Colston v. Berryhill

Filing 24

Order re: 1 Complaint filed by Shaihem D. Colston that the decision of the Commissioner of Social Security denying Plaintiff's claim for child insurancebenefits and supplemental security income be REVERSED and REMANDED. Signed by Magistrate Judge Sonja F. Bivins on 9/13/18. (mpp) Copies to counsel

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHAIHEM D. COLSTON,
Plaintiff,
vs.
NANCY BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

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CIVIL ACTION NO. 17-00313-B

ORDER
Plaintiff Shaihem D. Colston (hereinafter “Plaintiff”), seeks
judicial review of a final decision of the Commissioner of Social
Security denying his claim for child insurance benefits under 42
U.S.C. § 402(d) and supplemental security income under Title XVI of
the Social Security Act, 42 U.S.C. §§ 1381, et seq.

On April 1,

2018, the parties consented to have the undersigned conduct any and
all proceedings in this case.

(Doc. 18).

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.

Procedural History1

I.

Plaintiff filed his application for benefits on June 24, 2014,
alleging disability beginning March 15, 2014, based on “sleep apnea,
high blood pressure, ADHD, and learning disability.”
168, 188, 193).
request,

he

(Doc. 11 at

Plaintiff’s application was denied and upon timely
was

granted

an

administrative

hearing

before

Administrative Law Judge Alan Michel (hereinafter “ALJ”) on May 13,
2016.

(Id. at 43).

Plaintiff attended the hearing with his counsel

and provided testimony related to his claims.2

(Id. at 51).

On

July 12, 2016, the ALJ issued an unfavorable decision finding that
Plaintiff is not disabled. (Id. at 25).

The Appeals Council denied

Plaintiff’s request for review on June 5, 2017.

(Id. at 1).

Therefore, the ALJ’s decision dated July 12, 2016, became the final
decision of the Commissioner.
Having exhausted his administrative remedies, Plaintiff timely
filed the present civil action.
conducted on May 29, 2018.

(Doc. 1).

(Doc. 22).

Oral argument was

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).

1

The Court’s citations to the transcript in this order refer to the
pagination assigned in CM/ECF.
2

The ALJ did not utilize the services of a vocational expert at
the hearing.

2

II.

Issues on Appeal
1. Whether the ALJ erred in finding that
Plaintiff’s attention deficit hyperactivity
disorder (ADHD) and learning disorder were
non-severe impairments?
2. Whether substantial evidence supports the
Residual Functional Capacity (“RFC”)?
3. Whether the ALJ erred in relying on the
GRIDS to find that Plaintiff is not
disabled?

III. Factual Background
Plaintiff was born on August 29, 1995, and was twenty years of
age at the time of his administrative hearing on May 13, 2016.
(Doc. 11 at 51).

Plaintiff graduated from high school taking

special education classes from kindergarten through twelfth grade.
(Id. at 51, 57).
Plaintiff has no prior significant gainful employment.3
at 54).

Plaintiff testified that he cannot read.

(Id.

(Id. at 56).

He

received his drivers’ license after passing the oral examination.
(Id. at 56).
54-55).

He can drive but does not drive regularly.

(Id. at

He can take care of his own personal care needs but does

not do any chores, cooking, shopping, or yard work.

(Id. at 55).

According to Plaintiff, he cannot work because he has trouble
with shortness of breath, and he has problems with understanding,

3

Plaintiff testified that he once attempted to get a job through
vocational rehabilitation at Goodwill Easter Seals, but he failed
the test because he could not read. (Doc. 11 at 56).

3

remembering,

and

carrying

out

instructions

appropriately to supervision and work pressures.

and

responding

(Id. at 54, 58).

Plaintiff testified that he takes medication for weight loss but no
longer takes medication for ADHD because he cannot afford it.

(Id.

at 57-58).
IV. Standard of Review
In reviewing claims brought under the Act, this Court’s role
is a limited one.

The Court’s review is limited to determining 1)

whether the decision of the Secretary is supported by substantial
evidence and 2) whether the correct legal standards were applied.4
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).

A court

may not decide the facts anew, reweigh the evidence, or substitute
its judgment for that of the Commissioner.
F.2d 1065, 1067 (11th Cir. 1986).

Sewell v. Bowen, 792

The Commissioner’s findings of

fact must be 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

conclusion.”).

would

accept

as

adequate

to

support

a

In determining whether substantial evidence exists,

4

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).

4

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).
V.

Statutory and Regulatory Framework5
An

individual

who

applies

for

Social

benefits must prove his or her disability.
416.912.

