McNaughton v. Colvin
MEMORANDUM OPINION AND ORDER that Commissioners decision be AFFIRMED under sentence four of §405(g). Signed by Magistrate Judge Katherine P. Nelson on 1/10/2017. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
RACHEL M McNAUGHTON,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
CIVIL ACTION NO. 16-00268-N
MEMORANDUM OPINION AND ORDER
Plaintiff Rachel M McNaughton has brought this action under 42 U.S.C. §§
405(g) and 1383(c)(3) seeking judicial review of a final decision of the Defendant
Commissioner of Social Security (“the Commissioner”) denying her applications for
a period of disability and disability insurance benefits (“DIB”) under Title II of the
Social Security Act, 42 U.S.C. § 401, et seq., and for supplemental security income
(“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq.
the consent of the parties, the Court has designated the undersigned Magistrate
Judge to conduct all proceedings and order the entry of judgment in this civil action,
in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D.
Ala. GenLR 73. (See Docs. 18, 19).
Upon consideration of the parties’ briefs (Docs. 13, 14) and those portions of
the administrative record (Docs. 11, 12) (hereinafter cited as “(R. [page number(s) in
lower-right corner of transcript])”) relevant to the issues raised, and with the
benefit of oral argument held January 9, 2017, the Court finds that the
Commissioner’s final decision is due to be AFFIRMED under sentence four of §
On January 25, 2013, McNaughton filed applications for a period of
disability, DIB, and SSI with the Social Security Administration (“SSA”), alleging
disability beginning August 1, 2012.1 After her applications were initially denied,
McNaughton requested a hearing before an Administrative Law Judge (“ALJ”) for
the SSA; hearings were held on April 17 and August 28, 2014. On December 1,
2014, the ALJ issued an unfavorable decision on McNaughton’s applications,
finding her “not disabled” under the Social Security Act and thus not entitled to
benefits. (See R. 15 – 32).
The Commissioner’s decision on McNaughton’s applications became final
when the Appeals Council for the Office of Disability Adjudication and Review
denied McNaughton’s request for review of the ALJ’s decision on May 12, 2016. (R.
1 – 5).
On June 7, 2016, McNaughton filed this action under §§ 405(g) and
1383(c)(3) for judicial review of the Commissioner’s final decision. (Doc. 1). See 42
U.S.C. § 1383(c)(3) (“The final determination of the Commissioner of Social Security
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). 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).
“For DIB claims, a claimant is eligible for benefits where she demonstrates
disability on or before the last date for which she were insured. 42 U.S.C. §
423(a)(1)(A) (2005). For SSI claims, a claimant becomes eligible in the first month
where she is both disabled and has an SSI application on file. 20 C.F.R. § 416.202–
03 (2005).” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam).
after a hearing [for SSI benefits] shall be subject to judicial review as provided in
section 405(g) of this title to the same extent as the Commissioner’s final
determinations under section 405 of this title.”); 42 U.S.C. § 405(g) (“Any individual,
after any final decision of the Commissioner of Social Security made after a hearing
to which he was a party, irrespective of the amount in controversy, may obtain a
review of such decision by a civil action commenced within sixty days after the
mailing to him of notice of such decision or within such further time as the
Commissioner of Social Security may allow.”); Ingram v. Comm'r of Soc. Sec.
Admin., 496 F.3d 1253, 1262 (11th Cir. 2007) (“The settled law of this Circuit is that
a court may review, under sentence four of section 405(g), a denial of review by the
Standards of Review
“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is ‘ “supported by substantial evidence and based on proper
legal standards. Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.” ’
” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quoting
Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam)
(internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th
Cir. 1997))). However, the Court “ ‘may not decide the facts anew, reweigh the
evidence, or substitute our judgment for that of the [Commissioner].’ ” Id. (quoting
Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (alteration in
original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983))).
“‘Even if the evidence preponderates against the [Commissioner]’s factual findings,
[the Court] must affirm if the decision reached is supported by substantial
evidence.’ ” Ingram, 496 F.3d at 1260 (quoting Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990)).
“Yet, within this narrowly circumscribed role, [courts] do not act as
automatons. [The Court] must scrutinize the record as a whole to determine if the
decision reached is reasonable and supported by substantial evidence[.]”
Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). See also Owens v.
Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) (“We are neither to
conduct a de novo proceeding, nor to rubber stamp the administrative decisions that
come before us. Rather, our function is to ensure that the decision was based on a
reasonable and consistently applied standard, and was carefully considered in light
of all the relevant facts.”). “In determining whether substantial evidence exists, [a
court] must…tak[e] into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
However, the “substantial evidence” “standard of review applies only to
[Commissioner]’s conclusions of law, including determination of the proper
standards to be applied in reviewing claims.” MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir. 1986) (quotation omitted). Accord, e.g., Wiggins v. Schweiker, 679
F.2d 1387, 1389 (11th Cir. 1982) (“Our standard of review for appeals from the
administrative denials of Social Security benefits dictates that ‘(t)he findings of the
Secretary as to any fact, if supported by substantial evidence, shall be conclusive ....’
42 U.S.C.A. s 405(g) … As is plain from the statutory language, this deferential
standard of review is applicable only to findings of fact made by the Secretary, and
it is well established that no similar presumption of validity attaches to the
Secretary’s conclusions of law, including determination of the proper standards to
be applied in reviewing claims.” (some quotation marks omitted)).
“conduct[s] ‘an exacting examination’ of these factors.” Miles v. Chater, 84 F.3d
1397, 1400 (11th Cir. 1996) (per curiam) (quoting Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990)). “‘The [Commissioner]’s failure to apply the correct law or to
provide the reviewing court with sufficient reasoning for determining that the
proper legal analysis has been conducted mandates reversal.’” Ingram, 496 F.3d at
(quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991)).
Accord Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir.
In sum, courts “review the Commissioner’s factual findings with deference
and the Commissioner’s legal conclusions with close scrutiny.” Doughty v. Apfel,
245 F.3d 1274, 1278 (11th Cir. 2001). See also Moore v. Barnhart, 405 F.3d 1208,
1211 (11th Cir. 2005) (per curiam) (“In Social Security appeals, we review de novo
the legal principles upon which the Commissioner's decision is based. Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
However, we review the resulting
decision only to determine whether it is supported by substantial evidence.
Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158–59 (11th Cir. 2004).”).
Eligibility for DIB and SSI requires that the claimant be disabled. 42
U.S.C. §§ 423(a)(1)(E), 1382(a)(1)-(2). A claimant is disabled if she is
unable “to engage in any substantial gainful activity by reason of a
medically determinable physical or mental impairment ... which has
lasted or can be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
Thornton v. Comm’r, Soc. Sec. Admin., 597 F. App’x 604, 609 (11th Cir. 2015) (per
The Social Security Regulations outline a five-step, sequential
evaluation process used to determine whether a claimant is disabled:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe impairment or
combination of impairments; (3) whether the impairment meets or
equals the severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity (“RFC”)
assessment, whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there are
significant numbers of jobs in the national economy that the claimant
can perform given the claimant's RFC, age, education, and work
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)(v); Phillips, 357 F.3d at 1237-39).3
“These regulations place a very heavy burden on the claimant to demonstrate
both a qualifying disability and an inability to perform past relevant work.” Moore,
405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)).
In this Circuit, “[u]npublished opinions are not considered binding precedent, but
they may be cited as persuasive authority.” 11th Cir. R. 36-2. See also Henry v.
Comm'r of Soc. Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases
printed in the Federal Appendix are cited as persuasive authority.”).
The Court will hereinafter use “Step One,” “Step Two,” etc. when referencing
individual steps of this five-step sequential evaluation.
“In determining whether the claimant has satisfied this initial burden, the
examiner must consider four factors: (1) objective medical facts or clinical findings;
(2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the
claimant’s age, education, and work history.” Jones v. Bowen, 810 F.2d 1001, 1005
(11th Cir. 1986) (per curiam) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th
Cir. 1983) (per curiam)).
“These factors must be considered both singly and in
combination. Presence or absence of a single factor is not, in itself, conclusive.”
Bloodsworth, 703 F.2d at 1240 (citations omitted).
If, in Steps One through Four of the five-step evaluation, a claimant proves
that he or she has a qualifying disability and cannot do his or her past relevant
work, it then becomes the Commissioner’s burden, at Step Five, to prove that the
claimant 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. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler,
764 F.2d 834, 836 (11th Cir. 1985).
Finally, although the “claimant 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). See also Ellison v.
Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam) (“It is well-established
that the ALJ has a basic duty to develop a full and fair record. Nevertheless, the
claimant bears the burden of proving that he is disabled, and, consequently, he is
responsible for producing evidence in support of his claim.” (citations omitted)).
“This is an onerous task, as the ALJ must scrupulously and conscientiously probe
into, inquire of, and explore for all relevant facts.
In determining whether a
claimant is disabled, the ALJ must consider the evidence as a whole.” Henry v.
Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and
Where, as here, the ALJ denied benefits and the Appeals Council denied
review of that decision, the Court “review[s] the ALJ’s decision as the
Commissioner’s final decision.” Doughty, 245 F.3d at 1278. “[W]hen the [Appeals
Council] has denied review, [the Court] will look only to the evidence actually
presented to the ALJ in determining whether the ALJ’s decision is supported by
substantial evidence.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998). If the
applicant attacks only the ALJ’s decision, the Court may not consider evidence that
was presented to the Appeals Council but not to the ALJ. See id. at 1324.
At Step Five, “the ALJ considers the claimant’s RFC, age, education, and
work experience to determine whether the claimant “can make an adjustment to
other work. 20 C.F.R. § 404.1520(a)(4)(v). Essentially, the ALJ must determine if
there is other work available in significant numbers in the national economy that
the claimant has the ability to perform. If the claimant can make the adjustment to
other work, the ALJ will determine that the claimant is not disabled. If the
claimant cannot make the adjustment to other work, the ALJ will determine that
the claimant is disabled.” Phillips, 357 F.3d at 1239 (footnote omitted). Here, in
making his determination at Step Five, the ALJ relied on the testimony of a
vocational expert (VE).4 (R. 28). When asked “whether jobs exist in the national
economy for an individual with [McNaughton]’s age, education, work experience,
and residual functional capacity,” the VE “testified that given all of th[o]se factors
the individual would be able to perform the requirements of representative light,
unskilled (SVP2) occupation as house sitter (Dictionary of Occupational Titles
309.367-010), of which there are more than 750,000 jobs exist [sic] in the national
economy.” (R. 28). Concluding that the VE’s testimony “is consistent with the
information contained in the Dictionary of Occupational Titles[,]” the ALJ found,
“[b]ased on the testimony of the vocational expert,” that McNaughton was “capable
of making a successful adjustment to other work that exists in significant numbers
in the national economy.” (R. 28).
McNaughton offers two reasons why she believes substantial evidence does
not support the ALJ’s Step Five determination.5 First, McNaughton argues that the
“There are two avenues by which the ALJ may determine whether the claimant
has the ability to adjust to other work in the national economy. The first is by
applying the Medical Vocational Guidelines … The other means by which the ALJ
may determine whether the claimant has the ability to adjust to other work in the
national economy is by the use of a vocational expert. 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 1239–
In her brief, McNaughton appeared to argue that a VE’s testimony cannot
constitute substantial evidence where, as here, the VE identifies only a single
occupation that the claimant is capable of performing. However, at oral argument,
VE’s testimony regarding the number of jobs available nationally for the occupation
of “house sitter” is not reliable because the private computer program Job Browser
Pro by SkillTRAN reports “only 815 full time jobs in the national economy, 3 full
time jobs in the state of Alabama, and ‘N/A’ for the Mobile, Alabama region” for the
DOT code for “house sitter.” (Doc. 13 at 4). McNaughton represents that the “date
source for Job Browser Pro … is the U.S. Department of Labor, Dictionary of
Occupational Title 4th Edition, Revised (1991), (including subsequent amendments
by the U.S. Department of Labor).”
(Id. n.1). However, even assuming that the
McNaughton conceded that the existence of a single such occupation can satisfy the
Commissioner’s burden at Step Five. See 20 C.F.R. §§ 404.1566(b), 416.955(b)
(“Work exists in the national economy when there is a significant number of jobs (in
one or more occupations) having requirements which you are able to meet with
your physical or mental abilities and vocational qualifications.” (emphasis added)).
McNaughton does not raise any claims of error as to Steps One through Four.
Generally, claims of error not raised in the district court are deemed waived. See
Stewart v. Dep’t of Health & Human Servs., 26 F.3d 115, 115 – 16 (11th Cir. 1994)
(“As a general principle, [the court of appeals] will not address an argument that
has not been raised in the district court … Because Stewart did not present any of
his assertions in the district court, we decline to consider them on appeal.” (applying
rule in appeal of judicial review under 42 U.S.C. §§ 405(g), 1383(c)(3)); Hunter v.
Comm’r of Soc. Sec., 651 F. App'x 958, 962 (11th Cir. 2016) (per curiam)
(unpublished) (same); Cooley v. Comm'r of Soc. Sec., No. 16-11238, 2016 WL
7321208, at *2 (11th Cir. Dec. 16, 2016) (per curiam) (unpublished) (“As a general
rule, we do not consider arguments that have not been fairly presented to a
respective agency or to the district court. See Kelley v. Apfel, 185 F.3d 1211, 1215
(11th Cir. 1999) (treating as waived a challenge to the administrative law judge’s
reliance on the testimony of a vocational expert that was ‘not raise[d] . . . before the
administrative agency or the district court’).”); In re Pan Am. World Airways, Inc.,
Maternity Leave Practices & Flight Attendant Weight Program Litig., 905 F.2d 1457,
1462 (11th Cir. 1990) (“[I]f a party hopes to preserve a claim, argument, theory, or
defense for appeal, she must first clearly present it to the district court, that is, in
such a way as to afford the district court an opportunity to recognize and rule on
it.”); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999) (applying In re Pan
American World Airways in Social Security appeal).
