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Bigelow v. Colvin

United States District Court, M.D. Alabama, Southern Division

December 15, 2014

GINA GAYLE BIGELOW, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

RECOMMENDATION OF THE MAGISTRATE JUDGE

SUSAN RUSS WALKER, Chief Magistrate Judge.

Plaintiff Gina Gayle Bigelow ("Plaintiff") brings this action pursuant to 42 U.S.C.§ 405(g) seeking judicial review of a decision by the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits under Title II of the Social Security Act ("the Act") and supplemental security income under Title XVI of the Act. Upon review of the record and briefs submitted by the parties, the court concludes that the decision of the Commissioner is due to be affirmed.

STANDARD OF REVIEW

The court's review of the Commissioner's decision is narrowly circumscribed. The court does not reweigh the evidence or substitute its judgment for that of the Commissioner. Rather, the court examines the administrative decision and scrutinizes the record as a whole to determine whether substantial evidence supports the ALJ's factual findings. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993); Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). Substantial evidence consists of such "relevant evidence as a reasonable person would accept as adequate to support a conclusion." Cornelius, 936 F.2d at 1145. A reviewing court may not look only to those parts of the record which support the decision of the ALJ but instead must view the record in its entirety and take account of evidence which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986). Factual findings that are supported by substantial evidence must be upheld by the court. The ALJ's legal conclusions, however, are reviewed de novo because no presumption of validity attaches to the ALJ's determination of the proper legal standards to be applied. Davis, 985 F.2d at 531. If the court finds an error in the ALJ's application of the law, or if the ALJ fails to provide the court with sufficient reasoning for determining that the proper legal analysis has been conducted, the ALJ's decision must be reversed. Cornelius, 936 F.2d at 1145-46.

BACKGROUND

Plaintiff filed her application for disability benefits on April 5, 2012, alleging that she became disabled on March 15, 2012, due to epilepsy, bipolar disorder, and "other mental problems" (R. 166, 224). Her application was denied at the initial administrative level, and plaintiff requested a hearing before an administrative law judge (ALJ). (R. 81). The ALJ held a hearing on February 8, 2013, at which plaintiff was represented by counsel. (R. 27-59). On April 30, 2013, the ALJ issued a decision finding plaintiff has not been disabled as defined in the Social Security Act since March 15, 2012, through the date of the ALJ's decision. (R. 7, 10). The ALJ followed the five-step evaluation for determining disability benefits and concluded that Plaintiff had severe impairments of seizure disorder, bipolar disorder, panic disorder, personality disorder, and social phobia. (R. 12); 20 C.F.R. § 404.1520(a)(4). He concluded at step three that none of Plaintiff's impairments or combination of impairments met or medically equaled one of the listings. (R. 12). The ALJ determined that Plaintiff had the residual functional capacity ("RFC") to perform a full range of work at all exertional levels with nonexertional limitations. (R. 14). At step four, the ALJ determined that Plaintiff could not perform her past relevant work as a cashier/checker. (R. 20). The ALJ found that transferability of job skills was not material because the medical-vocational rules supported a finding that Plaintiff was not disabled. (R. 20). The ALJ concluded at step five that Plaintiff's ability to work at all exertional levels was compromised by nonexertional limitations, but Plaintiff could transfer her past work skills to the occupations of cleaner/housekeeper, poultry eviscerator, and production assembler. (R. 21). With the additional limitation that Plaintiff could not have contact with the public, the ALJ determined that Plaintiff could transfer her past work skills to the job of baker worker. (R. 21).

Plaintiff appealed the ALJ's decision to the Appeals Council, and on December 30, 2013, the Appeals Council denied review. (R. 1-9). Plaintiff then filed the present action seeking review of the Commissioner's final decision. (Doc. No. 1).

