Morgan v. Astrue
Order entered that the decision of the Commissioner of Social Security denying Plaintiffs claim for disability insurance benefits is REVERSED and REMANDED to allow the Administrative Law Judge to obtain new vocational expert testimony regarding wheth er there is other work in the national economy that Plaintiff can perform, to find whether any conflicts exists between the opinion of the vocational expert and the Dictionary of Occupational Titles, and to resolve all conflicts on the record as required by SSR 00-49, 2000 SSR LEXIS 8.. Signed by Magistrate Judge Sonja F. Bivins on 9/30/2013. (mjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,1,
Commissioner of Social Security,*
CIVIL ACTION NO. 12-00204-B
Plaintiff Nathaniel Morgan (hereinafter “Plaintiff”) brings
this action seeking judicial review of a final decision of the
Commissioner of Social Security denying his claim for disability
insurance benefits under Title II of the Social Security Act, 42
U.S.C. §§ 401-33.
On May 30, 2013, the parties consented to
have the undersigned conduct any and all proceedings in this
undersigned to conduct all proceedings and order the entry of
judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule
administrative record and the memoranda of the parties, it is
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d), Federal
Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as the defendant in this suit.
No further action need be taken to continue this suit by reason
of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
hereby ORDERED that the decision of the Commissioner be REVERSED
benefits on January 8, 2009, and alleged that his disability
application was denied on January 21, 2009 (id. at 52-57), and
he timely filed a Request for Hearing on January 30, 2009. (Id.
On July 8, 2010, Plaintiff and his attorney attended
an administrative hearing, which was held before Administrative
Law Judge Vincent P. Intoccia (hereinafter “ALJ”). (Id. at 2450).
A vocational expert (“VE”) also appeared at the hearing
and provided testimony. (Id. at 44-50).
On September 7, 2010,
the ALJ issued an unfavorable opinion finding that Plaintiff is
Plaintiff’s request for review on January 26, 2012; thus, the
ALJ’s decision dated September 7, 2010 became the final decision
civil action. (Doc. 1).
The parties agree that this case is now
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Issues on Appeal
A. Whether the ALJ erred in finding that Plaintiff’s
glaucoma and hypertension, singularly and in
combination, were non-disabling?
B. Whether the ALJ erred by not performing a
“function by function” analysis of Plaintiff’s
limitations in violation of Social Security
C. Whether the ALJ erred in finding that Plaintiff
can perform the representative jobs outlined by
descriptions in the Dictionary of Occupational
Titles (DOT) are at odds with Plaintiff’s
residual functional capacity (“RFC”)?
III. Factual Background
Plaintiff was born on April 22, 1963, and was 47 years of
age at the time of his administrative hearing. (Tr. 27, 134).
Plaintiff earned a high school diploma and subsequent thereto,
warehouse, as a production manager at a cigar plant, and as a
yard worker. (Id. at 29, 134, 170).
According to Plaintiff, his
last job ended when the cigar plant closed on October 15, 2008,
testified that he did not seek work after the plant closed, and
that his disability commenced on the day after the plant closed.
(Id. at 29, 134, 170).
Plaintiff contends that he cannot work because he is unable
to see. (Id. at 33).
According to Plaintiff, he has glaucoma,
which makes it difficult for him to see, and although he has a
driver’s license, it has a glasses restriction, and he has not
driven a car in six to eight years. (Id. at 30-34).
asserts that he is blind in his left eye and has no peripheral
vision in his right eye. (Id. at 37).
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.2 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. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir.
The Commissioner’s findings of fact must be affirmed if
they are based upon substantial evidence. Id.; Bloodsworth v.
substantial evidence is defined as “more than a scintilla, but
evidence as a reasonable person would accept as adequate to
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).
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).
An individual who applies for Social Security disability
Disability is defined as the “inability to engage in
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
The Social Security regulations provide a five-step
sequential evaluation process for determining if a claimant has
proven his disability.3 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. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.
1986). In evaluating whether the claimant has met this burden,
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since October
15, 2008, and that he has the severe impairments of obesity,
associated with Plaintiff’s 2006 surgery, and status post laser
right eye surgery associated with his 2010 surgery. (Tr. 12).
The ALJ also found that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals any of
the listed impairments contained in 20 C.F.R. Part 404, Subpart
P, Appendix 1. (Id.).
functional capacity (hereinafter “RFC”) to perform a range of
Plaintiff can sit, stand, and walk for six hours each in an
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
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)).
occasionally and ten pounds frequently, that he can occasionally
climb ramps and stairs, kneel, crouch, crawl, and stoop and that
including operating hand and foot controls. (Id.).
