Anderson v. Colvin

Filing 21

Order re: 1 Complaint filed by Jermichael S. Anderson stating that the decision of the Commissioner of Social Security denying Plaintiffs claim forsupplemental security income be REVERSED and REMANDED. Signed by Magistrate Judge Sonja F. Bivins on 9/30/2016. Copies to parties. (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JERMICHAEL S. ANDERSON,

*
*
*
*
*
* CIVIL ACTION NO. 15-00217-B
*
*
*
*
*

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

ORDER
Plaintiff Jermichael S. Anderson (hereinafter “Plaintiff”)
seeks judicial review of a final decision of the Commissioner of
Social

Security

denying

his

claim

for

supplemental

security

income under Title XVI of the Social Security Act, 42 U.S.C. §§
1381, et seq.

On June 17, 2016, the parties consented to have

the undersigned conduct any and all proceedings in this case.
(Doc. 18).
conduct

Thus, the action was referred to the undersigned to

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.

Procedural History1

I.

Plaintiff

protectively

filed

an

application

supplemental security income on September 11, 2012.
202).

for

(Tr. 111,

He alleges that he has been disabled since January 1,

2012, due to a right leg amputation below the knee. 2
112, 181).
request,

(Id. at

Plaintiff’s application was denied and upon timely

he

Administrative

was
Law

January 9, 2014.

granted

an

administrative

Judge

Susan

(Id. at 70).

Poulos

hearing

(hereinafter

before

“ALJ”)

on

Plaintiff appeared, pro se,

waiving his right to legal representation at the hearing, and
provided testimony related to his claims.
vocational

expert

provided testimony.

(“VE”)

also

appeared

(Id. at 93-97).

(Id. at 70-92).
at

the

hearing

A
and

On March 28, 2014, the ALJ

issued an unfavorable decision finding that Plaintiff is not
disabled.

(Id. at 59).

Plaintiff obtained legal representation

and requested review by the Appeals Council, and on March 13,
2015, the Appeals Council denied his request for review.
at 1-4, 50).

(Id.

Therefore, the ALJ’s decision dated March 28,

1

The Court’s citations to the transcript in this order refer to
the page number assigned by the Agency (located in the bottom
right hand corner of the transcript page), not the pagination
assigned in CM/ECF.

2

Plaintiff’s leg was amputated in 2004 after he was shot in the
leg in 2003 and subsequently suffered a blood clot. (Tr. 79-80,
204, 218, 226).

2

2014, 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 June 17, 2016 (Doc. 17), 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.

Issues on Appeal
1.

Whether substantial evidence
the ALJ’s RFC assessment?

supports

2.

Whether the ALJ erred in failing to
discuss what weight, if any, she gave to
the opinion of consultative examiner,
Dr. Elmo Ozment, Jr., M.D.?

III. Factual Background
Plaintiff was born on January 29, 1983, and was 30 years of
age at the time of his administrative hearing on January 9,
2014.

(Tr. 76-77, 181).

Plaintiff testified that he completed

the tenth grade in high school and has not received his GED.
(Id. at 77, 188).

He has not completed any vocational training

after high school and has never served in the armed forces.
(Id. at 78).

Plaintiff has never had a job.

(Id. at 78).

Plaintiff testified that his right leg was amputated below
the knee in 2003 because of a blood clot.
According

to

Plaintiff,

he

has

not

been

(Id. at 79-80).

able

to

work

since

January 2012 due to back problems resulting from his use of

3

crutches over the last ten years. 3

(Id. at 80-86).

Plaintiff

testified that his right leg and his back “give out” on him, and
he is blind in his left eye as a result of a stroke in February
2013.

(Id. at 80-86).

He has to take Tylenol and Advil every

morning for back and leg pain, which stops the pain.

(Id. at

80, 88).

(Id. at

85).

He

He has never seen a doctor about his pain.
also

has

high

blood

pressure

medication because he cannot afford it.

but

does

not

take

(Id. at 93).

Plaintiff testified that he was on Medicaid before he went
to prison and was in the process of obtaining a prosthetic leg.
(Id. at 87-88).

However, once in prison, the process stalled,

and he has never gotten one.

(Id.).

He testified that he

thinks that a prosthetic device would help him “a lot” because
it would get him off of crutches, which is what is causing his
back pain.

(Id.).

Plaintiff testified that he walks with two crutches, which
are prescribed by a doctor, and that he can walk approximately
100 feet before his hands start to “give out” on him.
89,

200).

