McDonnell v. Colvin

Filing 17

MEMORANDUM OPINION AND ORDER entered... Uponconsideration of the administrative record and the memoranda ofthe parties, it is ORDERED that the decision of the Commissionerbe REVERSED and that this action be REMANDED for furtheradministrative action not inconsistent with the Orders of the Court, as further set out in Order. Signed by Magistrate Judge Bert W. Milling, Jr on 10/8/2014. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
OWEN E. McDONNELL, JR.,

:
:
:
:
:
:
:
:
:
:

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

CIVIL ACTION 14-0141-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, 10).
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. 16).
argument was waived in this action (Doc. 15).

Oral

Upon

consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be REVERSED and that this action be REMANDED for further
administrative action not inconsistent with the Orders of the
Court.

1

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
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-three years of age, had completed a high school education
(see Tr. 29), and had previous work experience as a legal office
administrator/manager, telemarketer, and junior college teacher
(Tr. 52-53).

In claiming benefits, Plaintiff alleges disability

due to late effects of a subarachnoid hemorrhage and status post
clipping of anterior communicating artery aneurysm (Doc. 10 Fact
Sheet).
The Plaintiff filed an application for disability benefits
on July 29, 2010 (Tr. 129-36; see also Tr. 20).

Benefits were

denied following a hearing by an Administrative Law Judge (ALJ)
who determined that although he was incapable of performing his
past relevant work, there were jobs that McDonnell could perform

2

(Tr. 20-30).

Plaintiff requested review of the hearing decision

(Tr. 15) by the Appeals Council, but it was denied (Tr. 1-6).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
alleges that:

Specifically, McDonnell

(1) The ALJ mischaracterized his age; (2) the ALJ

failed to pose a proper hypothetical to the Vocational Expert
(hereinafter VE); and (3) the ALJ’s residual functional capacity
(hereinafter RFC) determination is incomplete (Doc. 10).
Defendant has responded to—and denies—these claims (Doc. 11).
In her decision, the ALJ held that McDonnell had the RFC
[t]o perform a full range of work at all
exertional levels but with the following
nonexertional limitations: avoid
unprotected heights and dangerous equipment;
have minimal changes in the work settings
and routines; avoid tasks requiring a
variety of instructions/tasks; understand
and carryout simple (1 – 2 step)
instructions; understand and carry out
detailed (but uninvolved) written or oral
instructions involving a few concrete
variables in/from standardized situations;
not perform production pace work, and make
judgments on only simple, work related
decisions.
(Tr. 25).

The ALJ further found that Plaintiff was unable to

perform any of his past relevant work (Tr. 29).
The Court notes that Plaintiff has the burden of proving
that he cannot perform his past relevant work.

Macia v. Bowen,

829 F.2d 1009, 1012 (11th Cir. 1987) (citing Sryock v. Heckler,

3

764 F.2d 834, 835 (11th Cir. 1985)).
burden.

Here, McDonnell met that

The Court will now look to Chester v. Bowen, 792 F.2d

129 (11th Cir. 1986) for instruction on analyzing a claimant’s
disability after reaching this finding:
In Ferguson v. Schweiker, 641 F.2d 243, 24748 (5th Cir. 1981), the court stated:
The burden of showing by
substantial evidence that a person who
can no longer perform his former job
can engage in other substantial gainful
activity is in almost all cases
satisfied only through the use of
vocational expert testimony. While in
exceptional cases testimony by a
vocational expert may not be necessary
. . . the general rule is that such
testimony is required.
We think that this is the correct
answer. The determination as to whether a
claimant has the residual functional
capacity to work is not an easy one. And,
it is far too important for the Secretary to
make without having specific support in the
record. In Broz v. Schweiker, 677 F.2d 1351
(11th Cir. 1982), we stated that the inquiry
whether a claimant has the residual
functional capacity to work is a matter to
be determined through adjudication. Proper
adjudication entails fact finding and
decision making based on evidence presented
or adduced at a hearing or trial. It is
thus improper for the decision maker to take
judicial notice of an adjudicative fact such
as whether a claimant has the residual
functional capacity to work. If the medical
evidence is inconclusive on the point, as it
is here, the record must be developed
further through the use of vocational expert
testimony.

4

Chester, 792 F.2d at 131-32.
In this action, the ALJ called a VE at the evidentiary
hearing that testified that a hypothetical individual, with
McDonnell’s vocational factors and abilities, would be able to
perform the jobs of office helper, mail clerk, and ticket taker
(Tr. 53-54).

The ALJ reported the VE’s response, found it

consistent with information contained in the Dictionary of
Occupational Titles, and determined that “[b]ased on the
evidence as a whole, including the testimony of the vocational
expert . . . the claimant was capable of making a successful
adjustment to other work that existed in significant numbers in
the national economy” (Tr. 29-30).
However, Plaintiff has pointed out that the ALJ, in her
determination, held that McDonnell “was 55 years old, which is
defined as an individual closely approaching advanced age” (Tr.
29).

This finding was in error.

According to Social Security

regulations, Plaintiff is a person of advanced age, a
classification requiring different considerations than
individuals closely approaching advanced age.

20 C.F.R. §

404.1563(e) (2014).
McDonnell goes on to note that the jobs the VE—and ALJ—
found that he could perform were light, unskilled jobs (Doc. 10,
p. 7; cf. Tr. 29-30).

Plaintiff then argues that because GRID

Rule 202.06 would find him disabled, the ALJ’s decision is in

5

error, and he should begin receiving benefits (Doc. 10, pp. 78).
Respondent attempts to minimize the significance of
McDonnell’s argument by noting that the ALJ found him to have no
exertional limitations, meaning that he can perform work
requiring more than light exertion (Doc. 11, pp. 8-9; cf. Tr.
25).

The Government further argues that the “mere fact that the

VE chose to identify light or sedentary jobs in response to the
ALJ’s hypothetical does not alter the fact that the RFC
assessment includes no exertional limitations, nor does the
evidence of record support any” (Doc. 11, p. 9).
The Court is unconvinced by Respondent’s arguments.

Once

the ALJ found McDonnell incapable of performing his past work,
she was charged, under Ferguson and Chester, to determine if
Plaintiff was capable of performing any work.

As suggested in

those two cases, the ALJ called upon a VE to provide information
concerning that query.

Respondent’s apparent suggestion that

the VE’s testimony is irrelevant or immaterial falls short of
explaining why the ALJ deemed it necessary to gather the
information and then use it as the basis for her determination.
The Court agrees with the Respondent to the extent that the
VE testimony in this action is insignificant in that fails to
support the ALJ’s conclusion.

Although the ALJ found McDonnell

capable of performing work at all exertional levels, the

6

evidence of record does not support that conclusion.

A well-

crafted hypothetical question would have solicited a response
explaining what jobs McDonnell can perform that require more
than light exertion.1
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 as to what work Plaintiff is capable of performing.
Judgment will be entered by separate Order.
DONE this 8th day of October, 2014.

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

1The Court is not finding error in the ALJ’s conclusion that

Plaintiff can perform work at all exertional levels; the Court is
finding that the evidence of record does not support the conclusion.

7