DISCUSSION

Plaintiff contends that the Commissioner's decision is due to be reversed because (1) the ALJ committed reversible error in failing to evaluate Plaintiff's mental impairment and resulting functional limitations as required by 20 C.F.R.§ 404.1520a; (2) the ALJ committed reversible error since the testimony of the vocational expert was that there was no work that Plaintiff could perform; (3) the ALJ erred in failing to obtain an updated medical opinion of a medical expert as to medical equivalency, and "the ALJ erred in not ordering a consultative examination when additional medical evidence was submitted from Keesler Air Force Base, that may change the state agency medical or psychological consultant's finding that the impairment is not equivalent in severity to any impairment in the listings of impairments." (Doc. No. 14, at 5).

A. Whether the ALJ Failed to Evaluate Plaintiff's Mental Impairment and Resulting Functional Limitations as Required by 20 C.F.R. § 404.1520a

Under section 1520a, the ALJ first evaluates whether the claimant has a medically determinable mental impairment and, if so, the ALJ then "rate[s] the degree of functional limitation resulting from the impairment(s) in accordance with paragraph (c)." 20 C.F.R. § 404.1520a(c)(2). Paragraph (c) lists the following four areas of assessment: "Activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation." 20 C.F.R. § 404.1520a(c)(3)-(4). The ALJ rates an impairment in the first three functional areas as none, mild, moderate, marked, or extreme. The ALJ rates the fourth area, episodes of decompensation, as none, one or two, three, or four or more. 20 C.F.R. § 404.1520(c)(4). Impairments rated as none or mild in the first three categories and none in the fourth category are generally considered not to be severe. 20 C.F.R. § 404.1520a (d)(1). This technique is called the Psychiatric Review Technique Form or "PRTF." Moore v. Barnhart, 405 F.3d 1208, 1213-14 (11th Cir. 2005).

Except for her statement of the issue, Plaintiff provides no further mention of section 1520a or argument describing the way in which the ALJ failed to satisfy section 1520a. Plaintiff does not divide her brief into sections addressing each of the claimed errors. Instead, the whole of her argument is contained within a two-page portion of the brief under the heading, "Summary of the Argument and Standard of Review." (Doc. No. 14, at 8-10). Thus, if Plaintiff means to argue the ALJ failed to satisfy the technical requirements of section 1520a, the Court deems the issue waived. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) ("[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination."); cf. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) ("We have long held that an appellant abandons a claim when he either makes only passing references to it or raises it in a perfunctory manner without supporting arguments and authority.") (collecting cases); N.L.R.B. v. McClain of Ga., Inc., 138 F.3d 1418, 1422 (11th Cir.1998) ("Issues raised in a perfunctory manner, without supporting arguments and citation to authorities, are generally deemed to be waived.") (citing Cont'l Tech Serv., Inc. v. Rockwell Int'l Corp, 927 F.2d 1198, 1199 (11th Cir.1991)). Even if this issue were not waived, the ALJ satisfactorily performed the required analysis at R. 13-14.

Plaintiff does maintain that "the ALJ should have found her mental impairments, as evidenced by her vast medical records from Keesler Air Force Base, as well as SpectraCare, and recent court ordered institutionalization, medically equaled [Listing 12.04], Affective disorders, specifically Bipolar, depression." (Doc. No. 14, at 9).[1] It is Plaintiff's burden to show that she medically equals Listing 12.04.[2] See Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991)("The burden was Barron's to show that his impairments combined to meet or equal a listed impairment[.]"). Again, Plaintiff provides only a conclusory argument as to how her impairments met or medically equaled the criteria for Listing 12.04.

To "meet" a Listing, a claimant must have a diagnosis included in the Listings and must provide medical reports documenting that the conditions meet the specific criteria of the Listings and the duration requirement. See 20 C.F.R. § 404.1525(a)-(d). To "equal" a Listing, the medical findings must be "at least equal in severity and duration to the listed findings." See 20 C.F.R. § 404.1526(a). If a claimant has more than one impairment, and none meets or equals a listed impairment, the Commissioner reviews the impairments' ...

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