Ford v. Commissioner of Social Security Administration
Filing
33
ORDER denying 30 Motion for Summary Judgment; granting 31 Motion for Summary Judgment. Motions terminated: 30 Plaintiff's MOTION for Summary Judgment filed by Eddie Clarence Ford, 31 Defendant's MOTION for Summary Judgment With Supporting Memorandum of Law filed by Commissioner of Social Security Administration. Signed by Magistrate Judge Jonathan Goodman on 5/27/2014. (oim)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 12‐23644‐CIV‐GOODMAN
[CONSENT CASE]
EDDIE CLARENCE FORD,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security Administration,
Defendant.
_________________________________/
ORDER
This Cause is before the Court on Plaintiff Eddie Clarence Ford (“Ford”) and
Defendant Carolyn W. Colvin’s, the Commissioner of the Social Security
Administration (the “Commissioner”), cross‐motions for summary judgment.
An Administrative Law Judge (“ALJ”) determined that Ford was not disabled.
Ford seeks judicial review of that decision. Ford argues that the ALJ erred because he
mechanically applied Medical‐Vocational Guidelines (the “Grids”) Rule 202.10 to the
54‐year old Ford to find him not disabled. Ford argues that if the ALJ had taken into
account all factors (as he should have), then he would have applied the Grids rule for
claimants over 55 and Ford would have been found disabled.
For the reasons set out below, the Court affirms the ALJ’s decision on two
independent grounds. First, the ALJ did not mechanically apply the Grids to Ford.
Second, even if the ALJ did mechanically apply the Grids, Ford has not made the
required proffer of substantial credible evidence to the Court that his ability to adapt to
a new work environment is less than the established Grids level. Accordingly, the Court
denies Ford’s summary judgment motion and grants the Commissioner’s summary
judgment motion.
I.
BACKGROUND
A. Procedural History
Ford applied for Supplemental Security Income (“SSI”) and Disability Insurance
Benefits (“DIB”) on July 14, 2008. (R. 98, 102).1 His SSI application was initially denied
and was denied again on reconsideration. (R. 48‐55, 57‐62). He then requested for an
ALJ to review his case. (R. 64‐65). On December 14, 2010, the ALJ held a hearing on
Ford’s SSI application. (R. 30‐41).
On January 11, 2011, the ALJ issued his decision. (R. 15‐29). In sum, the ALJ
found that although Ford is unable to perform any of his past relevant work, he is still
capable of performing a full range of light work, such as working as a car wash
attendant or finisher. (R. 21‐25). In reaching his decision, the ALJ undertook the five‐
step sequential evaluation process for determining whether an individual is disabled.
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References to “R. _” are to pages of the transcript of the administrative record.
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The ALJ also took into account Ford’s complaints of pain, the objective medical
evidence, the vocational expert’s testimony, and Ford’s age, education, and work
experience.
Ford requested that the Appeals Council review the ALJ’s unfavorable decision.
(R. 1‐4). The Appeals Council declined Ford’s request, making the ALJ’s written
decision the Commissioner’s final decision.
Ford filed this action seeking judicial review of the ALJ’s decision. [ECF No. 1].
The Commissioner filed her answer on May 3, 2013. [ECF No. 20]. Ford filed his
summary judgment motion on July 11, 2013. [ECF No. 30]. The Commissioner filed her
summary judgment motion, which doubled as both a summary judgment motion and a
response to Ford’s motion, on August 7, 2013. [ECF No. 31]. Ford did not file a reply to
the Commissioner’s response, and the time to do so has passed.
B. Facts
1.
General Background
Ford claims that his disability began on January 1, 2001 as a result of arthritis,
lower back pain, and high blood pressure. (R. 98, 137). However, he did not apply for
SSI until 2008, when he was almost 52. (R. 129). He was 54 years old when the ALJ
issued his decision. Although Ford was unemployed from 2004 to 2006, he did not
definitively stop working until April 2008. (R. 133). His past employment includes work
as a store laborer, a landscape laborer, and a construction laborer. (R. 24, 38‐39, 134).
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Ford testified that he could lift 15‐20 pounds and stand for about an hour‐and‐a‐
half before he needed to sit down. (R. 35). He also testified that he can drive, and while
at home he washed the dishes, cleaned the bathroom on occasion, and swept. (R. 37‐48).
2.
Medical Evidence
After he submitted his application, Ford was prescribed a cane in August 2008.
(R. 297‐98). In September 2008, Ford was examined by Dr. Afzal Khan, M.D. (R. 189‐91).
Ford reported that he had a history of blood pressure and he complained of arthritis in
his knees, hips, elbows, hands, and lower back. (R. 189). Dr. Khan first noted that Ford
was obese and taking some cholesterol and blood pressure medication. Dr. Khan then
examined Ford and found no gross joint swelling, except for some mild swelling in
Ford’s knees, and found that Ford had a full range of normal motion in his joints. (R.
189‐191). Dr. Khan also had Ford’s back and knees x‐rayed. (R. 190). Those x‐rays
showed that Ford’s back and knees were normal. (R. 190).
