Edwards v. Astrue
Order entered that the decision of the Commissioner of SocialSecurity, denying Plaintiffs claim for a period of disability,disability insurance benefits, and supplemental security incomebe AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 9/21/2012. (mjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JESSE JAMES EDWARDS, JR.,
MICHAEL J. ASTRUE, Commissioner
of Social Security,
CIVIL ACTION 11-00472-B
this action seeking judicial review of a final decision of the
Commissioner of Social Security denying his claim for a period
of disability, disability insurance benefits, and supplemental
security income under Titles II and XVI of the Social Security
Act, 42 U.S.C. §§ 401, et seq., and 1381, et seq.
On June 11,
2012, the parties consented to have the undersigned conduct any
and all proceedings in this case. (Doc. 19).
Thus, this case
through entry of judgment in accordance with 28 U.S.C. § 636(c)
and Fed. R. Civ. P. 73. (Doc. 21).
Oral argument was waived.
Upon careful consideration of the administrative record and the
memoranda of the parties, it is hereby ORDERED that the decision
of the Commissioner be AFFIRMED.
Plaintiff protectively filed an application for disability
insurance benefits and for supplemental security income benefits
on March 9, 2009. (Tr. 152-60). In his applications, Plaintiff
alleges that he has been disabled since September 25, 2008, due
to eye, leg, and breathing problems, a hernia, and acid reflux.
(Id. at 86, 92, 154, 187). Plaintiff’s applications were denied
initially, and he timely filed a Request for Hearing. (Id. at
87-91, 93-99). On September 29, 2010, Plaintiff, his attorney,
(Id. at 55-78).
On November 2, 2010, the
ALJ issued an unfavorable decision finding that Plaintiff is not
(Id. at 13-27).
Plaintiff’s request for review was
denied by the Appeals Council (“AC”) on June 24, 2011.
The parties 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 Appeal
Whether substantial evidence supports the
ALJ’s RFC assessment?
Whether the ALJ erred in finding that
Plaintiff can return to his past relevant
work as a short order cook?
III. Factual Background
Plaintiff was born on January 30, 1951, and was fifty-nine
(59) years of age at the time of the administrative hearing.
(Tr. 57, 79, 80).
He graduated from high school and completed
relevant work (“PRW”) as a fast food cook, construction worker,
driver, and builder/carpenter.
(Id. at 75, 208, 214, 220, 236).
shoulders, that his right shoulder is worst than the left, and
that on average, his shoulder pain is a seven out of ten and is
testified that he has low back pain which flares up if he sits
for prolonged periods.
(Id. at 62). According to Plaintiff, his
back pain averages a seven on a pain scale of one to ten, and is
Plaintiff, he does not have health insurance and cannot afford
to purchase any prescription medication for his pain; thus, he
takes ibuprofen for his pain. (Id. at 60-61)1.
testified that he had surgery for a hernia in 2009, and that he
According to Plaintiff he has been turned away from the
emergency room on two occasions because of outstanding medical
bills, and United Way’s “Doc in a Bus” will no longer see him
because he is pursuing disability. (Id. at 67-68).
still experiences soreness and tenderness, especially when he
attempts to lift certain objects. (Id. at 66).
With respect to his daily activities, Plaintiff testified
that he is able to care for his personal needs, and do some
laundry, cooking, and other limited household chores, but he has
to take breaks because he cannot stand for long periods of time.
(Id. at 68-69, 207, 209).
According to Plaintiff, he spends
most of his time at home watching TV, although he does sing in
the choir and attend church once a month.
(Id. at 69-70).
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).2
Martin v. Sullivan, 894 F.2d
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.
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).
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
(S.D. Ala. 1999).
An individual who applies for Social Security disability
benefits must prove his disability.
Disability is defined as the “inability to do any
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 twelve months.”
42 U.S.C. §§ 423(d)(1)(A), 404.1505(a), 416.905(a).
Security regulations provide a five-step sequential evaluation
process for determining if a claimant has proven her disability.
20 C.F.R. §§ 404.1520, 416.920.3
In the case sub judice, the ALJ determined that Plaintiff
benefits through December 31, 2010.
(Tr. 18). The ALJ found
that Plaintiff has not engaged in substantial gainful activity
since his alleged onset date.
