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Dobbs v. Commissioner, Social Security Administration

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

September 14, 2018

JOSEPH WILLIAM DOBBS, SR., Plaintiff
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant

          MEMORANDUM OPINION

          HERMAN N. JOHNSON, JR. UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Joseph William Dobbs, Sr., seeks judicial review pursuant to 42 U.S.C. § 405(g) of an adverse, final decision of the Commissioner of the Social Security Administration (“Commissioner” or “Secretary”), regarding his claim for Supplemental Security Income (SSI) and Disability Insurance Benefits (DIB). The undersigned has carefully considered the record, and for the reasons stated below, AFFIRMS the Commissioner's decision.

         LAW AND STANDARD OF REVIEW

         To qualify for disability benefits and establish entitlement for a period of disability, the claimant must be disabled as defined by the Social Security Act and the Regulations promulgated thereunder. The Regulations[1] define “disabled” as the “inability to do 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 twelve (12) months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to disability benefits, a claimant must provide evidence of a “physical or mental impairment” which “must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1508.

         In determining whether a claimant suffers a disability, the Commissioner, through an Administrative Law Judge (ALJ), works through a five-step sequential evaluation process. See 20 C.F.R. § 404.1520. The burden rests upon the claimant on the first four steps of this five-step process; the Commissioner sustains the burden at step five, if the evaluation proceeds that far. Jones v. Apfel, 190 F.3d 1224, 1228 (11thCir. 1999).

         In the first step, the claimant cannot be currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). Second, the claimant must prove the impairment is “severe” in that it “significantly limits his physical or mental ability to do basic work activities . . . .” 20 C.F.R. § 404.1520(c).

         At step three, the evaluator must conclude the claimant is disabled if the impairments meet or are medically equivalent to one of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1, §§ 1.00-114.02. 20 C.F.R. § 404.1520(d). If a claimant's impairment meets the applicable criteria at this step, that claimant's impairments would prevent any person from performing substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1525. That is, a claimant who satisfies steps one and two qualifies automatically for disability benefits if they suffer from a listed impairment. See Jones, 190 F.3d at 1228 (“If, at the third step, [the claimant] proves that [an] impairment or combination of impairments meets or equals a listed impairment, [the claimant] is automatically found disabled regardless of age, education, or work experience.”) (citing 20 C.F.R. § 416.920).

         If the claimant's impairment or combination of impairments does not meet or medically equal a listed impairment, the evaluation proceeds to the fourth step where the claimant demonstrates an incapacity to meet the physical and mental demands of past relevant work. 20 C.F.R. § 404.1520(e). At this step, the evaluator must determine whether the plaintiff has the residual functional capacity (“RFC”) to perform the requirements of past relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant's impairment or combination of impairments does not prevent performance of past relevant work, the evaluator will determine the claimant is not disabled. See id.

         If the claimant is successful at the preceding step, the fifth step shifts the burden to the Commissioner to prove, considering claimant's RFC, age, education and past work experience, whether the claimant is capable of performing other work. 20 C.F.R. § 404.1520(f)(1). If the claimant can perform other work, the evaluator will not find the claimant disabled. See 20 C.F.R. § 404.1520(a)(4)(v); see also 20 C.F.R. § 404.1520(g). If the claimant cannot perform other work, the evaluator will find the claimant disabled. 20 C.F.R. § 404.1520(a)(4)(v), (g).

         The court reviews the ALJ's “‛decision with deference to the factual findings and close scrutiny of the legal conclusions.'” Parks ex rel. D.P. v. Comm'r, Social Sec. Admin., 783 F.3d 847, 850 (11th Cir. 2015) (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11thCir. 1991)). The court must determine whether substantial evidence supports the Commissioner's decision and whether the Commissioner applied the proper legal standards. Winschel v. Comm'r of Social Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). Although the court must “scrutinize the record as a whole . . . to determine if the decision reached is reasonable and supported by substantial evidence, ” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations omitted), the court “may not decide the facts anew, reweigh the evidence, or substitute [its] judgment” for that of the ALJ. Winschel, 631 F.3d at 1178 (citations and internal quotation marks omitted). “Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Id. (citations omitted). Nonetheless, substantial evidence exists even if the evidence preponderates against the Commissioner's decision. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).

         FACTUAL AND PROCEDURAL HISTORY

         Mr. Dobbs protectively filed an application for SSI and DIB on November 12, 2013, alleging disability beginning September 30, 2013. (Tr. 208). The Commissioner denied his claims, and Dobbs timely filed a request for a hearing on February 24, 2014. (Tr. 125-26). The Administrative Law Judge (“ALJ”) held a hearing on September 10, 2015. (Tr. 38-81). The ALJ issued an opinion denying Dobbs's claim on December 28, 2015. (Tr. 17-32).