Security

disability

20 C.F.R. §§ 404.1512,

Disability is defined as the “inability to engage in any

5

“The Social Security Act’s general disability insurance benefits
program (“DIB”) provides income to individuals who are forced into
involuntary, premature retirement, provided they are both insured
and disabled, regardless of indigence.” Bruce v. Berryhill, 2018
U.S. Dist. LEXIS 82103, *4, 2018 WL 2248452, *2 (M.D. Ala. May 16,
2018) (citing 42 U.S.C. § 423(a)). “The Social Security Act’s
Supplemental Security Income (“SSI”) is a separate and distinct
program.”
Id.
“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.”
Id. “Childhood disability insurance benefits (“CDIB”) are rendered
to a disabled adult under the old-age and survivors insurance
benefits section of the Social Security Act.”
Id.
(citing 42
U.S.C. § 402(d)). “In order to receive CDIB as a disabled adult,
a claimant must establish that he or she is the child of an
individual who is entitled to old-age or disability insurance
benefits and is dependent on the insured, is unmarried, and was
under a disability as defined in the Act that began before he
attained the age of twenty-two.”
Id.
(citing 42 U.S.C. §§
402(d)(1), 423(d)(1)(A); 20 C.F.R. § 404.350).
“[T]he law and
regulations governing a claim for DIB and a claim for SSI are
identical; therefore, claims for DIB and SSI are treated identically
for the purpose of determining whether a claimant is disabled.”
Id. (citing Patterson v. Bowen, 799 F.2d 1455, 1456 n.1 (11th Cir.
1986)). As in Bruce, the only distinction with the case at hand
are the added elements of CDIB. Id.

5

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. §§

423(d)(1)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a).
Social

Security

regulations

provide

a

five-step

The

sequential

evaluation process for determining if a claimant has proven his
disability.

20 C.F.R. §§ 404.1520, 416.920.

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.
1005 (11th Cir. 1986).

Jones v. Bowen, 810 F.2d 1001,

At the fourth step, the ALJ must make an

assessment of the claimant’s RFC.
3d 1232, 1238 (llth Cir. 2004).

See Phillips v. Barnhart, 357 F.

The RFC is an assessment, based on

all relevant medical and other evidence, of a claimant’s remaining
ability to work despite his impairment.
F.3d 1436, 1440 (llth Cir. 1997).

6

See Lewis v. Callahan, 125

If a claimant meets his or her burden at the fourth step, it
then 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)).
VI.

Discussion
A. The ALJ’s finding, at step two, that
Plaintiff’s attention deficit hyperactivity
disorder (ADHD) and learning disorder were
non-severe impairments is not reversible
error.
In his brief, Plaintiff argues that the ALJ erred in finding

that his ADHD and learning disorder were non-severe impairments.
(Doc. 12 at 2-6). The Commissioner counters that the ALJ’s findings
are supported by substantial evidence.

(Doc. 15 at 6).

Having

carefully reviewed the record in this case, the Court finds that
substantial

evidence

does

not

support

the

ALJ’s

finding

Plaintiff’s ADHD and learning disability are non-severe.

that

However,

for purposes of the step two analysis only, the Court finds that

7

this error was harmless at step two.
“At step two the ALJ must determine if the claimant has any
severe impairment.

This step acts as a filter; if no severe

impairment is shown the claim is denied, but the finding of any
severe impairment, whether or not it qualifies as a disability and
whether or not it results from a single severe impairment or a
combination of impairments that together qualify as severe, is
enough to satisfy the requirement of step two.”
814 F.2d 585, 588 (11th Cir. 1987).

Jamison v. Bowen,

See also Tuggerson-Brown v.

Commissioner of Soc. Sec., 572 Fed. Appx. 949, 951 (11th Cir. 2014)
(per curiam) (unpublished) (“[W]e have recognized that step two
requires only a finding of ‘at least one’ severe impairment to
continue on to the later steps. . . . [T]he regulations state that
the only consequence of the analysis at step two is that, if the
ALJ finds no severe impairment or impairments, he should reach a
conclusion of no disability. . . . Here, the ALJ found multiple
severe impairments and accordingly proceeded to step three of the
evaluation.

Based on our precedent and the regulations, therefore,

it is apparent that there is no need for an ALJ to identify every
severe impairment at step two.