The ALJ also
concluded that Plaintiff cannot work around dangerous heights or
machinery and that he cannot climb ladders, ropes, or scaffolds.
He further concluded that Plaintiff has limited near
acuity, far acuity, depth perception, and field of vision, and
that he has normal accommodation and color vision. (Id.).
The ALJ then determined that Plaintiff is unable to perform
his past relevant work and concluded, based on Plaintiff’s age,
education, work experience, RFC, and the testimony of the VE,
occupations such as a product assembler . . .[a] laundry worker
. . .and [an] assembler electronic access.” (Id. at 19).
the ALJ concluded that Plaintiff is not disabled. (Id. at 1920).
1. Medical Evidence
The relevant medical evidence of record reflects that as
early as August 2005, Plaintiff sought treatment at the Song Eye
Center for problems with his eyesight. (Id. at 203).
20/20 in the right eye and 20/count finger in the left eye. 4
(Id. at 203).
Plaintiff was diagnosed with primary open angle
glaucoma of the left eye with decreased corrected visual acuity
and prescribed Xalatan 5 drops. (Id.).
The record reflects that
Plaintiff returned to Song Eye Center a few days later and it
was determined that his intraocular pressure (hereinafter “IOP”)
was too high as it measured at 24 in his right eye and 26 in his
left eye. (Id. at 202).
Plaintiff’s goal IOP levels are less
(Id. at 196).
scheduled for a visual field test. (Id. at 202).
When the patient cannot read the largest line of print on
an acuity chart at the accustomed distance, he can be slowly
moved toward the chart until the largest letter can be read.
The numerator of the Snellen fraction becomes the shortened
distance (e.g., 10 feet) and the denominator refers to the
smallest letter read on the chart (i.e., the 20/400 “E”). If no
letters can be read at any distance, the examiner then asks the
patient to count fingers at progressively shorter distances
until this task can be reliably performed and the distance is
recorded (e.g., “counts fingers at 3 feet”). If finger counting
is not possible, one checks for the perception of hand motions,
perception with localization, and finally, no light perception.
http://www.ncbi.nlm.nih.gov/books/NBK219/ (Last visited: August
Xalatan is the brand name for latanoprost ophthalmic,
which is used to treat glaucoma (a condition in which increased
pressure in the eye can lead to gradual loss of vision) and
ocular hypertension (a condition which causes increased pressure
in the eye).
Latanoprost is in a class of medications called
It lowers pressure in the eye by
increasing the flow of natural eye fluids out of the eye.
(Last visited: August 28, 2013).
On September 2, 2005, the results of Plaintiff’s visual
sensitivity” and his visual field was “outside normal limits.”
vision decreased to 20/40 in his right eye and 20/hand motion at
face in his left eye. 6
Plaintiff was prescribed Cosopt 7 eye
drops to take in conjunction with the Xalatan drops. (Id. at
By April 13, 2006, Dr. Mays reported that Plaintiff’s
IOP levels were “at goal” and measured at 14 in both eyes.
this point, his vision, with best correction, was 20/20 in his
right eye and 20/hand motion at face in his left eye. (Id.).
Also, in 2006, Plaintiff had bilateral laser surgery on both
eyes.8 (Tr. 35-36).
On November 20, 2008, Plaintiff returned to the Song Eye
Center for a follow up visit. (Id. at 194).
He reported that
his right eye was blurry and requested a prescription for new
Cosopt Pf is a carbonic anhydrase inhibitor with a betaadrenergic receptor blocking agent indicated for the reduction
of elevated intraocular pressure (IOP) in patients with openangle glaucoma or ocular hypertension who are insufficiently
responsive to beta-blockers.
(Last visited: August 28,
At the administrative hearing, Plaintiff reported that the
laser surgery did not do any good. (Id. at 36).
The treatment notes reflect that Plaintiff’s
visual field was better than expected in his right eye and worse
than expected in his left eye. (Id.).
They further reflect that
Plaintiff was in poor compliance with his medications; thus, he
importance of compliance with his prescribed medications. (Id.).
On December 4, 2008, Plaintiff returned for an IOP check and was
diagnosed with end stage glaucoma in his right eye.
instructed to continue taking his medications and to follow up
with Dr. Mays, an ophthalmologist. (Id. at 192).
Plaintiff was seen by Dr. Mays on December 21, 2008. (Id.
Dr. Mays noted that Plaintiff had advanced glaucoma
that was worse on the left than on the right. (Id.).
also found that Plaintiff’s IOP had improved to 13 on the right
and 10 on the left, and was “once again under control”.
Plaintiff’s IOP levels were 16 in the right eye and 14 in the
left eye, which the doctor felt were “okay”. (Id.).
