error
“At step five, the Commissioner must determine that significant numbers of jobs

14

(R. 747-64 (both dated April 29, 2010)).

13

exist in the national economy that the claimant can perform. An ALJ may make this
determination either by applying the Medical Vocational Guidelines or by obtaining the
testimony of a vocational expert.” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180
(11th Cir. 2011) (internal citations omitted). Here, under Step Five, the ALJ used only
the testimony of a vocational expert and did not use the Guidelines.
“A vocational expert is an expert on the kinds of jobs an individual can perform
based on his or her capacity and impairments. When the ALJ uses a vocational expert,
the ALJ will pose hypothetical question(s) to the vocational expert to establish whether
someone with the limitations that the ALJ has previously determined that the claimant
has will be able to secure employment in the national economy.” Phillips, 357 F.3d at
1240. “ ‘In order for a vocational expert's testimony to constitute substantial evidence,
the ALJ must pose a hypothetical question which comprises all of the claimant's
impairments.’ ” Winschel, 631 F.3d at 1180 (quoting Wilson v. Barnhart, 284 F.3d 1219,
1227 (11th Cir. 2002) (per curiam)). However, “the ALJ was not required to include
findings in the hypothetical that the ALJ had properly rejected as unsupported.”
Crawford v. Comm'r Of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004) (per curiam).
Accord, e.g., Clyburn v. Comm'r, Soc. Sec. Admin., 555 F. App'x 892, 895 (11th Cir.
2014) (per curiam); Barclay v. Comm'r of Soc. Sec. Admin., 274 F. App'x 738, 742 (11th
Cir. 2008) (per curiam)
At the August 16, 2011 hearing, the ALJ posed the following hypothetical
question to the testifying vocational expert:
Assume I find a hypothetical individual the same age as Mr. Blackwell
with the same educational level and vocational history. And assume
further I find the following additional limitations: that this hypothetical
individual can perform a full range of light work with no significant

14

postural limitations or manipulative limitations. The environmental
limitations would be avoid hazards, dangerous machinery, and heights.
And mental limitations would be situational or well -- schizoaffective
diagnosis, NOS.[15] Given those limitations, in your opinion, would this
hypothetical person be able to perform any of the work which Mr.
Blackwell previously performed?
(R. 121-22).

In response to this hypothetical, the vocational expert testified that

representative occupations which the hypothetical person would be able to perform
included “production assembler,” “garment bagger,” and “courier.” (R. 122).
Blackwell argues that “[t]his hypothetical is problematic because it does not
present any vocational limitations based on [Blackwell]’s mental limitations, though
the record clearly reflects mental diagnoses of schizophrenia, contains medical reports
detailing mental limitations…, and shows that the ALJ’s own RFC included findings of
more specific mental limitations.” (Doc. 16 at 4).
In response, the Commissioner does not appear to dispute Blackwell’s
characterization of this hypothetical as “problematic.” (See Doc. 19 at 13-15). Instead,
she points to a hypothetical posed by a different ALJ to the same vocational expert at a
hearing two years earlier, on August 5, 2009, that she argues adequately encompassed
all of Blackwell’s mental limitations.

(See id.).

The same vocational expert, in

response to the August 2009 hypothetical, identified two of the representative jobs –
production assembler and garment bagger – that he also listed in response to the
August 2011 hypothetical.16
However, in the opinion that constitutes the Commissioner’s final decision, there

15

“Not Otherwise Specified”

The vocational expert cited “poultry eviscerator,” rather than “courier,” as a
representative job at the August 2009 hearing.

16

15

is no indication that the deciding ALJ considered the vocational expert’s August 2009
testimony at Step Five. Instead, the ALJ references the vocational expert’s testimony
only from the August 2011 hearing.17
In Winschel, “the ALJ determined at step two that [the claimant]’s mental
impairments caused a moderate limitation in maintaining concentration, persistence,
and pace.