Accordingly, even assuming that

Tuggerson-Brown is correct that her additional impairments were
‘severe,’ the ALJ’s recognition of that as a fact would not, in any
way, have changed the step-two analysis, and she cannot demonstrate
error below.”); Bennett v. Astrue, 2013 U.S. Dist. LEXIS 115951,

8

*14, 2013 WL 4433764, *5 (N.D. Ala. 2013) (“‘[n]othing requires
that the ALJ must identify, at step two, all of the impairments
that should be considered severe’ and, even if the ALJ erred by not
recognizing every severe impairment, the error was harmless since
he found at least one such impairment.”); Ferguson v. Astrue, 2012
U.S. Dist. LEXIS 139135, *25, 2012 WL 4738857, *9 (N.D. Ala. 2012)
(“[B]ecause step two only acts as a filter to prevent non-severe
impairments from disability consideration, the ALJ’s finding of
other severe impairments allowed him to continue to subsequent steps
of the determination process and his failure to list headaches as
severe does not constitute reversible error because, under the
Social Security regulations, the ALJ at later steps considers the
combined effect of all the claimant’s impairments.”) (emphasis in
original).
Based on a thorough review of the record in this case, the
Court finds that the ALJ’s determination that Plaintiff’s ADHD and
learning disorder were non-severe is not supported by substantial
evidence.

The record shows that Plaintiff was diagnosed with ADHD

in January 2012 and prescribed Adderall.6

(Doc. 11 at 246-47).

In

2012 and 2013, Plaintiff’s activity analysis repeatedly was found
to be “abnormal,” prompting recommendations from his treatment

6

Consultative psychologist, Dr. Jack Carney, Ph.D., noted that
Plaintiff reported being on medication for inattention since he was
five years old. (Doc. 11 at 281).

9

provider that he needed behavioral modification and family therapy,
as well as medication.

(Id. at 249-50, 252-53, 256).

Plaintiff was diagnosed with a learning disorder in 2005. (Id.
at 106).
school.

Plaintiff’s school records show that he completed high
However,

he

was

in

special

education

classes

from

kindergarten through twelfth grade; he failed the second grade; he
received a certificate of completion, not a diploma; and his grades
were poor.7
In

(Id. at 57, 106, 233-37, 278).

addition,

consultative

psychologist,

Dr.

Jack

Carney,

Ph.D., examined Plaintiff on November 17, 2014, and found that he
was unable to do simple math; he could count backward from twenty
to one but was unable to spell “world” forward or backward; his
recent and remote memory was normal, but he had problems with
immediate memory, recalling only one of three items after five
minutes;

his

fund

of

information

and

abstract

reasoning

were

abnormal, and his judgment/insight “seemed impaired,” although his
thought process and content were normal.

(Id. at 277-80).

Dr.

Carney opined that Plaintiff functioned in the borderline range of
intelligence and noted that, while there did not appear to be a
lifelong history of mental retardation, there appeared to be a

7

While the ALJ observed that Plaintiff was able to handle a
course load of five classes per term in high school, taking such
classes as World History, United States History, English, Biology,
and Math, the record shows that Plaintiff made F’s and D’s in World
History, a D in United States History, F’s and D’s in English, F’s
and D’s in Biology, and F’s and D’s in math. (Doc. 11 at 31, 237).

10

history of “mental slowness.”

(Id. at 280).

Dr. Carney noted

Plaintiff’s reports that he is not afraid of people but does not
like

being

around

a

lot

of

people

and

that

he

has

trouble

concentrating, struggles with reading and writing, and is very slow.
(Id.

at

281-82).

Dr.

Carney’s

diagnosis

was

ADHD,

severe,

inattentive type, and his prognosis was that “a favorable outcome
is not expected”.

He also noted that Plaintiff had been on

medication for inattention since he was five years old and was still
struggling with symptoms of inattention.8

(Id. at 281).

Dr. Carney

further opined that Plaintiff “does not appear to possess the
ability to understand, carry out and remember instructions, and
respond

appropriate[ly]

to

supervision,

co-workers,

and

work

pressures in a work setting” and is not capable of managing funds.
(Id.).

Dr. Carney found that Plaintiff was cooperative and a

reliable informant.

(Id.).

In addition, in November 2014, State Agency reviewer, Dr.
Joanna

Koulianos,

Ph.D.,

opined

that

Plaintiff

had

moderate

difficulties in maintaining concentration, persistence, or pace;
that Plaintiff was moderately limited in his ability to understand
and remember detailed instructions, in his ability to carry out
detailed instructions, in his ability to maintain attention and
concentration for extended periods, and in his ability to respond

8

Plaintiff testified that he no longer takes Adderall because
he cannot afford it. (Doc. 11 at 57).

