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Fogan v. Berryhill

United States District Court, N.D. Alabama, Jasper Division

August 30, 2017

NATASHA FOGAN, Plaintiff,
v.
NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION [2]

          STACI G. CORNELIUS, U.S. MAGISTRATE JUDGE.

         The plaintiff seeks review of the final decision of the Commissioner of Social Security denying her application for a period of disability, disability insurance benefits (“DIB”), and Supplemental Security Income (“SSI”). (Doc. 1). The plaintiff timely pursued and exhausted her administrative remedies, and the case is therefore ripe for review pursuant to 42 U.S.C. § 405(g).

         I. FACTS, FRAMEWORK, AND PROCEDURAL HISTORY

         At the time she applied for benefits, June 26, 2013 (SSI), and July 1, 2013 (DIB), the plaintiff was forthy-three (43) years old. (R. 205, 219). She is a high school graduate, completed cosmetology training, and previously worked as a cashier, beautician, nursing assistant, loan clerk, cook, security guard, office clerk, and shelter monitor. (R. 156, 395). The plaintiff claims she became disabled as of May 15, 2013, due to heart attacks, stents, depression, high blood pressure, anxiety, anemia, arthritis, right shoulder pain, and bursitis. (R. 394). After the Social Security Administration (“SSA”) denied her applications (R. 205, 219), she requested a hearing before an Administrative Law Judge (“ALJ”), which was held on September 16, 2014. (R. 153, 230). After the hearing, the ALJ found that the plaintiff did not have an impairment or a combination of impairments listed in, or medically equivalent to, one listed in the Listings of Impairments. (R. 139). The ALJ further found the plaintiff retained the residual functional capacity to perform a reduced range of light work and that while she had no past relevant work, jobs exist in the national economy in significant numbers which the plaintiff could perform. (R.140, 145). In light of these findings, the ALJ denied the plaintiff's request for a period of disability on November 13, 2014. (R. 146).

         The plaintiff requested the Appeals Council review the ALJ's decision (R. 126), which the Appeals Council denied. (R. 1). Therefore, the ALJ's decision is the final decision of the Commissioner of Social Security. (Id.) The plaintiff then filed the appeal in this court on May 16, 2016, seeking reversal of the Commissioner's decision. (Docs. 1, 15).

         The regulations require the Commissioner to follow a five-step sequential evaluation to determine whether a claimant is eligible for a period of disability, SSI, and DIB. See 20 C.F.R. §§ 404.1520(a)(1)-(2); 416.920(a)(1)-(2). First, the Commissioner must determine whether the claimant is engaged in “substantial gainful activity.” Bowen v. Yuckert, 482 U.S. 137, 140 (1987). If the claimant is engaged in substantial gainful activity, the Commissioner will find that the claimant is not disabled, regardless of the claimant's medical condition or her age, education, and work experience. 20 C.F.R. §§ 404.1520(b); 416.920(b). If the claimant is not engaged in substantial gainful activity, the Commissioner must next determine whether the claimant suffers from a severe impairment or combination of impairments that significantly limit the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(a)(4)(ii), (c); 416.920(a)(4)(ii), (c). The burden is on the claimant to “provide medical evidence showing ... impairment(s)” and the severity of them during the time the claimant alleges disability. 20 C.F.R. §§ 404.1512(c); 416.912(c). An impairment is “severe” if it “significantly limits [a] claimant's physical or mental ability to do basic work activities.” Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997). “An impairment can be considered as not severe only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience.” Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984).

         If the claimant has a severe impairment, the Commissioner must then determine whether the claimant's impairment meets the duration requirement and whether it is equivalent to any one of the listed impairments. 20 C.F.R. §§ 404.1520(a)(4)(iii), (d)-(e); 416.920(a)(4)(iii), (d)-(e); §§ 404.1525; 416.925; §§ 404.1526; 416.926. Listed impairments are so severe that they prevent an individual from performing substantial gainful activity. 20 C.F.R. §§ 404.1520(d); 416.920(d); see 20 C.F.R. pt. 404, Subpart P, Appendix 1 (The Listings). If the claimant's impairment meets or equals a Listing, the Commissioner must find the claimant disabled, regardless of the claimant's age, education, and work experience. 20 C.F.R. §§ 404.1520(d); 416.920(d). If the impairment does not meet or equal the criteria of any Listing, the claimant must prove that her impairment prevents her from performing her past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), (f); 416.920(a)(4)(iv), (f).

