Woodyard v. Colvin

Filing 22

Order re: 1 Complaint filed by Carl W. Woodyard - the decision of the Commissioner of Social Security denying Plaintiffs claim for a period of disability, disability insurance benefits, and supplemental security income be REVERSED and REMANDED. Signed by Magistrate Judge Sonja F. Bivins on 9/23/2015. Copies to parties & SSA (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CARL W. WOODYARD,

*
*
*
*
*
*
*
*
*
*
*

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

CIVIL ACTION NO. 14-00203-B

ORDER
Plaintiff Carl W. Woodyard (hereinafter “Plaintiff”) seeks
judicial

review

of

a

final

decision

of

the

Commissioner

of

Social Security denying his claim for a period of disability,
disability insurance benefits, and supplemental security income
under Titles II and XVI of the Social Security Act, 42 U.S.C. §§
401, et seq., and 1381, et seq.
consented

to

have

the

proceedings in this case.

On May 6, 2015, the parties

undersigned
(Doc. 17).

conduct

any

and

all

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
REVERSED and REMANDED.

I.

Procedural History
Plaintiff protectively filed an application for a period of

disability,

disability

insurance

security income on July 17, 2009.

benefits,

and

(Tr. 266).

supplemental

He alleges that

he has been disabled since February 15, 2009, due to blindness
in his right eye and a sore on his left ankle.

(Id. at 260).

Plaintiff’s applications were denied and upon timely request, he
was granted an administrative hearing before Administrative Law
Judge Warren L. Hammond, Jr. (hereinafter “ALJ”) on January 19,
2011.

(Id. at 65).

Plaintiff attended the hearing with his

counsel and provided testimony related to his claims.
vocational

expert

(“VE”)

provided testimony.

also

(Id.).

appeared

at

the

(Id.).

hearing

A
and

On January 28, 2011, the ALJ issued

an unfavorable decision finding that Plaintiff is not disabled.
(Id. at 90).
Plaintiff requested review by the Appeals Council, and on
June 20, 2012, the Appeals Council remanded the case to the ALJ
to

further

specifically

evaluate

the

including

severity
his

of

alleged

Plaintiff’s
mental

impairments,

impairments

and

alcohol dependency; to further evaluate whether Plaintiff meets
a Listing; to further evaluate Plaintiff’s RFC, specifically as
it relates to his visual limitations; to further evaluate the
opinions

of

the

non-treating

sources;

to

further

evaluate

Plaintiff’s credibility regarding his subjective complaints; to

2

further evaluate whether Plaintiff could return to his past work
as a laborer; and if warranted, to obtain additional evidence
from a vocational expert to clarify the effect of Plaintiff’s
limitations on the occupational base.
On

August

24,

2012,

(Id. at 108-111).

Plaintiff

attended

a

second

administrative hearing with his counsel and provided testimony
related to his claims.

(Id. at 43).

also

second

appeared

(Id.).

On

unfavorable
(Id. at 23).

at

the

September
decision

26,

hearing
2012,

finding

A vocational expert (“VE”)

that

and

the

provided

ALJ

Plaintiff

testimony.

issued

a

is

disabled.

not

second

The Appeals Council denied Plaintiff’s request for

review on April 2, 2014.

(Id. at 1).

Therefore, the ALJ’s

decision dated September 26, 2012, became the final decision of
the Commissioner.
Having

exhausted

his

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

The parties

waived oral argument on May 6, 2015 (Doc. 16), 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).
II.

Issue on Appeal
Whether the ALJ erred in relying on the
Medical-Vocational Guidelines (grids) to
find
Plaintiff
not
disabled
after
finding that Plaintiff has the
severe,
non-exertional impairment of blindness
in the right eye?

3

III. Factual Background
Plaintiff was born on October 5, 1959, and was fifty-two
years of age at the time of his administrative hearing on August
24, 2012.

(Tr. 266).

Plaintiff testified that he completed the

twelfth grade in high school and served in the military for
fifteen months.
Plaintiff

(Id. at 46).
testified

construction laborer. 1

that

he

last

(Id. at 47).

worked

in

2008

as

a

Plaintiff quit working in

2008 because a sore on his ankle would not heal, and he was told
that it was a health hazard.2

(Id. at 47-49).

He testified that

he still cannot work because of the sore on his ankle
because of blindness in his right eye. (Id. at 49).

