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Caffey v. Berryhill

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

July 25, 2017

WILLIE JAMES CAFFEY, JR., Plaintiff,
v.
NANCY A. BERRYHILL[1], Social Security Commissioner Defendant.

          MEMORANDUM OPINION AND ORDER

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

         In this action under 42 U.S.C. § 405(g) Plaintiff, Willie James Caffey, Jr., (“Caffey” or “Plaintiff) seeks judicial review of an adverse social security ruling denying disability insurance benefits. (Docs. 1, 16). With the consent of the parties, the Court has designated the undersigned Magistrate Judge to conduct all proceedings and order the entry of judgment in this civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73. (See Docs. 22, 23). The parties moved to waive oral argument and their request was granted. (See Docs. 21, 24). After considering the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED.

         PROCEDURAL BACKGROUND

         Plaintiff protectively applied for disability insurance benefits on May 20, 2013. (Doc. 16 at 1; Tr. 1301-38). Plaintiff alleged a disability onset date of November 3, 2012. (Tr. at 18; 73). Plaintiff's application was initially denied on July 5, 2013, after which he requested a hearing. (Doc. 16 at 1; Tr. 82-86, 89-93). Plaintiff attended a video hearing before an Administrative Law Judge (“ALJ”) on August 13, 2014, and the ALJ rendered an unfavorable decision on December 24, 2014. (Doc. 16 at 1; Tr. at 12-70).

         At the time of his application, Plaintiff was forty years old, had completed the twelfth grade plus one year of trade school, and had previous work history as a shipping supervisor, shipping and receiving clerk, and warehouse worker. (Doc. 15; Tr. at 55). Plaintiff alleges he is disabled due to left clavicle fracture, left rotator cuff repair, essential hypertension, degenerative joint disease, tendinosis, chronic severe pain, depression, right arm and shoulder pain, numbness in hands, side effects of medications, neck pain, and back pain. (Doc. 15). On December 24, 2014, an ALJ denied benefits after determining that Plaintiff was capable of performing a limited range of light work. (Tr. at 19-27). Plaintiff requested review of the hearing decision, but the Appeals Council denied the request on May 24, 2016. (Id. at 1-9). On July 22, 2016, Plaintiff filed the instant action asserting three grounds for error. (Doc. 1; Doc. 16). The issues have been briefed and are ripe for review. (Docs. 16, 19).

         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) (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam) (internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997))). However, the Court “ ‘may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner].' ” Winschel, 631 F.3d at 1178 (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983))). “ ‘Even if the evidence preponderates against the [Commissioner]'s factual findings, we must affirm if the decision reached is supported by substantial evidence.' ” Ingram, 496 F.3d at 1260 (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

         “Yet, within this narrowly circumscribed role, [courts] do not act as automatons. [The court] must scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence[.]” Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). See also Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) (“We are neither to conduct a de novo proceeding, nor to rubber stamp the administrative decisions that come before us. Rather, our function is to ensure that the decision was based on a reasonable and consistently applied standard, and was carefully considered in light of all the relevant facts.”). “In determining whether substantial evidence exists, [a court] must…tak[e] into account evidence favorable as well as unfavorable to the [Commissioner's] decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).

         Although the “claimant bears the burden of demonstrating the inability to return to [his or] her past relevant work, the Commissioner of Social Security has an obligation to develop a full and fair record.” Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987). See also Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam) (“It is well-established that the ALJ has a basic duty to develop a full and fair record. Nevertheless, the claimant bears the burden of proving that he is disabled, and, consequently, he is responsible for producing evidence in support of his claim.” (citations omitted)). “This is an onerous task, as the ALJ must scrupulously and conscientiously probe into, inquire of, and explore for all relevant facts. In determining whether a claimant is disabled, the ALJ must consider the evidence as a whole.” Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and quotation omitted).

         Where, as here, the ALJ denied benefits and the Appeals Council denied review of that decision, the Court “review[s] the ALJ's decision as the Commissioner's final decision.” Doughty, 245 F.3d at 1278. “[W]hen the [Appeals Council] has denied review, [the Court] will look only to the evidence actually presented to the ALJ in determining whether the ALJ's decision is supported by substantial evidence.” Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998).

         DISCUSSION

         At step two of the sequential process, the ALJ found that Plaintiff had the following severe impairments: “status post osteotomy of left clavicular malunion; open reduction and internal fixation of left clavicle with bone grafting (1/25/13) with revision of open reduction and internal fixation of clavicle nonunion with additional bone grafting (4/18/14), and osteoarthritis (20 CFR 404.1520(c)).” (Tr. at 17). At step three, the ALJ found that “[t]he 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, 4104.1520(c), 404.1525 and 404.1526).” (Id. at 18). The ALJ then determined Plaintiff's Residual Functional Capacity (“RFC”) as follows:

After careful consideration of the entire record, the undersigned administrative law judge finds that the Claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except Claimant can stand and/or walk at least six hours over the course of an eight-hour workday. Claimant cannot climb ladders, ropes, poles, or scaffolds. Claimant can frequently climb ramps and stairs. Claimant is not limited in the use of his lower extremities. Claimant can occasionally use his left upper extremity for reaching overhead, pushing, and pulling. Claimant is not otherwise limited in the use of his extremities. Claimant can occasionally work in extreme cold. Claimant can frequently work in humidity, wetness, and extreme heat. Claimant cannot work at unprotected heights. Claimant cannot work with operating hazardous machinery. Claimant can occasionally operate motorized vehicles. Claimant can occasionally work while exposed to vibration affecting his upper extremities.

