Jerry Allen McGhee v. Social Security Administration, Commissioner

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 30, 2020
• Docket: 20-11553
• Status: Unpublished

Opinion

Case: 20-11553 Date Filed: 09/30/2020 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11553 Non-Argument Calendar ________________________

D.C. Docket No. 4:18-cv-00597-LSC

JERRY ALLEN MCGHEE,

Plaintiff - Appellant,

versus

SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,

Defendant - Appellee.

________________________

Appeal from the United States District Court for the Northern District of Alabama ________________________

(September 30, 2020)

Before MARTIN, BRANCH, and LUCK, Circuit Judges.

PER CURIAM: Case: 20-11553 Date Filed: 09/30/2020 Page: 2 of 5

Jerry McGhee appeals the district court’s order affirming the Commissioner

of Social Security’s denial of his claims for a period of disability, disability

insurance benefits, and supplemental security income. McGhee argues that the

administrative law judge’s (ALJ) determination that McGhee could perform his

past relevant work is not supported by substantial evidence. McGhee maintains

that, but for this error, he would have been entitled to benefits. After careful

review, we affirm the district court’s order.

I.

McGhee filed claims for a period of disability, disability insurance benefits,

and supplemental security income on April 23, 2015. After the claims were

initially denied, McGhee requested a hearing that was held before an ALJ on July

12, 2017. McGhee and a vocational expert (VE) testified. On September 29,

2017, the ALJ denied McGhee’s claims. The ALJ found that McGhee had not

engaged in substantial gainful activity since the alleged onset date and had the

severe impairments of hypertension and facet arthropathy of the lumbar spine.

The ALJ determined that McGhee had the residual functional capacity to perform

light work, with the additional limitations that he could not “climb ladders, ropes,

or scaffolds; and the claimant cannot have exposure to unprotected heights.” See

20 C.F.R. § 404.1567(b) (defining “light work”). The ALJ then determined that,

2 Case: 20-11553 Date Filed: 09/30/2020 Page: 3 of 5

even given those limitations, McGhee could still perform his past relevant work as

a security guard.

In so finding, the ALJ relied upon two sources of information. First the

ALJ pointed to McGhee’s work history report, which indicated that in his job as a

security guard, McGhee would typically walk for two hours a day, stand for two

hours a day, and sit for six hours a day. Second the ALJ looked to the VE’s

testimony that McGhee’s limitations would not preclude him from working as a

security guard. During the hearing, the VE described McGhee’s past work as a

security guard as “light, semi-skilled,” and testified that it corresponded to

Dictionary of Occupational Titles (DOT) code 372.667-034. The ALJ then asked

whether someone of McGhee’s “age, education, and work experience,” who could

only perform light work, who could not climb “ladders, ropes, and scaffolds,” and

who could not be exposed to unprotected heights could perform work as a security

guard. The VE responded that such a person would be able to work as a security

guard. Because the ALJ found McGhee could still perform his past work, he

concluded that McGhee was not eligible for disability benefits.

The Appeals Council denied McGhee’s request for review. McGhee then

sought review in the district court which affirmed the denial.

McGhee timely appealed.

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II.

We review de novo the legal principles upon which the ALJ’s decision is

based but we review “the resulting decision only to determine whether it is

supported by substantial evidence.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th

Cir. 2005). When determining whether a claimant can perform past relevant work,

the ALJ may rely on the testimony of a VE as well as the DOT and information

that the claimant provides about their work history. See 20 C.F.R.

§§ 404.1560(b)(2), 416.960(b)(2). “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.” Wilson v. Barnhart, 284 F.3d 1219,

1227 (11th Cir. 2002).

McGhee argues the ALJ’s finding that he could perform his past work is not

supported by substantial evidence because the ALJ did not properly consider the

physical and mental demands of McGhee’s prior work as a security guard. To the

contrary, the ALJ looked to the DOT entry for “security guard,” McGhee’s work

history report, and the VE’s testimony. During the hearing, the ALJ posed “a

hypothetical question which comprises all of [McGhee’s] impairments” to the VE.

See id. Thus the VE’s testimony that McGhee could perform his past work

constitutes substantial evidence in support of the ALJ’s finding.

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McGhee points to cases that clarify there must be some “evidence of the

physical requirements and demands” of a claimant’s work in the record. Nelms v.

Bowen, 803 F.2d 1164, 1165 (11th Cir. 1986); see also Schnorr v. Bowen, 816

F.2d 578, 581–82 (11th Cir. 1987). But here the record did contain evidence of the

physical demands of McGhee’s past work as a security guard including McGhee’s

work history report, the VE testimony, and the DOT entry. McGhee offers no

argument about why this record is insufficient or what duties the ALJ failed to

consider. 1

Substantial evidence supports the ALJ’s finding that McGhee could perform

his past relevant work.

AFFIRMED.

1 The only argument McGhee seems to offer is a subsequent favorable decision in which an ALJ determined that McGhee could not perform his past relevant work. But that decision is not based on any new findings about the demands of McGhee’s past work. The ALJ there made a different finding about McGhee’s physical limitations based on new information about McGhee’s disabilities. In any event, the subsequent decision has no bearing on whether the ALJ’s finding here is supported by substantial evidence. 5