3

and

Plaintiff

testified that his eyesight in his right eye is a “blur” and
that it affects his depth perception. 4

(Id. at 58).

Plaintiff

1

According to Plaintiff’s Disability Report, he last worked from
1991 to 2009 as a laborer, running an air jack, doing carpenter
work, and performing general labor work. (Tr. 261).

2

In his Disability Report, Plaintiff stated that he stopped
working because he “got in trouble and went to jail.”
(Tr.
260).

3

Plaintiff testified that the pain in his left ankle is a seven
out of ten on the pain scale. (Tr. 50).

4

Plaintiff’s medical records reflect that he had a corneal
transplant in 1987 following an eye injury.
(Tr. 494).
He
began having problems with vision in his right eye again in
October 2009. (Id. at 442). He had another corneal surgery in
his right eye in 2010. (Id. at 595). Plaintiff testified that
he had also had cataract surgery in his right eye in 2012, but
he still has problems with his vision in that eye.
(Id. at
4

testified that he can read and write, although he cannot read
out of his right eye.

(Id. at 47, 49).

Plaintiff testified that he takes muscle relaxers, as well
as medication for anxiety and depression and that it makes him
drowsy. (Id. at 51-52, 56-57).

In his Disability Report, he

indicated that he takes acetaminophen, codeine, and Doxycycline
Hyclate (for infection).

(Id. at 263).

He testified that the

medications provide moderate relief from his pain and that he
“can bear it.”
Plaintiff

(Id. at 52).
stated

in

a

Function

Report

dated

August

2009, that he lives alone and takes care of his pets. 5

13,

(Id. at

269-70).

At his hearing, Plaintiff testified that he can feed

himself,

although

dressing.

he

sometimes

has

problems

bathing

and

(Id. at 52). Plaintiff testified that he does not

shop, cook, clean house, or do laundry.

(Id.).

However, in

his Function Report, he indicated that he shops for groceries,
that he prepares simple meals for himself, and that he does some
cleaning.
can

walk

minutes.

(Id. at 271).
a

block,

stand

(Id. at 53).

Plaintiff further testified that he
for

ten

minutes,

and

sit

for

five

He stated in his Function Report that he

49).
Plaintiff has uncorrected 20/20 vision in his left eye.
(Id. at 815).
5

In a second Function Report dated March 24, 2011, Plaintiff
states that he does not have pets. (Tr. 317).

5

uses a cane that was not prescribed by a doctor and that he
walks and rides a bicycle to get around. 6
322).

(Id. at 272, 275,

Plaintiff testified that he cannot lift at all; he cannot

grasp objects; he cannot reach, push, or pull; and he cannot
bend over, although he can climb a couple of steps.

(Id. at 54-

55).
Plaintiff stated that he does not need any reminders to
take care of his personal needs or to take his medicine.
at 271).

(Id.

He indicated in his Function Report that he cannot

handle a savings account or checkbook, but he can count change.
(Id. at 272).
Plaintiff testified that he has a driver’s license, but he
cannot drive because he received a DUI.
to

Plaintiff,

alcohol abuse.

he

recently

completed

(Id. at 49).

(Id. at 53).
a

treatment

program

for

Plaintiff also indicated that his

social activities are limited to going to church.
IV.

According

(Id. at 273).

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
6

In a subsequent Function Report dated March 24, 2011, Plaintiff
stated that he travels only by walking. (Tr. 319)

6

legal standards were applied.
1520, 1529 (11th Cir. 1990).

7

Martin v. Sullivan, 894 F.2d

A court may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.

must

be

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 “more than a scintilla, but
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

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); 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
7

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).
7

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
months.”

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

a

423(d)(1)(A);
The

see

Social

sequential

also

20

Security

evaluation

C.F.R.

§§

regulations
process

determining if a claimant has proven his disability. 8

for

20 C.F.R.

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
8

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

has not engaged in substantial gainful activity since February
15, 2009, the alleged onset date, and that he has the severe
impairments of chronic ulcer in the left leg, blindness in the
right eye, personality disorder, and alcohol dependence.
25).

(Tr.

The ALJ further found that Plaintiff 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.
The

ALJ

concluded

(Id. at 26).

that

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform less than the
full

range

of

medium

work,

with

the

following

limitations:

“[w]ith normal breaks, he can stand and/or walk for a total of
about six hours in an 8-hour workday and sit for a total of
about six hours in an 8-hour workday.
ramps

and

ropes.
crawl.
can

stairs.

