Peter Owens, II v. Commissioner of Social Security

Case: 12-13243 Date Filed: 01/28/2013 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 12-13243
Non-Argument Calendar
________________________

D.C. Docket No. 2:10-cv-00632-DNF

PETER OWENS, II,

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,

versus

COMMISSIONER OF SOCIAL SECURITY,

llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(January 28, 2013)

Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

Peter Owens, II, appeals the magistrate judge’s order affirming the Social

Security Administration’s denial of his application for disability insurance benefits,
Case: 12-13243 Date Filed: 01/28/2013 Page: 2 of 7

42 U.S.C. § 405(g), and supplemental security income, 42 U.S.C. § 1383(c)(3).

On appeal, Owens argues that the Administrative Law Judge (“ALJ”) erroneously

concluded that Owens’s nonexertional limitations fell short of significantly

affecting the occupational base, without obtaining the testimony of a vocational

expert (“VE”). He further argues that, at a minimum, the ALJ failed to provide

sufficient reasoning to permit a court to conclude that it conducted the proper legal

analysis. Upon careful review of the record and the parties’ briefs, we vacate and

remand to the district court with instructions to remand the case to the

Commissioner for further proceedings consistent with this opinion.

We review the Commissioner’s decision for substantial evidence. Winschel

v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). Substantial

evidence is “more than a scintilla” and is such relevant evidence as a reasonable

person would accept as adequate to support a conclusion. Id. (quotations omitted).

Nevertheless, the failure to apply the correct law or to provide the reviewing court

with sufficient reasoning for determining that the proper legal analysis has been

conducted mandates reversal. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th

Cir. 1991); see also Winschel, 631 F.3d at 1179 (explaining that, when the ALJ

fails to state with at least some measure of clarity the grounds for his decision, we

will decline to affirm simply because some rationale might have supported the

ALJ’s conclusion).

2
Case: 12-13243 Date Filed: 01/28/2013 Page: 3 of 7

The Commissioner uses a five-step, sequential evaluation process to

determine whether a claimant is disabled. Winschel, 631 F.3d at 1178. The first

three steps ask whether the claimant (i) is currently engaged in substantial gainful

activity and (ii) has a severe impairment or combination of impairments (iii) that

meets or equals the severity of the specified impairments in the Listing of

Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. The fourth step asks

whether, based on an assessment of the claimant’s residual functional capacity

(“RFC”), the claimant can perform any of his or her past relevant work. Id. The

RFC is that which an individual is still able to do despite the limitations caused by

his or her impairments. Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir.

2004). The ALJ must consider all of the evidence in the record in determining the

claimant’s RFC. See id.

The final step asks whether there are significant numbers of jobs in the

national economy that the claimant can perform, given his RFC, age, education,

and work experience. Winschel, 631 F.3d at 1178. The Commissioner bears the

burden at step five to show the existence of such jobs. See Jones v. Apfel, 190 F.3d

1224, 1228 (11th Cir. 1999). Accordingly, the ALJ has the obligation to develop a

full and fair record with substantial evidence showing that there are specific jobs in

the national economy that the claimant can perform. Allen v. Sullivan, 880 F.2d

1200, 1201 (11th Cir. 1989); see also Wilson v. Barnhart, 284 F.3d 1219, 1227

3
Case: 12-13243 Date Filed: 01/28/2013 Page: 4 of 7

(11th Cir. 2002) (“The ALJ must articulate specific jobs that the claimant is able to

perform, and this finding must be supported by substantial evidence, not mere

intuition or conjecture.”).

There are two avenues by which the ALJ may determine whether a claimant

has the ability to adjust to other work in the national economy: (i) by applying the

20 C.F.R. Part 404 Medical-Vocational Guidelines (the “Grids”); and (ii) by the

use of a VE, an expert on the kinds of jobs an individual can perform based on his

capacity and impairments. Phillips, 357 F.3d at 1239-40. Exclusive reliance on

the Grids is inappropriate when the claimant is unable to perform a full range of

work at a given RFC. Id. at 1242. If the ALJ concludes that the claimant cannot

perform a full range or unlimited types of work at the claimant’s RFC given his

exertional limitations, then the ALJ must consult a VE to determine whether there

are sufficient jobs at the claimant’s RFC within the national economy that the

claimant can perform. Id.

