Opinion
CA 00-0739-CB-C
April 17, 2001
REPORT AND RECOMMENDATION
Plaintiff brings this action pursuant to 42 U.S.C. § 1383 (c)(3), seeking judicial review of a final decision of the Commissioner of Social Security denying her claim for supplemental security income benefits. This action is before the Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B). Upon consideration of the administrative record, plaintiffs proposed report and recommendation, the Commissioner's proposed report and recommendation and the parties' arguments at the April 12, 2001 hearing before the Magistrate Judge, it is determined that the decision to deny benefits should be reversed and this cause remanded to the Commissioner of Social Security for further proceedings not inconsistent with this decision.
Plaintiff alleges disability due to a neck strain, diabetes mellitus, hypertension, vision deficits, depression and borderline intellectual functioning. The Administrative Law Judge (ALJ) determined that the claimant has "the residual functional capacity to perform the physical exertion requirements of work except for lifting and carrying more than 10 pounds or perform[ing] prolonged standing or walking. There are no nonexertional limitations[.]" (Tr. 16, Finding 4) The ALJ concluded that while these impairments prevent plaintiff from performing her past relevant work as a maid/housekeeper or flower planter/laborer, she can perform the full range of sedentary work and therefore, is not disabled under Rule 201.21 of the grids. (Tr. 16, Findings 5, 6 10) The Appeals Council affirmed the ALJ's decision (Tr. 4-5) and thus, the hearing decision became the final decision of the Commissioner of Social Security.
DISCUSSION
In all Social Security cases, the claimant bears the burden of proving that she is unable to perform her previous work. Jones v. Bowen, 810 F.2d 1001 (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; and (4) the claimant's age, education and work history. Id. at 1005. Once the claimant meets this burden, as here, it becomes the Commissioner's burden to prove that the claimant is capable, given her age, education and work history, of engaging in another kind of substantial gainful employment which exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner s decision to deny claimant benefits, on the basis that she can perform the full range of sedentary work and is therefore not disabled under the grids, is supported by substantial evidence. Substantial evidence is defined as more than a scintilla and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). "In determining whether substantial evidence exists, we 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).
This Court's review of the Commissioner's application of legal principles, however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
In this case, the plaintiff contends that the ALJ erred in applying the grids in light of significant nonexertional impairments and limitations and also erred in failing to find that she has a severe mental impairment. The undersigned does not reach the latter issue since it is clear that a remand is warranted on the first issue raised.
The undersigned does note parenthetically that the evidence on remand might very well establish that plaintiff has a severe mental impairment, i.e., either depression or borderline intellectual functioning. Furthermore, since this case is due to be remanded for vocational expert testimony, it would certainly be appropriate to question the expert about those impairments even if, ultimately, they were not considered severe in the remand decision.
It is clear in this circuit that the Commissioner of Social Security must develop "a full and fair record regarding the vocational opportunities available to a claimant." Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989) (citation omitted). The Commissioner must articulate specific jobs that the claimant can perform given her age, education and work history, if any, "and this finding must be supported by substantial evidence, not mere intuition or conjecture." See Id. (citation omitted). One means by which the Commissioner meets this burden is by reliance on the medical-vocational guidelines ("grids"). Id. at 1201-1202 (citations omitted). Exclusive reliance upon the grids is inappropriate, however, "`"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 impairment that significantly limits basic work skills."'" Id. at 1202 (quoting Walker, supra, 826 F.2d at 1002-1003, in turn quoting Francis v. Heckler, 749 F.2d 1562, 1566 (11th Cir. 1985)). Normally, when nonexertional limitations are alleged "the preferred method of demonstrating that the claimant can perform specific work is through the testimony of a vocational expert." MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986); see Francis, 749 F.2d at 1566 ("The preferred method of demonstrating job availability when the grids are not controlling is through expert vocational testimony"). "`It is only when the claimant can clearly do unlimited types of [sedentary] work . . . 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 (quoting Ferguson v. Schweiker, 641 F.2d 243, 248 (5th Cir. Unit A March 30, 1981)). 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 capacity level indicated by the exertional limitations."'" Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (quoting Johnson v. Shalala, 1993 U.S.Dist. LEXIS 8553 (S.D.Ala. May 27, 1993), in turn quoting Welch v. Bowen, 854 F.2d 436, 439 (11th Cir. 1988)).
In this case, the ALJ failed to follow the Eleventh Circuit's direction in Foote, supra, to make a specific finding regarding whether the nonexertional limitations/impairments are severe enough to preclude a wide range of sedentary work because of his error in finding no nonexertional limitations. (Tr. 16, Finding No. 4 ("There are no nonexertional limitations[.]")) It is all too clear that vision deficits and hypertension are nonexertional impairments/limitations. See Sykes v. Apfel, 228 F.3d 259, 260 (3rd Cir. 2000) ("The ALJ concluded that Sykes had several severe impairments, at least one of which (left-eye blindness) is a nonexertional impairment under the regulations."); Evans v. Chater, 84 F.3d 1054, 1056 (8th Cir. 1996) ("The record reveals that Evans now suffers, and has suffered for some time, from significant nonexertional impairments: hypertension, obesity, pain, and artherosclerotic heart disease."); Francis, supra, 749 F.2d at 1567 ("Whether the vision problem is seen as a non-exertional impairment or as a limitation on the range of medium work claimant could perform, reliance on the grid is inappropriate."); 20 C.F.R. § 416.945 (d) (2000) ("Some medically determinable impairment(s), such as skin impairment(s), epilepsy, impairment(s) of vision, hearing or other senses, and impairment(s) which impose environmental restrictions, may cause limitations and restrictions which affect other work-related abilities. If you have this type of impairment(s), we consider any resulting limitations and restrictions which may reduce your ability to do past work and other work in deciding your residual functional capacity."). Because vision deficits and hypertension are nonexertional impairments/limitations, the ALJ erred to reversal first in finding that there are no nonexertional limitations and secondly in failing to make a finding about whether these impairments/limitations are severe enough to preclude a wide range of sedentary work and application of the grids. Moreover, in finding the vision deficits and hypertension to be severe impairments (Tr. 15, Finding No. 2), the undersigned is of the opinion that the ALJ has implicitly found, as opposed to the explicit finding required by Foote, that these clearly nonexertional impairments would preclude a wide range of employment at the sedentary level since a severe impairment, by definition, is one which "significantly limits [an individual's] physical or mental ability to do basic work activities." 20 C.F.R. § 416.920 (c). Therefore, on remand, in accordance with Francis, supra, the Commissioner should obtain the services of a vocational expert to identify what sedentary jobs, if any, plaintiff can perform in light of her exertional and nonexertional impairments and limitations.
CONCLUSION
The Magistrate Judge recommends that the decision of the Commissioner of Social Security denying plaintiff benefits be reversed and remanded pursuant to sentence four of § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), for further proceedings not inconsistent with this decision. The remand pursuant to sentence four of § 405(g) makes the plaintiff a prevailing party for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412. Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), and terminates this Court's jurisdiction over this matter.
Though this Court's review of the denial of an application for supplemental security income falls squarely under 42 U.S.C. § 1383 (c)(3). remand is proper under 42 U.S.C. § 405 (g) because § 1383(c)(3) provides that "[t]he final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title."
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.