The ALJ concluded that
while Plaintiff has the severe impairments of arthritis of the
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
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; (4) the claimant’s
age, education and work history. Id. at 1005. 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
claimant’s residual functional capacity, age, education, and
work history. Sryock v. Heckler, 764 F.2d 834 (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.
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)).
right shoulder, status post right inguinal hernia surgery, and
hypertension, they do not meet or medically equal the criteria
for any of the impairments listed in 20 C.F.R. Pt. 404, Subpt.
P, App. 1, Regulations No. 4.4
(Id. at 18-19).
functional capacity (hereinafter “RFC”) to perform a full range
of light work.
(Id. at 21).
The ALJ found that Plaintiff can
lift 20 pounds occasionally and 10 pounds frequently, that he
can stand, walk, and sit for 6 out of 8 hours, that he can
frequently use his right upper extremity to push and pull, that
he can occasionally climb ramps and stairs, crouch, crawl, and
Plaintiff should be precluded from climbing ladders, ropes, and
scaffolds, that he should avoid concentrated exposure to extreme
exposure to hazardous machinery and unprotected heights.
The ALJ next determined that while Plaintiff’s medically
determinable impairments could reasonably be expected to produce
The ALJ also determined that Plaintiff’s vision problems,
back pain, cataracts, and/or GERD do not constitute severe
impairments. Plaintiff has not challenged this finding. (Id. at
symptoms were not credible to the extent they are inconsistent
with the RFC assessment.
(Id. at 23). The ALJ utilized the
(hereinafter “PRW”) as a short order cook, which is classified
as light and semiskilled.
(Id. at 24, 75).
The ALJ found that,
comparing Plaintiff’s RFC with the physical and mental demands
of his PRW, Plaintiff is able to perform his PRW. (Id. at 24).
Thus, he concluded that Plaintiff is not disabled. (Id.)
The relevant evidence of record reflects that Plaintiff was
examined by Dr. Dixitkumar Modi for a disability evaluation on
July 2, 2008. (Id. at 235-50). Plaintiff reported that he has
extremities, right shoulder pain, and right scrotal pain.
An examination of Plaintiff’s abdomen showed inguinal
hernia and scrotal hernia on the right that was not reducible.
(Id. at 238).
A neurological exam was normal, and no cyanosis,
clubbing, edema, or rash was observed over his upper or lower
Plaintiff’s range of motion in his lower
Tenderness on palpation of Plaintiff’s lumbar spine was noted,
and Plaintiff’s straight leg raise test was positive.
Plaintiff was seen by Dr. Bruce Edward Taylor on September
An x-ray of Plaintiff’s right shoulder revealed mild
(Id. at 251-52, 261-64).
The record also contains
treatment notes from the United Way Family “Doc-in-a-Bus”.5
Plaintiff reported that he was experiencing back pain, and pain
all over his body, insomnia and stomach trouble.
(Id. at 273).
Plaintiff was diagnosed with right side inguinal hernia and was
counseled regarding surgical options. (Id.). Plaintiff indicated
Plaintiff was evaluated by Dr. Vivekananda Datla at UAB
Selma Family Medicine Center on May 7, 2009.
(Id. at 277-84).
Plaintiff presented to with complaints of eye problems, hernia,
leg pains, and bilateral shoulder pain.
(Id. at 277).
inguinal hernia was noted, as was an enlarged scrotum
on the right side.
Plaintiff’s muscle tone and strength
were noted as normal, his motor strength was symmetrical with no
(Id. at 278).
Plaintiff was able to stand on
heels and toes without difficulty.
(Id. at 279).
The record includes a “Doc-in-a-Bus” New Patient Intake
Assessment for Plaintiff that is dated February 2, 2009. (Tr.
full range of motion in his arms, hands, and fingers.
Plaintiff’s gait, balance and stance, and reflexes were normal.
Plaintiff was able to squat and rise with difficulty,
cervical and lumbar spines showed no tenderness on palpation,
instability, or weakness.
The notes reflect that an
examination of Plaintiff’s eyes on that same date revealed that
Plaintiff’s left eye vision was 20/50, and his right eye vision
(Id. at 281).
Agency medical consultant A.G. Turner completed a Physical
Plaintiff has mild arthritis in the right shoulder and right
inguinal hernia. (Id. at 285). He opined that Plaintiff could
occasionally lift 50 pounds, frequently lift 25 pounds, stand
and/or walk about 6 hours in an 8-hour workday, sit about 6
unlimited amount of time.
