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Teacher v. Berryhill

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

June 21, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Georgia Teacher brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”) denying her claim for Supplemental Security Income (“SSI”), based on disability. 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. 35 (“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, . . . order the entry of a final judgment, and conduct all post-judgment proceedings.”)). Upon consideration of the administrative record, Teacher's brief, the Commissioner's brief, and all other documents of record, it is determined that the Commissioner's decision denying benefits should be affirmed.[1]


         Teacher applied for SSI, based on disability, under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 1381-1383d, on February 1, 2011. (Tr. 267). Her application was denied on November 2, 2012. After exhausting her administrative remedies (Tr. 67), Teacher sought judicial review in this Court, pursuant to 42 U.S.C. §§ 405(g) and 1383(c). (Doc. 1). Because the Commissioner was unable to produce a transcript of Plaintiff's administrative hearing, this Court remanded the case for further administrative proceedings, pursuant to “sentence six” of 42 U.S.C. § 405(g). (Docs. 11, 12). On remand, a new hearing was held before an Administrative Law Judge (“ALJ”) (Tr. 1-33), and by a decision dated June 20, 2015, the ALJ concluded that Teacher was not disabled within the meaning of the Act. (Tr. 631-47). The ALJ's decision constitutes the Commissioner's final decision for the purposes of judicial review. See 20 C.F.R. § 416.1484(a).

         On February 26, 2016, the Court entered an order granting the parties' consent motion to reopen the case. (Doc. 15). The Commissioner filed an answer and the social security transcript on May 25, 2016, and filed a supplemental social security transcript on August 4, 2016. (Docs. 18, 19, 24). On September 6, 2016, Teacher filed a brief in support of her claim. (Doc. 28). The Commissioner filed her brief on November 21, 2016. (Doc. 31). The parties waived oral argument. (Docs. 34, 36). The case is now ripe for decision.


         Teacher alleges that the ALJ's decision to deny her benefits is in error for the following three reasons:

1. The ALJ's finding that Teacher's headache disorder is a non-severe impairment is not supported by substantial evidence;
2. The ALJ failed to rebut the presumption regarding Teacher's mental incapacity; and
3. The ALJ's mental residual functional capacity assessment is not supported by the record as a whole, as he erred in his evaluation of the opinion of an examining physician.

(Doc. 28 at p. 2).


         Plaintiff has alleged disability due to cystic fibrosis, chronic asthma, lung disease, bipolar disorder, and depression. (Doc. 28 at p. 1). Before the ALJ, Teacher testified that she is also disabled due to a headache problem. (Tr. 10). The ALJ made the following relevant findings in his July 20, 2015 decision:

