United States District Court, N.D. Alabama, Southern Division
N. JOHNSON, JR. UNITED STATES MAGISTRATE JUDGE.
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
AND STANDARD OF REVIEW
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 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.
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).
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).
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).
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.
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),
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).
AND PROCEDURAL HISTORY
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).
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.
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).
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).
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).
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.
The ALJ Did Not Err in the Consideration of Listing
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
20 C.F.R. Pt. 404, Subpt. P, App. 1, 11.00. Listing 11.03
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.
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).
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.).
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 ...