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Welch v. Berryhill

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

February 20, 2018

ROBERT JOSEPH WELCH, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE

         Following administrative denial of his application for Supplemental Security Income benefits under Title XVI of the Social Security Act, Robert Joseph Welch (“Welch” or “Plaintiff”) received a requested hearing before an administrative law judge (“ALJ”) who rendered an unfavorable decision. When the Appeals Council rejected review, the ALJ's decision became the final decision of the Commissioner of Social Security (“Commissioner”). See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Judicial review proceeds pursuant to 42 U.S.C. § 405(g), 42 U.S.C. § 1383(c)(3), and 28 U.S.C. § 636(c), and for reasons herein explained, the Court concludes the Commissioner's decision denying supplemental security income benefits should be REVERSED and REMANDED.

         I. Nature of the Case

         Welch requests judicial review of the Commissioner of Social Security Administration's decision denying his application for supplemental security income benefits. United States district courts may conduct limited review of such decisions to determine whether they comply with applicable law and are supported by substantial evidence. 42 U.S.C. § 405 (2006). The court may affirm, reverse and remand with instructions, or reverse and render a judgment. Id.

         II. Standard of Review

         Judicial review of the Commissioner's decision to deny benefits is narrowly circumscribed. The court reviews a social security case solely to determine whether the Commissioner's decision is supported by substantial evidence and based upon proper legal standards. Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). The court “may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the Commissioner, ” but rather “must defer to the Commissioner's decision if it is supported by substantial evidence.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)); see also Winschel, 631 F.3d at 1178 (stating the court should not re-weigh the evidence). This court must find the Commissioner's decision conclusive “if it is supported by substantial evidence and the correct legal standards were applied.” Kelley v. Apfel, 185 F.3d 1211, 1213 (11th Cir. 1999); see also Kosloff v. Comm'r of Soc. Sec., 581 Fed.Appx. 811, 811 (11th Cir. 2015) (citing Kelley).

         Substantial evidence is more than a scintilla - i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Winschel, 631 F.3d at 1178 (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)); Lewis v. Callahan, 125 F.3d 1436, 1440 (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)). If the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the court would have reached a contrary result as finder of fact, and even if the court finds that the evidence preponderates against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); see also Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (“even if the evidence preponderates against the Commissioner's findings, we must affirm if the decision reached is supported by substantial evidence.”) (citation omitted). The district court must view the record as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986)).

         The district court will reverse a Commissioner's decision on plenary review if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law. Keeton v. Department of Health and Human Services, 21 F.3d 1064, 1066 (11th Cir. 1994) (internal citations omitted). There is no presumption that the Secretary's conclusions of law are valid. Id.; Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991).

         III. Statutory and Regulatory Framework

         The Social Security Act's general disability insurance benefits program (“DIB”) provides income to individuals who are forced into involuntary, premature retirement, provided they are both insured and disabled, regardless of indigence.[1] See 42 U.S.C. § 423(a). The Social Security Act's Supplemental Security Income (“SSI”) is a separate and distinct program. SSI is a general public assistance measure providing an additional resource to the aged, blind, and disabled to assure that their income does not fall below the poverty line.[2] Eligibility for SSI is based upon proof of indigence and disability. See 42 U.S.C. §§ 1382(a), 1382c(a)(3). However, despite the fact they are separate programs, the law and regulations governing a claim for DIB and a claim for SSI are identical; therefore, claims for DIB and SSI are treated identically for the purpose of determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n. 1 (11th Cir. 1986). Applicants under DIB and SSI must provide “disability” within the meaning of the Social Security Act which defines disability in virtually identical language for both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§ 404.1505(a), 416.905(a).

         A person is entitled to disability 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), 1382c(a)(3)(A). A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

         The Commissioner utilizes a five-step, burden-shifting analysis to determine when claimants are disabled. 20 C.F.R. §§ 404.1520;[3] Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); O'Neal v. Comm'r of Soc. Sec., 614 Fed.Appx. 456, 458 (11th Cir. June 10, 2015).