         At step four, the Commissioner “will first compare [the Commission's] assessment of [the claimant's] residual functional capacity [“RFC”] with the physical and mental demands of [the claimant's] past relevant work. 20 C.F.R. §§ 404.1560(b); 416.960(b). If the claimant is capable of performing her past relevant work, the Commissioner will find she is not disabled. 20 C.F.R. §§ 404.1560(b)(3); 416.960(b)(3). If the claimant establishes that she is unable to perform her past relevant work, the Commissioner must show that the claimant-in light of her RFC, age, education, and work experience-is capable of performing other work that exists in substantial numbers in the national economy. 20 C.F.R. §§ 404.1560(c)(1); 416.960(c)(1). If the claimant is not capable of performing such other work, the Commissioner must find the claimant is disabled. 20 C.F.R. §§ 404.1520(g); 416.920(g).

         Applying these steps, the ALJ determined that the plaintiff had not engaged in substantial gainful employment since her alleged onset date. (R. 136). At step two, the ALJ found the plaintiff suffered from the severe impairments of coronary artery disease status post myocardial infarction times two, benign hypertension, mild cervical degenerative disease, and right shoulder pain. (Id.). The ALJ found the plaintiff's depression to be non-severe because it did not cause more than minimal limitation in the plaintiff's ability to perform work related activities. (R. 137). Next, the ALJ found the plaintiff did not have an impairment or combination of impairments that met or medically equaled any Listing. (R. 139). The ALJ determined that the plaintiff had the RFC to perform light work, as defined in 20 C.F.R. §§ 404.1567(b); 416.967(b), reduced by limitations of no concentrated exposure to heat, cold, dust, gases, or humidity; no work around dangerous or moving machinery or unprotected heights; no ladders, ropes or scaffolding; and further limitations against more than occasional balancing, stooping, kneeling, crouching, crawling, and climbing ramps or stairs. (R. 140). Considering this RFC, the ALJ determined at step four that the plaintiff had no past relevant work but found at step five, through the use of vocational expert testimony, that the plaintiff could perform jobs which exist in the national economy in significant numbers, such as cashier, information clerk, and office helper. (R. 145).

         II. STANDARD OF REVIEW

         In reviewing claims brought under the Social Security Act, this court is limited to an inquiry into whether substantial evidence exists to support the findings of the Commissioner and whether the correct legal standards were applied. Stone v. Comm'r of Soc. Sec., 544 Fed. App'x 839, 841 (11th Cir. 2013) (citing Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). The court gives deference to the factual findings of the Commissioner but reviews questions of law de novo. Ingram v. Comm'r of Soc. Sec., 496 F.3d 1253, 1260 (11th Cir. 2007). The court “may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner], ” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005), rather it must “scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence.” Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015). “The Commissioner's factual findings are conclusive if supported by substantial evidence.” Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). “Substantial evidence is less than a preponderance, but rather such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).

         III. DISCUSSION

         The plaintiff contends the ALJ's failure to consider the plaintiff's complaints of shortness of breath and depression as severe impairments was error. (Doc. 15 at 14, 16). The Commissioner responds that because the ALJ found other impairments were severe, the failure to list more impairments as severe is not reversible error. (Doc. 16 at 5).

         When finding an impairment “non-severe, ” an ALJ must “provide the reviewing court with the sufficient basis to determine that the correct legal principles have been followed.” Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982). The ALJ carefully detailed all of the evidence in the record which supported his determination that neither the plaintiff's allegation of shortness of breath, nor her allegation of depression, caused more than minimal functional limitations. (R. 137-138, 140-144). Additionally, there is no requirement that an ALJ list every impairment as severe at step two. Heatly v. Comm'r of Soc. Sec., 382 Fed. App'x 823, 825 (11th Cir. 2010). Rather, the failure to list an impairment at step two is harmless error when the ALJ found that the plaintiff suffered from other severe impairments, the ALJ continued with the sequential evaluation process, and the ALJ considered the impairment at other steps of the evaluation process. Heatly, 382 Fed. App'x at 825. “[T]he finding of any severe impairment, whether or not it qualifies as a disability and whether or not it results from a single severe impairment or a combination of impairments that together qualify as severe, is enough to satisfy the requirement at step two.” Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987); see also ...


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