11

appropriately to changes in the work setting, but that he should be
able to carry out short and simple job instructions and attend and
concentrate for two hour periods.9

(Id. at 110-11).

The record also shows that Plaintiff has a driver’s license
and drives on occasion.

However, he passed only the oral driver’s

test, not the written test.

(Id. at 56-57).

had to read the test to him.

(Id. at 57).

The driving instructor
In addition, Plaintiff

attempted to obtain a job through Goodwill Easter Seals’ vocational
rehabilitation program but was unable to pass the test because he
could not read it.

(Id. at 56).

Based on the foregoing, the Court finds that substantial
evidence does not support the ALJ’s finding that Plaintiff’s ADHD
and learning disorder are non-severe impairments.

However, the ALJ

found, at step two of the sequential evaluation process, that
Plaintiff did have the severe impairment of obesity, and continued
with the sequential analysis.

Therefore, any error in failing to

find that Plaintiff’s ADHD and learning disorder were also severe
impairments was harmless, for purposes of the step two analysis,
because

the

ALJ

subsequently

considered

Plaintiff’s

ADHD

and

learning disorder in assessing his RFC. (Doc. 11 at 36). See Gray
v. Commissioner of Soc. Sec., 550 Fed. Appx. 850, 853-54 (11th Cir.
2013) (per curiam); see Packer v. Commissioner, Soc. Sec. Admin.,

9Dr.

Koulianos noted that Plaintiff had previous full-scale IQ
scores of 76 and 83. (Doc. 11 at 106).

12

542 Fed. Appx. 890, 892 (11th Cir. 2013) (per curiam); Heatly v.
Commissioner of Soc. Sec., 382 Fed. Appx. 823, 824-25 (11th Cir.
2010) (per curiam).
B. Substantial evidence does not support the
Residual Functional Capacity (“RFC”).
Residual functional capacity is a measure of what Plaintiff
can do despite his or her credible limitations.
404.1545.

Determinations

of

a

claimant’s

See 20 C.F.R. §

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.

See Beech v. Apfel, 100 F. Supp. 2d 1323,

1331 (S.D. Ala. 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).

Once the ALJ has determined the plaintiff’s

residual functional capacity, the claimant bears the burden of
demonstrating

that

substantial evidence.

the

ALJ’s

decision

is

not

supported

by

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

(11th Cir. 1985).
In addition, as part of the disability determination process,
the ALJ is tasked with weighing the opinions and findings of
treating, examining, and non-examining physicians.

In reaching a

decision, the ALJ must specify the weight given to different medical
opinions and the reasons for doing so.
13

See Winschel v. Commissioner

of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011).
do so is reversible error.

The failure to

See Williams v. Astrue, 2009 U.S. Dist.

LEXIS 12010, *4, 2009 WL 413541, *1 (M.D. Fla. 2009).
When weighing the opinion of a treating physician, the ALJ
must give the opinions “substantial weight,” unless good cause
exists for not doing so.

Costigan v. Commissioner, Soc. Sec.

Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4 (11th
Cir. Feb. 26, 2015) (citing Crawford v. Commissioner of Soc. Sec.,
363 F.3d 1155, 1160 (11th Cir. 2004) and Broughton v. Heckler, 776
F.2d 960, 962 (11th Cir. 1985)).

The opinion of “a one-time

examining physician — or psychologist” is not entitled to the same
deference as a treating physician. Petty v. Astrue, 2010 U.S. Dist.
LEXIS 24516, *50, 2010 WL 989605, *14 (N.D. Fla. Feb. 18, 2010)
(citing Crawford, 363 F.3d at 1160).

Also, an ALJ is “required to

consider the opinions of non-examining state agency medical and
psychological

consultants

because

they

‘are

highly

qualified

physicians and psychologists who are also experts in Social Security
disability evaluation.’”
948

(11th

Cir.

404.1527(f)(2)(i)).

2008)

Milner v. Barnhart, 275 Fed. Appx. 947,
(unpublished)

(citing

20

C.F.R.

§

“The ALJ may rely on opinions of non-examining

sources when they do not conflict with those of examining sources.”
Id. (citing Edwards v. Sullivan, 937 F.2d 580, 584-85 (11th Cir.
1991)).
Whether considering the opinions of treating, examining, or

14

non-examining

physicians,

testimony

any

of

good

medical

cause

source

when

unsupported by the evidence of record.
F.3d 1232, 1240 (11th Cir. 2004).

exists
it

to

is

discredit

contrary

to

the
or

Phillips v. Barnhart, 357

“Good cause may also exist where

a doctor’s opinions are merely conclusory, inconsistent with the
doctor’s

medical

evidence.”

records,

or

unsupported

by

objective

medical

Hogan v. Astrue, 2012 U.S. Dist. LEXIS 108512, *8, 2012

WL 3155570, *3 (M.D. Ala. 2012).

