Chambers v. Colvin
Order re: 1 Complaint filed by Crystal A. Chambers stating that the decision of the Commissioner of Social Security denying Plaintiffs claim for a period of disability, disability insurance benefits, and supplemental security income be REVERSED and REMANDED. Signed by Magistrate Judge Sonja F. Bivins on 9/27/2016. Copies to parties. (mpp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CRYSTAL A. CHAMBERS,
CAROLYN W. COLVIN,
Commissioner of Social
CIVIL ACTION NO. 15-00198-B
seeks judicial review of a final decision of the Commissioner of
Social Security denying her 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.
proceedings in this case.
On June 13, 2016, the parties
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.
Plaintiff filed applications for a period of disability and
supplemental security income on May 21, 2010.
(Tr. 223, 225) 1 .
She alleges that she has been disabled since August 2, 2008, due
to lower back injury, depression, and fibromyalgia.
Plaintiff’s applications were denied and upon timely
Administrative Law Judge Warren Hammond, Jr. (hereinafter “ALJ”)
on November 1, 2011.
(Id. at 53).
Plaintiff attended the
hearing with her counsel and provided testimony related to her
A vocational expert (“VE”) also appeared at the
hearing and provided testimony.
On November 10, 2011,
the ALJ issued an unfavorable decision finding that Plaintiff is
(Id. at 89).
Plaintiff requested review by the
Appeals Council, and on December 21, 2012, the Appeals Council
remanded the case to the ALJ to further evaluate Plaintiff’s
depressive disorder in light of the opinion of the reviewing
State Agency psychologist, to further evaluate whether Plaintiff
is capable of performing her past relevant work, and to pose a
hypothetical to the vocational expert that corresponds with the
When referencing the Social Security Transcript, the Court
uses the citations found on the transcript, rather than the page
numbers utilized by CM-ECF.
(Id. at 106-09).
On May 3, 2013, Plaintiff attended a second administrative
hearing with her counsel and provided testimony related to her
(Id. at 40).
A vocational expert (“VE”) also appeared
at the second hearing and provided testimony.
(Id. at 49).
August 23, 2013, the ALJ issued a second unfavorable decision
finding that Plaintiff is not disabled.
(Id. at 21-34).
Appeals Council denied Plaintiff’s request for review on March
(Id. at 1).
Therefore, the ALJ’s decision dated
August 23, 2013, became the final decision of the Commissioner.
timely filed the present civil action.
waived oral argument on June 13, 2016 (Doc. 22), 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).
Issues on Appeal2
Whether the ALJ erred in relying on the
Medical-Vocational Guidelines (grids) to
finding that Plaintiff has the severe,
non-exertional impairment of depression?
On appeal, Plaintiff does not challenge the ALJ’s findings
related to her physical impairments.
Therefore, the Court’s
discussion is limited to Plaintiff’s mental impairment of
in the RFC?
III. Factual Background
Plaintiff was born on September 11, 1974, and was thirtyeight years of age at the time of her second administrative
hearing on May 3, 2013.
(Tr. 43, 272).
completed truck driving school.
(Id. at 43).
Plaintiff testified that she last worked full time in 2004
as a truck driver.
(Id. at 44).
Plaintiff quit working in 2004
because of problems with her back.
At the time of her
hearing in 2013, she was working part-time (about twenty-two
Plaintiff testified that what is keeping her from working
full time now are problems with her back and hips, making it
difficult for her to walk and sit for long periods of time.
(Id. at 45).
Plaintiff denied having any other impairments that
prevented her from working.
(Id. at 45, 49).
herself, that she shops, cooks, and drives.
(Id. at 47, 277).
In her Function Report dated June 22, 2010, Plaintiff stated
that she lives alone in her own home, that she takes care of her
own personal needs and needs no reminders to do so, that she
sets an alarm to remind her to take her medication, that she
prepares her own meals, that she does house work and laundry,
that she drives and goes outside at least a couple of times each
social activities include visiting regularly with friends and
family in their homes and going to church.
is able to perform these
(Id. at 280).
She reported that concentrating and completing tasks is
difficult because of her pain. (Id.)