He

cannot

He can occasionally climb

climb

ladders,

scaffolds,

and

He can frequently balance, stoop, kneel, crouch and
He is able to avoid usual workplace type hazards.

work

effectively

with

most

small

and

large

objects

He
and

consistently follow written instructions normal size print. He
is

limited

determined

to

unskilled

that

while

work.”

(Id.

Plaintiff’s

at

28).

medically

The

ALJ

also

determinable

impairments could reasonably be expected to produce the alleged
symptoms, his statements concerning the intensity, persistence
and limiting effects of the alleged symptoms were not entirely

9

credible to the extent they were inconsistent with the residual
functional capacity assessment.
Given

Plaintiff’s

RFC

(Id. at 28).

for

less

than

the

full

range

of

medium, unskilled work, the ALJ found that Plaintiff is not
capable of performing his past work as a cement mason (heavy,
skilled),

log

chipper

(medium,

semi-skilled),

logging

truck

operator (medium, semi-skilled), and material handler (heavy,
semi-skilled).
Plaintiff
perform

does
the

(Id.
not
full

at

have
range

34).
the

The

ALJ

residual

of

medium

found

that

functional
work,

although

capacity

his

to

additional

limitations, as detailed above, “have little or no effect on the
occupational base of unskilled medium work.”
ALJ

thus

concluded

appropriate

under

that

the

203.29 and 203.22].”9

“a

finding

framework

of

of

(Id. at 35).
‘not

[Medical

The

disabled’

Vocational

is

Rules

(Id. at 35-36).

In discussing Plaintiff’s RFC, the ALJ made the following
relevant findings:
At the hearing, the claimant testified that
his vision in his right eye is limited to a
grey blur.
He reported that his eye
problems have affected his depth perception
and that he cannot look all the way over to
9

Plaintiff does not take issue with respect to any of the ALJ’s
findings except for the ALJ’s reliance on the Medical Vocational
Guidelines (grids) to determine if he is disabled, given the
ALJ’s finding that Plaintiff has the severe, non-exertional
impairment of blindness in the right eye.
(Doc. 13 at 2-3).
Therefore, the Court’s discussion is limited to that issue.

10

one side while driving. He cannot read with
his right eye.
He uses glasses to correct
the vision in his left eye.
The claimant’s complaints in the medical
record along with clinical findings support
his complaints of lack of vision in his
right eye. The claimant underwent a corneal
transplant in his right eye in 1987.
On
October 2, 2009, he reported two weeks of
aura and blurry vision in his right eye. On
October 22, 2009, he noted his right eye was
red, irritated, and photophobic.
(Exhibit
6F). On November 3, 2009, the claimant was
noted to be blind in his right eye. (Exhibit
3F). On December 2, 2009, the claimant
reported blurry vision in his right eye.
(Exhibit 6F).
On July 21, 2010, he
underwent a penetrating keratoplasty of the
right eye.
In August 2010, he underwent
resuturing of the
corneal graft. (Exhibit
10F).
On November 2, 2010, the claimant
denied complaints and reported improving
vision in his right eye. (Exhibit 12F).
On
December 20, 2010, he complained of three
days of redness and tearing in his right eye
with mild photophobia and decreased vision.
(Exhibit 14F).
On June 20, 2011, he
continued to complain of changes in his
right eye vision. (Exhibit 19F).
The
claimant had no complaints on March 30,
2012, but, on April 17, 2012, he complained
of redness and photophobia in his right eye
along with one day of pain. (Exhibit 21F).
Despite the lack of vision in his right eye,
the record reflects the claimant retains
useful vision in his left eye.
On November
3, 2009, the claimant had 20/20 vision in
his left eye. (Exhibit 3F). On December 2,
2009, his left eye vision was 20/20.
(Exhibit 6F). In January 2010, his left eye
visual acuity was noted to be 20/25.
On
February 10, 2010 and March 10, 2010, his
left eye vision was 20/20. (Exhibit 8F). In
September 2010, his visual acuity in the
left eye was at least 20/25. (Exhibit 10F).