In October 2008, Bettye Stanley, D.O., a state agency physician, reviewed Ford’s
file. (R. 193‐200). Dr. Stanley opined that Ford’s allegations were disproportionate to the
evidence and that he could perform medium work. (Id.). In March 2009, James
Andriole, D.O., another state agency physician, agreed with Dr. Stanley’s findings that
Ford could perform medium work. (R. 201‐08).
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In August 2010, Dr. Chad Brodt completed a check‐box form and indicated that
Ford had work‐preclusive limitations. (R. 293‐96). There are no treatment notes in the
record from Dr. Brodt and it is not clear that Dr. Brodt ever examined Ford.
II.
APPLICABLE LEGAL PRINCIPLES
A. Standard of Review
In reviewing the Commissioner’s final decision, the court’s role is limited to
determining whether there is substantial evidence in the record to support the decision
and whether the Commissioner correctly applied the appropriate legal standards. 42
U.S.C. § 405(g); McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988); Wiggins v.
Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
The Commissioner’s decision must be affirmed if it is supported by substantial
evidence in the record. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)
(internal citations omitted). Substantial evidence is more than a scintilla, but less than a
preponderance; “it means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” McRoberts, 841 F.2d at 1080 (internal citations and
quotations omitted). In determining whether substantial evidence exists, the court must
scrutinize the record in its entirety, taking into account favorable and unfavorable
evidence. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (internal citation omitted).
The court, however, must not “decide the facts anew, reweigh the evidence, or
substitute [its] judgment for that of the [Commissioner’s].” Bloodsworth, 703 F.2d at 1239
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(internal citations omitted). Thus, “[e]ven if [the court] find[s] that the evidence
preponderates against the [Commissioner’s] decision [the court] must affirm if the
decision is supported by substantial evidence.” Id.
Unlike the deferential standard of review to the Commissioner’s findings of fact,
“[n]o presumption of validity attaches to the [Commissioner’s] determination of the
proper legal standards to be applied in evaluating claims.” Bridges v. Bowen, 815 F.2d
622, 624 (11th Cir. 1987) (citing Wiggins, 679 F.2d at 1389). The Commissioner’s “[f]ailure
to apply the correct legal standards or to provide the reviewing court with the sufficient
basis to determine that the correct legal principles have been followed is grounds for
reversal.” Wiggins, 679 F.2d at 1389.
B. The Five‐Step Sequential Evaluation
The Commissioner first determines whether the plaintiff is currently engaged in
substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the
Commissioner must determine whether the plaintiff suffers from a severe impairment
or combination of impairments. 20 C.F.R. §§ 404.1520(c), 416.920(c). At step three, the
Commissioner must determine if the plaintiff’s impairments meet or equal a listed
impairment, and, if so, then the plaintiff is found disabled. 20 C.F.R. §§ 404, App. 1,
404.1520(d), 416.920(d). At step four, the Commissioner must determine whether the
plaintiff’s impairments prevent the plaintiff from performing his or her past relevant
work. 20 C.F.R. §§ 404.1520(e)‐(f), 416.920(e)‐(f). If the answer is yes, then a prima facie
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disability case is established. The burden shifts to the Commissioner to show, at step
five, that there is other work that the plaintiff can perform. Walker v. Bowen, 826 F.2d
996, 1002 (11th Cir. 1987); 20 C.F.R. § 404.1560(c). The Commissioner then determines if
the plaintiff is capable of performing other work. 20 C.F.R. §§ 404.1520(g), 416.920(g).
III.
ANALYSIS
Ford was 54 years and 4 months old at the time of the ALJ’s decision. His main
argument is that the ALJ mechanically applied Grids rule 202.10 to find that Ford was
not disabled. Ford argues that if the ALJ had not mechanically applied the Grids rule,
then he would have treated Ford as being 55 and, therefore, rule 202.10 would not have
applied and Ford would have been found disabled.
A. Legal Background: The Grids and the Reeves Proffer
The Grids differentiate between a “person closely approaching advanced age” ‐‐
a person between the ages of 50 and 54 ‐‐ and “a person of advanced age” ‐‐ a person 55
years or older. 20 C.F.R. § 404.1563(d), (e). “The grids are based on the claimant’s
residual functional capacity, age, education and work experience, and in cases where
they apply, they direct a conclusion on the issue of whether the claimant is capable of
performing substantial gainful activity in the national economy.” Patterson v. Bowen, 799
F.2d 1455, 1458 (11th Cir. 1986). “In attempting to meet its burden, the Commissioner
may rely upon the grids to establish that other work exists in the national economy that
the claimant is able to perform.” Miller v. Comm’r of Soc. Sec., 241 F. App’x 631, 634 (11th
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Cir. 2007). In other words, the Grids may point the ALJ to a finding of disability or non‐
disability based, in substantial part, on the claimant’s age.