(Id. at 286).
He determined that
Plaintiff could never climb ladders, ropes, or scaffolds, and
could frequently climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl.
(Id. at 287).
Plaintiff was limited in
and feeling (skin receptors), but was unlimited in reaching in
all directions, including overhead.
(Id. at 288).
Plaintiff was limited in near and far acuity.
that Plaintiff should
avoid all exposure to
exposure to extreme cold.
(Id. at 289).
Plaintiff had no communicative limitations.
hazards such as
According to the RFC,
Included in the record are treatment notes from
Regional Medical Center Emergency Department dated September 20,
22, and 28, 2009.
(Id. at 293-324). The notes reflect that on
September 20, 2009, Plaintiff reported increasing abdominal pain
burning in the right groin, and strange noises from the right
(Id. at 303).
A CT scan of Plaintiff’s abdomen on
September 20, 2009, showed a whorled appearance to bowel loops
in the right lower quadrant.
(Id. at 318).
Aside from that,
the abdomen was otherwise normal in appearance.
scan of Plaintiff’s pelvis on the same date revealed a very
large scrotal hernia containing multiple loops of small bowel.
(Id. at 318-321).
Plaintiff was referred to Dr. Harold Allen
Foster by the emergency room physician due to the large right
inguinal hernia. Dr. Foster performed surgery on September 22,
(Id. at 307-308).
Plaintiff returned to the emergency
room on September 28 and reported scrotal pain and swelling.
(Id. at 295).
On exam, scrotal swelling on the right was noted.
Plaintiff had normal range of motion in his extremities, and no
tenderness or edema was noted.
(Id. at 297).
After being given
Demerol, Plaintiff reported improvement in his pain, and was
directed to follow up with Dr. Foster. (Id. at 294-301).6
Whether substantial evidence
the ALJ’s RFC assessment?
retained the RFC to perform a full range of light work is not
supported by substantial evidence because it was not based on
the opinion of a treating or examining physician. In support of
his argument, Plaintiff cites Coleman v. Barnhart, 264 F. Supp.
2d 1007 (S.D. Ala. 2003).
Plaintiff acknowledges that unlike
regarding his RFC. Plaintiff further argues that the ALJ ignored
his testimony about his back pain and his diagnosis of lumbar
radiculopathy. (Doc. 13).
bears the burden of proving disability and of providing evidence
to be used in RFC assessments. Defendant further asserts that
RFC determinations are the province of the ALJ and are based on
all relevant evidence and not just medical evidence. Defendant
The record also contains two physical assessments;
however, the ALJ did not analyze them because they were prepared
by single decision makers. (Tr. at 22). Both opined that
Plaintiff can occasionally lift 50 pounds and can frequently
lift 25 pounds.
objective evidence in the record. (Doc. 16).
Extant case law provides that an ALJ has a duty to develop
the record fully and fairly.
See, e.g., Wilson v. Apfel, 179 F.
3d 1276, 1278 (llth Cir. 1999)(citing Graham v. Apfel, 129 F. 3d
1420, 1422-1423 (llth Cir. 1997).
The ALJ is bound to make
however, he is not charged with making Plaintiff's case for him.
Plaintiff has the burden of proving that he is disabled. See 20
C.R.R. § 416.912(a) and (c).
See also Hale v. Bowen, 831 F.2d
1007, 1011 (llth Cir. 1987).
The responsibility for determining a plaintiff’s RFC7 lies
with the ALJ and is based on all of the evidence of record. See
Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004) (ALJ
has duty to assess the residual functional capacity on the basis
of all the relevant credible evidence of record); 20 C.F.R. §§
(responsibility for determining a claimant’s
“Residual functional capacity, or RFC, is a medical
assessment of what the claimant can do in a work setting despite
any mental, physical or environmental limitations caused by the
claimant’s impairments and related symptoms. 20 C.F.R. §
Peeler v. Astrue, 400 Fed. Appx. 492, 494 n.2
(11th Cir. 2010). The assessment considers the claimant’s
ability to lift weight, sit, stand, push, and pull, among other
tasks. 20 C.F.R. § 404-1545(b).
residual functional capacity lies with the ALJ). See also Foxx
v. Astrue, 2009 U.S. Dist. LEXIS 80307, *17 (S.D. Ala. Sept. 3,
2009)(“The RFC assessment must be based on all of the relevant
evidence in the case such as: medical history, medical signs and
laboratory findings, the effects of treatment, reports of daily
source statements.”), citing
SSR 96-8p, 1996 SSR LEXIS 5.