11

On June 20, 2011, his left visual acuity was
20/20.
(Exhibit
19F).
The
claimant’s
uncorrected vision in his left eye was 20/20
on April 17, 2012. (Exhibit 21F).
Therefore, the undersigned finds that the
claimant
has
limited
near
acuity,
far
acuity,
depth
perception,
accommodation,
color vision, and field of vision due to his
right eye blindness. Nevertheless, he is
able to use his left eye to avoid usual work
place type hazards, work effectively with
most
small
and
large
objects,
and
consistently follow written instructions in
normal size print.
At the hearing, the claimant testified that
he does not do any lifting because he had
been told lifting had strained his eye:
On
September 29, 2010, a physician with the
Tulane
University
Hospital
&
Clinic
Department of Ophthalmology noted that the
claimant had eye surgery on the right eye in
July and August, and, as a result, “is
unable to lift anything >10 lbs or work
until 10/31/10 due to his present condition
and need for rehabilitation.”
On November
13, 2010, a second note stated, “He is still
unable to lift anything >10 lbs until
further notice.” (Exhibit 12F). On their
face, these notes acknowledge that the
lifting limitation was temporary.
The
record does not contain a note explicitly
lifting the limitation, but the claimant did
not return to Tulane for further treatment.
His
subsequent
ophthalmologic
treatment
records do not reflect a continuing lifting
limitation. (Exhibits 19F, 20F, and 21F).
Therefore, the undersigned has given this
opinion little weight, as the evidence does
not show that it represents a limitation in
place for at least twelve continuous months.
. . .
On November 6, 2009, Charles Crump, M.D.
completed a “Physical Residual Functional

12

Capacity Assessment.”
He opined that the
claimant was limited to the medium range of
work with occasional climbing of stairs and
ramps; no climbing ladders, ropes, and
scaffolds; and frequent balancing, stooping,
kneeling, crouching, and crawling.
He
indicated that the claimant had limited near
acuity,
far
acuity,
depth
perception,
accommodation, color vision, and field of
vision but could avoid usual workplace type
hazards,
work
effectively
with
most
small/large objects, and consistently follow
written instructions in normal size print.
(Exhibit 5F).
Although Dr. Crump did not
have
the
opportunity
to
examine
the
claimant, he provided a detailed description
of the clinical findings on which he based
his opinion.
Subsequent evidence entered
into the record does not support greater
limitations.
As noted above, the claimant
has retained his left eye vision; his ulcer
healed; and treatment and clinical findings
related
to
his
diabetes
have
been
conservative.
Therefore, the undersigned
has given Dr. Crump’s opinion great weight.
(Id. at 28-29, 32).
In addition, in applying the Medical Vocational Guidelines
(grids), the ALJ made the following relevant findings:
If the claimant had the residual functional
capacity to perform the full range of medium
work,
considering
the
claimant’s
age,
education, and work experience, a finding of
“not disabled” would be directed by MedicalVocational Rule 203.29 and Rule 203.22.
However, the additional limitations have
little or no effect on the occupational base
of unskilled medium work. A finding of “not
disabled” is therefore appropriate under the
framework of these rules.
The claimant can
perform the approximately six hours of
standing or walking in an 8-hour day
required by a full range of medium work.
(SSR 83-10).
According to SSR 85-15, some

13

limitation in climbing and balancing would
not ordinarily have a significant impact on
the broad world of work, particularly since
the claimant retains the capacity to ascend
and descend ramps and stairs and balance.
The
claimant
can
perform
the
frequent
stooping and crouching necessitated for most
medium jobs.
Limitations on crawling and
kneeling are of little significance in the
broad world of work.
(SSR 85-15).
A
substantial number of jobs remain across all
exertional levels for a person who retains
sufficient visual acuity to be able to
handle and work with rather large objects
and has the visual fields necessary to avoid
ordinary hazards in a workplace. (SSR 8515).
The claimant has also been limited to
the unskilled range of work. This additional
limitation would have little or no effect on
the occupational base of unskilled sedentary
work (SSR 85-15 and 96-9p).
(Id. at 35).
The

Court

now

considers

the

foregoing

in

light

of

the

record in this case and the issue on appeal.
1.

Issue
A. Whether the ALJ erred in relying on
the
Medical-Vocational
Guidelines
(grids) to find Plaintiff not disabled
after finding that Plaintiff has the
severe, non-exertional impairment of
blindness in the right eye?

In

this

case,

Plaintiff

claims

that

the

ALJ

erred

in

relying on the Medical-Vocational Guidelines (grids) to find him
not disabled, given the ALJ’s finding that he has the severe,
non-exertional impairment of blindness in the right eye.
13 at 2-3).

(Doc.