In this Circuit, the Commissioner may not apply the Grids “in a mechanistic
fashion on the basis of a claimant’s age, in order to establish conclusively a claimant’s
adaptability to a new work environment.” Walker, 826 F.2d at 1103. Rather, while the
Commissioner may rely upon the applicable Grids for the claimant’s age as evidence of
adaptability to a new work environment, the claimant may then proffer “substantial
credible evidence that his ability to adapt is less than the level established under the
grids for persons his age.” Reeves v. Heckler, 734 F.2d 519, 525 (11th Cir. 1984). This is
known as a Reeves proffer. If the claimant presents such evidence, then the
Commissioner “cannot rely on the age factor of the grids and must instead establish the
claimantʹs ability to adapt to a new work environment by independent evidence.”
Miller, 241 F. App’x at 634; Reeves, 734 F.2d at 525. In such a case, the court must remand
the case to the Commissioner for reconsideration of the issue. Id.
If the claimant fails to make a Reeves proffer to the court, then “there would be
no need to remand” and the ALJ’s mechanical application of the Grids would be
harmless error. Patterson, 799 F.2d at 1459; Miller, 241 F. App’x at 636; Hutchinson v.
Bowen, 787 F.2d 1461, 1465 (11th Cir. 1986) (internal citation omitted). Moreover, if the
ALJ does not rely exclusively on the Grids in finding the claimant disabled, then the
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question as to whether the claimant should have been characterized differently for
purposes of the Grids is inconsequential. Miller, 241 F. App’x at 636.
An individual in a borderline situation is not automatically deemed to be in the
next higher age category. Instead, a borderline age (such as being 54 years and 4 months
old) scenario gives the ALJ discretion to use the next category. See 20 C.F.R. §§
404.1563(b), 416.963(b).
B. The ALJ Did Not Exclusively Rely on The Grids
Contrary to Ford’s assertions, the ALJ did not rely exclusively on the Grids in
determining Ford was not disabled. Rather, the ALJ considered Ford’s complaints of
pain, the objective medical evidence, the testimony of a vocational expert, and Ford’s
age, education, and work experience.
First, the ALJ found that Ford’s complaints of persistent and debilitating joint
and arthritis pain were not supported by the medical evidence. (R. 21‐23). Ford does not
challenge this determination. Indeed, the record reflects that Ford has never been
hospitalized and has only been prescribed Tylenol, ibuprofen, and a cane for his joint
pain. (R. 139).
Second, in addition to reviewing the Grids, the ALJ found that although Ford
could not perform his past relevant work, he was still capable of performing a full range
of light work. (R. 15‐25). In that regard, the ALJ relied on the vocational expert’s
testimony to establish that Ford can perform other work.
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Consequently, the Court finds that: (1) the ALJ did not exclusively rely on, or
mechanically apply, the Grids to Ford; and (2) the ALJ’s findings are supported by
substantial evidence. Accordingly, the Court rejects Ford’s argument that the ALJ
mechanically applied the Grids. See Miller, 241 F. App’x at 635 (explaining that because
the ALJ relied on vocational expert testimony and not exclusively on the grids, “a
determination of whether Miller was a person of advanced age or closely approaching
advanced age was not necessary”).
C. Ford Did Not Make a Reeves Proffer
Even if the Commissioner mechanically applied the Grids, it is nonetheless
harmless error. In order to compel a remand, Ford must proffer substantial credible
evidence to this Court that his “ability to adapt is less than the level established under
the grids for persons of his age” and, therefore, the higher age Grids should be used. See
Miller, 241 F. App’x at 634; Hearings, Appeals, and Litigation Law Manual (HALLEX)
II‐5‐3‐2, 2003 WL 25498826. Without showing additional adversities justifying use of the
higher age category, Ford’s chronological age is used, even if the time period is short by
only a few days. Moreover, the ALJ is not required to specifically discuss the possibility
of the borderline situation. Bowie v. Comm., 539 F.3d 395, 398‐99 (6th Cir. 2008).
Here, Ford has failed to make the necessary Reeves proffer. Although Ford asks
this Court to remand the case in order to make a Reeves proffer, the opportunity to do so
was before this Court, and not after the case has been remanded. Miller, 241 F. App’x at 636
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(affirming district court because claimant failed to make a Reeves proffer before the
district court or the appellate court). Thus, because Ford failed to make the required
proffer, there is no need to remand.
D. Res Judicata
Ford’s assertion that he will be precluded from filing a second application by res
judicata is incorrect. The Court is limited to considering the time period up to the ALJ’s
decision. See 20 C.F.R. §§ 404.620(a), 416.330. A second SSI application is not precluded
if it concerns a completely different time period. See McKinzie v. Comm’r of Soc. Sec., 362
F. App’x 71, 73 (11th Cir. 2010). Subsequent claims that Ford is disabled after the ALJ’s
decision would therefore involve a completely different time period. Therefore, Ford
would be able to file a second SSI application, presumably after he has turned 55 years
old and has reached the status of a “person of advanced age.”
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IV.
CONCLUSION
For the reasons set forth above, the Court denies Ford’s summary judgment
motion, grants the Commissioner’s summary judgment motion, and orders the case
closed.
DONE and ORDERED in Chambers, in Miami, Florida, May 27, 2014.
Copies furnished to:
All counsels of record
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