As noted, in the case at hand, the ALJ, after reviewing the
Plaintiff’s RFC as follows:
After careful consideration of the entire
record, the undersigned finds that the
capacity to perform the full range of light
work as defined in 20 CFR 404.1567(b) and
416.967(b) except that on a function-byfunction basis, the claimant is able to
occasionally lift 20 pounds and frequently
lift 10 pounds. He could stand, walk, and
sit about six hours during an eight hour
workday. He could frequently use the right
upper extremity to push and pull. He could
occasionally climb ramps and stairs, crouch,
balance. He would be precluded from climbing
ladders, ropes and scaffolds. He could
frequently reach in all directions with the
right upper extremity. He should avoid
wetness, and vibration. He should avoid any
In making his determination that Plaintiff could perform
the full range of light work8, the ALJ carefully considered the
opinions of consulting physicians, Drs. Datla and Modi, and the
other evidence of record.
While Dr. Modi diagnosed Plaintiff
palpation of Plaintiff’s lumbar spine and a positive straight
leg test, he found that Plaintiff’s range of motion in his lower
and upper extremities was normal.
Further, during Dr. Datla’s
exhibited a full range of motion in his arms, and fingers, and
that his cervical and lumbar spines showed no instability or
Light work, as defined by SSR 83-10, is as follows:
[L]ifting no more than 20 pounds at a time
with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the
weight lifted in a particular light job may
be very little, a job is in this category
when it requires a good deal of walking or
standing -- the primary difference between
sedentary and most light jobs. A job is also
in this category when it involves sitting
most of the time but with some pushing and
pulling of arm-hand or leg-foot controls,
which require greater exertion than in
machine operator, motor-grader operator, and
instances). Relatively few unskilled light
jobs are performed in a seated position.
right side inguinal hernia in 2009, the record reveals that it
was surgically repaired. Also, an x-ray of Plaintiff’s right
challenges the ALJ’s RFC determination, he has not pointed to
any medical evidence that suggests that the ALJ’s RFC assessment
Indeed, the ALJ’s decision reflects that he considered the
medical evidence and Plaintiff’s allegations of disabling pain,
but found that the medical records do not support the level of
pain alleged, and that Plaintiff does not have any neurological
deficits or muscle atrophy generally associated with protracted
pain at a severe level.
The ALJ further found as implausible
the notion that Plaintiff would have been suffering from the
disabling degree of pain as alleged, and would not have tried to
access medical care on a regular and/or continual basis through
Accordingly, the undersigned finds, based upon the
record before the Court, that the ALJ’s RFC determination is
evidence of record. Thus, the absence of a physical assessment
by a medical professional does not require reversal under the
Administration, 223 Fed. Appx. 915, 923-24 (llth Cir. May 2,
Whether the ALJ erred in finding that
Plaintiff’s work as a short order cook
rose to the level of substantial
Plaintiff contends that the ALJ erred in finding that his
past work as a short order cook rose to the level of substantial
earnings from Mr. Waffle, where he worked as a short order cook,
were not sufficient to constitute substantial gainful activity.
Additionally, Plaintiff claims that he did not
work in that
position long enough to learn the necessary skills associated
with that work.
The Commissioner contends that Plaintiff has failed to meet
his burden of showing that he is not capable of performing his
$3,795.90 working as a cook at Mr. Waffle,
as a cook prior to the job at Mr. Waffle, rose to the level of
argues that Plaintiff learned the required skills to complete
In support of these assertions, the Commissioner
points to Plaintiff’s “Work History Report,” wherein Plaintiff
asserts that he worked for Hemingway’s (Restaurant) from 19982000,
amount of $18,332.48.