But the ALJ did not indicate that medical evidence suggested [the

claimant]’s ability to work was unaffected by this limitation, nor did he otherwise
implicitly account for the limitation in the hypothetical.” Winschel, 631 F.3d at 1181.
Holding that “the ALJ should have explicitly included the limitation in his hypothetical
question to the vocational expert[,]” the Eleventh Circuit found that an ALJ’s
hypothetical question to a vocational expert “failed to include or otherwise implicitly
account for all of [the claimant]’s impairments” – and thus did not constitute
“substantial evidence.”

Id.

The Eleventh Circuit concluded by stating that, “[o]n

remand, the ALJ must pose a hypothetical question to the vocational expert that

(Compare R. 122 [Aug. 16, 2011 Hearing Trans., p. 20] (“There would be light, unskilled
occupations that would be consistent with such a hypothetical. Maybe something like a
production assembler. That’s light and unskilled. And that’s DOT code 706.687-010.
Nationally is approximately 488,000. 7,300 statewide. Or maybe something like garment
bagger. That’s light and unskilled with a SVP level of 2. And that’s DOT code 920.687-018.
Listed nationally, there would be approximately 118,000 and 2,100 statewide. Or maybe
something such as a courier. And that’s light and unskilled, with an SVP level of 2. And
that’s DOT code 230.667-010. Nationally, would be about 124,000. And statewide, 12 -about 1,200.”) with R. 41 (“To determine the extent to which these limitations erode the
unskilled light occupational base, the Administrative Law Judge asked the vocational
expert whether jobs exist in the national economy for an individual with the claimant’s age,
education, work experience, and residual functional capacity. The vocational expert
testified that given all of these factors the individual would be able to perform the
requirements of representative occupations such as (1). Production assembly, (DOT
706.687-010) light, unskilled, with 7,300 in the National and 488 in the State economy. (2)
Garment bag assembler (DOT Code 920.687-018), unskilled and light, with 2,100 in the
State and 118,000 located in the National economy (3). Courier (DOT Code 230.667-010)
unskilled, light with 124,000 such jobs Nationally and 1,200 located in the State.”)).

17

16

specifically

accounts

for

[the

claimant’]s

moderate

limitation

in

maintaining

concentration, persistence, and pace.” Id.
Here, the ALJ expressly determined that Blackwell “has the residual functional
capacity to perform light work…except [he] can only perform work that will allows [sic]
for mildly to moderately impairment [sic] in responding appropriately to supervision, co
workers, and work pressures in a work setting[,]” and that he “is limited to performing
simple routine repetitive task [sic] with no more than occasional interaction with
others…” (R. 38-39). However, his hypothetical question to the vocational expert at the
August 2011 hearing did not include his express finding that Blackwell would be
limited to performing simple, routine, repetitive tasks with only occasional interaction
with others. Moreover, there is no indication in the Commissioner’s final decision that
the ALJ considered the testimony of the vocational expert at the August 2009 hearing.
As such, “[b]ecause the ALJ asked the vocational expert a hypothetical question that
failed to include or otherwise implicitly account for all of [Blackwell]’s impairments, the
vocational expert’s testimony is not ‘substantial evidence’ and cannot support the ALJ's
conclusion that [Blackwell] could perform significant numbers of jobs in the national
economy.” Winschel, 631 F.3d at 1181. Therefore, the ALJ’s determination at Step Five
is due to be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §
405(g).
V.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that the decision of
the Commissioner of Social Security denying Blackwell benefits is REVERSED and
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g), see Melkonyan v.

17

Sullivan, 501 U.S. 89 (1991), for further proceedings consistent with this Court’s
decision.

The remand pursuant to sentence four of § 405(g) makes Blackwell 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.
Final judgment in accordance with Federal Rule of Civil Procedure 58 and this
Memorandum Opinion and Order shall issue by separate document.
DONE and ORDERED this the 18th day of November 2014.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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