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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

OWEN E. McDONNELL, JR., :

 :

Plaintiff, :

 :

vs. :

 : CIVIL ACTION 14-0141-M

CAROLYN W. COLVIN, :

Social Security Commissioner, :

 :

Defendant. :

MEMORANDUM OPINION AND ORDER

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.

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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 

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(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, 

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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 

(11th Cir. 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 

functional capacity to work. If the medical 

evidence is inconclusive on the point, as it 

is here, the record must be developed 

further through the use of vocational expert 

testimony.

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Chester, 792 F.2d at 131-32. 

In this action, the ALJ called a VE at the evidentiary 

hearing that testified that a hypothetical individual, with 

McDonnell’s vocational factors and abilities, would be able to 

perform the jobs of office helper, mail clerk, and ticket taker 

(Tr. 53-54). The ALJ reported the VE’s response, found it 

consistent with information contained in the Dictionary of 

Occupational Titles, and determined that “[b]ased on the 

evidence as a whole, including the testimony of the vocational 

expert . . . the claimant was capable of making a successful 

adjustment to other work that existed in significant numbers in 

the national economy” (Tr. 29-30). 

However, Plaintiff has pointed out that the ALJ, in her 

determination, held that McDonnell “was 55 years old, which is 

defined as an individual closely approaching advanced age” (Tr. 

29). This finding was in error. According to Social Security 

regulations, Plaintiff is a person of advanced age, a 

classification requiring different considerations than 

individuals closely approaching advanced age. 20 C.F.R. § 

404.1563(e) (2014). 

McDonnell goes on to note that the jobs the VE—and ALJ—

found that he could perform were light, unskilled jobs (Doc. 10, 

p. 7; cf. Tr. 29-30). Plaintiff then argues that because GRID 

Rule 202.06 would find him disabled, the ALJ’s decision is in 

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error, and he should begin receiving benefits (Doc. 10, pp. 7-

8).

Respondent attempts to minimize the significance of 

McDonnell’s argument by noting that the ALJ found him to have no 

exertional limitations, meaning that he can perform work 

requiring more than light exertion (Doc. 11, pp. 8-9; cf. Tr. 

25). The Government further argues that the “mere fact that the 

VE chose to identify light or sedentary jobs in response to the 

ALJ’s hypothetical does not alter the fact that the RFC 

assessment includes no exertional limitations, nor does the 

evidence of record support any” (Doc. 11, p. 9).

The Court is unconvinced by Respondent’s arguments. Once 

the ALJ found McDonnell incapable of performing his past work, 

she was charged, under Ferguson and Chester, to determine if 

Plaintiff was capable of performing any work. As suggested in 

those two cases, the ALJ called upon a VE to provide information 

concerning that query. Respondent’s apparent suggestion that 

the VE’s testimony is irrelevant or immaterial falls short of 

explaining why the ALJ deemed it necessary to gather the 

information and then use it as the basis for her determination.

The Court agrees with the Respondent to the extent that the 

VE testimony in this action is insignificant in that fails to 

support the ALJ’s conclusion. Although the ALJ found McDonnell 

capable of performing work at all exertional levels, the 

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evidence of record does not support that conclusion. A wellcrafted hypothetical question would have solicited a response 

explaining what jobs McDonnell can perform that require more 

than light exertion.1 

Based on review of the entire record, the Court finds that 

the Commissioner's decision is not supported by substantial evidence. Therefore, it is ORDERED that the action be REVERSED and 

REMANDED to the Social Security Administration for further 

administrative proceedings consistent with this opinion, to 

include, at a minimum, a supplemental hearing for the gathering 

of evidence as to what work Plaintiff is capable of performing. 

Judgment will be entered by separate Order.

DONE this 8th day of October, 2014.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

																																																							 1The Court is not finding error in the ALJ’s conclusion that 

Plaintiff can perform work at all exertional levels; the Court is 

finding that the evidence of record does not support the conclusion.

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