United States District Court, S.D. Alabama, Southern Division
KERRY A. WASHAM, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security,  Defendant.
MEMORANDUM OPINION AND ORDER
WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE.
Security Claimant/Plaintiff Kerry A. Washam brought this
action under 42 U.S.C. §§ 405(g) and 1383(c)(3)
seeking judicial review of a final decision of the Defendant
Commissioner of Social Security (the
“Commissioner”) denying his applications for
supplemental security income (“SSI”) under Title
II of the Social Security Act, 42 U.S.C. § 401, et
seq. The parties have consented to the exercise of
jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C.
§ 636(c), for all proceedings in this Court. (Doc. 13
(“In accordance with the provisions of 28 U.S.C. §
636(c) and Fed.R.Civ.P. 73, the parties in this case consent
to have a United States Magistrate Judge conduct any and all
proceedings in this case, including the trial, order the
entry of a final judgment, and conduct all post-judgment
consideration of the briefs of the parties, (Docs. 9-10), the
administrative record, (Doc. 8), (hereinafter cited as
“(R. [page number(s) in lower-right corner of
transcript])”), and the arguments presented during the
hearing held on February 16, 2017, it is determined that the
Commissioner's decision is due to be REVERSED and
REMANDED for further proceedings consistent with this
was born on March 22, 1993, (R. 207 [SSA Ex. 8E]). The
highest grade of school Washam attained was eleventh grade at
Leflore Magnet High School in Mobile, Alabama, and while
there, he attended special education classes. (R. 174 [SSA
Ex. 2E]). Washam was employed from January 2011 to June 2012
as a stocker and cashier at a store and from June 2012 to
February 2013 as a dish washer at a restaurant, (R. 175 [SSA
Ex. 2E]), and also was employed as a brick mason and at a
nursery, (R. 40).
filed applications for SSI with the Social Security Administration
(the “SSA”), on February 25, 2013. (R. 15). In
Washam's application, he alleged disability beginning on
February 20, 2013. (R. 15). After Washam's claim was
denied, he requested a hearing, which was held before an
Administrative Law Judge (“ALJ”) for the SSA on
July 8, 2014. (R. 15). On October 14, 2014, the ALJ issued an
unfavorable decision on Washam's claims, finding him
“not disabled” under sections 223(d) and
1614(a)(3)(A) of the Social Security Act. (R. 15-25).
requested review of the ALJ's decision by the Appeals
Council for the SSA's Office of Disability Adjudication
and Review. (R. 8-10). The Appeals Council denied
Washam's request for review on March 23, 2016, which made
the ALJ's the final decision of the Commissioner. (R.
1-6). On May 19, 2016, Washam filed this action pursuant to
§ 405(g) and § 1383(c)(3) to review the
final decision of the Commissioner. (Doc. 1, ¶ 4).
Standard of Review
Social Security appeals, [the Court] must determine whether
the Commissioner's decision is supported by substantial
evidence and based on proper legal standards. Substantial
evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to
support a conclusion.” Winschel v. Comm'r of
Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011)
(citations and internal quotations omitted). The Court
“may not decide the facts anew, reweigh the evidence,
or substitute [its] judgment for that of the
[Commissioner].” Id. (citations omitted).
“Even if the evidence preponderates against the
Commissioner's findings, [the Court] must affirm if the
decision reached is supported by substantial evidence.”
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990) (citing Sewell v. Bowen, 792 F.2d 1065, 1067
(11th Cir. 1986); MacGregor v. Bowen, 786 F.2d 1050,
1053 (11th Cir. 1986); and Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)). “Yet, within
this narrowly circumscribed role, [the Court does] not
‘act as automatons.'” Bloodsworth,
703 F.2d 1233, 1239 (11th Cir. 1983) (citing Ware v.
Schweiker, 651 F.2d 408, 411 (5th Cir. 1981), cert.
denied, 455 U.S. 912, 102 S.Ct. 1263, 71 L.Ed.2d 452
(1982)). The Court “must scrutinize the record as a
whole, [Ware, 651 F.2d at 411]; Lewis v.
Weinberger, 515 F.2d 584, 586-87 (5th Cir. 1975), to
determine if the decision reached is reasonable, Simmons
v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979), and
supported by substantial evidence, Scharlow v.
Schweiker, 655 F.2d 645, 648 (5th Cir. 1981).”
Bloodsworth, 703 F.2d at 1239.
contrast to the deferential review accorded to the
[Commissioner's] findings of fact, the
[Commissioner's] conclusions of law, including applicable
review standards are not presumed valid.”
Martin, 894 F.2d at 1529 (citing MacGregor,
786 F.2d at 1053; Smith v. Heckler, 707 F.2d 1284,
1285 (11th Cir. 1983), Wiggins v. Schweiker, 679
F.2d 1387, 1389 (11th Cir. 1982); Smith v.
Schweiker, 646 F.2d 1075, 1076 (5th Cir. Unit A June
1981). “The [Commissioner's] failure to apply the
correct legal standard or to provide the reviewing court with
sufficient basis for a determination that proper legal
principles have been followed mandates reversal.”
Martin, 894 F.2d at 1529 (citing Gibson v.
