Spencer v. Astrue

Filing 17

MEMORANDUM OPINION. Signed by S. Allan Alexander on 1/11/12. (bnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
MARLON GLENN SPENCER
vs.

PLAINTIFF
CIVIL ACTION NO. 1:11CV117-A-A

MICHAEL ASTRUE,
Commissioner of Social Security

DEFENDANT

REPORT AND RECOMMENDATIONS
This case involves an application under 42 U.S.C. § 405(g) for judicial review of the
decision of the Commissioner of Social Security denying the application of plaintiff Marlon
Glenn Spencer for a period of disability and disability insurance benefits under Section 216(I)
and 223 of the Social Security Act and for supplemental security income payments under Section
1614(a)(3) of the Act. Plaintiff protectively applied for benefits on January 30, 2008, alleging
that he became disabled on January 24, 2008 due to chronic headaches, double vision, effects of
pain medication (Docket 9, p. 139), hypertension, glaucoma, a brain aneurism ( Docket 9, p.
148) blood sugar/diabetes, memory loss and balance issues. Docket 9, p. 156.
The plaintiff’s claim was denied initially and on reconsideration. Id. at 45-48, 50-55, 5861. Plaintiff, assisted by counsel, timely requested a hearing (Id. at 63) and testified at the
administrative hearing held on January 20, 2010. Docket 9, pp. 29-43. The ALJ issued an
unfavorable decision on January 22, 2010. Id. at 11-24. The Appeals Council denied plaintiff’s
request for a review on March 17, 2011. Id. at 7-11. The plaintiff timely filed the instant appeal
from the Commissioner’s most recent decision, and it is now ripe for review.
In accordance with the provisions of 28 U.S.C. § 636(c), both parties have consented to
have a magistrate judge conduct all the proceedings in this case, the undersigned therefore has

the authority to issue this opinion and the accompanying final judgment.
I. FACTS
The plaintiff was born on April 30, 1972 and was thirty-seven years old at the time of his
hearing. Docket 9, p. 32. He has a high school education (Id. at 124) and his past relevant work
was as a machine press operator, fork lift operator, production record keeper, foam slitter
operator, and saw operator. Id. at 42, 121. He contends that he became disabled on January 24,
2008 as a result of a status post-cerebrovascular incident, hypertension, non-insulin dependent
diabetes mellitus, and obesity. Id. at 33-34, 120. As a result of his cerebrovascular incident,
plaintiff suffers from vision and balance problems. Id. at 34. The ALJ rejected his claims of
disability, concluding that even though the plaintiff has severe impairments and cannot perform
his past relevant work, there nevertheless are jobs which exist in significant numbers in the
national economy which plaintiff can perform. Docket 9, p.23. As a consequence, he found
plaintiff was not disabled. Id. at 23-24.
Plaintiff contends that the ALJ erred by utilizing “The Grids” to determine that jobs exist
in significant numbers in the national economy that plaintiff can perform instead of eliciting
testimony from the vocational expert (“VE”) at the hearing as to the existence of jobs. Docket
14, p. 4.
II. STANDARD OF REVIEW
In determining disability, the Commissioner, through the ALJ, works through a five-step
sequential evaluation process.1 The burden rests upon plaintiff throughout the first four steps of
this five-step process to prove disability, and if plaintiff is successful in sustaining his burden at

1

See 20 C.F.R. §§ 404.1520, 416.920 (2010).
2

each of the first four levels, then the burden shifts to the Commissioner at step five.2 First,
plaintiff must prove he is not currently engaged in substantial gainful activity.3 Second, plaintiff
must prove his impairment is “severe” in that it “significantly limits [his] physical or mental
ability to do basic work activities . . . .”4 At step three the ALJ must conclude plaintiff is
disabled if he proves that his impairments meet or are medically equivalent to one of the
impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1, §§ 1.00-114.09 (2010).5 If plaintiff
does not meet this burden, at step four he must prove that he is incapable of meeting the physical
and mental demands of his past relevant work.6 At step five, the burden shifts to the
Commissioner to prove, considering plaintiff’s residual functional capacity, age, education and
past work experience, that he is capable of performing other work.7 If the Commissioner proves
other work exists which plaintiff can perform, plaintiff is given the chance to prove that he
cannot, in fact, perform that work.8
The court considers on appeal whether the Commissioner’s final decision is supported by
substantial evidence and whether the Commissioner used the correct legal standard. Crowley v.

