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Long v. Berryhill

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

January 19, 2018

KENNETH WADE LONG, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          WALLACE CAPEL, JR., CHIEF UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Kenneth Wade Long (“Plaintiff”) filed an application for disability insurance benefits under Title II of the Social Security Act, alleging he became disabled on October 1, 2009. Plaintiff later amended his alleged onset date to January 15, 2014.[1] Plaintiff's application was denied at the initial administrative level. He then requested and received a hearing before an Administrative Law Judge (“ALJ”). Following the hearing, the ALJ issued an unfavorable decision on April 23, 2015, and the Appeals Council denied Plaintiff's request for review. The ALJ's decision consequently became the final decision of the Commissioner of Social Security (“Commissioner”).[2] See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is now before the court for review of that decision under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings and entry of a final judgment by the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (Doc. 15); Def.'s Consent to Jurisdiction (Doc. 14). Based on the court's review of the record and the briefs of the parties, the court AFFIRMS the decision of the Commissioner.

         II. STANDARD OF REVIEW

         Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to benefits when the person is unable to

engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

42 U.S.C. § 423(d)(1)(A).[3]

         To make this determination, the Commissioner employs a five-step, sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2011).

(1) Is the person presently unemployed?
(2) Is the person's impairment severe?
(3) Does the person's impairment meet or equal one of the specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1 [the Listing of Impairments]?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy? An affirmative answer to any of the above questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of “not disabled.”

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).[4]

         The burden of proof rests on a claimant through Step Four. See Phillips v. Barnhart, 357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying disability once they have carried the burden of proof from Step One through Step Four. At Step Five, the burden shifts to the Commissioner, who must then show there are a significant number of jobs in the national economy the claimant can perform. Id.

         To perform the fourth and fifth steps, the ALJ must determine the claimant's Residual Functional Capacity (“RFC”). Id. at 1238-39. The RFC is what the claimant is still able to do despite the claimant's impairments and is based on all relevant medical and other evidence. Id. It may contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, the ALJ considers the claimant's RFC, age, education, and work experience to determine if there are jobs available in the national economy the claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical Vocational Guidelines (“grids”), see 20 C.F.R. pt. 404 subpt. P, app. 2, or call a vocational expert (“VE”). Id. at 1239-40.

         The grids allow the ALJ to consider factors such as age, confinement to sedentary or light work, inability to speak English, educational deficiencies, and lack of job experience. Each factor can independently limit the number of jobs realistically available to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorily-required finding of “Disabled” or “Not Disabled.” Id.

         The court's review of the Commissioner's decision is a limited one. This court must find the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). “Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (“Even if the evidence preponderates against the Commissioner's findings, [a reviewing court] must affirm if the decision reached is supported by substantial evidence.”). A reviewing court may not look only to those parts of the record which support the decision of the ALJ, but instead must view the record in its entirety and take account of evidence which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).

[The court must] . . . scrutinize the record in its entirety to determine the reasonableness of the [Commissioner's] . . . factual findings. . . . No similar presumption of validity attaches to the [Commissioner's] . . . legal conclusions, including determination of the proper standards to be applied in evaluating claims.

Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

         III. ADMINISTRATIVE PROCEEDINGS

         Plaintiff was fifty years old on the date of the hearing before the ALJ, and has a high school education. Tr. 30-31. Following the administrative hearing, and employing the five-step process, the ALJ found at Step One that Plaintiff “did not engage in substantial gainful activity during the period from his alleged onset date of January 15, 2014[, ] through his date last insured of December 31, 2014[.]” Tr. 16. At Step Two, the ALJ found that Plaintiff suffers from the following severe impairments: “obesity with reports of pain of unknown etiology and sciatica.” Tr. 16. At Step Three, the ALJ found that Plaintiff “[t]hrough the date last insured, . . . did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments[.]” Tr. 17. Next, the ALJ articulated Plaintiff's RFC as follows:

After careful consideration of the entire record, the undersigned finds that, through the last date insured, the claimant had the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except that the claimant can stand and/or walk at least one hour 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 use his upper extremities for reaching overhead. The claimant can frequently use his lower extremities for pushing, pulling and the operation of foot controls. 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 can frequently work in poorly ventilated areas. The claimant cannot work at unprotected heights. The claimant can frequently work with operating hazardous machinery. The claimant can frequently operate motorized vehicles. The claimant can frequently work while exposed to vibration.