         The ALJ determines:

(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 exceeds one of the impairments in the listings;
(4) Whether the claimant can perform past relevant work; and
(5) Whether the claimant can perform other work in the national economy.

Winschel, 631 F.3d at 1178; Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). When a claimant is found disabled - or not - at an early step, the remaining steps are not considered. McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). This procedure is a fair and just way for determining disability applications in conformity with the Social Security Act. See Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297, 96 L.Ed.2d 119 (1987) (citing Heckler v. Campbell, 461 U.S. 458, 461, 103 S.Ct. 1952, 1954, 76 L.Ed.2d 66 (1983)) (The use of the sequential evaluation process “contribute[s] to the uniformity and efficiency of disability determinations”).

         The burden of proof rests on the claimant through Step 4. See Ostborg v. Comm'r of Soc. Sec., 610 Fed.Appx. 907, 915 (11th Cir. 2015); Phillips, 357 F.3d at 1237-39. A prima facie case of qualifying disability exists when a claimant carries the Step 1 through Step 4 burden. Only at the fifth step does the burden shift 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 Functioning Capacity (“RFC”). 20 C.F.R. § 404.1520(a)(4). RFC is what the claimant is still able to do despite the impairments, is based on all relevant medical and other evidence, and can contain both exertional and nonexertional limitations. Phillips, 357 F.3d 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. In order to do this, the ALJ can either use the Medical Vocational Guidelines[4] (“grids”) or call a vocational expert. 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 of these factors can independently limit the number of jobs realistically available to an individual. Id. at 1240. Combinations of these factors yield a statutorily-required finding of “Disabled” or “Not Disabled.” Id. Otherwise, the ALJ may use a vocational expert. Id. A vocational expert is an expert on the kinds of jobs an individual can perform based on her capacity and impairments. Id. In order for a vocational expert's testimony to constitute substantial evidence, the ALJ must pose a hypothetical question which comprises all of the claimant's impairments. Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999) (citing McSwain v. Bowen, 814 F.2d 617, 619-20 (11th Cir. 1987)).

         IV. Background and Proceedings

         Welch claims disability due to cancerous skin lesions, back injury/pain, hypertension, and anxiety/panic attacks. (R. 361). Following initial administrative denial of his claim, Welch requested a hearing before an administrative law judge (“ALJ”). (R. 164-174). ALJ Walter v. Lassiter, Jr. (“the ALJ”) convened an in-person hearing on February 2, 2015. (R. 100-142). Welch was represented by an attorney. The ALJ received direct testimony from Welch. The remaining evidentiary record consisted of medical reports from treating sources and residual functional capacity assessments completed by a medical consultant who reviewed Welch's medical records upon request of Alabama Disability Determination Services.[5] Welch's counsel avers that ALJ Lassiter requested an off-the-record pre-hearing conference and as a result of that conversation, Welch alleges ALJ bias which resulted in a hearing that was not fair and impartial. The ALJ rendered an unfavorable verdict on May 22, 2015. (R. 36-61). On September 10, 2015, the Appeals Council granted Plaintiff's request for review, vacated the decision, and remanded the case as to three issues with an order to conduct a new evidentiary hearing. The Appeals Council rejected the argument of bias and sent the case back to the same ALJ. Prior to the hearing, counsel requested that a new ALJ be assigned and that ALJ Lassiter recuse himself. (R. 427-28, 440-41). A new hearing was held before ALJ Lassiter on February 5, 2016 and he denied the request for recusal. (R. 62-99). On June 20, 2016, the ALJ again rendered an unfavorable verdict. (R. 18-35). On September 22, 2016, the Appeals Council denied Welch's second request for review (Tr. 1-7). This Social Security Appeal was filed on November 16, 2016. See Doc. 1, Complaint.

         V. ...


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