Plaintiff argues that the ALJ’s finding that he

14

suffers from this severe, non-exertional impairment precludes
the use of the grids to find him disabled.

(Id.).

Having

reviewed the record at length, the Court finds that this case
must

be

reversed

and

remanded

due

to

the

ALJ’s

failure

to

properly apply the grids.
It is clear in this circuit that the Commissioner of Social
Security must develop “a full and fair record regarding the
vocational opportunities available to a claimant.”

Allen v.

Sullivan,

(citation

omitted).

880

F.2d

The

ALJ

1200,
must

1201

(11th

articulate

Cir.

1989)

specific

jobs

that

the

claimant is able to perform given his or her age, education, and
work history, if any, “and this finding must be supported by
substantial evidence, not mere intuition or conjecture.”

Id.

One means by which the Commissioner meets this burden is by
reliance on the Medical-Vocational Guidelines (“grids”).
1201–02.

Id. at

Exclusive reliance upon the grids is inappropriate,

however, “‘either when the claimant is unable to perform a full
range of work at a given residual functional level or when a
claimant

has

a

non-exertional

limits basic work skills.’”10

impairment

that

significantly

Id. at 1202 (citations omitted).

10

Nonexertional limitations are those limitations that “‘affect
an individual’s ability to meet the nonstrength demands of jobs’
and
include
mental
limitations
and
restrictions,
pain
limitations, and all physical limitations and restrictions that
are not reflected in the seven strength demands.”
Callens v.
Astrue, 2012 U.S. Dist. LEXIS 115043, *18, 2012 WL 3542200, *7
15

Where

nonexertional

impairments

are

present,

“[t]he

ALJ

must ‘make a specific finding as to whether the nonexertional
limitations

are

severe

enough

to

preclude

a

wide

range

of

employment at the given work capacity level indicated by the
exertional limitations.’”
(11th Cir. 1995).
alleged,

“the

Foote v. Chater, 67 F.3d 1553, 1559

Normally, when nonexertional limitations are

preferred

method

of

demonstrating

that

the

claimant can perform specific work is through the testimony of a
vocational

expert.”

(11th Cir. 1986).
unlimited

types

MacGregor

v.

Bowen,

786

F.2d

1050,

1054

“‘It is only when the claimant can clearly do
of

[work

at

a

given

level]

that

it

is

unnecessary to call a vocational expert to establish whether the
claimant
economy.’”

can

perform
Allen,

880

work
F.2d

which
at

exists

1202

in

(emphasis

the

national

in

original)

(citations omitted).
Turning to the case at hand, the Court finds instructive
the decision, Francis v. Heckler, 749 F.2d 1562, 1566 (11th Cir.
1985), in which the Eleventh Circuit held that the ALJ erred in
relying exclusively on the grids to find that the claimant was
disabled, where the ALJ had previously found that the claimant

(N.D. Ala. Aug. 15, 2012) (quoting S.S.R. 96–4p). “Exertional
limitations ‘affect your ability to meet the strength demands of
jobs,’ and include ‘sitting, standing, walking, lifting,
carrying, pushing, and pulling.’” Id. at *6 (quoting 20 C.F.R.
§ 404.1569(a)).

16

could not perform work requiring more than “gross vision.”
Eleventh Circuit stated:
The ALJ relied exclusively on the grids to
find that there were jobs in the national
economy
which
claimant
could
perform.
Exclusive reliance on the grids is not
appropriate either when claimant is unable
to perform a full range of work at a given
residual functional level or when a claimant
has
non-exertional
impairments
that
significantly limit basic work skills. Broz
v. Schweiker, 677 F.2d 1351, 1361 (11th Cir.
1982), adhered to sub nom. Broz v. Heckler,
711 F.2d 957 (11th Cir. 1983). The ALJ was
free to rely on the grids despite certain of
Francis’s non-exertional impairments, such
as his hand tumor because it was found not
to impair function of the hand or such as
his shortness of breath which the ALJ found
not credible. However, as to Francis’s
vision problems the ALJ stated:
The Administrative Law Judge has given
careful consideration to the fact that
claimant’s
impairment
probably
precludes her [sic] from performing
work which requires her to engage in
work requiring more than gross vision.
However, the undersigned is persuaded
that
this
restriction
does
not
significantly diminish the range of
medium jobs available to the claimant
and that the Rule [the grid] cited
above remains applicable.
After acknowledging that the claimant is
limited to performing medium work requiring
only gross vision, the ALJ nevertheless
applied the grids because he was “persuaded”
that this impairment did not significantly
limit the range of medium work available to
claimant.
Yet
there
is
no
vocational
testimony upon which the ALJ could have
relied to be so persuaded. Whether the
vision problem is seen as a non-exertional

