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Wilson v. Berryhill

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

September 18, 2018

D'ANTHONY WILSON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          T. MICHAEL PUTNAM UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         The plaintiff, D'Anthony Wilson, appeals from the decision of the Commissioner[1] of the Social Security Administration (“Commissioner”) denying his application for a period of disability and Disability Insurance Benefits (“DIB”). Mr. Wilson timely pursued and exhausted his administrative remedies, and the decision of the Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). The parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). (Doc. 13).

         Mr. Wilson was 47 years old at the time of the Administrative Law Judge's (“ALJ”) decision, and he has a high school education. (Tr. at 34). His past work experiences include employment as a construction laborer, painter, and paper machine operator. Id. Mr. Wilson claims that he became disabled on April 8, 2013, due to “chronic pain, back injury with 2 failed surgeries, anxiety, depression, high blood pressure, acid reflux and chronic low back and neck pain.” (Tr. at 260).

         When 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 they do 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 her impairments. 20 C.F.R. § 404.1545(a).

         The 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 inability to perform those jobs in order to be found to be disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).

         Applying the sequential evaluation process, the ALJ found that Mr. Wilson has not been under a disability within the meaning of the Social Security Act from the date of onset through the date of his decision. (Tr. at 36). He determined that Mr. Wilson had not engaged in substantial gainful activity since the alleged onset of his disability. (Tr. at 19). According to the ALJ, the plaintiff's degenerative disk disease of the lumbar spine, status post lumbar fusion, affective disorder, and anxiety disorder are considered “severe” based on the requirements set forth in the regulations. (Tr. at 19). 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 20). The ALJ did not find Mr. Wilson's allegations regarding the intensity, persistence, and limiting effects of his symptoms to be entirely credible. (Tr. at 33-34). He determined that the plaintiff has the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) with the following limitations: he will be able to occasionally lift and/or carry 20 pounds, and to frequently lift and/or carry 10 pounds; he can stand and/or walk with normal breaks for six hours of an eight-hour day; he can sit with normal breaks for six hours of an eight-hour day; he has unlimited ability to push and/or pull, including the operation of hand and/or foot controls except for the lift and carry restrictions of 20/10 pounds; he can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; he should not work on ladders, ropes, or scaffolds; he should avoid concentrated exposure to extreme cold, hazardous machinery, and unprotected heights; he should not work a heavy vibratory job; he can understand, remember, and carry out short, simple instructions and tasks; he can maintain attention and concentration for two-hour periods in an eight-hour day with customary breaks; he should have his own workstation; he can have occasional contact with the public, coworkers, and supervisors. (Tr. At 22).

         According to the ALJ, Mr. Wilson is unable to perform any of his past relevant work. (Tr. at 34). He did find that the plaintiff is able to work as a garment folder, inspector, or hand packager. (Tr. at 36). The ALJ concluded his findings by stating that Plaintiff was not disabled at any time from the alleged onset date through the date last insured. (Tr. at 36).

         II. Standard of Review

         This 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.'” Parkerv.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).

         III. Discussion

         Mr. Wilson alleges that the ALJ's decision should be reversed and remanded because the ALJ: (1) failed to consider whether Mr. Wilson met the criteria for Listing 1.02 regarding his joint pain; (2) failed to determine that he was disabled under Listing 12.04 regarding his depression; (3) failed to determine that he was disabled under Listing 12.06 regarding his anxiety; and (4) failed to properly credit his subjective pain testimony.[2] (Doc. 9). The Commissioner has replied that the ALJ followed the controlling law in evaluating the plaintiff's limitations and symptoms and their application to the listings and that he properly weighed the subjective complaints of pain in accordance with the governing Eleventh Circuit Court of Appeals' standards. (Doc. 10).

         A. Listings

         Step 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). To meet his burden of showing that his impairment meets a Listing, the plaintiff must manifest all of the specified medical criteria. When an impairment includes only some of those criteria, it does not qualify, 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. § 416.920(d).

         1. Listing 1.02

         The plaintiff has alleged that the ALJ erred in failing to evaluate whether Mr. Wilson's impairments met or equaled Listing 1.02, which applies to the major dysfunction of a joint. The Listing defines the musculoskeletal impairment as:

1.02 Major Dysfunction of a joint(s) (due to any cause): Characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylsis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and finding on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b.

         First, it must be noted that the plaintiff does not point to any evidence in the record that supports a finding of the “[i]nvolvement of one major peripheral weight-bearing joint.” Instead, the plaintiff argues that his lumbar disk problems cause pain to radiate down his legs, which “places a great limitation on his ambulatory ability.” (Doc. 9, p. 15). The Listing, however, requires the “involvement” of a “weight-bearing joint, ” such as the hip, knee, or ankle, not just pain radiating into the legs. There simply is no evidence of an impairment of the hips, knees, or ankles in this case. The court is not convinced that Listing 1.02 could apply in this case.