On June 4,
2009, Plaintiff’s IOP levels had improved to 15 in the right eye
and 12 in the left eye and the doctor noted “IOP at goal”. (Id.
During Plaintiff’s September 3, 2009 visit, the doctor
noted that Plaintiff’s IOP levels were “too high” as his right
eye was 18 and his left eye was 16. (Id.).
His medications were
increased and he was instructed to return in three weeks. (Id.).
When Plaintiff returned on September 24, 2009, his IOP levels
had improved significantly to 12 in his right eye and 10 in his
problems at this time” and that his IOP levels were “better”.
reported for his yearly exam. (Id. at 236).
The treatment notes
reflect that Plaintiff had no problems and that his IOP levels
were below the target of 15. (Id.).
When he returned on March
29, 2010, his IOP levels were still below target but his GXD was
worse; so, he was referred to Dr. Mays. (Id. at 235, 286).
June 15, 2010, Dr. Mays performed laser filtration surgery on
Plaintiff was again not taking his medications because he said
that he could not afford them, and as a result, his IOP was not
well-controlled. (Id. at 242).
After surgery, Dr. Mays noted
records reflect that post surgery, Plaintiff’s visual acuity of
the right eye progressively improved from 20/count finger on the
day of the surgery to 20/25 in less than two months. (Id. at
Plaintiff also sought medical treatment at Whaley Health
Services (hereinafter “Whaley”) with Dr. Roy in connection with
his blood pressure.
On September 29, 2009, Plaintiff reported
to the dentist for a tooth extraction and his blood pressure was
noted to be 190/130; thus, his dentist referred him to Dr. Roy
for clearance. (Id. at 257).
Dr. Roy proscribed Norvasc for
blood pressure control and instructed Plaintiff to eat a low
Plaintiff was also instructed to hold off on his dental work
until his blood pressure was under control. (Id. at 258).
Plaintiff returned to Dr. Roy for a follow up visit on October
6, 2009, his blood pressure was 180/110; so he was proscribed
Lisinopril and instructed to continue taking the Norvasc. (Id.
By March 10, 2010, Plaintiff’s blood pressure was
down to 120/90, and he had lost twenty pounds. (Id. at 246).
controlled” and that he was cleared for dental work. (Id. at
On January 8, 2009, Dr. James Lewis, M.D., a state agency
physician, reviewed Plaintiff’ s medical records and completed a
Plaintiff’s diagnosis as primary open angle glaucoma, mainly in
his left eye. (Id. at 212).
He noted that Plaintiff’s vision
measured at 20/20 in the right eye with a moderate restriction
of the nasal portion and only count finger vision in the left
eye. (Id. at 215).
He assigned Plaintiff an overall vision
rating of 03. (Id. at 212).
Dr. Lewis found that Plaintiff has
no exertional limitations; however, he also found that Plaintiff
should not work near unprotected heights, hazardous machinery,
or in areas where there is frequent movement from place to place
of machinery, equipment, or personnel. (Id. at 214-15).
He also opined that Plaintiff should never use a ladder,
rope or scaffold and should avoid uneven terrain. (Id. at 21516).
He found that Plaintiff is limited in near acuity, far
acuity, depth perception, and field of vision but that he has no
limitations with regard to accommodation and color vision. (Id.
Dr, Lewis further opined that Plaintiff should avoid
Dr. Lewis concluded that “[in] view of the
good vision and only moderate restr[ictions] of the best eye, he
should have no diff[iculty] with cooking, driving, and doing
[household] chores.” (Id.).
The record reflects that the Agency referred Plaintiff to
Dr. Charles Robbins, M.D., for a consultative eye examination on
March 30, 2010. (Id. at 222-26).
With regard to Plaintiff’s
visual acuity for distance, Dr. Robbins found that Plaintiff’s
perception and cannot be corrected. (Id. at 222).
to Plaintiff’s ability to engage in reading or close work, Dr.
Robbins found that Plaintiff’s right eye
is capable of J-1,
without glasses, which can be correct to J-1+ and that he is
unable to engage the left eye in close work or reading. (Id.).
He further found that Plaintiff’s visual field is restricted and
Thus, he concluded that Plaintiff will not be able
to achieve useful binocular vision in all directions and as a
vision. (Id. at 222-23).
In addition, Dr. Robbins found that Plaintiff has no depth
perception and that he has color perception in his right eye
only. (Id. at 223).
He also found that Plaintiff’s IOP levels
were 22 in the right eye and 21 in the left eye. (Id.).
noted that Plaintiff’s fundus examination was abnormal due to
advance stage nerve damage of his left eye. (Id.).
diagnosed Plaintiff with glaucoma, which he described as stable
or progressive in the right eye and permanent in the left eye.
