United States District Court, S.D. Alabama, Southern Division
OWEN E. McDONNELL, JR., Plaintiff,
CAROLYN W. COLVIN, Social Security Commissioner, Defendant.
MEMORANDUM OPINION AND ORDER
BERT W. MILLING, Jr., Magistrate Judge.
In this action under 42 U.S.C. § 405(g), Plaintiff seeks judicial review of an adverse social security ruling which denied a claim for disability insurance benefits (Docs. 1, 10). The parties filed written consent and this action has been referred to the undersigned Magistrate Judge to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 ( see Doc. 16). Oral argument was waived in this action (Doc. 15). Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be REVERSED and that this action be REMANDED for further administrative action not inconsistent with the Orders of the Court.
This Court is not free to reweigh the evidence or substitute its judgment for that of the Secretary of Health and Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983), which must be supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence test requires "that the decision under review be supported by evidence sufficient to justify a reasoning mind in accepting it; it is more than a scintilla, but less than a preponderance." Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).
At the time of the administrative hearing, Plaintiff was sixty-three years of age, had completed a high school education ( see Tr. 29), and had previous work experience as a legal office administrator/manager, telemarketer, and junior college teacher (Tr. 52-53). In claiming benefits, Plaintiff alleges disability due to late effects of a subarachnoid hemorrhage and status post clipping of anterior communicating artery aneurysm (Doc. 10 Fact Sheet).
The Plaintiff filed an application for disability benefits on July 29, 2010 (Tr. 129-36; see also Tr. 20). Benefits were denied following a hearing by an Administrative Law Judge (ALJ) who determined that although he was incapable of performing his past relevant work, there were jobs that McDonnell could perform (Tr. 20-30). Plaintiff requested review of the hearing decision (Tr. 15) by the Appeals Council, but it was denied (Tr. 1-6).
Plaintiff claims that the opinion of the ALJ is not supported by substantial evidence. Specifically, McDonnell alleges that: (1) The ALJ mischaracterized his age; (2) the ALJ failed to pose a proper hypothetical to the Vocational Expert (hereinafter VE ); and (3) the ALJ's residual functional capacity (hereinafter RFC ) determination is incomplete (Doc. 10). Defendant has responded to-and denies-these claims (Doc. 11).
In her decision, the ALJ held that McDonnell had the RFC
[t]o perform a full range of work at all exertional levels but with the following nonexertional limitations: avoid unprotected heights and dangerous equipment; have minimal changes in the work settings and routines; avoid tasks requiring a variety of instructions/tasks; understand and carryout simple (1-2 step) instructions; understand and carry out detailed (but uninvolved) written or oral instructions involving a few concrete variables in/from standardized situations; not perform production pace work, and make judgments on only simple, work related decisions.
(Tr. 25). The ALJ further found that Plaintiff was unable to perform any of his past relevant work (Tr. 29).
The Court notes that Plaintiff has the burden of proving that he cannot perform his past relevant work. Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987) ( citing Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985)). Here, McDonnell met that burden. The Court will now look to Chester v. Bowen, 792 F.2d 129 (11th Cir. 1986) for instruction on analyzing a claimant's disability after reaching this finding:
In Ferguson v. Schweiker, 641 F.2d 243, 247-48 (5th Cir. 1981), the court stated:
The burden of showing by substantial evidence that a person who can no longer perform his former job can engage in other substantial gainful activity is in almost all cases satisfied only through the use of vocational expert testimony. While in exceptional cases testimony by a vocational expert may not be necessary... the general rule is that such testimony is required.
We think that this is the correct answer. The determination as to whether a claimant has the residual functional capacity to work is not an easy one. And, it is far too important for the Secretary to make without having specific support in the record. In Broz v. Schweiker, 677 F.2d 1351 (11thCir. 1982), we stated that the inquiry whether a claimant has the residual functional capacity to work is a matter to be determined through adjudication. Proper adjudication entails fact finding and decision making based on evidence presented or adduced at a hearing or trial. It is thus improper for the decision maker to take judicial notice of an adjudicative fact such as whether a claimant has the residual ...