According

to

Plaintiff,

he

can

(Id. at

stand

for

approximately two or three minutes until his feet start hurting;

3

Plaintiff was incarcerated (for assault) at the time of his
alleged onset date of January 1, 2012. (Tr. 77-81). Plaintiff
testified that he incarcerated again from May through July 2013
for unpaid traffic tickets. (Id. at 81).

4

he can balance without crutches if he has something to hold
onto; and he cannot bend or stoop.

(Id. at 89-90).

Plaintiff

testified that, while he can lift while sitting down, he is
unable to do any lifting while standing.

(Id.).

Plaintiff

further testified that he can sit for “a while” but not for
“hours and hours” because his back starts hurting.

(Id. at 90-

91).
Plaintiff testified that he lives with his mom.

He takes

care of his own personal needs, and he can take showers standing
up.

(Id. at 77, 87, 195, 226).

He can cook; however, he cannot

do any chores except folding clothes.
IV.

(Id. at 92, 196).

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

4

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

4

findings

of

fact

must

be

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).
5

affirmed if they are based upon substantial evidence.

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
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

Social

sequential

6

see

also

20

Security

evaluation

C.F.R.

§§

regulations
process

for

determining if a claimant has proven his disability. 5

20 C.F.R.

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since September
11, 2012, the alleged onset date, and that he has the severe
impairments of “below the right knee amputation” and left eye
blindness

(retinal

venous

occlusion).

6

(Tr.

61).

The

ALJ

5

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)).

6

The ALJ found that Plaintiff’s hypertension was non-severe.
(Tr. 61).

7

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 1.7
The

ALJ

(Id. at 61-62).
concluded

that

Plaintiff

retains

the

residual

functional capacity (hereinafter “RFC”) to perform less than the
full range of sedentary work, with the following limitations:
Plaintiff can “lift/carry ten pounds occasionally and less than
ten pounds frequently; stand/walk two hours in an eight-hour
workday;

and

claimant

can

extremity

sit

six

hours

occasionally

and

never

with

in

an

eight-hour

push/pull
the

with

right

lower

the

workday.

The

left

lower

extremity.

The

claimant can never climb ladders, ropes, or scaffolds but may
occasionally
balance,

climb

stoop,

ramps

crouch,

and

stairs.

kneel,

and

He

crawl.

can
He

occasionally
must

handheld assistive device at all times while standing.

use

a

He must

avoid concentrated exposure to workplace hazards, such as moving
machinery and unprotected heights.

The claimant will only have

the ability to see with the right eye.”

(Id. at 62).

The ALJ

also determined that while Plaintiff’s medically determinable
impairments could reasonably be expected to produce the alleged

7

The ALJ noted that there is no medical reason that Plaintiff
cannot wear a prosthetic device to ambulate effectively.
(Tr.
62).

8

symptoms, his statements concerning the intensity, persistence
and limiting effects of the alleged symptoms were not entirely
credible for the reasons explained in the decision.

(Id. at

63).
The ALJ found that Plaintiff has no past relevant work.
(Id. at 64).

Utilizing the testimony of a VE, the ALJ concluded

that considering Plaintiff’s residual functional capacity for a
range of sedentary work, as well as his age, education, and lack
of

work

experience,

there

are

still

jobs

existing

in

the

national economy that Plaintiff is able to perform, such as a
“assembler of small products,” “circuit board assembler,” and
“order clerk,” all of which are classified as
unskilled.

(Id. at 65).

is not disabled.
The

Court

sedentary and

Thus, the ALJ concluded that Plaintiff

(Id.).
now

considers

the

foregoing

in

light

of

the

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

Issues
Whether substantial evidence
the ALJ’s RFC assessment?

supports

In this case, Plaintiff argues that the ALJ’s RFC is not
supported by substantial evidence because it requires him to
simultaneously carry/lift ten pounds while using an unspecified
“handheld assistive device” while standing.

(Doc. 14 at 6).

Plaintiff argues that this RFC is inconsistent with the findings

9

and opinions of consultative physician, Dr. Elmo Ozment, Jr.,
M.D., who examined Plaintiff and determined that he could not
stand without two crutches; that his bilateral crutches were
prescribed and medically necessary; that he uses them 100% of
the time indoors and outdoors; and that his “ambulation depends
on two crutches at all times.”
does

not

dispute

Plaintiff’s

(Tr. 227-29).
assessment

of

The Commissioner
the

evidence

but

argues that, “apparently,” the ALJ contemplated that Plaintiff
could

use

a

walker,

instead

of

crutches,

and

“temporarily

balance, grab an item with one hand, and transfer it to a pouch
attached to the walker or to an over-the-shoulder bag.”
15 at 7).