He opined that improvement of Plaintiff’s condition in
the right eye “depends on treatment.” (Id.).
Dr. Robbins also
opined that Plaintiff needed to decrease his IOP of his right
Plaintiff’s prognosis was fair if he were to undergo filtration
surgery of the right eye. (Id. at 223-24).
As discussed supra,
Plaintiff’s right eye on June 15, 2008. (Id. at 286, 289-91).
Whether the ALJ erred in finding that Plaintiff
can perform the representative jobs outlined by
descriptions in the Dictionary of Occupational
Titles (DOT) are at odds with Plaintiff’s
residual functional capacity (“RFC”)?
Plaintiff maintains that while the VE identified three jobs
number 706.687-010), laundry worker (DOT number 302.685-010),
and electronics accessories assembler (DOT number 729.687-010),
the ALJ erred in relying on this testimony because all three
jobs require frequent near acuity, and his RFC recognizes the
fact that Plaintiff has limited near acuity, far acuity, depth
perception, and field of vision. (Doc. 14 at 7-8).
the Commissioner contends that the jobs outlined by the VE are
“limited” vision. (Doc. 15 at 13).
The Commissioner further
contends that “even if the depth perception requirement of the
Plaintiff from performing them, the laundry work job requires
frequent near acuity – which Plaintiff can do with his 20/20
right eye…”(Id. at 14).
As noted supra, at step five of the sequential evaluation
process, the Commissioner has the burden of proving that the
plaintiff is capable of engaging in another kind of substantial
gainful employment which exists in significant numbers in the
capacity, age, education, and work history. Sryock v. Heckler,
determination by relying on the testimony of a VE. Leigh v.
Commissioner of Social Security, 496 Fed. App’x 973 (llth Cir.
2012)(per curiam) (citing Jones v. Apel, 190 F.3d 1224, 1230
substantial evidence, the ALJ must pose a hypothetical question
that comprises all of the plaintiff’s impairments. Id., 496 Fed.
App’x 973, 190 F.3d at 1229.
If there is a conflict between the
DOT and the jobs identified by the VE, the VE trumps the DOT
because the DOT is not the sole source of admissible information
concerning jobs. Id.; Robinson v. Astrue, 2011 U.S. Dist. LEXIS
68974, (M.D. Ala. June 27, 2011) (citing Jones v. Apfel, supra);
Social Security Ruling 00-4p, 2000 SSR LEXIS 8.
occupation, the ALJ has an affirmative responsibility to ask
about any possible conflict between the VE’s testimony and the
DOT. 2000 SSR LEXIS 8; Leigh, supra.
When the VE’s testimony is
inconsistent with the DOT, the ALJ must revolve the conflict
before relying on the VE’s testimony. Id.
In Leigh, a panel of the Eleventh Circuit recognized the
ALJ’s duty to inquire on the record about any conflict between
the VE’s testimony and the DOT, and held that where the ALJ
evidence controverting the VE’s testimony or otherwise object to
the VE’s opinion, the ALJ’s decision was due to be affirmed.
In the instant action, the ALJ found that “[p]ursuant to
SSR 00-4p, the vocational expert’s testimony is consistent with
the information contained in the [DOT]” (tr. 19); however, a
searching review of the hearing transcript fails to reveal any
question to the VE about possible inconsistencies between the
VE’s testimony and the DOT.
Based upon the medical evidence in
this case, the ALJ developed an RFC that provides limitations in
near acuity, far acuity, depth perception, and field of vision,
yet all three jobs identified by the VE and relied upon by the
ALJ require frequent near acuity, and two of the three, products
assembler and electronics accessories assembler, also require
frequent or occasional depth perception.
While the Eleventh
Circuit has ruled that the VE’s testimony trumps the DOT, there
accordance with SS ruling 00-4p.
Indeed, had the VE in this
testimony about jobs that Plaintiff can perform and the DOT’s
description of those positions, it might well have led to a
Accordingly, this case must be
consideration of the administrative record and memoranda of the
Commissioner of Social Security denying Plaintiff’s claim for
disability insurance benefits is REVERSED and REMANDED to allow
the Administrative Law Judge to obtain new vocational expert
testimony regarding whether there is other work in the national
conflicts exists between the opinion of the vocational expert
and the Dictionary of Occupational Titles, and to resolve all
Because this case is being reversed
undersigned has not addressed the other
and remanded, the
issues raised in
conflicts on the record as required by SSR 00-49, 2000 SSR LEXIS
ORDERED this 30th day of September, 2013.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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