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Key v. Berryhill

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

September 22, 2017

DAVID KEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION

          T. MICHAEL PUTNAM, UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         The plaintiff, David Key, appeals from the decision of the Commissioner of the Social Security Administration (“Commissioner”)[1] denying his application for supplemental security income (“SSI”). Mr. Key timely pursued and exhausted his administrative remedies, and the decision of the Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). The parties have consented to the jurisdiction of the undersigned in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73; accordingly, the court enters this memorandum opinion. Based upon the court's review of the record and the briefs submitted by the parties, the court finds that the decision of the Commissioner is due to be affirmed.

         Mr. Key was 26 years old at the time of the Administrative Law Judge's (“ALJ”) decision, and he has a tenth-grade education. (Tr. at 33, 50). He has no relevant past work experience. (Tr. at 33). Mr. Key claims that he became disabled on August 15, 1994, due to a learning disability and high blood pressure. (Tr. at 160).

         When evaluating the disability of individuals over the age of eighteen, the regulations prescribe a five-step sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The first step requires a determination of whether the claimant is “doing substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If he is, the claimant is not disabled and the evaluation stops. Id. If he is not, the Commissioner next considers the effect of all of the claimant's physical and mental impairments combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These impairments must be severe and must meet the durational requirements before a claimant will be found to be disabled. Id. The decision depends upon the medical evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If the claimant's impairments are not severe, the analysis stops. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the analysis continues to step three, which is a determination of whether the claimant's impairments meet or equal the severity of an impairment listed in 20 C.F.R. pt. 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant's impairments fall within this category, he or she will be found disabled without further consideration. Id. If they do not, a determination of the claimant's residual functional capacity (“RFC”) will be made, and the analysis proceeds to the fourth step. 20 C.F.R. § 404.1520(e), 416.920(e). Residual functional capacity (“RFC”) is an assessment, based on all relevant evidence, of a claimant's remaining ability to do work despite his or her impairments. 20 C.F.R. § 404.1545(a).

         The fourth step requires a determination of whether the claimant's impairments prevent him or her from returning to past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do his past relevant work, the claimant is not disabled and the evaluation stops. Id. If the claimant cannot do past relevant work, then the analysis proceeds to the fifth step. Id. Step five requires the court to consider the claimant's RFC, as well as the claimant's age, education, and past work experience, in order to determine if he can do other work. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can do other work, the claimant is not disabled. Id. The burden of demonstrating that other jobs exist which the claimant can perform is on the Commissioner; and, once that burden is met, the claimant must prove her inability to perform those jobs in order to be found to be disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).

         Applying the sequential evaluation process, the ALJ found that Mr. Key has not been under a disability within the meaning of the Social Security Act from the date of onset through the date of his decision. (Tr. at 34). He first determined that Mr. Key has not engaged in substantial gainful activity since the alleged onset of his disability, in that he has never held a job. (Tr. at 26). According to the ALJ, plaintiff's has the following “severe” impairments: mild thoracic kyphosis, mild degenerative disc disease, dysthymic disorder, borderline intellectual functioning, hypertension, gastroesophageal reflux disease, osteoarthritis, history of gastritis, hiatal hernia, and obesity, based on the requirements set forth in 20 C.F.R. § 416.920(c). (Tr. at 26). However, he found that these impairments neither meet nor medically equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 27). The ALJ found Mr. Key's allegations to be “not entirely credible, ” citing both the plaintiff's lack of seeking or receiving medical treatment, [2] the lack of objective evidence that confirmed the severity of the conditions or that the conditions could reasonably be expected to give rise to the symptoms alleged, and the opinions of both the medical and psychiatric consultative examiners. The ALJ determined that Mr. Key has the following residual functional capacity: light work that is unskilled and requires no climbing of ladders, ropes, or scaffolds; no work at protected [sic] heights or with hazardous machinery; no more than occasional stooping, crouching, or crawling; no operating of motor vehicles; no more than frequent [sic] interaction with coworkers and supervisors; and no more than occasional contact with the general public. (Tr. at 29).