(Doc.

Having reviewed the record at length, the Court finds

that the Commissioner’s argument is misplaced.
Residual functional capacity is a measure of what Plaintiff
can do despite his or her credible limitations.
404.1545.

See 20 C.F.R. §

Determinations of a claimant’s residual functional

capacity are reserved for the ALJ, and the assessment is to be
based upon all the relevant evidence of a claimant’s remaining
ability to work despite his or her impairments, and must be
supported by substantial evidence.
Supp.

2d

1323,

1331 (S.D.

Ala.

See Beech v. Apfel, 100 F.
2000)

(citing

20

C.F.R.

§

404.1546 and Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997)); Saunders v. Astrue, 2012 U.S. Dist. LEXIS 39571, *10,
2012 WL 997222, *4 (M.D. Ala. March 23, 2012).

10

Once

the

functional

ALJ

has

capacity,

demonstrating

that

this

case,

performing

the

the

the

substantial evidence.
(11th Cir. 1985).

the

claimant

ALJ’s

Plaintiff’s

bears

decision

is

the
not

residual

burden
supported

of
by

See Flynn v. Heckler, 768 F.2d 1273, 1274

Plaintiff has met his burden in this case. In
ALJ

sedentary

occasionally),

determined

and

found
work

that

he

that
(i.e.

Plaintiff
can

must

use

is

capable

carry/lift
a

“hand

10

held

device” at all times while standing. (Tr. 62).

for

pounds

assistive

While the ALJ

did not elaborate on what type of “hand held assistive device”
was

being

referenced,

the

only

such

devices

utilized

by

Plaintiff are the two crutches, which were prescribed by his
doctor. (Id. at 200, 226-29).

And, the record reflects that the

consultative examiner, Dr. Elmo Ozment, Jr., M.D., opined that
Plaintiff must use the two crutches at all times to ambulate.
(Tr. 229).
At the administrative hearing, Plaintiff testified that,
while he is able to lift objects when seated, he cannot lift
anything
ambulate.

when

he

is

utilizing

(Id. at 90, 199).

the

two

crutches

needed

to

As noted, the Commissioner does

not dispute this record evidence, but instead argues that the
ALJ “apparently” contemplated Plaintiff using a walker, instead
of

crutches,

and

using

a

pouch

or

accommodate the item(s) being carried.

11

over-the-should

bag

to

Of course, the problem

with this assertion is that it is speculative at best, and it is
not found anywhere in the ALJ’s decision.
“It is the ALJ’s (or, in some cases, the Appeals Council’s)
responsibility,

not

the

responsibility

of

the

Commissioner’s

counsel on appeal to this Court, to ‘state with clarity’ the
grounds for an RFC determination.
may

not

be

manufactured

Stated differently, ‘linkage’

speculatively

by

the

Commissioner

—

using ‘the record as a whole’ — on appeal, but rather, must be
clearly set forth in the Commissioner’s decision.”

Jones v.

Colvin, 2015 U.S. Dist LEXIS 132460, at *79, 2015 WL 5737156, at
*23 (S.D. Ala Sept. 30, 2015); see also Durham v. Astrue, 2010
U.S. Dist. LEXIS 100888, 2010 WL 3825617, at *3 (M.D. Ala. Sept.
24, 2010) (rejecting the Commissioner’s request to affirm an
ALJ’s decision because, according to the Commissioner, overall,
the

decision

was

“adequately

explained

and

supported

by

substantial evidence in the record;” holding that affirming that
decision would require that the court “ignor[e] what the law
requires of the ALJ[;] [t]he court ‘must reverse [the ALJ’s
decision] when the ALJ has failed to provide the reviewing court
with sufficient reasoning for determining that the proper legal
analysis has been conducted’”) (quoting Hanna v. Astrue, 395
Fed. Appx. 634, 636 (11th Cir. 2010)).

In Durham, 2010 U.S.

Dist. LEXIS 100888, at *3, the court explained: “In his brief,
the Commissioner sets forth the

evidence on which the ALJ could

12

have

relied

.

.

.

.

There

may

very

well

be

ample

reason,

supported by the record, for [the ALJ’s ultimate conclusion].
However, because the ALJ did not state his reasons, the court
cannot evaluate them for substantial evidentiary support.

Here,

the court does not hold that the ALJ’s ultimate conclusion is
unsupportable on the present record; the court holds only that
the ALJ did not conduct the analysis that the law requires him
to conduct.” (Emphasis in original).

See also Patterson v.

