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McCloud v. Berryhill

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

September 12, 2017

MARY B. McCLOUD, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM OPINION AND ORDER

          WILLIAM E. CASSADY, UNITED STATES MAGISTRATE JUDGE.

         Social Security Claimant/Plaintiff Mary B. McCloud 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 a period of disability (“PoD”) and disability insurance benefits (“DIB”) 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. 26 (“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. 18 & 23), the administrative record, (Docs. 14-15), (hereinafter cited as “(R. [page number(s) in lower-right corner of transcript])”), and the arguments presented during the hearing held on February 22, 2017, it is determined that the Commissioner's decision is due to be AFFIRMED.[2]

         I. Background

         McCloud was born on February 21, 1961, (R. 238 [SSA Ex. 1E]). McCloud completed two years of college. (R. 248 [SSA Ex. 2E]). McCloud was employed as a secretary at a business called Country Store, (R. 55), as a secretary for the Adult Education Division at Wallace Community College, (R. 56), and as an office administrator for the State of Alabama, Department of Post-Secondary Education, for approximately thirteen (13) years, from 1998 to 2011, (R. 57; R. 243 [SSA Ex. 3E]).

         McCloud filed applications for PoD and DIB with the Social Security Administration (the “SSA”)[3], on February 26, 2013. (R. 27). In McCloud's application, she alleged disability beginning on January 1, 2011.[4] (R. 27). After McCloud's claim was denied, she requested a hearing, which was held via videoconference before an Administrative Law Judge (“ALJ”) for the SSA on April 15, 2015. (R. 27). On July 29, 2015, the ALJ issued an unfavorable decision on McCloud's claims, finding her “not disabled” under sections 216(i) and 223(d) of the Social Security Act. (R. 24-47).

         McCloud requested review of the ALJ's decision by the Appeals Council for the SSA's Office of Disability Adjudication and Review. (R. 15-16). The Appeals Council denied McCloud's request for review on April 28, 2016, which made the ALJ's the final decision of the Commissioner. (R. 1-6). On May 2, 2016, McCloud filed this action pursuant to § 405(g)[5] and § 1383(c)(3)[6]to review the final decision of the Commissioner. (Doc. 1, at 1).

         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. “Ms. McCloud has a ‘severe' psychological impairment, the [ALJ] erred in his evaluation[.]” (Doc. 18, at 1).

         2. “The [ALJ] erred in his evaluation of psychological medical source opinions[.]” (Doc. 18, at 1).

         3. “The [ALJ] did not conduct a full and fair hearing[.]” (Doc. 18, at 1).

         4. “The [ALJ]'s [RFC] finding is not rooted in the record[.]” (Doc. 18, at 1).

         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 McCloud had “not engaged in substantial gainful activity since January 1, 2011, the alleged onset date.” (R. 29).

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 McCloud had the following non-severe impairments, which are severe in combination:

50% (mild) stenosis of the carotid arteries; history of cerebral congenital abnormality of undeveloped left-sided cerebrum; mild-to-moderate cardiomegaly; history of placement of drug-eluting stent of mid left anterior descending artery; status post sling implantation secondary to history of stress urinary incontinence secondary to urethral hypermobility; questionable reports of chest pain; history of obesity; hypertension, benign; tobacco abuse; history of anemia; questionable lumbago; questionable fibromyalgia; mild mixed sensory motor peripheral neuropathy of bilateral lower extremities; and mild carpal tunnel syndrome, left, and status post release, right.

(R. 29).

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 disabled. 20 C.F.R. § 404.1520(a)(4)(iii) & (d). If, however, the ALJ concludes that the claimant's impairments do not meet or equal the listed impairments, then the ALJ will move on to step four.

Phillips, 257 F.3d at 1238 (alterations in original). At Step Three, the ALJ found that McCloud “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments” in 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. (R. 34).

At the fourth step, the ALJ must assess: (1) the claimant's [RFC]; and (2) the claimant's ability to return to her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). As for the claimant's RFC, the regulations define RFC as that which an individual is still able to do despite the limitations caused by his or her impairments. 20 C.F.R. § 404.1545(a). Moreover, the ALJ will “assess and make a finding about [the claimant's RFC] based on all the relevant medical and other evidence” in the case. 20 C.F.R. § 404.1520(e). Furthermore, the RFC determination is used both to determine whether the claimant: (1) can return to her past relevant work under the fourth step; and (2) can adjust to other work under the fifth step . . . . 20 C.F.R. § 404.1520(e).
If the claimant can return to her past relevant work, the ALJ will conclude that the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv) & (f). If the claimant cannot return to her past relevant work, the ALJ moves on to step five.
In determining whether [a claimant] can return to her past relevant work, the ALJ must determine the claimant's RFC using all relevant medical and other evidence in the case. 20 C.F.R. § 404.1520(e). That is, the ALJ must determine if the claimant is limited to a particular work level. See 20 C.F.R. § 404.1567. Once the ALJ assesses the claimant's RFC and determines that the claimant cannot return to her prior relevant work, the ALJ moves on to the fifth, and final, step.