(Tr. at 19). With the help of a vocational expert, the ALJ then determined, at step five, that Plaintiff was capable of performing his past relevant work as a shipping supervisor as generally performed, but not as actually performed. (Tr. at 26). The ALJ additionally determined that Plaintiff was capable of performing other jobs which existed in the national economy and that Plaintiff was not disabled. (Id. at 26-27).

         Plaintiff asserts the following grounds for error: (1) the ALJ's determination that Plaintiff can return to his past relevant work is not supported by substantial evidence, (2) the ALJ erred in not including a statement of Plaintiff's pain and its functional effects and erred in assessing Plaintiff's credibility; and (3) the ALJ was biased, incapable of conducting a non-adversarial hearing, and should have recused himself. (Doc. 16 at 1-2). Defendant contends the ALJ's decision was based on substantial evidence, that the ALJ properly assessed Plaintiff's pain, and that recusal was unwarranted. (Doc. 19, generally). The undersigned will address each contention of error in turn.

         A. Substantial Evidence

         Plaintiff asserts that the ALJ erred in determining that Plaintiff could return to his previous position as a shipping supervisor because Plaintiff's previous job was a composite job (warehouse worker, shipping and receiving clerk, and shipping supervisor) that required additional physical abilities which the ALJ did not properly consider. In support of his position, Plaintiff points to the description of his job that he provided in his application which stated as follows:

I loaded and unloaded trucks. I had to stack boxes of merchandise, by hand, that ranged from 30 lbs to 85 lbs up to 6 feet high and placed them on the floor in stacks depending on the size of the boxes. I would then have to later move the boxes and stack them on a pallet, by hand, from 4-5 feet high, before moving the pallet by forklift for shipping. I loaded and unloaded trucks by hand and by forklift. It began [sic] too difficult for me to operate the forklift due to the constant turning of the forklift and I got where I also could not stack them by hand due to the limited mobility that I was having due to my lft clavicle/lft rotator cuff injury. I also had to stamp all the boxes that I proceeded (lot numbers, shipping dates, and weight of the boxes). I kept a shipping and receiving log. (Tr. 159).

(Doc. 16 at 2). Based on the above physical requirements, Plaintiff asserts that substantial evidence does not support that Plaintiff could return to his previous work.

         As an initial matter, Plaintiff does not allege that the RFC determined by the ALJ is not supported by substantial evidence. Rather, Plaintiff alleges that after determining his RFC, the ALJ improperly considered Plaintiff's past relevant work of a shipping supervisor as light work and, therefore, improperly determined that Plaintiff could to return to that position based on his RFC. However, Plaintiff does not address the fact that while the ALJ determined Plaintiff could return to his previous position, he specifically noted that such a return would be based on the job as generally performed, not as Plaintiff performed it. (Tr. at 26) (“The vocational expert testified that the claimant could perform work as a Shipping supervisor per the DOT but not per his testimony. As noted above, the DOT indicates that this work activity is performance of work activity at the light exertional level. Accordingly, although the claimant may not be able to perform work as a Shipping supervisor as actually performed, the claimant would be able to perform past relevant work as Shipping supervisor as generally performed.”) The record is clear that the ALJ properly evaluated the exertional demands of Plaintiffs past work based on Plaintiffs testimony and acknowledged that Plaintiff performed his previous job at a medium level, and not the light level that the RFC dictated. Therefore, Plaintiffs position that the ALJ erred by failing to consider all of the physical duties of Plaintiffs composite job, when determining that Plaintiff could return to his past relevant work as a shipping supervisor, is without merit. Namely, because the ALJ did not determine that Plaintiff could return to his previous job as it was performed by Plaintiff or that his previous work, as performed, was at the light exertional level. Further, there is no evidence that the ALJ erred in determining that Plaintiff could return to his previous position as a shipping supervisor, as it was generally performed.[2] For the reasons set forth above, Plaintiffs first assignment of error is without merit.

         B. Credibility

         Plaintiffs second assignment of error is that the ALJ erred in not including a statement of Plaintiff s pain and its functional effects and that he improperly assessed Plaintiffs credibility. (Doc. 16 at 4). Plaintiff asserts that the ALJ erroneously cherry-picked small portions of Dr. King's (Plaintiffs treating physician) deposition testimony to discredit Plaintiff. (Doc. 16 at 4). In support of his position, Plaintiff refers to the testimony of Dr. King, wherein Dr. King explained that “there's going to be periods of time, several days out of the month or whatever, where he may have issues with that and not be able to complete that task […] Because of pain related to the shoulder, sure.” (Doc. 16 at 4; Tr. 495). Plaintiff also asserts that another portion of Dr. King's testimony, contrary to the ALJ opinion, makes it clear that Dr. King was not confused about the exertional level of Plaintiffs ...


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