Bowen, 839 F.2d 221, 225 n.1 (4th Cir. 1988) (“We must . . .
affirm the ALJ’s decision only upon the reasons he gave.”).
Because the ALJ’s RFC determination is simply not supported by
the record, this case must be remanded.
Also problematic is the fact that the hypothetical that the
ALJ provided to the VE was flawed.

The ALJ posed a hypothetical

question involving an individual of Plaintiff’s age, education,
and work experience, with a residual functional capacity at the
sedentary exertional level, with the ability to push and pull
occasionally with the left and never with the right, who can
never climb ladders, ropes, or scaffolds, who can occasionally
climb

ramps

or

stairs,

who

can

occasionally

balance

with

a

handheld assistive device, who can occasionally stoop, crouch,
kneel, and crawl, who must have no exposure to workplace hazards
such as moving machinery and unprotected heights, who has the
ability to see only with the right eye, and who must be limited

13

to jobs performed using “a handheld assistive device at all
times when standing.”

(Tr. 94-96).

The VE testified that such

an individual could perform jobs such as an assembler of small
products, a circuit board assembler, and an order clerk.

(Id.

at 95).
“In order for a VE’s testimony to constitute substantial
evidence,

the

ALJ

must

pose

a

hypothetical

question

which

comprises all of the claimant’s impairments.”

Moreno v. Astrue,

366

(citing

Fed.

Appx.

Commissioner
2001)).

of

23,

29

Soc.

(11th

Sec.,

Cir.

265

2010)

F.3d

1214,

1220

Vega

(11th

v.
Cir.

“However, the ALJ is not required to include findings

in the hypothetical that the ALJ has found to be unsupported.”
Id. (citations omitted) (“The ALJ did not err by failing to
include [the claimant’s] subjective symptoms in his hypothetical
to

the

VE

because

the

ALJ

was

not

required

to

include

limitations that it found to be unsupported.”); see also Stremba
v.

Barnhart,

171

Fed.

Appx.

936,

939

(3d

Cir.

2006)

(“‘all

impairments’ means only those that are medically established. .
.

.

Limitations

that

are

medically

supported

but

are

also

contradicted by other evidence in the record may or may not be
found credible. . . . Of course, credibility determinations are
to be made by the ALJ.”) (citing 20 CFR § 404.1527) (citations
and internal quotation marks omitted).
In

this

case,

the

ALJ

did

14

not

make

clear

that

the

referenced “handheld assistive device” consisted of two crutches
which were required for ambulation.

(Tr. 95).

In other words,

there is a huge difference between relying on two crutches to
ambulate

versus

utilizing

a

cane

or

other

device.

This

is

particularly true where the record establishes that Plaintiff
cannot lift while using the two crutches to ambulate.
by

Plaintiff,

the

ALJ’s

incomplete

hypothetical

As argued

affected

the

reliability of the VE’s testimony regarding Plaintiff’s ability
to

perform

jobs

which

require

occasional

lifting/carrying,

stooping, crouching, kneeling, and crawling.
For each of the reasons set forth above, the Court finds
that the RFC is not supported by substantial evidence and must
be reversed and remanded.8

On remand, the ALJ shall specifically

address Dr. Ozment’s opinion that Plaintiff is required to use
two crutches in order to ambulate, and Plaintiff’s testimony
that he cannot lift while using the two crutches to ambulate.
The ALJ should specifically address

the weight given to

Dr.

Ozment’s opinions and how the restriction to using two crutches
at all times would affect Plaintiff’s ability to lift/carry ten
pounds occasionally, as well as how it would affect, if at all,
his ability to occasionally stoop, crouch, kneel, and crawl.

8

Because this case is being reversed and remanded, the
undersigned has not addressed the remaining issues raised in
Plaintiff’s brief.

15

The ALJ should also utilize the services of a vocational expert
to identify what sedentary jobs, if any, Plaintiff can perform
in light of the restriction that he use two crutches 100% in
order

to

ambulate.

See

Tilton

v.

Commissioner

of

Social

Security, 2010 WL 610633 (S.D. Ohio Feb. 19, 2010) (remanding
case for further proceedings where substantial evidence did not
support the ALJ’s decision that Plaintiff had the RFC to carry
twenty

pounds

occasionally,
that

given

Plaintiff

Plaintiff’s
needed

two

treating

physicians’

opinions

crutches

to

ambulate).

Accordingly, this matter is remanded for further

administrative proceedings.
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

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for
supplemental security income be REVERSED and REMANDED.
DONE this 30th day of September, 2016.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

16