United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
F. MOORER UNITED STATES MAGISTRATE JUDGE
administrative denial of his application for Supplemental
Security Income benefits under Title XVI of the Social
Security Act, Robert Joseph Welch (“Welch” or
“Plaintiff”) received a requested hearing before
an administrative law judge (“ALJ”) who rendered
an unfavorable decision. When the Appeals Council rejected
review, the ALJ's decision became the final decision of
the Commissioner of Social Security
(“Commissioner”). See Chester v. Bowen,
792 F.2d 129, 131 (11th Cir. 1986). Judicial review proceeds
pursuant to 42 U.S.C. § 405(g), 42 U.S.C. §
1383(c)(3), and 28 U.S.C. § 636(c), and for reasons
herein explained, the Court concludes the Commissioner's
decision denying supplemental security income benefits should
be REVERSED and REMANDED.
Nature of the Case
requests judicial review of the Commissioner of Social
Security Administration's decision denying his
application for supplemental security income benefits. United
States district courts may conduct limited review of such
decisions to determine whether they comply with applicable
law and are supported by substantial evidence. 42 U.S.C.
§ 405 (2006). The court may affirm, reverse and remand
with instructions, or reverse and render a judgment.
Standard of Review
review of the Commissioner's decision to deny benefits is
narrowly circumscribed. The court reviews a social security
case solely to determine whether the Commissioner's
decision is supported by substantial evidence and based upon
proper legal standards. Winschel v. Comm'r of Soc.
Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). The court
“may not decide the facts anew, reweigh the evidence,
or substitute [its] judgment for that of the Commissioner,
” but rather “must defer to the
Commissioner's decision if it is supported by substantial
evidence.” Miles v. Chater, 84 F.3d 1397, 1400
(11th Cir. 1997) (quoting Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)); see also
Winschel, 631 F.3d at 1178 (stating the court should not
re-weigh the evidence). This court must find the
Commissioner's decision conclusive “if it is
supported by substantial evidence and the correct legal
standards were applied.” Kelley v. Apfel, 185
F.3d 1211, 1213 (11th Cir. 1999); see also Kosloff v.
Comm'r of Soc. Sec., 581 Fed.Appx. 811, 811 (11th
Cir. 2015) (citing Kelley).
evidence is more than a scintilla - i.e., the evidence must
do more than merely create a suspicion of the existence of a
fact, and must include such relevant evidence as a reasonable
person would accept as adequate to support the conclusion.
Winschel, 631 F.3d at 1178 (quoting Crawford v.
Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004)); Lewis v. Callahan, 125 F.3d 1436, 1440
(citing Richardson v. Perales, 402 U.S. 389, 401, 91
S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)). If the
Commissioner's decision is supported by substantial
evidence, the district court will affirm, even if the court
would have reached a contrary result as finder of fact, and
even if the court finds that the evidence preponderates
against the Commissioner's decision. Edwards v.
Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991);
see also Henry v. Comm'r of Soc. Sec., 802 F.3d
1264, 1267 (11th Cir. 2015) (“even if the evidence
preponderates against the Commissioner's
findings, we must affirm if the decision reached is supported
by substantial evidence.”) (citation omitted). The
district court must view the record as a whole, taking into
account evidence favorable as well as unfavorable to the
decision. Foote v. Chater, 67 F.3d 1553, 1560 (11th
Cir. 1995) (citing Chester v. Bowen, 792 F.2d 129,
131 (11th Cir. 1986)).
district court will reverse a Commissioner's decision on
plenary review if the decision applies incorrect law, or if
the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner
properly applied the law. Keeton v. Department of Health
and Human Services, 21 F.3d 1064, 1066 (11th Cir. 1994)
(internal citations omitted). There is no presumption that
the Secretary's conclusions of law are valid.
Id.; Brown v. Sullivan, 921 F.2d 1233, 1236
(11th Cir. 1991).
Statutory and Regulatory Framework
Social Security Act's general disability insurance
benefits program (“DIB”) provides income to
individuals who are forced into involuntary, premature
retirement, provided they are both insured and disabled,
regardless of indigence. See 42 U.S.C. § 423(a).
The Social Security Act's Supplemental Security Income
(“SSI”) is a separate and distinct program. SSI
is a general public assistance measure providing an
additional resource to the aged, blind, and disabled to
assure that their income does not fall below the poverty
line. Eligibility for SSI is based upon proof of
indigence and disability. See 42 U.S.C. §§
1382(a), 1382c(a)(3). However, despite the fact they are
separate programs, the law and regulations governing a claim
for DIB and a claim for SSI are identical; therefore, claims
for DIB and SSI are treated identically for the purpose of
determining whether a claimant is disabled. Patterson v.
Bowen, 799 F.2d 1455, 1456 n. 1 (11th Cir. 1986).
Applicants under DIB and SSI must provide
“disability” within the meaning of the Social
Security Act which defines disability in virtually identical
language for both programs. See 42 U.S.C.
§§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R.
§§ 404.1505(a), 416.905(a).
person is entitled to disability benefits when the person is
Engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A
“physical or mental impairment” is one resulting
from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques. 42 U.S.C.