         Moving on to the fourth step of the analysis, the ALJ concluded that Mr. Key had no past relevant work. (Tr. at 33). The ALJ considered the testimony of a vocational expert, and employed 20 CFR § 404.965 as a guideline for finding that, with his RFC, Mr. Key is able to perform work in such unskilled occupations as garment sorter, dog bather, and marker. (Tr. at 34). He further determined that such jobs exist in a significant number in the state and nation. (Tr. at 34). The ALJ concluded his findings by stating that Plaintiff “has not been under a disability, as defined in the Social Security Act, since August 27, 2012, ” when he filed his application. (Tr. at 34).

         II. Standard of Review

         This court's role in reviewing claims brought under the Social Security Act is a narrow one. The scope of its review is limited to determining (1) whether there is substantial evidence in the record as a whole to support the findings of the Commissioner, and (2) whether the correct legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). Substantial evidence is “more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Crawford v. Commissioner of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004), quoting Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997). The court approaches the factual findings of the Commissioner with deference, but applies close scrutiny to the legal conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The court may not decide facts, weigh evidence, or substitute its judgment for that of the Commissioner. Id. “The substantial evidence standard permits administrative decision makers to act with considerable latitude, and ‘the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.'” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Federal Mar. Comm'n, 383 U.S. 607, 620 (1966)). Indeed, even if this Court finds that the evidence preponderates against the Commissioner's decision, the Court must affirm if the decision is supported by substantial evidence. Miles, 84 F.3d at 1400. No decision is automatic, however, for “despite this deferential standard [for review of claims] it is imperative that the Court scrutinize the record in its entirety to determine the reasonableness of the decision reached.” Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987). Moreover, failure to apply the correct legal standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).

         It is well established that the burden of showing an entitlement to benefits is on the claimant. An ALJ has a duty to develop the record beyond the evidence presented by the claimant in some instances, but “is not required to order a consultative examination as long as the record contains sufficient evidence for the ALJ to make an informed decision.” Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir. 2001) (finding no duty to order testing where the record contained “ample evidence”), citing Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001). “It is only where a consultative examination is necessary for the ALJ to make a decision due to some conflict, ambiguity, or other insufficiency” in the evidence that an ALJ must order an additional consultative examination.” Hollis v. Colvin, 2013 WL 5567067 * 4 (S.D. Ala. Oct. 9, 2013). Remand for further development of the record is necessary only when “the record reveals evidentiary gaps which result in unfairness or clear prejudice.” Id. Even then, it is up to the claimant to “show that the lack of records created an evidentiary gap, resulting in unfairness or clear prejudice.” Id., quoting Edwards v. Sullivan, 939 F.2d 580, 586 (11th Cir. 1991). The ALJ has no duty to order additional examinations where the plaintiff “did not satisfy his duty to put any alleged mental impairments into controversy by adducing competent evidence of the same.” McCray v. Massanari, 175 F.Supp.2d 1329, 1339 (M.D. Ala. 2001).

         III. Discussion

         Mr. Key is a young man who, at the time of his hearing, was living with his mother and brother. His mother and sister both receive disability benefits. Mr. Key has never been employed, and has never applied for a job. A typical day involves sitting at home, watching T V, and playing video games. He occasionally prepares himself a sandwich and sometimes does dishes. He does not drive or have a driver's license, and does not leave the house alone, except to go to his sibling's house. (Tr. at 180). His social contacts are limited to his siblings, his parents, and his grandfather.

         Mr. Key alleges that the ALJ's decision should be reversed and remanded because, he asserts, the ALJ erred in failing to properly develop the record. (Doc. 14). Specifically, he argues that the ALJ erred in failing to order further testing to determine whether the claimant may meet the diagnosis for Asperger Syndrome.[3] The first indication that Mr. Key was alleging as a basis for disability that he had some autism-related disorder was when his attorney mentioned that possibility at the beginning of the ALJ's hearing. (Doc. 14, pp. 13-16).[4] In support of the argument that the ALJ should have ordered additional testing for Asperger's, plaintiff's counsel has submitted to this court a 2009 magazine article titled “Asperger Syndrome and the Difficulties of Diagnosing and Treating Related Conditions.” (Doc. 14-1). In ...


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