Phillips, 357 F.3d at 1238-39 (alterations in original) (footnote omitted). At the fourth step, the ALJ assessed that McCloud had the RFC:

[T]o perform medium work as defined in 20 CFR 404.1567(c) with the following exceptions and considerations: the claimant can stand and/or walk at least two hours without interruption and a total of at least six hours over the course of an eight-hour workday. The claimant can sit at least two hours without interruption and a total of at least six hours over the course of an eight-hour workday. The claimant cannot climb ropes, poles or scaffolds. The claimant can occasionally climb ladders, ramps and stairs. The claimant can frequently balance, stoop, kneel and crouch. The claimant can occasionally crawl. The claimant can frequently work in humidity, wetness and extreme temperatures. The claimant cannot work at unprotected heights. The claimant cannot work with operating hazardous machinery. The claimant can frequently work while exposed to vibration. The claimant can frequently operate motorized vehicles.

(R. 34). The ALJ determined McCloud is “capable of performing past relevant work as an administrative clerk (light, semiskilled) Dictionary of Occupational Titles #219.361-010; and secretary (sedentary, skilled) Dictionary of Occupational Titles #201.362-030. This work does not require the performance of work-related activities precluded by the claimant's [RFC].” (R. 42). The ALJ concluded McCloud was not “under a disability as defined in the [SSA], from January 1, 2011, through the date of this decision.” (R. 42).

         A. Claim 1

         At step two of the Social Security Regulations' five-step, sequential evaluation process, which is used to determine whether a claimant is disabled:

[T]he 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).

Step two is a threshold inquiry. It allows only claims based on the most trivial impairments to be rejected. The claimant's burden at step two is mild. An impairment is not severe only if the abnormality is so slight and its effect so minimal that it would clearly not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience. Claimant need show only that her impairment is no so slight and its effect is not so minimal.

McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986).

         At step two, the ALJ is only tasked with determining whether the claimant has a severe impairment. At step two, the ALJ determined McCloud's numerous non-severe impairments were severe in combination, and moved on to the third step. (R. 29). Therefore, the question of whether the ALJ erred in evaluating McCloud's psychological impairments, as McCloud claims, is irrelevant since the ALJ found McCloud's impairments were severe.

         For these reasons, the Court OVERRULES McCloud's assertion of reversible error in Claim 1.

         B. Claim 2

         Under Social Security Ruling 96-6p:

[T]he opinions of State agency medical and psychological consultants and other program physicians and psychologists can be given weight only insofar as they are supported by evidence in the case record, considering such factors as the supportability of the opinion in the evidence including any evidence received at the Administrative Law Judge and Appeals Council levels that was not before the State agency, the consistency of the opinion with the record as a whole, including other medical opinions, and any explanation for the opinion provided by the State agency medical or psychological consultant or other program physician or psychologist.

SSR 96-6p, rescinded and replaced by SSR 17-2p.[7]

         On June 3, 2013, McCloud reported to psychologist Richard S. Reynolds, Ph. D., for a disability determination evaluation. (R. 418-21 [SSA Ex. 7F]). Dr. Reynolds concluded:

In my opinion, information in the DDS file and patient presentation do not support deficits in ability to understand information in a work setting. Ability to remember and carry out instructions in a work place is currently moderately impaired. [McCloud] is likely to have mild deficits in ability to interact appropriately with the public, supervisors, co-workers, and routine work stressors due to Mood Disorder, NOS. In my opinion, [ ] McCloud should be scheduled to receive a Wechsler Memory Scale to further document claims regarding poor memory.

(R. 421 [SSA Ex. 7F]). On July 10, 2013, McCloud completed the Wechsler Adult Intelligence Scale, Fourth Edition (the “Wechsler AIS”), which was administered by Dr. Reynolds. (R. 423-24 [SSA Ex. 8F]). From McCloud's results from the Wechsler AIS, Dr. Reynolds concluded:

Test scores on the Wechsler Memory Scale-Fourth Edition are not sufficient for diagnosis of Cognitive Disorder, NOS. Problems with memory alleged by the patient at the evaluation on 06/03/2013 are not substantiated. It is likely that other diagnoses likely affect the client's attention and concentration. I do believe the client is likely to have moderate deficits in ability to remember and carry[ out] instructions in a work environment due to Mood Disorder, NOS, Anxiety Disorder, NOS, and Obsessive Cognitive Disorder.

(R. 424 [SSA Ex. 8F]).

         The ALJ assigned Dr. Reynolds's opinion from the June 3, 2013, evaluation “no weight” and Dr. Reynolds's opinion from the July 10, 2013, evaluation “some, but not great weight” because:

[Dr. Reynolds's] initial conclusions, as he eventually conceded, were not supported by medical determination. His initial conclusions were clearly based on [McCloud's] subjective reports and, although Dr. Reynold[s] was unaware, her subjective reports were not consistent with the other objective and medical evidence of record. However, after conceding that his initial conclusions were inaccurate, the doctor attempted to suggest that limitation still existed, but that the basis was now emotional as opposed to cognitive or memory deficit. However, the undersigned carefully reviewed all of the evidence and concluded that just as his initial conclusions were void of such findings, the record too is void of such findings. As discussed [in the following], the record ...

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