Heckler, 779 F.2d 619, 622 (11th Cir. 1986); Bowel
v. Heckler, 748 F.2d 629, 635-36 (11th Cir. 1984);
Smith, 707 F.2d at 1285; Wiggins, 679 F.2d
at 1389; Ambers v. Heckler, 736 F.2d 1467, 1470
(11th Cir. 1984)).
The Social Security Regulations outline a five-step,
sequential evaluation process used to determine whether a
claimant is disabled: (1) whether the claimant is currently
engaged in substantial gainful activity; (2) whether the
claimant has a severe impairment or combination of
impairments; (3) whether the impairment meets or equals the
severity of the specified impairments in the Listing of
Impairments; (4) based on a residual functional capacity
(“RFC”) assessment, whether the claimant can
perform any of his or her past relevant work despite the
impairment; and (5) whether there are significant numbers of
jobs in the national economy that the claimant can perform
given the claimant's RFC, age, education, and work
Winschel, 631 F.3d at 1178 (citing 20 C.F.R.
§§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v);
Phillips v. Barnhart, 357 F.3d 1232, at 1237-39
(11th Cir. 2004)).
Claims on Judicial Review
“The [ALJ] committed reversible error in violation of
Social Security Ruling 96-6p in not finding Plaintiff
disabled under Listing 12.05(D).” (Doc. 9, at 1).
“The [ALJ] reversibly erred in failing to ask the
Vocational Expert a hypothetical question that encompassed
all of the Plaintiff's mental and physical limitations in
violation of Pendley v. Heckler, 767 F.2d 1561, 1563
(11th Cir. 1985).” (Doc. 9, at 2).
the first step, the ALJ must consider the claimant's
current working situation. If the claimant is ‘doing
substantial gainful activity, [the ALJ] will find that [the
claimant is] not disabled.'” Phillips, 357
F.3d at 1237 (alterations in original) (quoting 20 C.F.R.
§ 404.1520(a)(4)(i) & (b)). “If however, the
claimant is not currently ‘doing gainful activity'
then the ALJ moves on to the second step.”
Phillips, 357 F.3d at 1237. At the first step, the
ALJ determined that Washam had “not engaged in
substantial gainful activity since February 25, 2013, the
application date.” (R. 17). The ALJ noted that Washam
“worked after the application date but this work
activity did not rise to the level of substantial gainful
activity.” (R. 17).
At the second step, the ALJ is to “consider the medical
severity of [the claimant's] impairment(s).” 20
C.F.R. § 404.1520(a)(4)(ii). When considering the
severity of the claimant's medical impairments, the ALJ
must determine whether the impairments, alone or in
combination, “significantly limit” the
claimant's “physical or mental ability to do basic
work skills.” 20 C.F.R. § 404.1520(c). If the ALJ
concludes that none of the claimant's impairments are
medically severe, the ALJ is to conclude that the claimant is
not disabled. 20 C.F.R. § 404.1520(a)(4)(ii) & (c).
If, however, the ALJ concludes that the claimant's
impairments are medically severe, then the ALJ moves on to
the third step.
Phillips, 357 F.3d at 1237 (alterations in
original). At Step Two, the ALJ determined that Washam had
the following severe impairment: “borderline
intellectual functioning.” (R. 17).
At the third step, the ALJ again considers the “medical
severity of [the claimant's] impairment(s)” in
order to determine whether the claimant's impairment(s)
“meets or equals” one of the listed disabilities.
20 C.F.R. § 404.1520(a)(4)(iii). Although the list is
too voluminous to recite here, the idea is that the listings
“streamline[ ] the decision process by identifying
those claimants whose medical impairments are so severe that
it is likely they would be found disabled regardless of their
vocational background.” Bowen v. Yuckert, 482
U.S. 137, 153, 107 S.Ct. 2287, 2297, 96 L.Ed.2d 119 (1987).
If the ALJ concludes that the claimant's impairments meet
or equal one of the listed disabilities and meet the duration
requirement, the ALJ will conclude that the claimant is
disabled. 20 C.F.R. § 404.1520(a)(4)(iii) & (d). If,
however, the ALJ concludes that the claimant's
impairments do not meet or equal the listed impairments, then
the ALJ will move on to step four.
Phillips, 257 F.3d at 1238 (alterations in
original). At Step Three, the ALJ found that Washam
“does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments” in 20 C.F.R.
§§ 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925, and 416.926. (R. 17).
At the fourth step, the ALJ must assess: (1) the
claimant's [RFC]; and (2) the claimant's ability to
return to her past relevant work. 20 C.F.R. §
404.1520(a)(4)(iv). As for the claimant's RFC, the
regulations define RFC as that which an individual is still
able to do despite the limitations caused by his or her
impairments. 20 C.F.R. § 404.1545(a). Moreover, the ALJ
will “assess and make a finding about [the
claimant's RFC] based on all the relevant medical and
other evidence” in the case. 20 C.F.R. §
404.1520(e). Furthermore, the RFC determination is used both
to determine whether the claimant: (1) can return to her past
relevant work under the fourth step; and (2) can adjust to
other work under the fifth step . . . . 20 C.F.R. §
If the claimant can return to her past relevant work, the ALJ
will conclude that the claimant is not disabled. 20 C.F.R.
§ 404.1520(a)(4)(iv) & (f). If the claimant cannot
return to her past ...