The undersigned finds that Plaintiff’s argument is without
Past relevant work is "work that you have done within
the past 15 years, that was [SGA], and that lasted long enough
"Substantial work activity is work activity that involves doing
substantial even if it is done on a part-time basis or if you do
less, get paid less, or have less responsibility than when you
20 C.F.R. § 404.1572.
“Gainful work activity
is work activity that you do for pay or profit.
is gainful if it is the kind of work usually done for pay or
profit, whether or not a profit is realized."
[i]n evaluating whether the claimant's past
work is substantial gainful activity, the
ALJ's “primary consideration will be the
earnings [the claimant] derive[d] from the
20 C.F.R. § 416.974(a)(1).
Under the regulations' earnings guidelines,
a claimant's earnings (in 2001 and each year
thereafter) ordinarily will show that he
engaged in substantial gainful activity if
the earnings were more than the previous
year or the average monthly earnings were
more than $700, adjusted for changes in the
national average wage index.
See 20 C.F.R.
§ 416.974(b)(2)(i)-(ii), see also id. §
whether a claimant is doing substantial
gainful activity, the ALJ will average
McCrea v. Astrue, 407 Fed. Appx. 394, 396 (llth Cir. 2011).
qualify as past relevant work in the disability determination
process, prior work preformed by a plaintiff 1) must have been
done within the last fifteen years, 2) must have been done long
enough for the plaintiff to learn to do it, and 3) it must
amount to substantial gainful activity.9
See Vaughn v. Heckler,
727 F.2d 1040, 1042 (11th Cir. 1984); 20 C.F.R. §§ 404.1565(a),
hearing that he is skilled in cooking, and he has worked in
(Tr. 64, 73).
Plaintiff also completed a
work history report in which he stated that he worked as a cook
Additionally, the earnings records are not the model of clarity;
restaurant jobs prior to his disability onset date of September
According to the records, Plaintiff was employed at a
number of restaurants, including Topsiders, Inc./ Hemingway’s in
A plaintiff’s work is presumed to be substantial gainful
activity if earnings averaged more than $500 a month from
January 1990 through June 1999, see Randolph v. Astrue, 2011
U.S. Dist. LEXIS 143916, *7-8 (M.D. Fla. Dec. 14, 2011), $700 a
month from July 1999 through December 2000, see McCrea v.
Astrue, 407 Fed. Appx. 394, 396 (11th Cir. 2011), and slightly
more for 2001 and so on. 20 C.F.R. §§ 404.1574(b)(2),
416.974(b)(2); see also https://secure.ssa.gov/apps10/poms.nsf/
lnx/0410501015 ($740 per month in 2001, $780 in 2002, $800 in
2003, and $810 for 2004).
1999, earning $929.11; Topsiders in 2000, earning $18,332.48;
and RJ Kelly/Tally Ho Restaurant in 2004, earning $751.50. (Tr.
Based on this record evidence, the ALJ determined, after
consulting with a VE, that Plaintiff’s past work as a cook rose
Plaintiff is capable of performing, and could return to, that
As noted above, a plaintiff’s work is presumed
to be substantial gainful activity if earnings averaged more
than $500 a month from January 1990 through June 1999, $700 a
month from July 1999 through December 2000, and slightly more
for 2001 and so on.
See footnote 9, supra.
supported by substantial evidence.
The record demonstrates that
performed within fifteen years of Plaintiff’s alleged onset of
Taking Plaintiff’s employment at Topsiders in
$1,527.71 monthly, which is greater than the average monthly
Additionally, Plaintiff’s testimony, his work history report,
and the earning records establish that Plaintiff performed the
work of short order cook over a number of years; the work is of
In other words, Plaintiff worked in the
job long enough to learn to do it.
See SSR 82-62, 1982 SSR
LEXIS 27 (past relevant work exists when three conditions are
met: (1) the work was recent, i.e., it occurred within 15 years;
(2) the work was of sufficient duration, i.e., the claimant had
enough time to learn the skills needed for average performance
in the job; and (3) the work constituted substantial gainful
Accordingly, it is clear that Plaintiff’s earnings
as a cook, prior to his alleged disability onset date, exceeded
the monthly maximum set by Social Security regulations, and that
he worked as a cook long enough to acquire the necessary skills.
Thus, the ALJ did not err in finding that Plaintiff’s past work
as a cook rose to the level of substantial gainful employment.
For the reasons set forth, 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 a period of disability,
disability insurance benefits, and supplemental security income
DONE this 21st day of September, 2012.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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