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Bishop v. Berryhill

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

March 27, 2017

DESHAY BISHOP, Plaintiff,
v.
NANCY BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.

          ORDER

          SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE

         Plaintiff Deshay Bishop (hereinafter “Plaintiff”), seeks judicial review of a final decision of the Commissioner of Social Security denying his claim for childhood disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401, et seq., and 1381, et seq. On December 5, 2016, the parties consented to have the undersigned conduct any and all proceedings in this case. (Doc. 17). Thus, the action was referred to the undersigned to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Upon careful consideration of the administrative record and the memoranda of the parties, it is hereby ORDERED that the decision of the Commissioner be AFFIRMED.

         I. Procedural History [2]

         Plaintiff filed his applications for childhood disability insurance benefits and supplemental security income on January 31, 2012, alleging disability beginning on March 6, 2006, based on “seizures.” (Tr. 244, 253, 278, 283). Plaintiff's application was denied and upon timely request, he was granted administrative hearings on July 17, 2013, and on February 28, 2014, before Administrative Law Judge Thomas M. Muth, II (hereinafter “ALJ”). (Id. at 49, 73). Plaintiff attended the hearings with his counsel and provided testimony related to his claims. (Id. at 53, 79). A vocational expert (“VE”) also appeared at each hearing and provided testimony. (Id. at 69, 86). On March 28, 2014, the ALJ issued an unfavorable decision finding that Plaintiff is not disabled. (Id. at 30-41). The Appeals Council denied Plaintiff's request for review on August 3, 2015. (Id. at 1). Therefore, the ALJ's decision dated March 28, 2014, became the final decision of the Commissioner.

         Having exhausted his administrative remedies, Plaintiff timely filed the present civil action. (Doc. 1). The parties waived oral argument on December 5, 2016 (Doc. 16) and agree that this case is now ripe for judicial review and is properly before this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

         II. Issues on Appeal

         1. Whether the ALJ erred in failing to give “considerable” weight to the opinions of Plaintiff's treating neurologist, Dr. Abdel Kasmia, M.D.?

         2. Whether the ALJ erred in evaluating the testimony of Plaintiff and his mother?

         3. Whether the ALJ erred in failing to rely on the vocational experts' responses to hypotheticals that assumed restrictions in excess of the RFC?

         III. Factual Background

         Plaintiff was born on March 11, 1988, and was twenty-three years of age at the time that he filed his applications for benefits. (Tr. 244, 253, 278). Plaintiff alleges that he became disabled on March 6, 2006, five days before his eighteenth birthday, as a result of frequent seizures. (Id. at 278, 283).

         Following graduation from high school in 2006, Plaintiff attended college as a full time student and earned an associate's degree in computer science in 2009. (Id. at 54, 79). Plaintiff has never worked, except while in college when he worked part-time as an office assistant. (Id. at 54-55, 79, 283). In his Disability Report submitted to the Agency and at his administrative hearings, Plaintiff stated that he is not able to work because of seizures, which cause him to bite his tongue and become incontinent and leave him feeling fatigued and unable to concentrate. (Id. at 59, 80-81, 283).

         IV. Standard of Review

         In reviewing claims brought under the Act, this Court's role is a limited one. The Court's review is limited to determining 1) whether the decision of the Secretary is supported by substantial evidence and 2) whether the correct legal standards were applied.[3] Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). A court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). The Commissioner's findings of fact must be affirmed if they are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (holding substantial evidence is defined as “more than a scintilla, but less than a preponderance” and consists of “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.”). In determining whether substantial evidence exists, a court 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); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4 (S.D. Ala. June 14, 1999).

         V. Statutory And Regulatory Framework

         This matter involves an application for childhood disability insurance benefits and for supplemental security income. An individual who applies for Social Security disability benefits must prove his or her disability. 20 C.F.R. §§ 404.1512, 416.912. Disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a).

         The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven his disability. 20 C.F.R. §§ 404.1520, 416.920. The claimant must first prove that he or she has not engaged in substantial gainful activity. The second step requires the claimant to prove that he or she has a severe impairment or combination of impairments. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. If the claimant cannot prevail at the third step, he or she must proceed to the fourth step where the claimant must prove an inability to perform their past relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (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. Once a claimant meets this burden, it becomes the Commissioner's burden to prove at the fifth step that the claimant is capable of engaging in another kind of substantial gainful employment which exists in significant numbers in the national economy, given the claimant's residual functional capacity, age, education, and work history. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985). If the Commissioner can demonstrate that there are such jobs the claimant can perform, the claimant must prove inability to perform those jobs in order to be found disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

         Because Plaintiff is over eighteen years of age and seeks child's benefits under the Social Security Act, he must also establish that (1) he is dependent on an insured parent who is entitled to old-age or disability benefits or has died; (2) he is unmarried; and (3) at the time of filing, he was under age 18, or age 18 or older and has a disability that began before he became 22 years old. See Bailey v. Colvin, 2016 U.S. Dist. LEXIS 171783, *6, 2016 WL 7210404, *2 (N.D. Ala. Dec. 13, 2016) (citing 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350). The Commissioner evaluates a claim for adult child disability benefits under the same standards generally applicable to adults applying on their own wage records by employing the five-step evaluation process listed above. Id. (citing 20 C.F.R. §§ 404.1505(a), 404.1520(a)(4)(i)-(v)).

         VI. Discussion

         A. The ALJ did not err in failing to give “considerable” weight to the opinions of Plaintiff's treating neurologist, Dr. Abdel Kasmia, M.D.

         In his brief, Plaintiff argues that the ALJ erred in failing to give “considerable” weight to the opinions of his treating neurologist, Dr. Abdel Kasmia, M.D. (Doc. 11 at 2).

         Because of this, Plaintiff argues, the RFC is not supported by substantial evidence. Having reviewed the record at length, the Court finds ...


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