§§ 423(d)(3), 1382c(a)(3)(D).
Commissioner utilizes a five-step, burden-shifting analysis
to determine when claimants are disabled. 20 C.F.R.
§§ 404.1520; Phillips v. Barnhart, 357 F.3d
1232, 1237 (11th Cir. 2004); O'Neal v. Comm'r of
Soc. Sec., 614 Fed.Appx. 456, 458 (11th Cir. June 10,
(1) Whether the claimant is currently engaged in substantial
(2) Whether the claimant has a severe impairment or
combination of impairments;
(3) Whether the impairment meets or exceeds one of the
impairments in the listings;
(4) Whether the claimant can perform past relevant work; and
(5) Whether the claimant can perform other work in the
Winschel, 631 F.3d at 1178; Doughty v.
Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). When a
claimant is found disabled - or not - at an early step, the
remaining steps are not considered. McDaniel v.
Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). This
procedure is a fair and just way for determining disability
applications in conformity with the Social Security Act.
See Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct.
2287, 2297, 96 L.Ed.2d 119 (1987) (citing Heckler v.
Campbell, 461 U.S. 458, 461, 103 S.Ct. 1952, 1954, 76
L.Ed.2d 66 (1983)) (The use of the sequential evaluation
process “contribute[s] to the uniformity and efficiency
of disability determinations”).
burden of proof rests on the claimant through Step 4. See
Ostborg v. Comm'r of Soc. Sec., 610 Fed.Appx. 907,
915 (11th Cir. 2015); Phillips, 357 F.3d at 1237-39.
A prima facie case of qualifying disability exists
when a claimant carries the Step 1 through Step 4 burden.
Only at the fifth step does the burden shift to the
Commissioner, who must then show there are a significant
number of jobs in the national economy the claimant can
perform the fourth and fifth steps, the ALJ must determine
the claimant's Residual Functioning Capacity
(“RFC”). 20 C.F.R. § 404.1520(a)(4). RFC is
what the claimant is still able to do despite the
impairments, is based on all relevant medical and other
evidence, and can contain both exertional and nonexertional
limitations. Phillips, 357 F.3d at 1242-43. At the
fifth step, the ALJ considers the claimant's RFC, age,
education, and work experience to determine if there are jobs
available in the national economy the claimant can perform.
Id. at 1239. In order to do this, the ALJ can either
use the Medical Vocational Guidelines (“grids”) or
call a vocational expert. Id. at 1239-40.
grids allow the ALJ to consider factors such as age,
confinement to sedentary or light work, inability to speak
English, educational deficiencies, and lack of job
experience. Each of these factors can independently limit the
number of jobs realistically available to an individual.
Id. at 1240. Combinations of these factors yield a
statutorily-required finding of “Disabled” or
“Not Disabled.” Id. Otherwise, the ALJ
may use a vocational expert. Id. A vocational expert
is an expert on the kinds of jobs an individual can perform
based on her capacity and impairments. Id. In order
for a vocational expert's testimony to constitute
substantial evidence, the ALJ must pose a hypothetical
question which comprises all of the claimant's
impairments. Jones v. Apfel, 190 F.3d 1224, 1229
(11th Cir. 1999) (citing McSwain v. Bowen, 814 F.2d
617, 619-20 (11th Cir. 1987)).
Background and Proceedings
claims disability due to cancerous skin lesions, back
injury/pain, hypertension, and anxiety/panic attacks. (R.
361). Following initial administrative denial of his claim,
Welch requested a hearing before an administrative law judge
(“ALJ”). (R. 164-174). ALJ Walter v.
Lassiter, Jr. (“the ALJ”) convened an
in-person hearing on February 2, 2015. (R. 100-142). Welch
was represented by an attorney. The ALJ received direct
testimony from Welch. The remaining evidentiary record
consisted of medical reports from treating sources and
residual functional capacity assessments completed by a
medical consultant who reviewed Welch's medical records
upon request of Alabama Disability Determination
Services. Welch's counsel avers that ALJ
Lassiter requested an off-the-record pre-hearing conference
and as a result of that conversation, Welch alleges ALJ bias
which resulted in a hearing that was not fair and impartial.
The ALJ rendered an unfavorable verdict on May 22, 2015. (R.
36-61). On September 10, 2015, the Appeals Council granted
Plaintiff's request for review, vacated the decision, and
remanded the case as to three issues with an order to conduct
a new evidentiary hearing. The Appeals Council rejected the
argument of bias and sent the case back to the same ALJ.
Prior to the hearing, counsel requested that a new ALJ be
assigned and that ALJ Lassiter recuse himself. (R. 427-28,
440-41). A new hearing was held before ALJ Lassiter on
February 5, 2016 and he denied the request for recusal. (R.
62-99). On June 20, 2016, the ALJ again rendered an
unfavorable verdict. (R. 18-35). On September 22, 2016, the
Appeals Council denied Welch's second request for review
(Tr. 1-7). This Social Security Appeal was filed on November
16, 2016. See Doc. 1, Complaint.