The ALJ is “free to reject the

opinion of any physician when the evidence supports a contrary
conclusion.”

Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985)

(per curiam) (citation omitted); Adamo v. Commissioner of Soc. Sec.,
365 Fed. Appx. 209, 212 (11th Cir. 2010) (The ALJ may reject any
medical opinion if the evidence supports a contrary finding.).
A review of the ALJ’s decision in the instant case demonstrates
that he found that Plaintiff has the severe impairment of obesity,
and the non-severe impairments of hypertension, obstructive sleep

apnea, hypertrophy of tonsils and adenoids, ADHD, and learning
disorder.

(Doc 11 at 27).

As noted, supra, the ALJ erroneously found

Plaintiff’s ADHD and learning disorder were non-severe; however, he
did consider them in determining Plaintiff’s RFC and concluded that

Plaintiff has the RFC to perform a full range of sedentary work,
with no restrictions.

(Id. at 33, 36).

Plaintiff argues that the RFC is not supported by substantial
evidence because it does not account for the mental limitations

15

caused by his severe, non-exertional impairments, ADHD and learning
disorder.

The Court agrees.

Having reviewed the evidence at

length, the Court is satisfied that the RFC is not supported by
substantial evidence.
As

discussed,

the

substantial

evidence,

detailed

above,

establishes that Plaintiff has the severe impairments of ADHD and
learning disorder.

Indeed, consultative examining psychologist,

Dr. Carney, opined that these conditions render Plaintiff unable to
“understand, carry out and remember instructions,” to “respond
appropriate[ly] to supervision, co-workers, and work pressures in
a work setting” and to manage funds.
with

this

evidence,

Koulianos,

opined

limitations

in

detailed

State
that

Plaintiff’s

instructions,

to

Agency
these

reviewing
conditions

ability
carry

(Id. at 281).

out

to

psychologist,
created

understand

detailed

Consistent

and

Dr.

moderate
remember

instructions,

to

maintain attention and concentration for extended periods, and to
respond appropriately to changes in the work setting, but that he
should be able to carry out short and simple job instructions and
attend and concentrate for two-hour periods.

(Id. at 110-11).

These opinions are consistent with Plaintiff’s school records and
his treatment records for these conditions, as detailed above.
Accordingly, the ALJ’s decision to assign Dr. Carney’s and Dr.
Koulianos’ opinions little weight (Doc. 11 at 32) is not supported
by substantial evidence.

16

Moreover, a review of the ALJ’s decision reveals that he made
no accommodation whatsoever for the limitations caused by these
impairments in the RFC.

The ALJ added no restrictions whatsoever

to the RFC for a full range of sedentary work.

In support of his

decision, the ALJ noted that he observed no difficulty on the part
of Plaintiff when attending the hearing; that Plaintiff completed
high school; that Plaintiff worked part time in high school for
class credit; that Plaintiff was able to take care of his own
personal care needs (i.e., bathing and grooming); that Plaintiff
could operate a microwave and cook a frozen dinner; that Plaintiff
went to church and attended doctors’ appointments regularly; that
Plaintiff had some normal findings upon examination by Dr. Carney
(such as normal orientation, thought processes, some normal memory,
no hallucinations, and was able to understand normal speech); that
Plaintiff had some normal findings upon examination by his treatment
providers; and that Plaintiff

watched television and listened to

music, which indicated his ability to attend, concentrate, and
focus.
The

(Doc. 11 at 29-31).
ALJ

rejected

the

opinions

of

consultative,

examining

psychologist Dr. Carney and State Agency reviewing psychologist Dr.
Koulianos, which contradicted this evidence and the substantial
evidence detailed above, such as evidence that although Plaintiff
completed the twelfth grade, he was in special education; he never
received a diploma; he had failing grades; and he is virtually

17

illiterate.