VE’s testimony did not accurately reflect the DOT, 6 binding precedent in this
Circuit holds “that when the VE’s testimony conflicts with the DOT, the VE’s
testimony ‘trumps’ the DOT.” Jones v. Apfel, 190 F.3d 1224, 1229–30 (11th Cir.
1999). See also Jones v. Comm'r of Soc. Sec., 423 F. App'x at 939 (11th Cir. 2011)
(per curiam) (unpublished) (“Even assuming arguendo that the ALJ incorrectly
found that the VE's testimony was consistent with the DOT, such error was
harmless. See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (applying
harmless error analysis to ALJ’s incorrect statements that were irrelevant to
whether claimant had a severe impairment).
In this Circuit, a VE's testimony
trumps the DOT to the extent the two are inconsistent. See Jones, 190 F.3d at
1229–30. The VE opined that the ALJ’s hypothetical person could perform these
three jobs. The ALJ was permitted to base his findings about these three jobs
exclusively on the VE's testimony, irrespective of any inconsistency with the DOT,
and was not required to seek further explanation. See id.”);7 Leigh v. Comm'r of Soc.
Sec., 496 F. App'x 973, 975 (11th Cir. 2012) (per curiam) (unpublished) (similar).
Though not deciding the issue, the undersigned notes that the Eleventh Circuit
has found 840 jobs in the national economy to be a significant number supporting
an ALJ’s Step Five determination. See Brooks v. Barnhart, 133 F. App'x 669, 671
(11th Cir. 2005) (per curiam) (unpublished).
The undersigned notes “SSR 00–4p … provides that ‘[n]either the DOT nor the
[VE's testimony] automatically “trumps” ’ and instructs the ALJ to ‘elicit a
reasonable explanation’ for a conflict between the two before relying on the VE's
testimony. SSR 00–04p, 2000 WL 1898704 (Dec. 4, 2000). Social Security Rulings
are not binding on this Court. See B.B. v. Schweiker, 643 F.2d 1069, 1071 (5th Cir.
Unit B Apr.1981); see also Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th
Cir.1982) (providing that we are bound by decisions issued by Unit B panels of the
former Fifth Circuit). To the extent SSR 00–4p conflicts with Jones, we are bound
by Jones.” Jones v. Comm'r of Soc. Sec., 423 F. App'x at 939 n.4.
Accordingly, the ALJ did not err in relying on the VE’s testimony as to the numbers
of jobs existing in the national economy.
Second, McNaughton, again relying on the data provided by Job Browser Pro
for the “house sitter” occupation, appears to assert that the ALJ’s Step Five
determination cannot rest solely on the “house sitter” occupation because there is no
proof that such jobs exist in the Mobile, Alabama region where McNaughton
resides. The Social Security regulations, however, do not require jobs to exist in the
region where a claimant resides in order for the ALJ to determine that they exist in
the national economy in significant numbers.
See 20 C.F.R. §§ 404.1566(a)(1),
416.966(a)(1) (“We consider that work exists in the national economy when it exists
in significant numbers either in the region where you live or in several other
regions of the country. It does not matter whether [w]ork exists in the immediate
area in which you live.”).8
Accordingly, the Court OVERRULES McNaughton’s claims of reversible
error at Step Five and finds that the Commissioner’s final decision denying her
benefits is due to be AFFIRMED.
In accordance with the foregoing analysis, it is ORDERED that the
At oral argument, counsel for McNaughton pointed out that the VE’s testimony
appeared to classify “house sitter” as a part-time, rather than full-time, job.
However, upon review of the hearing transcript, the undersigned agrees with the
Commissioner that the VE subsequently clarified his testimony to state that while a
house sitter might work at a particular house for infrequent intervals, the sitter
would still be employed on a full-time basis for a company. (R. 67 – 68). Counsel for
McNaughton did not press the issue further, and the undersigned finds no reason to
disturb the ALJ’s Step Five determination on this basis.
Commissioner’s May 12, 2016 final decision denying McNaughton’s applications for
a period of disability, DIB, and SSI is AFFIRMED under sentence four of 42 U.S.C.
§ 405(g). Final judgment shall issue separately in accordance with this Order and
Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 10th day of January 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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