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Mulkey v. Berryhill

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

May 17, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.



         Social Security Claimant/Plaintiff Anthony D. Mulkey brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision of the Defendant Commissioner of Social Security (the “Commissioner”) denying his applications for child's insurance benefits (“CIB”) and supplemental security income (“SSI”) under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. 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. 25 (“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, including the trial, order the entry of a final judgment, and conduct all post-judgment proceedings.”)).

         Upon consideration of the briefs of the parties, (Docs. 20-21), and the administrative record, (Doc. 19), (hereinafter cited as “(R. [page number(s) in lower-right corner of transcript])”), it is determined that the Commissioner's decision is due to be AFFIRMED.

         I. Background

         Mulkey was born on December 30, 1993. (R. 15). The highest grade of school Mulkey attained was twelfth grade at Baker High School in Mobile, Alabama, and while there, he attended special education classes. (R. 191 [SSA Ex. 6E]). Mulkey's sole instance of employment, which occurred in the second quarter of 2012, was with Mother Mary's Family Restaurant. (R. 15).

         Mulkey filed applications for CIB[2] and SSI[3] with the Social Security Administration (the “SSA”), on March 6, 2012, and January 14, 2013, respectively. (R. 13). In Mulkey's applications, he alleged disability beginning on February 1, 2001.[4] (R. 13). After Mulkey's claim was denied, he requested a hearing, which was held before an Administrative Law Judge (“ALJ”) for the SSA on April 23, 2014. (R. 13). On August 8, 2014, the ALJ issued an unfavorable decision on Mulkey's claims, finding him “not disabled” under sections 223(d) and 1614(a)(3)(A) of the Social Security Act. (R. 10-28).

         Mulkey requested review of the ALJ's decision by the Appeals Council for the SSA's Office of Disability Adjudication and Review. (R. 7-9). The Appeals Council denied Mulkey's request for review on February 8, 2016, which made the ALJ's the final decision of the Commissioner. (R. 1-6). On February 24, 2016, Mulkey filed this action pursuant to § 405(g)[5] and § 1383(c)(3)[6] to review the final decision of the Commissioner. (Doc. 1, ¶ 4).

         II. Standard of Review

         “In Social Security appeals, [the Court] must determine whether the Commissioner's decision is supported by substantial evidence and based on proper legal standards. Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations and internal quotations omitted). The Court “may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner].” Id. (citations omitted). “Even if the evidence preponderates against the Commissioner's findings, [the Court] must affirm if the decision reached is supported by substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (citing Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986); MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986); and Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). “Yet, within this narrowly circumscribed role, [the Court does] not ‘act as automatons.'” Bloodsworth, 703 F.2d 1233, 1239 (11th Cir. 1983) (citing Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir. 1981), cert. denied, 455 U.S. 912, 102 S.Ct. 1263, 71 L.Ed.2d 452 (1982)). The Court “must scrutinize the record as a whole, [Ware, 651 F.2d at 411]; Lewis v. Weinberger, 515 F.2d 584, 586-87 (5th Cir. 1975), to determine if the decision reached is reasonable, Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979), and supported by substantial evidence, Scharlow v. Schweiker, 655 F.2d 645, 648 (5th Cir. 1981).” Bloodsworth, 703 F.2d at 1239.

         “In contrast to the deferential review accorded to the [Commissioner's] findings of fact, the [Commissioner's] conclusions of law, including applicable review standards are not presumed valid.” Martin, 894 F.2d at 1529 (citing MacGregor, 786 F.2d at 1053; Smith v. Heckler, 707 F.2d 1284, 1285 (11th Cir. 1983), Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982); Smith v. Schweiker, 646 F.2d 1075, 1076 (5th Cir. Unit A June 1981). “The [Commissioner's] failure to apply the correct legal standard or to provide the reviewing court with sufficient basis for a determination that proper legal principles have been followed mandates reversal.” Martin, 894 F.2d at 1529 (citing Gibson v. Heckler, 779 F.2d 619, 622 (11th Cir. 1986); Bowel v. Heckler, 748 F.2d 629, 635-36 (11th Cir. 1984); Smith, 707 F.2d at 1285; Wiggins, 679 F.2d at 1389; Ambers v. Heckler, 736 F.2d 1467, 1470 (11th Cir. 1984)).

The Social Security Regulations outline a five-step, sequential evaluation process used to determine whether a claimant is disabled: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a residual functional capacity (“RFC”) assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's RFC, age, education, and work experience.

Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); Phillips v. Barnhart, 357 F.3d 1232, at 1237-39 (11th Cir. 2004)).

         III. Claims on Judicial Review

         1. “The [ALJ] reversibly erred in failing to assign controlling weight to the opinion of the [Mulkey]'s treating physician, Edith McCreadie, M.D.[, ] and instead adopted her own medical opinion. The [ALJ] failed to show good cause in rejecting the Plaintiff's treating physician.” (Doc. 20, at 1-2).

         2. “The [ALJ] committed reversible error in violation of Social Security Regulations 20 C.F.R. § 416.945, 20 C.F.R. § 404.1545, and Social Security Ruling 96-8p in that the [ALJ]'s residual functional capacity [(“RFC”)] determination was not supported by substantial evidence.” (Doc. 20, at 2).

         IV. Analysis

         “At the first step, the ALJ must consider the claimant's current working situation. If the claimant is ‘doing substantial gainful activity, [the ALJ] will find that [the claimant is] not disabled.'” Phillips, 357 F.3d at 1237 (alterations in original) (quoting 20 C.F.R. § 404.1520(a)(4)(i) & (b). “If however, the claimant is not currently ‘doing gainful activity' then the ALJ moves on to the second step.” Phillips, 357 F.3d at 1237. At the first step, the ALJ determined that Mulkey had “not engaged in substantial gainful activity since February 1, 2001, the alleged onset date.” (R. 23). The ALJ noted that Mulkey earned “$239.00 in income from Mother Mary's Family Restaurant in the second quarter of 2012, ” but “[t]his work activity did not rise to the level of substantial gainful activity.” (R. 15).

At the second step, the ALJ is to “consider the medical severity of [the claimant's] impairment(s).” 20 C.F.R. § 404.1520(a)(4)(ii). When considering the severity of the claimant's medical impairments, the ALJ must determine whether the impairments, alone or in combination, “significantly limit” the claimant's “physical or mental ability to do basic work skills.” 20 C.F.R. § 404.1520(c). If the ALJ concludes that none of the claimant's impairments are medically severe, the ALJ is to conclude that the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(ii) & (c). If, however, the ALJ concludes that the claimant's impairments are medically severe, then the ALJ moves on to the third step.

Phillips, 357 F.3d at 1237 (alterations in original). At Step Two, the ALJ determined that Mulkey had the following severe impairments: “attention deficit disorder and borderline intellectual functioning.” (R. 15).

At the third step, the ALJ again considers the “medical severity of [the claimant's] impairment(s)” in order to determine whether the claimant's impairment(s) “meets or equals” one of the listed disabilities. 20 C.F.R. § 404.1520(a)(4)(iii). Although the list is too voluminous to recite here, the idea is that the listings “streamline[ ] the decision process by identifying those claimants whose medical impairments are so severe that it is likely they would be found disabled regardless of their vocational background.” Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297, 96 L.Ed.2d 119 (1987). If the ALJ concludes that the claimant's impairments meet or equal one of the listed disabilities and meet the duration requirement, the ALJ will conclude that the claimant is ...

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