IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

WILLIE J. PRUITT, :

Plaintiff, :

vs. CA 05-0675-C

:

JO ANNE B. BARNHART,

Commissioner of Social Security, :

Defendant.

MEMORANDUM OPINION AND ORDER

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 his claim for supplemental security income benefits. 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. 12 (“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 . . . and order the entry of a final judgment, and

conduct all post-judgment proceedings.”); see also Doc. 13 (order of

reference)) Upon consideration of the administrative record, plaintiff's

proposed report and recommendation, the Commissioner's proposed report and

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recommendation, and the parties' arguments at the June 27, 2006 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 hypertension, borderline intellectual

functioning, and status-post gunshot wound to the left arm. The

Administrative Law Judge (ALJ) made the following relevant findings:

2. The claimant’s hypertension, borderline intellectual

functioning, and status post gunshot wound to the left arm are

considered “severe” based on the requirements in the

Regulations 20 CFR § 416.920(c).

3. These medically determinable impairments do not meet

or medically equal one of the listed impairments in Appendix 1,

Subpart P, Regulation No. 4.

4. The undersigned finds the claimant’s allegations

regarding his limitations are not totally credible for the reasons

set forth in the body of the decision.

5. The claimant has the residual functional capacity [for the]

full range of medium, unskilled work on a regular and sustained

basis.

6. The claimant is unable to perform any of his past relevant

work (20 CFR § 416.965).

7. The claimant is a “younger individual between the ages

of 18 and 44" (20 CFR § 416.963).

8. The claimant has “a limited education” (20 CFR §

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416.964). 

9. The claimant has no transferable skills from skilled work

previously performed (20 CFR § 416.968).

10. The claimant has the residual functional capacity to

perform the full range of medium work (20 CFR § 416.967).

11. Based on an exertional capacity for medium work, and

the claimant’s age, education, and work experience, a finding of

“not disabled” is directed by Medical-Vocational Rule 203.26.

12. The claimant was not under a “disability” as defined in

the Social Security Act, at any time through the date of the

decision (20 CFR § 416.920(g)).

(Tr. 18-19) The Appeals Council affirmed the ALJ's decision (Tr. 4-6) 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 he is unable to perform his 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

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1 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).

4

burden to prove that the claimant is capable, given his 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 Court is to determine whether the Commissioner's

decision to deny claimant benefits, on the basis that he can perform the full

range of medium work and is 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).1

In this case, the plaintiff contends that the ALJ erred in failing to find

him presumptively disabled under Listing 12.05(C) and in relying upon the

grids to shoulder the Commissioner’s fifth-step burden rather than obtaining

vocational expert testimony. Because it is found, infra, that the ALJ erred in

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failing to obtain the testimony of a vocational expert, this Court need not

address plaintiff’s other assignment of error. See Pendley v. Heckler, 767 F.2d

1561, 1562 (11th Cir. 1985) (“Because the ‘misuse of the expert’s testimony

alone warrants reversal,’ we do not consider the appellant’s other claims.”).

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 his 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

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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 [medium] 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)

(citations omitted).

In considering the record as a whole, this case need be remanded for

vocational expert testimony. The ALJ in this case failed to follow the Eleventh

Circuit’s direction in Foote, supra, to make a finding regarding whether the

nonexertional limitations attendant to claimant’s nonexertional impairments

are severe enough to preclude a wide range of medium work. It is clear in this

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case that plaintiff’s borderline intellectual functioning and hypertension are

nonexertional impairments, Grissom v. Barnhart, 416 F.3d 834, 837 (8th Cir.

2005) (“‘We have previously concluded that borderline intellectual

functioning, if supported by the record as it is here, is a significant

nonexertional impairment that must be considered by a vocational expert.’”);

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.”), which are attended by some limitations (Tr. 16 & 171-172

(the ALJ accepted the mental residual functional capacity assessment

completed by Dr. John Davis which reflects moderate limitations in

maintaining attention, concentration or pace for periods of at least two hours;

in understanding, remembering, and carrying out detailed instructions; and in

using judgment in detailed work-related decisions)). Therefore, the ALJ’s

failure to make a finding that plaintiff’s non-exertional limitations are not

severe enough to preclude the full range of medium work was clear error

particularly where, as here, the mental residual functional capacity assessment

completed by Dr. Davis defines moderate as: “[a]ffects but does not preclude

ability to function” (Tr. 171). As noted by the Eleventh Circuit in Wilson v.

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2 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.” 

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Barnhart, 284 F.3d 1219, 1227 ( 2002), “[i]f nonexertional impairments exist,

the ALJ may use Medical-Vocational Guidelines as a framework to evaluate

vocational factors, but must also introduce independent evidence, preferably

through a vocational expert’s testimony, of existence of jobs in the national

economy that the claimant can perform.” The scenario outlined in Wilson

should have been heeded in this case and, therefore, on remand, the

Commissioner need obtain the services of a vocational expert to identify what

medium jobs, if any, plaintiff can perform in light of his exertional and nonexertional impairments and limitations. 

CONCLUSION

The Court ORDERS that the decision of the Commissioner of Social

Security denying plaintiff benefits be reversed and remanded pursuant to

sentence four of § 405(g),2

 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.

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§ 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. 

DONE and ORDERED this the 29th day of June, 2006.

 s/WILLIAM E. CASSADY 

 UNITED STATES MAGISTRATE JUDGE

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