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Vice v. Berryhill

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

September 29, 2017

JARRETT VICE, Plaintiff,
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.



         I. Introduction

         The plaintiff, Jarrett Vice, appeals from the decision of the Commissioner of the Social Security Administration (“Commissioner”)[1] denying his application for disability and Disability Insurance Benefits (“DIB”). Mr. Vice 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 magistrate judge pursuant to 28 U.S.C. § 626(c). Accordingly, the court enters this Memorandum Opinion.

         Mr. Vice was 42 years old at the time of the Administrative Law Judge's (“ALJ's”) decision, and he has a high school equivalent education and two years of college, but no college degree. (Tr. at 36, 248). His past work experiences include work as a tractor-trailer truck driver and a dump truck driver. (Tr. at 36). Mr. Vice claims that he became disabled on March 14, 2012, due to depression, anxiety, arthritis in the back, bad knees, and high blood pressure. (Tr. at 247).

         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 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 will be found disabled without further consideration. Id. If he does 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 is an assessment based on all relevant evidence of a claimant's remaining ability to do work despite his 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 his or 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. Vice has not been under a disability within the meaning of the Social Security Act from the date of onset (March 14, 2012) through the date of his decision. (Tr. at 39). He determined that Mr. Vice has not engaged in substantial gainful activity since the alleged onset of his disability. (Tr. at 22). According to the ALJ, Mr. Vice's obesity; hypertension, benign; history of edema; questionable history for idiopathic scoliosis; questionable history for cervicalgia; osteoarthritis, knees; history of neuropathy, lateral femoral cutaneous; necrotizing fasciitis; lumbago; and mild degenerative joint disease of the thoracic and cervical spine, when considered in combination, may be considered “severe” based on the requirements set forth in the regulations. (Tr. at 22-23). He further determined 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 26). The ALJ did not find Mr. Vice's allegations to be entirely credible. (Tr. at 33). He determined that the plaintiff has the residual functional capacity to perform light work with the following limitations: that he can stand and/or walk one hour without limitation and for a total of at least six hours over the course of an eight-hour workday; can sit at least two hours without interruption and six hours in an eight-hour workday; cannot climb ladders, ropes, poles, or scaffolds; can occasionally climb ramps and stairs; can occasionally balance, stoop, kneel, and crouch; cannot crawl; can occasionally work in humidity, wetness, and extreme temperatures; can occasionally work in poorly ventilated areas; cannot work at unprotected heights; cannot work with operating hazardous machinery; can occasionally work while exposed to vibration; can frequently operate motor vehicles; cannot perform work activity that requires his response to rapid and/or frequent multiple demands; can respond appropriately to supervision; can frequently interact with coworkers so long as interaction is casual; cannot perform work that requires interaction with the public. (Tr. at 27).

         According to the ALJ, Mr. Vice is unable to perform any of his past relevant work, he was a “younger individual” at the date of alleged onset, and he has at least a high school education and is able to communicate in English. (Tr. at 37). He determined that “transferability of skills is not material to the determination of disability” in this case. (Tr. at 37). The ALJ found that Mr. Vice has the residual functional capacity to perform a full range of light work. (Tr. at 37). The ALJ found that there are a significant number of jobs in the national economy that he is capable of performing, such as assembler, cleaner, and non-postal mail clerk. (Tr. at 38). The ALJ concluded his findings by stating that Plaintiff is “not disabled” under the Social Security Act. (Tr. at 38).

         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). 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. Fed. 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).