17

The

impairment or as a limitation on the range
of medium work claimant could perform,
reliance on the grid is inappropriate.
Francis, 749 F.2d at 1566-67.
In the present case, the ALJ likewise found that Plaintiff
has the severe, non-exertional impairment of “blindness in the
right eye,” resulting in “limited near acuity, [limited] far
acuity,

[limited]

depth

perception,

[limited]

accommodation,

[limited] color vision, and [limited] field of vision.” 11
25, 29).

(Tr.

Plaintiff’s vision deficit (as well as his limitations

related to unskilled work, avoiding work place type hazards, and
only

occasional

climbing)

impairments/limitations.

are

clearly

nonexertional

See Langley v. Colvin, 2013 U.S. Dist.

LEXIS 40934, *23 n.18, 2013 WL 1218399, *7 n.18 (S.D. Ala. Mar.
25,

2013)

(“Nonexertional

limitations
vision,

that

hearing,

affect

limitations

capacities

speech,

such

climbing,

kneeling, crouching, crawling, reaching
Environmental

restrictions

are

also

.

.

.

relate

as

mental

abilities,

balancing,

stooping,

and the like.
considered

to

. . .
to

be

nonexertional limitations.”).
The

ALJ

acknowledged

that,

because

of

Plaintiff’s

nonexertional impairments, he could not perform the full range

11

The ALJ credited Plaintiff’s testimony that he has problems
with depth perception and cannot look all the way over to one
side when driving. (Tr. 28).

18

of medium work.

The ALJ found that Plaintiff is restricted to

climbing ramps and stairs only occasionally, should avoid usual
workplace type hazards, could work with normal size print or
larger, and is able to perform only unskilled work.

(Id. at

28).
Because the ALJ found that nonexertional limitations were
present in this case, he was required to make an additional,
specific

finding

as

to

whether

the

nonexertional

limitations

were “severe enough to preclude a wide range of employment at
the

given

work

limitations.”
that

Plaintiff

level,

the

ALJ

capacity

level

indicated

Foote, 67 F.3d at 1559.
can
was

do

unlimited

required

to

the

exertional

Absent clear evidence

types
call

by

of
a

work

at

vocational

the

given

expert

to

establish whether Plaintiff can perform work which exists in the
national economy.

Allen, 880 F.2d at 1202.

Because the ALJ

found that Plaintiff could not perform unlimited types of medium
work (id. at 28), he was required to call a VE to establish
whether there were job in the national economy that Plaintiff
could perform.
Interestingly, the record shows that the ALJ did obtain
evidence from a vocational expert at Plaintiff’s hearing that
there were jobs in the national economy that an individual with
Plaintiff’s limitations could perform, such as dryer attendant,
rug cleaner helper, and hand packer (all medium and unskilled).

19

(Id. at 61).

However, for unknown reasons, the ALJ makes no

reference to the VE’s testimony.

Instead, in his decision, the

ALJ relied exclusively upon the grids to find that Plaintiff was
not disabled.
additional

(Id. at 35-36, 61).

limitations

The ALJ concluded that, “the

[including

Plaintiff’s

right

eye

blindness] have little or no effect on the occupational base of
unskilled medium work,” and “[a] finding of ‘not disabled’ is
therefore appropriate under the framework of these rules.”

(Id.

at 35).
Although the ALJ purports to rely on SSR 85-15, that Ruling
does not support his conclusion.

Rather, the Ruling indicates

that where, as here, a claimant’s impairments necessitate that
he or she avoid workplace hazards or where the claimant has a
visual impairment coupled with a restriction to unskilled work,
the services of a VE is generally required.12

12

SSR 85-15, 1985 WL

SSR 85-15 provides in pertinent part:
4. Visual Impairments
As a general rule, even if a person’s
visual impairment(s) were to eliminate all
jobs that involve very good vision (such as
working with small objects or reading small
print), as long as he or she retains
sufficient visual acuity to be able to
handle and work with rather large objects
(and has the visual fields to avoid ordinary
hazards in a workplace), there would be a
substantial number of jobs remaining across
all exertional levels.
However, a finding
of disability could be appropriate in the
20

56857.