1. The claimant has not engaged in substantial gainful activity since February 1, 2011, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: borderline intellectual functioning; asthma; and a mood disorder, NOS (provisional) (20 CFR 416.920(c)).
Accordingly, the undersigned notes that a qualified physician has either diagnosed or significantly documented the limiting effects of the above-referenced impairments within the medical evidence of record. Further, the undersigned finds that the above impairments cause significant limitation in the claimant's ability to perform basic work activities. Thus, the claimant has impairments that are considered severe pursuant to the regulations.
The claimant also has a number of non-severe impairments that have been considered in concert with the severe impairments to determine the claimant's residual functional capacity. The claimant has history of alcohol abuse and a headache disorder. At the previous hearing and decision, there was an indication the claimant had cystic fibrosis, but at this hearing Dr. Whatley, the medical expert, testified he had reviewed the record and that it did not establish by objective means that the claimant had cystic fibrosis, so he did not assess it as an impairment. The indications of COPD are here considered under Asthma, and the previous indications of a major depressive disorder and an adjustment disorder are here considered under the impairment of a mood disorder, NOS, provisional, upon further consideration of the medical record.
* * *
In regards to her headache disorder, the evidence documents several complaints of a headache; however, there is no actual treatment for the disorder. In fact, most of her complaints of a headache have resulted in a diagnosis of a sinus infection. Her examinations have been unremarkable and there is no evidence indicating she is on any pain narcotics or any radiological and/or laboratory findings noting the severity of the disorder. Therefore, the undersigned finds the impairment has not significantly limited or is likely to significantly limit the claimant's ability to do basic work activities and is therefore non-severe.
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
The claimant's asthma does not meet or medically equal the criteria of listing 3.03 because the evidence does not indicate any chronic asthmatic bronchitis or attacks in spite of prescribed treatment and requiring physician intervention, occurring at least once every two months or at least six times a year.
The severity of the claimant's mental impairments, considered singly and in combination, do not meet or medically equal the criteria of listings 12.02 and 12.04. In making this finding, the undersigned has considered whether the "paragraph B" criteria are satisfied. To satisfy the "paragraph B" criteria, the mental impairments must result in at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration. A marked limitation means more than moderate but less than extreme. Repeated episodes of decompensation, each of extended duration, means three episodes within 1 year, or an average of once every 4 months, each lasting for at least 2 weeks.
In activities of daily living, the claimant has mild restriction. In a Function Report - Adult, the claimant reported she can attend to her personal needs independently. She reported she can prepare her own meals, shops in stores for groceries, and clean her room sometimes. (Exhibit C5E). This supports the claimant has no more than mild limitations in this area.
In social functioning, the claimant has moderate difficulties. In the aforementioned report, the claimant reported she has a problem getting along with family, friends, neighbors, and others; however, she reported she spends time with others. She also reported she enjoys reading and watching television and she goes to her kid's school and the grocery store on a regular basis (Exhibit C5E). This supports the claimant has no more than moderate limitations in this area.
With regard to concentration, persistence or pace, the claimant has moderate difficulties. In the aforementioned report, the claimant reported she has problems completing tasks, memorizing, concentrating, understanding, following instructions, and getting along with others. However, she can sustain the focused attention and concentration necessary to permit the timely and appropriate completion of tasks commonly found in simple routine and repetitive work settings, but cannot do so in detailed or complex, work settings (Exhibit C5E). This supports the claimant has no more than moderate limitations in this area.
As for episodes of decompensation, the claimant has experienced no episodes of decompensation, which have been of extended duration.
Because the claimant's mental impairments do not cause at least two "marked" limitations or one "marked" limitation and "repeated" episodes of decompensation, each of extended duration, the "paragraph B" criteria are not satisfied.
The undersigned has also considered whether the "paragraph C" criteria are satisfied. In this case, the evidence fails to establish the presence of the "paragraph C" criteria. … The claimant has not had repeated episodes of decompensation, she has not had a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause her to decompensate, and she does not have a current history of one or more years inability to function outside a highly supportive living arrangement with an indication of continued need for such an arrangement.
* * *
4. After careful consideration of the entire record, the undersigned finds that this now 25-26 year old claimant with a high school education has the residual functional capacity to perform Light to Medium work as defined in 20 CFR 416.967(c), except that she can sit for a total of 6 hours, without interruption for 1-2 hours, she can stand, and/or walk for a total of six hours in an eight-hour workday, and for 30 minutes to 1 hour without interruption. She can lift and carry frequently 15 pounds and occasionally up to 30 pounds. She has no postural or manipulative limitations. She should not be exposed to the [sic] concentrated or excessive exposure to pulmonary irritants, such as dusts, odors, fumes, humidity, and extremes of temperatures and the like. The claimant is assessed with no more than mild to moderate pain, which does not cause abandonment of task or of the work station, and here mild and moderate are terms specifically defined as not preventing the satisfactory completion of work. However, in an abundance of caution due to her pain complaints (headache history, etc.) and her mental issues, as it may affect her concentration, persistence and pace, and for social concerns, I find that she is limited to semi-skilled and lesser work, to include unskilled, simple, repetitive, and routine work, in jobs with no responsible or regular general contact with the public, and any that occurs must be brief and superficial. She should work in jobs where she can work primarily alone, in jobs that would require little independent judgment, and in jobs that have only routine changes, with no multiple or rapid changes. The claimant is borderline intellectual functioning. See, Exhibit C 10 F, P. 3.
In making this finding, the undersigned has considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 416.929 and SSRs 96-4p and 96-7p. The undersigned has also considered opinion evidence in ...

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