2

Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999).

3

20 C.F.R. §§ 404.1520(b), 416.920(b) (2010).

4

20 C.F.R. §§ 404.1520(c), 416.920(c) (2010).

5

20 C.F.R. §§ 404.1520(d), 416.920(d) (2010). If a claimant’s impairment meets certain
criteria, that claimant’s impairments are “severe enough to prevent a person from doing any
gainful activity.” 20 C.F.R. § 416.925 (2003).
6

20 C.F.R. §§ 404.1520(e), 416.920(e) (2010).

7

20 C.F.R §§ 404.1520(g), 416.920(g) (2010).

8

Muse, 925 F.2d at 789.
3

Apfel, 197 F.3d 194, 196 (5th Cir. 1999), citing Austin v. Shalala, 994 F.2d 1170 (5th Cir. 1993);
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). The court has the responsibility to
scrutinize the entire record to determine whether the ALJ’s decision was supported by
substantial evidence and whether the proper legal standards were applied in reviewing the claim.
Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983). The court has limited power of review
and may not reweigh the evidence or substitute its judgment for that of the Commissioner,9 even
if it finds that the evidence leans against the Commissioner’s decision.10 The Fifth Circuit has
held that substantial evidence is “more than a scintilla, less than a preponderance, and is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Crowley v. Apfel, 197 F.3d 194, 197 (5th Cir. 1999) (citation omitted). Conflicts in the evidence
are for the Commissioner to decide, and if there is substantial evidence to support the decision, it
must be affirmed even if there is evidence on the other side. Selders v. Sullivan, 914 F.2d 614,
617 (5th Cir. 1990). The court’s inquiry is whether the record, as a whole, provides sufficient
evidence that would allow a reasonable mind to accept the conclusions of the ALJ. Richardson
v. Perales, 402 U.S. 389, 401 (1971). “If supported by substantial evidence, the decision of the
[Commissioner] is conclusive and must be affirmed.” Paul v. Shalala, 29 F.3d 208, 210 (5th Cir.
1994), citing Richardson v. Perales, 402 U.S. 389, 390, 28 L.Ed.2d 842 (1971).

III. DISCUSSION

9

Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988).

10

Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); Harrell v. Bowen, 862 F.2d 471,
475 (5 Cir. 1988).
th

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At step one, the ALJ concluded that plaintiff has not engaged in substantial gainful
activity since his alleged onset date. Docket 9, p. 16. At step two, the ALJ determined that
plaintiff suffered from “severe” impairments in the form of status post-cerebrovascular accident,
hypertension, non-insulin dependent diabetes mellitus, and obesity; at step three the ALJ found
that these severe impairments did not meet or equal a listed impairment in 20 C.F.R. Part 404,
Subpart P, App. 1. Id. at 16-19. After considering the record as a whole, the ALJ determined
that plaintiff retains the Residual Functional Capacity (RFC) to
occasionally lift and or carry 10 pounds. The claimant retains the ability to
stand/walk 2 hours in an 8-hour work day. Additionally, the claimant retains the
ability to sit 6 hours in an 8-hour work day (20 CFR 404.1567(a) and 416.967(a).
Id. at 19. In light of testimony by the VE, the ALJ found plaintiff incapable of performing his
past relevant work at step four. Id. at 22-23. Then based upon his examination of the MedicalVocational Guidelines,11 or “The Grids,” the ALJ concluded that plaintiff was capable of
performing a significant number of jobs in the national economy, and therefore was not disabled.
Id. at 23-24.
As plaintiff submits as his sole argument on appeal that the ALJ erroneously used “The
Grids” to determine that he can perform a significant number of jobs that exist in the national
economy [Docket 14, p. 5] and makes no claim of error with regard to any other portion of the
ALJ’s decision, the court’s evaluation is limited to the propriety of the ALJ’s application of the
Grids to reach the ultimate conclusion that plaintiff is not disabled. In Perez v. Heckler, the Fifth
Circuit held
One method the Secretary may use to meet her burden is to call a