         Tr. 17-18. At Step Four, having consulted with a VE, the ALJ concluded that, given Plaintiff's RFC “[t]hrough the date last insured, the claimant was capable of performing past relevant work as a textile supervisor [ ] and tow motor operator/winder/card operator/pinner[.]” Tr. 19. The ALJ noted that “[t]his work did not require the performance of work-related activities precluded by the claimant's residual functional capacity[.]” Tr. 19. The ALJ further found that, “[a]lthough [Plaintiff] is capable of performing past relevant work there are other jobs existing in the national economy that he is also able to perform.” Tr. 20. Thus, the ALJ found, as an alternate finding for Step Five, that “considering [Plaintiff's] age, education, work experience, and residual functional capacity, there were other jobs that existed in significant numbers in the national economy that [Plaintiff] could have performed[.]” Tr. 20. The ALJ identified several representative occupations, including packager, store laborer, and janitor. Tr. 21. Accordingly, the ALJ concluded that Plaintiff “was not under a disability, as defined in the Social Security Act, at any time from January 15, 2014, the amended alleged onset date, through December 31, 2014, the date last insured[.]” Tr. 21.

         IV. PLAINTIFF'S ARGUMENT

         Plaintiff presents five issues to this court which he claims are reversible error. First, Plaintiff argues that “[t]he ALJ failed to accord proper weight to the treating physician, Dr. Dolores Victoria[, ]” and that the “[t]he ALJ substituted his own opinion for the opinion of Dr. Dolores Victoria.” Doc. 11 at 1. Second, Plaintiff argues that “[t]he [f]inding that [he] can perform past work is not supported by [s]ubstantial [e]vidence and is not in accordance with proper legal standards.” Id. Third, Plaintiff argues that he “Meets Grid Rule 201.14.” Id. Fourth, Plaintiff argues that “[t]he case should be remanded because the ALJ failed to assess the intensity and persistence of [his] symptoms pursuant to Social Security Ruling 16-3p.” Id. Finally, Plaintiff argues that the ALJ “failed to consider all of [his] severe impairments.” Id.

         V. DISCUSSION

         A. Whether the ALJ erred in failing to give appropriate weight to the opinions of Plaintiff's treating physician.

         “Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [the claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). Absent “good cause, ” an ALJ is to give the medical opinions of treating physicians “substantial or considerable weight.” Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); see also 20 C.F.R. §§ 404.1527(d)(1)-(2), 416.927(d)(1)-(2). Good cause to discount a treating physician's opinion exists “when the: (1) treating physician's opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician's opinion was conclusory or inconsistent with the doctor's own medical records.” Phillips, 357 F.3d at 1241. With good cause, an ALJ may disregard a treating physician's opinion, but he “must clearly articulate [the] reasons” for doing so. Id. at 1240-41. The Eleventh Circuit has recently re-emphasized that courts “will not second guess the ALJ about the weight the treating physician's opinion deserves so long as he articulates a specific justification for it.” Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 823 (11th Cir. 2015).

         Here, Plaintiff argues the ALJ committed reversible error by giving little weight to the opinion of Plaintiff's treating physician, Dr. Dolores Victoria. Doc. 11 at 6-8. Dr. Victoria completed a functional capacity evaluation of Plaintiff on December 9, 2014, which concluded, inter alia, that Plaintiff had chronic and continuous pain as a result of a medical condition; that he would need to rest constantly during the day; and that, as a result of his condition, attendant limitations, pain and/or any side effects of medication(s), Plaintiff “would miss three or more days per month from work.” Tr. 262.

         The ALJ afforded Dr. Victoria's opinion “little weight.” Tr. 20. In so doing, the ALJ provided the following reasoning:

The [Social Security] Regulations [ ] recognize that treating sources are important sources of medical evidence and that their opinions about the nature and severity of an individual's impairment are entitled to special significance, and sometimes the medical opinions of treating sources are entitled to controlling [weight]. However, it is an error to give an opinion controlling weight simply because it is the opinion of the treating source if it is not well supported by medically acceptable clinical and laboratory diagnostic techniques or it is inconsistent with the other substantial evidence in the case record[.] Dr. Victoria's opinion is not consistent with the totality of the evidence, including the treatment notes and diagnostic tests. In fact, the treatment notes really show very little impairment at all. Accordingly, this opinion is therefore given minimal evidentiary weight[.]