(Id. at 56-57, 106, 233-37, 278).

uncontroverted
impairments,

evidence
ADHD

that

and

Plaintiff’s

learning

Given the largely

non-exertional

disorder,

cause

mental

significant

limitations in his ability to perform work, the Court finds that
the

RFC,

which

Plaintiff’s

did

ADHD

not accommodate

and

learning

any

disorder,

impairments
is

not

caused

by

supported

by

substantial evidence.
C. The ALJ erred in relying on the Grids.
Last, based on the evidence detailed above, the Court finds
that the

ALJ

also

erred

in

relying

on

the

Medical-Vocational

Guidelines (“Grids”)10 to make a determination that Plaintiff was
not disabled.

As stated, the ALJ found that Plaintiff had the

severe impairment of obesity and the non-severe impairments of
hypertension, obstructive sleep apnea, hypertrophy of tonsils and
adenoids, ADHD, and learning disorder; that Plaintiff did not have
an impairment or combination of impairments that met or medically
equaled any Listing; that Plaintiff had the residual functional
capacity (“RFC”) to perform a full range of sedentary work; that
Plaintiff had no past relevant work; and that based on the RFC for

10

“The Grids are a series of matrices which correlate to a set
of variables — the claimant’s residual functional capacity, age,
education, background, and previous work experience — and can be
used, at step five, to determine whether claimant has the ability
to adjust to other work in the national economy.” Heatly, 382 Fed.
Appx. at 825. “On entry of these variables into their appropriate
matrix, a determination of disabled or not disabled is rendered.”
Id.

18

a full range of sedentary work, Plaintiff’s age, education, and
work experience,

a

finding

of

“not

Medical-Vocational Rule 201.27.11

disabled”

was

directed

by

(Id. at 27-37).

It is clear in this circuit that the Commissioner of Social
Security

must

vocational

develop

“a

opportunities

full

and

available

fair
to

a

record

regarding

claimant.”

Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989).

the

Allen

v.

The ALJ must

articulate 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

intuition or conjecture.”

by

substantial

evidence,

not

mere

Id.

One means by which the Commissioner meets this burden is by
reliance on the Grids.

Id.

However, exclusive reliance upon the

Grids is inappropriate “‘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

significantly limits basic work skills.’”12

impairment

that

Id. at 1202.

11

Medical-Vocational Rule 201.27 provides that a person is not
disabled if he or she has an RFC to perform the full range of
sedentary work, is a younger individual (age 18–44), has a high
school education or more, and has unskilled or no work experience.
See Mabien v. Apfel, 1999 U.S. Dist. LEXIS 21076, *26, 2000 WL
206619, *10 (S.D. Ala. Feb. 8, 2000) (citing 20 C.F.R. Pt 404,
Subpt. P, App. 2, Rule 201.27).
12

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,
19

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

limitations.’”
1995).

capacity

level

indicated

by

the

exertional

Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir.

Normally, when nonexertional limitations are alleged, “the

preferred method of demonstrating that the claimant can perform
specific jobs is through the testimony of a vocational expert.”
MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986).

“‘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 claimant can perform work which exists in
the national economy.’”

Allen, 880 F.2d at 1202 (emphasis in

original) (citations omitted); see also Garred v. Astrue, 383 Fed.
Appx. 820, 824 (11th Cir. 2010) (“When a claimant has non-exertional
impairments that significantly limit her ability to work, the ALJ
may use the Guidelines as a framework, but should also consult with
a VE to determine how 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)).

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. § 404.1569(a)).

20

In the instant case, the ALJ erroneously found that Plaintiff’s
non-exertional impairments (ADHD and learning disorder) were nonsevere, as the substantial evidence, including the opinions of Dr.
Carney

and

Dr.

Koulianos,

clearly

established

that

Plaintiff

struggled with reading and writing; he had trouble concentrating;
his

judgment/insight

borderline

range

of

were

impaired;

intelligence.

and

he

Given

functioned
these

in

the

nonexertional

functional limitations, it is far from clear that Plaintiff can do
unlimited types of work at the sedentary level.
ALJ’s reliance on the Grids was error.

As a result, the

He was required to utilize

a vocational expert to establish whether Plaintiff could perform
work which exists in national economy in light of his nonexertional
functional limitations.
Accordingly, this matter must be remanded for consideration by
a vocational expert regarding whether there are specific jobs in
the national economy that Plaintiff could perform.

On remand, the

Commissioner should utilize the services of a vocational expert to
identify what sedentary jobs, if any, Plaintiff can perform in light
of his nonexertional limitations. 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) (citing Francis v. Heckler, 749 F.2d 1562 (11th
Cir. 1985)).

21

VII.

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 child insurance
benefits and supplemental security income be REVERSED and REMANDED.
DONE this 13th day of September 2018.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

22