         III. Discussion

         Mr. Vice alleges that the ALJ's decision should be reversed and remanded because: (1) the ALJ improperly failed to determine that he meets Listing 12.04 and/or 12.06; (2) the ALJ failed to give proper weight to the opinions of treating physicians; (3) the ALJ erred in rejecting two physician statements because they were procured by the claimant's attorney; (4) the ALJ erred in substituting his own opinion for that of the medical examiners; (5) the ALJ improperly evaluated the plaintiff's credibility without retroactively employing Ruling 16-3p relating to the meaning of “credibility”; (6) the ALJ's decision was not based on substantial evidence; (7) the ALJ abused his discretion; and (8) the Appeals Council failed to investigate the plaintiff's claim that the ALJ was of biased against him. (Doc. 13). The Commissioner has responded by addressing these claims in four categories: (1) application of the Listings; (2) the ALJ's treatment of medical opinions and the substantial evidence requirement; (3) the consideration of plaintiff's subjective complaints as not entirely credible; and (4) the Appeals Council's consideration of the bias claim. (Doc. 16). The court addresses the claims in the broader categories set forth in the Commissioner's brief, but addresses the plaintiff's more specific allegations within the discussions of each category.

         A. Listings 12.04 and 12.06

         The plaintiff has alleged that the ALJ erred in failing to find that the plaintiff's impairments met or equaled Listing 12.04 and/or 12.06. The Commissioner has asserted that the plaintiff failed to develop any argument sufficient to explain how the ALJ erred in applying the Listings, and that the ALJ properly evaluated the evidence that plaintiff presented relating to his mental disorders.

         Step three of the sequential evaluation process requires that the Commissioner determine whether a claimant meets or equals a disability described in the Listings. Davis v. Shalala, 985 F.2d 528, 532 (11th Cir.1993). The plaintiff bears the burden of showing that his condition meets or equals a Listing. Wilkinson ex rel. Wilkinson v. Bowen, 847 F.2d 660, 662 (11th Cir.1987)(per curiam) . T o carry his burden of showing that his impairment meets a Listing, the plaintiff must manifest all of the specified medical criteria in the Listing. Where a claimant's impairment includes only some of the criteria, it does not qualify as meeting or equaling a Listing, even if severe. Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990). It is axiomatic that when a claimant's condition meets or equals a Listing, the Commissioner must find the claimant disabled without regard to the claimant's age, education, or previous work experience. 20 C.F.R. ' 416.920(d). A diagnosis alone, however, is insufficient to establish that a Listing has been met. Gibbs v. Commissioner, 2017 WL 1501082 *1 (April 27, 2017), citing 20 C.F.R. ' 416.920(d).

         Section 12.00 contains the Listings for mental disorders, and includes affective disorders (12.04) and anxiety-related disorders (12.06). 20 C.F.R. Part 404, Subpart P, App. 1, ' 12.00(A). Listings 12.04 and 12.06 consist of: a statement describing the disorders addressed by the Listing; paragraph A criteria, which are a set of necessary medical findings; and paragraph B criteria, which list impairment-related functional limitations that are incompatible with the claimant's ability to do any gainful activity. In addition, Listings 12.04 and 12.06 also include additional functional criteria, known as paragraph C criteria. A claimant can meet one of these Listings only if “the diagnostic description in the introductory paragraph and the criteria of both paragraphs A and B (or A and C, when appropriate) of the listed impairment are satisfied.” Id. ' 12.00(A). Stated another way, if is not enough merely to meet the diagnostic description in paragraph A; additional criteria from either paragraphs B or C also must be met.

         Plaintiff is asserting that his depression meets Listing 12.04. Paragraph A is met only where there exists “[m]edically documented persistence of ” depression that is characterized by at least four defined characteristics. Similarly, the plaintiff asserts that his anxiety meets Listing 12.06, which requires that “anxiety is either the predominant disturbance or it is experienced if the individual attempts to master symptoms.” The ALJ did not discuss (apparently finding that the plaintiff sufficiently met these requirements) whether the plaintiff had met the Paragraph A criteria of either 12.04 or 12.06, but did address the requirements of Paragraphs B and C.