In

addition,

the

ALJ

assigned

great

weight

to

the

opinion of State Agency medical consultant, Dr. Charles Crump,
M.D.,

that

although

Plaintiff

has

“limited

near

acuity,

far

acuity, depth perception, accommodation, color vision, and field
of vision,” he could avoid usual workplace type hazards, work
effectively

with

most

small/large

objects,

and

consistently

follow written instructions in normal size print. (Id. at 32).
However, Dr. Crump’s opinion does not establish that Plaintiff
can perform work which exists in the national economy.
relatively
few
instances
in
which
the
claimant’s vocational profile is extremely
adverse,
e.g.,
closely
approaching
retirement age, limited education or less,
unskilled or no transferable skills, and
essentially a lifetime commitment to a field
of work in which good vision is essential.
5. Environmental Restrictions
A person may have the physical and
mental capacity to perform certain functions
in certain places, but to do so may
aggravate
his
or
her
impairment(s)
or
subject the individual or others to the risk
of bodily injury. Surroundings which an
individual may need to avoid because of
impairment include those involving . . .
recognized
hazards
such
as
unprotected
elevations and dangerous moving machinery. .
. . Where the environmental restriction
falls between very little and excessive,
resolution of the issue will generally
require
consultation
of
occupational
reference materials or the services of a VS
[vocational specialist].
SSR 85-15, 1985 WL 56857 (emphasis added).

21

The ALJ’s findings leave no question that Plaintiff cannot
perform unlimited types of work at the medium level because of
his

nonexertional

testimony

from

impairments.
a

(Id.

vocational

at

expert

28).
that

Thus,

absent

Plaintiff’s

nonexertional impairments do not significantly limit his basic
work skills or preclude him from performing a wide range of
medium work, the ALJ’s decision is not supported by substantial
evidence. 13

See Francis, 749 F.2d at 1567 (absent vocational

expert testimony on which the ALJ could base his decision that

13

The Court rejects the Commissioner’s argument that any error
by the ALJ in failing to rely on the VE’s testimony in this case
was harmless.
First, it is not clear that the ALJ presented a
correct hypothetical to the VE. (Doc. 12 at 64-65).
In the
hypothetical to the VE, the ALJ indicated that Plaintiff could
perform a full range of medium work while in discussing
Plaintiff’s RFC, the ALJ found that Plaintiff could perform less
than the full range of medium work. (Id.).
Further, while the
ALJ
mentioned in the hypothetical that Plaintiff was lacking
one eye, he did not include his findings that Plaintiff has
“limited
near
acuity,
far
acuity,
depth
perception,
accommodation, color vision, and field of vision.” Moreover, as
aptly stated by the Court in Harrell v. Colvin, 2014 U.S. Dist.
LEXIS 68739, *12, 2014 WL 2093961, *4 (S.D. Ala. May 20, 2014),
“[t]he ALJ failed to carry her burden ‘to establish that
[Harrell] could perform other work that exists in the national
economy. . . . 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 Harrell’s 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’ . . . must be rejected.”
(Emphasis and brackets in
original].”

22

the claimant’s vision impairment did not significantly limit the
range of medium work available, the ALJ’s reliance on the grids
was inappropriate); Marbury v. Sullivan, 957 F.2d 837, 839 (11th
Cir. 1992) (the ALJ erred in relying on the grids where claimant
was not able to do unlimited types of light work, i.e., he could
not work around dangerous machinery or at unprotected heights;
in

such

cases,

expert

testimony

was

required

to

determine

whether claimant’s limitations were severe enough to preclude
him from performing a wide range of light work.).
In sum, the ALJ did not fulfill his duty to develop a full
and fair record with substantial evidence showing that there
were specific jobs in the national economy that Plaintiff could
perform.

On remand, in accordance with Francis v. Heckler, 749

F.2d 1562 (11th Cir. 1985), the Commissioner should utilize the
services of a vocational expert to identify what medium jobs, if
any,

Plaintiff

impairments.

can

perform

in

light

of

his

nonexertional

See Gray v. Massanari, 2001 U.S. Dist. LEXIS 6619,

*9 (April 17, 2001), report and recommendation adopted by 2001
U.S. Dist. LEXIS 6544, *1, 2001 WL 530704, *2 (S.D. Ala. May 1,
2001).
V.

Conclusion
For

the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

23

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 REVERSED and REMANDED.
DONE this 23rd day of September, 2015.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

24