Tr. 19 (emphasis added).

         A review of the ALJ's opinion in its entirety further supports the ALJ's reasoning for discounting Dr. Victoria's opinion. Specifically, the ALJ noted that Plaintiff's “[p]hysical examinations were generally unremarkable[, ]” and that he was “noted to have normal range of motion, muscle strength, and stability in all extremities, with no pain on inspection and no edema.” Tr. 18-19. The ALJ also noted that “[r]ecords dated since the amended alleged onset date are also rather unremarkable. Although [Plaintiff] complained of intense pain, February, April and June 2014 physical examination records all note normal range of motion, muscle strength, and stability in all extremities with no pain on inspection. . . . A lumbar x-ray was negative.” Tr. 19. Further, the ALJ noted that Plaintiff's “ability to maintain his household, live alone, and drive, in conjunction with the medical evidence demonstrating minimal abnormalities, reflect[ed] a significant functional capacity and not an individual unable to sustain regular and continuing work due to medically determinable impairments.” Tr. 19. In sum, the ALJ concluded that, “[w]hile records confirm some complaints of back pain, there is little to establish any other impairments, and findings on exam are fairly normal.” Tr. 19.

         As noted previously, an ALJ must give the opinion of a treating physician “substantial or considerable weight unless good cause is shown to the contrary.” Phillips, 357 F.3d at 1240. “Good cause exists ‘when the: (1) treating physician's opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician's opinion was conclusory or inconsistent with the doctor's own medical records.'” Id. at 1240-41. Dr. Victoria's opinion was discounted in large part due to the fact that subjective medical records did not support Dr. Victoria's opinion. Indeed, the ALJ noted that physical examinations of Plaintiff were unremarkable, and that he was noted to have normal range of motion, muscle strength, and stability in all extremities, with no pain on inspection. Tr. 19; Tr. 248 (Ex. F) (physician report on April 9, 2014, noting that Plaintiff has “[n]ormal range of motion, muscle strength, and stability in all extremities with no pain on inspection.”). This reason is considered “good cause” to discount the opinion of Dr. Victoria.[5] See Phillips, 357 F.2d at 1240. And, because the Eleventh Circuit directs courts not to second guess the ALJ's discount of a physician's opinion so long as the ALJ provides proper reasoning, the undersigned's inquiry ends with the conclusion that the ALJ provided proper justification for discounting the opinion of Dr. Victoria. See Hunter, 808 F.3d at 823. Accordingly, Plaintiff's argument fails.

         B. Whether the ALJ erred in finding that Plaintiff could perform past work.

         Plaintiff argues that the ALJ's decision should be reversed because the ALJ's finding that Plaintiff can perform past work is not supported by substantial evidence, nor is it in accordance with proper legal standards. Doc. 11 at 8-10. Plaintiff challenges the ALJ's failure to “consider any of the duties of [Plaintiff's] past work” and his failure to evaluate Plaintiff's “ability to perform those duties in spite of his impairments.” Id. He points the court to several cases where the court found reversible error when the ALJ failed to develop the particulars of the plaintiff's past relevant work. Id. at 8-10 (citing Johnson v. Colvin, No. 8:14-cv-0041-T-27TBM, 2015 WL 1423127 (M.D. Fla. March 27, 2015); Butler v. Comm'r of Soc. Sec., Case No. 8:15-cv-2356-T-27JSS, 2016 WL 7217253 (M.D. Fla. Nov. 11, 2016); and Lucas v. Sullivan, 918 F.2d 1567 (11th Cir. 1990)).

         Social Security Ruling 82-62 provides that, in finding that an individual has the capacity to perform a past relevant job, the determination must contain a “specific finding[ ] of fact . . . as to the physical and mental demands of the past job/occupation.” SSR 82-62 (S.S.A.), 1982 WL 31386 at *4. The Ruling further provides that a claimant can return to past relevant work if he can perform the specific job he performed, either in the manner he performed it, or as it is usually performed in the national economy. See Dudley v. Apfel, 75 F.Supp.2d 1381, 1382 (N.D.Ga. 1999).

         During the hearing before the ALJ, the following exchange occurred with Plaintiff:

ALJ: . . . And you have a long history in the yard - in the clothing ...

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