         The paragraph B criteria require a claimant to have at least two of the following: marked restrictions in 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. Id. '' 12.04(B), 12.06(B). “Marked” means “more than moderate but less than extreme.” Marked restriction occurs when the degree of limitation seriously interferes with a claimant's ability to function “independently, appropriately, effectively, and on a sustained basis.” Id. ' 12.00(C); see 20 C.F.R. ' 416.920a(c)(4) (describing a five-point scale used to rate the degree of limitation: none, mild, moderate, marked, and extreme). “Episodes of decompensation” are “exacerbations or temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in performing activities of daily living, maintaining social relationships, or maintaining concentration, persistence, or pace.” 20 C.F.R. Part 404, Subpart P, App. 1, ' 12.00(C)(4). To meet the criterion of “repeated” episodes of decompensation of “extended duration, ” a claimant must have three episodes within one year, or an average of once every four months, each lasting for at least two weeks. Id.

         In this case, there is no evidence, and plaintiff's counsel does not argue, that the plaintiff experienced any episodes of decompensation. Moreover, the plaintiff's own descriptions of his activities do not support that he has “marked” difficulties in performing activities of daily living, maintaining social relationships, or maintaining concentration, persistence or pace. He has stated that he drives, plays computer games, shops, mows his grandmother's lawn, and takes care of all of his hygiene needs. He meets with social friends a couple of times a month to “goof off, ” and has demonstrated sufficient concentration, persistence and pace to work four-hour shifts as a security guard. The only severe panic attack that he described was one time at a Wa l -Mart, when he had to go into the restroom until the panic attack passed. The ALJ is not required to make such findings based solely on a medical source statement that, as discussed infra, is not supported by the plaintiff's own testimony and by the medical records.[2]

         The paragraph C criteria of Listing 12.04 requires a medically documented history of the alleged mental disorder “of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, ” as well as one of the following: (1) repeated episodes of decompensation, each of extended duration; (2) a residual disease process resulting in “such marginal adjustment” that it is predicted that “even a minimal increase in mental demands or change in the environment” would cause decompensation; or (3) a current history of at least one year's “inability to function outside a highly supportive living arrangement, ” with an indication that this arrangement needs to continue. Id. ' 12.04(C). Listing 12.06(C) requires that the claimant's impairment results in a complete inability to function outside the area of his or her home. Id. ' 12.06(C).

         In this case, plaintiff's counsel does not appear to argue that the paragraph (C) criteria have been met. The plaintiff does not offer any evidence of repeated episodes of decompensation, or of an inability to function outside of a highly supportive living arrangement or outside of his home. Because the plaintiff has failed to demonstrate that the ALJ improperly applied Listing 12.04 or 12.06, the ALJ's step-three findings do not provide any basis for remand.

         B. Treating Physician and Medical Source Assessments

         Under prevailing law, a treating physician's testimony is entitled to “substantial or considerable weight unless ‘good cause' is shown to the contrary.” Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1159 (11th Cir. 1997)(internal quotations omitted). The weight to be afforded a medical opinion regarding the nature and severity of a claimant's impairments depends, among other things, upon the examining and treating relationship the medical source had with the claimant, the evidence the medical source presents to support the opinion, how consistent the opinion is with the record as a whole, and the specialty of the medical source. See 20 C.F.R. '' 404.1527(d), 416.927(d). “Good cause” exists for an ALJ not to give a treating physician's opinion substantial weight when the “(1) treating physician's opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) . . . was conclusory or inconsistent with the doctor's own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004) citing Lewis, 125 F.3d at 1440; see also Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991)(holding that “good cause” exists where the opinion was contradicted by other notations in the physician's own record).

         Opinions such as whether a claimant is disabled, the claimant's residual functional capacity, and the application of vocational factors “are not medical opinions, . . . but are, instead, opinions on issues reserved to the Commissioner;” thus the court “may not decide 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). The court instead looks to the doctors' evaluations of the claimant's condition and the medical consequences thereof, not their opinions of the legal consequences of his [or her] condition.” Lewis, 125 F.3d at 1440. See also 20 C.F.R. ' 404.1527(d)(1)(“A statement by a medical source that you are ‘disabled' or ‘unable to work' does not mean that we will determine that you are disabled.”). Such statements ...

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