         Applying the five-step sequential process, the ALJ found at step one that Mr. Dobbs had not engaged in substantial gainful activity since September 30, 2013. (Tr. 22). At step two, the ALJ found the following severe impairments: asthma; mood disorder; major depressive disorder, recurrent, severe, without psychotic features; partial complex epilepsy; arthralgias in multiple joints; and history of alcohol dependence. (Tr. 22). At step three, the ALJ found that Mr. Dobbs's impairments, or combination of impairments, did not meet or equal any impairment for presumptive disability listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 23).

         Next, the ALJ found that Mr. Dobbs exhibited the residual functional capacity (“RFC”) to perform light work with the following non-exertional limitations: the claimant would require a sit/stand option with the retained ability to stay on or at a workstation in no less than 30 minute increments each without significant reduction of remaining on task; the claimant is able to ambulate short distances up to 1 city block per instance on flat, hard surfaces; the claimant is able to frequently use foot controls bilaterally; the claimant can occasionally climb ramps and stairs but never climb ladders or scaffolds; the claimant can frequently stoop and crawl; the claimant should work in close proximity to coworkers or supervisors in order to be under observation to monitor potential unplanned seizure activity; the claimant should never be exposed to unprotected heights, dangerous machinery, dangerous tools, hazardous processes, or operate commercial motor vehicles; the claimant should be exposed to no more than moderate noise levels; the claimant could only remember short, simple instructions and would be unable to deal with detailed or complex instructions; the claimant could do simple, routine, repetitive tasks but would be unable to do detailed or complex tasks; the claimant is limited to making simple work-related decisions; the claimant should have no more than occasional interaction with the general public but could have frequent interaction with coworkers and supervisors; the claimant would be able to accept constructive, non-confrontational criticism, work in small group settings, and be able to accept changes in the workplace setting if introduced gradually and infrequently; the claimant would be unable to perform assembly-line work with production rate pace but could perform other goal-oriented work; in addition to normal workday breaks, the claimant would be off-task 5 percent of an 8-hour workday (non-consecutive minutes). (Tr. 27-28).

         At step four, the ALJ determined that Dobbs cannot perform his past relevant work as a forklift operator. (Tr. 30). At step five, based on the testimony of a vocational expert, the ALJ determined that, considering Mr. Dobbs's age, education, work experience, and RFC, a significant number of other jobs exist in the national economy that Mr. Dobbs could perform, including ticket marker and courier within a building. (Tr. 31). Accordingly, the ALJ determined that Mr. Dobbs has not been under a disability, as defined by the Social Security Act, since September 30, 2013. (Tr. 32).

         Mr. Dobbs timely requested review of the ALJ's decision. (Tr. 16). On March 10, 2017, the Appeals Council denied review, which deems the ALJ's decision as the Commissioner's final decision. Mr. Dobbs filed his complaint with the court seeking review of the ALJ's decision. (Doc. 1).

         ANALYSIS

         In this appeal, Mr. Dobbs argues (1) the ALJ's Step 3 determination lacks support in substantial evidence because he failed to consider Listing 11.03; (2) the ALJ's Step 3 determination that Plaintiff does not meet Listing 12.04 lacks support in substantial evidence because the ALJ improperly rejected Dr. Richard Diethelm's opinion; and (3) the ALJ's Step 5 determination is not supported by substantial evidence because the jobs identified by the Vocational Expert are inconsistent with the RFC. The court finds Plaintiff's assertions do not merit reversal.

         I. The ALJ Did Not Err in the Consideration of Listing 11.03

         Dobbs first claims the ALJ erred in failing to assess his seizure disorder under Listing 11.03, despite finding partial complex epilepsy as a severe impairment. The court finds the ALJ properly considered the requirements of Listing 11.03, without specifically mentioning the listing, and his decision has support in substantial evidence.