         Further, even if there were evidence of a major dysfunction of a joint, the Commissioner correctly points out that Listing 1.02 applies only if Mr. Wilson is unable to “ambulate effectively.” (Doc. 10, pp. 6-7). The definition of such ambulation is provided in 1.00B2b, which states: “Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities.” The provision goes on to explain that ambulation is generally deemed to be ineffective in instances where a person is unable to walk “without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities.” Accordingly, courts have generally refused to apply Listing 1.02 unless a claimant is unable to walk without crutches, a walker, or two canes. See, e.g., Keith v. Astrue, Case. No. 3:11-cv-988-TRM, 2012 WL 3111889, at *5, (M.D. Ala. July 31, 2012) (finding that plaintiff had not demonstrated an inability to ambulate effectively where Aphysicians observed plaintiff walk normally (and without an assistive device)); Bakerv.Comm'rofSoc.Sec., 384 Fed.Appx. 893 (11th Cir. 2010) (affirming ALJ's unfavorable decision where the plaintiff needed a single cane but was able to walk effectively with the assistance of the device).

         The record in this case is replete with references to Mr. Wilson's gait as normal or non-antalgic. (Tr. at 126, 3 527, 596, 603, 614, 622). There is no evidence that Mr. Wilson requires an assistive device that limits the functioning of both arms in order to walk. The record provides substantial evidence to support the ALJ's failure to discuss Listing 1.02, [3] and the plaintiff's argument regarding a major joint dysfunction is without merit.

         2. Listings 12.04 and 12.06

         The plaintiff has alleged that the ALJ erred in failing to find that the plaintiff's impairments met or equaled Listing 12.04 regarding depressive disorders and Listing 12.06 regarding anxiety disorders. The Commissioner has asserted that the plaintiff failed to demonstrate that the ALJ erred in applying the Listings, and that the ALJ properly evaluated the evidence that plaintiff presented relating to his mental disorders. As with other impairments, a diagnosis of depression or anxiety alone, is not sufficient to demonstrate disability. A finding of disability depends upon the severity of the disorders.

         Section 12.00 contains the Listings for mental disorders, and includes affective disorders (Listing 12.04)[4] and anxiety-related disorders (Listing 12.06).[5] 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). In other words, the severity of the mental impairment qualifies a claimant for benefits only when it meets the levels set forth in both paragraphs A and B or both A and C.

         Plaintiff contends 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 repeatedly noted that doctors consistently found that Mr. Wilson suffered only mild to moderate psychological distress and that his reports of severe distress were not supported by the medical records or by his scant and inconsistent treatment for any psychological disorder.

         The plaintiff argues that he has met the requirement of paragraph A of Listing 12.04 by providing evidence of “[m]edically documented persistence, either continuous or intermittent, of ... [s]leep disturbance.” The ALJ did not specifically discuss the paragraph A criteria; accordingly, the court assumes without deciding that the ALJ found that the plaintiff met the paragraph A requirements.[6] In addition to the paragraph A requirements, however, a claimant must also meet the requirements of paragraph B, or the even more stringent requirements of paragraph C.

         The paragraph B criteria of Listings 12.04 and 12.06 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 one every four months, each lasting for at least two weeks. Id.

         In this case there is no evidence, and plaintiff does not argue, that he 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. The ALJ noted that Mr. Wilson drives himself, shops at a mall, prepares food, and takes care of his personal hygiene. While he does not like to be in crowds, he gets along with his family and goes to church regularly. (Tr. at 20-21). The ALJ is not required to make such findings based solely on a doctor's notation that, as discussed infra, is not supported by the plaintiff's own reported activity level and by the medical records.[7]Dr. Wilkerson's notes simply do not portray Mr. Wilson as suffering from “marked” problems in activities of daily living, social relationships, or with concentration, persistence, or pace. Moreover, plaintiff was evaluated by Dr. John Haney in October 2015, at which time Mr. Wilson reported that he had not been receiving psychological treatment for more than a year, after Dr. Wilkerson's practice closed. During the October 2015 evaluation, Mr. Wilson was on time, talkative, ambulated without assistance (although slowly), said he had “mild difficulties falling asleep, ” and denied having anxiety attacks and “social anxiety.” (Tr. at 507-508). Dr. Haney described him as “calm and composed” with a “good” mood. (Tr. at 508). Following testing, Dr. Haney reported that Mr. Wilson had a “mild level of depression.”

         Taking Dr. Wilkerson's treatment notes to January 2013 and Dr. Haney's evaluation in October 2015, there simply is not medical evidence showing that the plaintiff suffered “marked” limitations in the areas required by the listing for affective disorders. Accordingly, the requirements of paragraph B are not met under either Listing 12.04 or 12.06.

         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. § 12.06(C).

         In this case, plaintiff does not 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.

         B. Pain Standard

         Plaintiff asserts that the ALJ's evaluation of his subjective complaints of pain was improper. Mr. Wilson argues that the ALJ failed to adequately credit his testimony regarding his pain, his wife's statement regarding his pain, and the medical records from Dr. Aycock that support his testimony regarding pain. The Commissioner asserts that the ALJ properly evaluated the medical evidence ...


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