11

20 C.F.R. 404, Subpart P, Appendix 2.
5

vocational expert to testify about the jobs the claimant can
perform; however, the Secretary is not required to present direct
testimony in order to sustain her burden. Rather, the Secretary
may make use of administrative guidelines to meet her burden.
The guidelines may be applied in a case, such as Perez’s, where
the claimant is not doing substantial gainful activity and is
prevented by a severe medically determinable impairment from
doing vocationally relevant past work.
777 F.2d 298, 301 (5th Cir. 1985)(internal citations omitted).

The Fifth Circuit has routinely

noted that whether to call a VE to testify is within the ALJ’s discretion, and it is not necessary to
establish work in the national economy. Jones v. Heckler, 702 F.2d 616, 622 (5th Cir. 1983). In
Perez, the Fifth Circuit upheld an ALJ’s decision to call a VE and to apply the grids. 777 F.2d at
301-02. On appeal, the Circuit evaluated whether the ALJ’s findings as to residual functional
capacity, age, education, and work experience were supported by sufficient [i.e., substantial]
evidence to justify proper application of the Grids. Id. at 302.
In the instant case, the ALJ’s decision that plaintiff is capable of performing sedentary
work is supported by substantial evidence. Docket 9, p. 23. The ALJ properly evaluated
plaintiff’s medical history, including his follow-up treatment and testimony at the hearing, to
reach this conclusion. Similarly, the ALJ’s decision that plaintiff is a younger individual with at
least a high school education, is able to communicate in English, and transferability of job skills
is immaterial is supported by substantial evidence. Becasue all of the ALJ’s findings as to
plaintiff’s RFC, age, education and work experience are supported by substantial evidence, and
because the determinations coincided with factors in the guidelines, the ALJ properly utilized the
Grids. Applying his findings to the Grids, the ALJ reached the proper conclusion that plaintiff is
not disabled.
Plaintiff relies upon the Fifth Circuit‘s Millet v. Schweike, 662 F.2d 1199 (5th Cir. 1981),
6

for the proposition that the testimony of a VE is the best evidence of the existence of jobs in the
national economy. However, Millet is easily distinguished from the subject case. Donald Millet
suffered from mental impairments as a result of exposure to a chlorine gas cloud. Id. at 1200.
At the hearing before the ALJ, testimony was elicited from a physician that also provided
testimony as to the jobs that plaintiff could perform. Based upon the testimony by the physician,
who was not qualified to testify as a vocational expert, the ALJ determined that plaintiff could
perform light, sedentary work. The Fifth Circuit held that the ALJ exceeded his discretion in
relying solely on the testimony of the agency physician to make such a determination. Id. at
1204. Plaintiff further alleges that both cases involve the issue of the existence of jobs and their
prevalence in the national economy, but the court disagrees. Plaintiff has not cited to any portion
of the record to support this allegation, and the court’s has not discovered any evidence to
support this contention in the record. The Millet case is not factually similar to the case at hand
and is therefore not applicable here.
After a review of the evidence presented to the ALJ, the undersigned is of the opinion
that the ALJ’s opinion was supported by substantial evidence. The ALJ thoroughly analyzed
each of plaintiff’s alleged impairments, even those for which no support appeared in the record.
He properly weighed the evidence from plaintiff’s treating physicians and evaluated plaintiff’s
impairments under all of the necessary steps. The ALJ’s conclusion that plaintiff is capable of
performing jobs in significant numbers in the national economy and is not disabled is supported
by substantial evidence and must be affirmed. A final judgment in accordance with this
memorandum opinion will issue this day.
SO ORDERED, this, the 11th of January, 2012.

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/s/ S. Allan Alexander
UNITED STATES MAGISTRATE JUDGE

8