She also reported that she
“do[es] fine” with written instructions “for the most part;” she
sometimes gets “mixed up” with spoken instructions; she gets
along “fine” with other people and with authority figures; and
she has never been fired from a job because of problems getting
along with other people.
(Id. at 281-82).
not handle stress or change well.
However, she does
(Id. at 282).
Standard of Review
In reviewing claims brought under the Act, this Court’s
supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).
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.
Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
affirmed if they are based upon substantial evidence.
Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
substantial evidence is defined as “more than a scintilla, but
evidence as a reasonable person would accept as adequate to
evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
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).
An individual who applies for Social Security disability
Disability is defined as the “inability to
engage in any substantial gainful activity by reason of any
This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
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
determining if a claimant has proven his disability. 4
§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
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
automatically found disabled regardless of age, education, or
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.
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
claimant’s residual functional capacity, age, education, and
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)).
has not engaged in substantial gainful activity since August 2,
impairments of status post spinal fusion with residual lumbar
radiculopathy, obesity, and depression.
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.
(Id. at 24).
functional capacity (hereinafter “RFC”) to perform less than the
full range of sedentary work, with the following limitations:
“she can sit for approximately six hours and stand and walk for
about two hours in an eight-hour day.
crawl, kneel, crouch, and stoop.
ropes, or scaffolds.
She can occasionally
She cannot climb ladders,
She can frequently push or pull. She must
machinery, and excessive amounts of dust.
(Id. at 26).
She is limited to
The ALJ also determined that
statements concerning the intensity, persistence and limiting
effects of the alleged symptoms were not entirely credible to
the extent they were inconsistent with the residual functional
(Id. at 27).
sedentary, unskilled work, the ALJ found that Plaintiff is not
capable of performing her past work, which was medium or semiskilled.
(Id. at 32).
The ALJ further found that Plaintiff’s
detailed above, “have little or no effect on the occupational
base of unskilled sedentary work.”
(Id. at 33).
The ALJ thus
record in this case and the issue on appeal.
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, nonexertional impairment of depression?
relying on the Medical-Vocational Guidelines (grids) to find her
Medical–Vocational Rule 201.28 directs a finding of not
disabled for a younger individual aged 18–44, who was a high
school graduate, with non-transferable skills from skilled or
semiskilled past work, and capable of performing sedentary work.
See 20 C.F.R. Pt. 404, Subpt. P, App 2; see also
Astrue, 383 F. Appx. 820, 824 (11th Cir. 2010); Kerr v. Astrue,
2010 U.S. Dist. LEXIS 104639, *9-10 n.4, 2010 WL 3907121, *3 n.4
(N.D.N.Y. Sept. 7, 2010), report and recommendation adopted by,
2010 WL 3893922 (N.D.N.Y. Sept. 30, 2010).
not disabled, given the ALJ’s finding that she has the severe,
Plaintiff argues that the ALJ’s finding that she suffers from
this severe, non-exertional impairment precludes the use of the
grids to find her disabled.
Having reviewed the record
at length, the Court finds that this case must be reversed and
remanded due to the ALJ’s improper use of 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.”
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.”
One means by which the Commissioner meets this burden is by
reliance on the Medical-Vocational Guidelines (“grids”).
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
limits basic work skills.’”6
Id. at 1202 (citations omitted).
Nonexertional limitations are those limitations that “‘affect
an individual’s ability to meet the nonstrength demands of jobs’
must ‘make a specific finding as to whether the nonexertional
employment at the given work capacity level indicated by the
Foote v. Chater, 67 F.3d 1553, 1559
(11th Cir. 1995) (emphasis added).
Normally, when nonexertional
limitations are alleged, “the preferred method of demonstrating
testimony of a vocational expert.”
1050, 1054 (11th Cir. 1986).
MacGregor v. Bowen, 786 F.2d
“‘It is only when the claimant can
clearly do unlimited types of [work at a given level] that it is
unnecessary to call a vocational expert to establish whether the
(citations omitted); see also Garred, 383 F. Appx. at 824 (“When
limit her ability to work, the ALJ may use the Guidelines as a
framework, but should also consult with a VE to determine how
limitations, and all physical limitations and restrictions that
are not reflected in the seven strength demands.”