Listing 11.00 reads, in pertinent part, as follows:
A. Epilepsy. In epilepsy, regardless of etiology, degree of impairment will be determined according to type, frequency, duration, and sequelae of seizures. At least one detailed description of a typical seizure is required. Such description includes the presence or absence of aura, tongue bites, sphincter control, injuries associated with the attack, and postictal phenomena. The reporting physician should indicate the extent to which description of seizures reflects his own observations and the source of ancillary information. Testimony of persons other than the claimant is essential for description of type and frequency of seizures if professional observation is not available.
Under 11.02 and 11.03, the criteria can be applied only if the impairment persists despite the fact that the individual is following prescribed antiepileptic treatment. Adherence to prescribed antiepileptic therapy can ordinarily be determined from objective clinical findings in the report of the physician currently providing treatment for epilepsy. Determination of blood levels of phenytoin sodium or other antiepileptic drugs may serve to indicate whether the prescribed medication is being taken. When seizures are occurring at the frequency stated in 11.02 or 11.03, evaluation of the severity of the impairment must include consideration of the serum drug levels. Should serum drug levels appear therapeutically inadequate, consideration should be given as to whether this is caused by individual idiosyncrasy in absorption of metabolism of the drug. Blood drug levels should be evaluated in conjunction with all the other evidence to determine the extent of compliance. When the reported blood drug levels are low, therefore, the information obtained from the treating source should include the physician's statement as to why the levels are low and the results of any relevant diagnostic studies concerning the blood levels. Where adequate seizure control is obtained only with unusually large doses, the possibility of impairment resulting from the side effects of this medication must be also assessed. Where documentation shows that use of alcohol or drugs affects adherence to prescribed therapy or may play a part in the precipitation of seizures, this must also be considered in the overall assessment of impairment level.

20 C.F.R. Pt. 404, Subpt. P, App. 1, 11.00.[2] Listing 11.03 reads:

Epilepsy-nonconvulsive epilepsy (petit mal, psychomotor, or focal), documented by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once weekly in spite of at least 3 months of prescribed treatment. With alteration of awareness or loss of consciousness and transient postictal manifestations of unconventional behavior or significant interference with activity during the day.

         While the ALJ did not specifically mention Listing 11.03, his opinion manifests he indeed considered the listing and evaluated the evidence in accordance with the listing's requirements. He noted Dobbs experienced seizures accompanied by right-sided weakness, loss of consciousness, incontinence, and slurred speech. (Tr. 29). However, the ALJ specifically noted Dobbs responded to anti-seizure medication, such that by the time of the hearing, Dobbs testified he had not had any seizures in the five weeks preceding the hearing. (Tr. 29, 55). Thus, Dobbs's seizures did not meet the criteria because they were not occurring at least once per week during three months of prescribed treatment. The ALJ also noted that a blood test showed less than therapeutic levels of anti-seizure medication at the beginning of Dobbs's January 2014 hospital stay. (Tr. 29).

         The ALJ further cited normal diagnostic test results and the lack of any follow up treatment records portraying further seizure-like episodes, suggesting medication controls the complex partial epilepsy. (Tr. 29). Thus, the ALJ did not err by failing to mention Listing 11.03 by name, when the opinion establishes he conducted the required review. See Anteau v. Comm'r of Soc. Sec., 708 Fed.Appx. 611, 614 (11th Cir. 2017) (even though ALJ failed to mention a disorder and specific listing in his decision, the ALJ's determination that claimant's diagnosis did not meet listing was implicit in the ALJ's determination that claimant had the RFC to perform past relevant work; ALJ would only have reached that determination by first determining that claimant had no severe impairment that met or equaled a listed impairment); Flemming v. Comm'r of the Soc. Sec. Admin., 635 Fed.Appx. 673, 676 (11th Cir. 2015) (ALJ's failure to discuss listings at step three does not necessarily show the ALJ did not consider those listings; Eleventh Circuit does not require an ALJ to “mechanically recite” the evidence or listings considered and the court may infer from the record that the ALJ implicitly considered and found a claimant's disability did not meet a listing); Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986) (“There may be an implied finding that a claimant does not meet a listing” when the ALJ proceeds to the fourth and fifth steps of the disability analysis.).

         In addition, the ALJ's determination that Dobbs fails to meet Listing 11.03 has support in substantial evidence. Dobbs's medical records reflect he first reported seizure activity to medical care providers on October 18, 2013. (Tr. 275). Dobbs related he left work due to dizziness and nausea and went to bed; his wife reported when he awoke, he stared and his right hand and arm shook. (Tr. 275). Dobbs averred he had experienced several similar, but not as severe, episodes in the previous six months. (Tr. 276). By the time Dobbs sought treatment at Brookwood Medical Center for the October 18 episode, his symptoms had resolved. A CT scan of his head and a magnetic resonance angiogram of his neck yielded normal results. (Tr. 271, 275, 282, 283). An October 19, 2013, magnetic resonance angiogram of Dobbs's head displayed normal except for luminal irregularities in the cortical branches, suggestive of small vessel disease. (Tr. 267, 282). A brain MRI performed the same day displayed negative for acute infarction, hemorrhagic or calcified lesions, and parenchymal or meningeal ...


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