United States District Court, N.D. Alabama, Southern Division
MICHAEL PUTNAM, UNITED STATES MAGISTRATE JUDGE
plaintiff, Jarrett Vice, appeals from the decision of the
Commissioner of the Social Security Administration
(“Commissioner”) 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. Â§'
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
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).
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).
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).
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).
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).
Standard of Review
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).
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.
Listings 12.04 and 12.06
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.
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. '
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.
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.
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.
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
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. '
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.
Treating Physician and Medical Source Assessments
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
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 ...