If the ALJ concludes that the claimant can perform a full range or unlimited

types of work at the claimant’s RFC despite any exertional limitations, the ALJ

next must determine to what extent the claimant’s nonexertional limitations affect

his ability to secure employment at the claimant’s RFC in the national economy.

Id. at 1242-43. If nonexertional impairments exist, the ALJ may use the Grids as a

framework to evaluate vocational factors, but must also introduce independent

4
Case: 12-13243 Date Filed: 01/28/2013 Page: 5 of 7

evidence, preferably through VE testimony, of the existence of jobs in the national

economy that the claimant can perform. Wilson, 284 F.3d at 1227; Wolfe v.

Chater, 86 F.3d 1072, 1077-78 (11th Cir. 1996); see also Marbury v. Sullivan, 957

F.2d 837, 839 (11th Cir. 1992) (“An ALJ’s conclusion that a claimant’s limitations

do not significantly compromise his basic work skills or are not severe enough to

preclude him from performing a wide range of light work is not supported by

substantial evidence unless there is testimony from a [VE].”); Allen, 880 F.2d at

1201 (“Even a mild mental impairment may prevent a claimant from engaging in

the full range of jobs contemplated by the exertional category for which the

claimant otherwise qualifies.” (quotations and alteration omitted)).

Here, once the ALJ determined that Owens was unable to perform any past

relevant work, the burden shifted to the Commissioner to show the existence of

jobs in the national economy which, given Owens’s impairments, he could

perform. See Jones, 190 F.3d at 1228. The ALJ concluded that, based on his

exertional limitations, Owens retained the residual functional capacity to perform

unskilled medium work and that his nonexertional limitations did not significantly

limit his basic work skills at this level. However, despite the existence of

nonexertional impairments, the ALJ did not introduce independent evidence to

support this conclusion—whether by way of VE testimony or otherwise—

articulating specific jobs in the national economy that Owens can perform, and

5
Case: 12-13243 Date Filed: 01/28/2013 Page: 6 of 7

therefore failed to develop a full and fair record with substantial evidence on this

issue. See Wilson, 284 F.3d at 1227; Wolfe, 86 F.3d at 1077-78; Allen, 880 F.2d at

1201.

The ALJ’s next conclusion—that “the additional limitations have little or no

effect on the occupational base of unskilled medium work”—lacks sufficient

clarity to allow a reviewing court to determine that the proper legal analysis was

conducted. See Winschel, 631 F.3d at 1179; Cornelius, 936 F.2d at 1145-46. Even

if we assume that the ALJ’s vague reference to “the additional limitations” was

intended to refer to Owens’s nonexertional limitations, there is no indication of

which nonexertional limitations the ALJ considered in making this conclusion.

Nor is there any indication of the reason or reasons why the ALJ arrived at this

conclusion.

The ALJ’s final conclusion likewise lacks adequate reasoning to show that

the proper analysis was conducted. The ALJ concluded, “The claimant’s ability to

understand, carry out, and remember simple instructions, use judgment in making

work-related decisions, respond appropriately to supervision, co-workers and usual

work situations, and[] deal with changes in a routine work setting does not

substantially limit the occupational base.” Even if we assume that the ALJ

intended in this sentence to refer to Owens’s limitations—as opposed to his

abilities—the ALJ provided no explanation of how he arrived at this conclusion.

6
Case: 12-13243 Date Filed: 01/28/2013 Page: 7 of 7

In sum, the ALJ failed to develop a full and fair record with substantial

evidence showing that there are specific jobs in the national economy that Owens

can perform, and to provide sufficiently clear reasoning to show that the proper

legal analysis has been conducted. The magistrate therefore erred when he

affirmed the decision of the ALJ. Accordingly, we vacate and remand to the

district court with instructions to remand the case to the Commissioner for further

proceedings consistent with this opinion.

VACATED AND REMANDED.