Astrue, 2012 U.S. Dist. LEXIS 115043, *18, 2012 WL 3542200, *7
(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.
the claimant’s impairments affect her ability to perform other
jobs that exist in the national economy.”) (citing Wilson v.
Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002)).
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
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
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
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
precludes her [sic] from performing
work which requires her to engage in
work requiring more than gross vision.
However, the undersigned is persuaded
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
testimony upon which the ALJ could have
relied to be so persuaded. Whether the
vision problem is seen as a non-exertional
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 found at step two of the
sequential evaluation process that Plaintiff’s depression was
severe, at step three that Plaintiff had moderate difficulties
with concentration, persistence or pace, and at steps four and
five that Plaintiff was limited to “unskilled work,” apparently
(Id. at 23, 26-30).
This is unlike the ALJ’s
See Scott v. Comm'r of Social Security, 495 Fed. Appx. 27, 2829(11th Cir. 2012)(ALJ’s hypothetical to VE adequately accounted
for moderate limitation in ability to maintain concentration,
persistence, and pace where ALJ asked VE to include work that
would require "low stress, simple, unskilled; one, two, or three
step instructions . . . [and] specifically noted in the
hypothetical that the person had 'psychological based symptoms
which affect[ed] his ability to concentrate upon complex or
detailed tasks; but would remain capable of carrying out simple
job instructions'"). (Tr. 32, 49).
findings in Francis concerning the claimant’s hand tremor and
impairment of function, and more analogous to the ALJ’s findings
in Francis related to the claimant’s vision problems, which the
ALJ found resulted in limitations to work requiring only gross
Thus, the ALJ was required to call a vocational expert
base for unskilled sedentary work.
concentration, persistence and pace) was present in this case,
he was required to make an additional, specific finding as to
preclude a wide range of employment at the given work capacity
level indicated by the exertional limitations.” 8
Foote, 67 F.3d
Although the record contains evidence that Plaintiff’s
depression was controlled on medication and did not affect her
ability to work (Tr. 389, 449, 509, 522, 525), the ALJ
determined that Plaintiff’s depression was severe, that she had
moderate limitations in concentration, persistence or pace, and
that her RFC was limited to unskilled work. (Id. at 23, 25-26).
Under these circumstances, it is not clear that Plaintiff can
“do unlimited types of [work at a given level]” or that her nonexertional limitation (moderate concentration difficulties) does
not significantly limit her basis work skills.
See Allen, 880
F.2d at 1202. Thus, the ALJ was required to call a vocational
expert to establish whether she can perform work which exists in
the national economy. Id.
Absent clear evidence that Plaintiff can do unlimited
types of work at the given level, the ALJ was required to call a
work which exists in the national economy.
Allen, 880 F.2d at
limitations have little or no effect on the occupational base of
reliance on the grid was inappropriate.
See Francis, 749 F.2d
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.
(Id. at 50).
the ALJ decided to instead rely exclusively on the grids instead
of the VE’s testimony.
(Id. at 33).
Whatever his reason for
The Court rejects the Commissioner’s implication that any error
by the ALJ in failing to rely on the VE’s testimony in this case
was harmless. First, it appears that the hypothetical question
posed to the vocational expert was flawed, as the ALJ expressly
stated in his hypothetical that “there would be no mental
Furthermore, 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
The ALJ’s findings leave no question that Plaintiff cannot
perform unlimited types of work at the sedentary level because
of her nonexertional impairment.
Thus, absent testimony from a
vocational expert that Plaintiff’s nonexertional limitation does
not significantly limit her basic work skills or preclude her
decision is not supported by substantial evidence.
749 F.2d at 1567 (absent vocational expert testimony on which
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.).
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 omitted, brackets in original).
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
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 sedentary jobs,
if any, Plaintiff can perform in light of
limitation. 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,
consideration of the administrative record and memoranda of the
Commissioner of Social Security denying Plaintiff’s claim for a
supplemental security income be REVERSED and REMANDED.10
DONE this 27th day of September, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
Having determined that this case must be remanded because of
the ALJ’s erroneous reliance on the grids, the Court need not
address Plaintiff’s remaining arguments on appeal.
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