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Hessert v. Berryhill

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

September 24, 2018

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Respondent.




         On August 30, 2012, the claimant, John Lee Hessert, applied for disability insurance benefits under Titles II and XVI of the Social Security Act. The claimant alleged disability beginning on March 31, 2009, because of a cancerous basal cell carcinoma on the left side of his face, a severe groin injury, a heart condition, and depression. The Commissioner denied the claim on November 6, 2012. The claimant filed a request for a hearing before an Administrative Law Judge, and the ALJ held a hearing on June 8, 2015. (R. 21, 67-68, 79, 153).

         In a decision dated July 25, 2015, the ALJ found that the claimant was not disabled as defined by the Social Security Act and therefore was ineligible for Social Security benefits. The Appeals Council denied the claimant's request for review on December 5, 2016. Consequently, the ALJ's decision became the final decision of the Commissioner of Social Security. (R. 1, 31). The claimant has exhausted his administrative remedies, and this court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated below, this court REVERSES AND REMANDS the decision of the Commissioner to the ALJ for reconsideration.


         Whether the ALJ erred as a matter of law in not considering Listing 12.05(C) regarding the claimant's IQ score of 70.[1]


         The standard for reviewing the Commissioner's decision is limited. This court must affirm the ALJ's decision if he applied the correct legal standards and if substantial evidence supports his factual conclusions. See 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

         “No . . . presumption of validity attaches to the [Commissioner's] legal conclusions, including determination of the proper standards to be applied in evaluating claims.” Walker, 826 F.2d at 999. This court does not review the Commissioner's factual determinations de novo. The court will affirm those factual determinations supported by substantial evidence. “Substantial evidence” is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).

         The court must keep in mind that opinions such as whether a claimant is disabled, the nature and extent of a claimant's residual functional capacity, and the application of vocational factors “are not medical opinions . . . but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of a case; i.e., that would direct the determination or decision of disability.” 20 C.F.R. §§ 404.1527(d), 416.927(d). Whether the claimant meets a Listing and is qualified for Social Security disability benefits is a question reserved for the ALJ, and the court “may not decide facts anew, reweigh the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the court disagrees with the ALJ about the significance of certain facts, the court has no power to reverse that finding as long as substantial evidence in the record supports it.

         The court must “scrutinize the record in its entirety to determine the reasonableness of the [Commissioner]'s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not only look to those parts of the record that support the decision of the ALJ, but also must view the record in its entirety and take account of evidence that detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).


         The ALJ commits reversible error if he exercises his discretion to disregard medical evidence in favor of his own impressions. “An ALJ...abuses his discretion when he substitutes his own uninformed medical evaluations for those of a claimant's treating physicians.” Marbury v. Sullivan, 957 F.2d 837, 840 (11th Cir.1991) (Johnson concurring).

         To meet the 12.05(C) criteria for intellectual disability, the claimant must have a valid IQ score between 60 and 70 and another physical or mental impairment that imposes additional occupational limitations. Smith v. Comm'r of Soc. Sec., 535 Fed.Appx. 894, 897 (11th Cir. 2013) (quoting Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992)).[2] An IQ between 60 and 70 creates a rebuttable presumption that the claimant's intellectual disability was present before the age of twenty-two because IQ scores are fairly consistent across life; however, a low IQ is not indicative of disability if the score is inconsistent with other evidence in the record about the claimant's daily activities and behaviors. Perkins v. Comm'r of Soc. Sec., 553 Fed.Appx. 870, 873 (11th Cir. 2014).

         V. FACTS

         The claimant was forty-four years old at the time of the ALJ's final decision. The claimant dropped out of high school around the age of sixteen and does not have a GED. His past relevant work includes cashier, yard maintenance worker, and a deburrer of machine parts. The claimant alleges disability based on a basal cell carcinoma on the left side of his face, a severe groin injury, a heart condition, and depression. (R.43-44, 46, 29, 68).

         Physical Impairments

         The claimant stated he had a “post block” treatment for back pain some time in 2001 because he had a herniated disc between the L4 and L5 vertebrae. (R. 51).

         The claimant had a basal cell carcinoma of the left nasal canthal region and nose surgically removed from his face by plastic surgeon Dr. Frank Lomagistro on August 11, 2009. During the claimant's follow-up visit with Dr. Lomagistro on August 31, 2009, Dr. Lomagistro indicated that the surgical wound was healing properly. In another follow-up appointment on September 28, 2009, Dr. Lomagistro noted that the claimant was doing well; reported no evidence of the cancer's recurrence or other problems; and instructed the claimant to return for a checkup in another month and follow-up with a dermatologist. Dr. Lomagistro's records do not indicate if the claimant did either. (R. 426-27).

         The claimant went to the emergency room on December 31, 2010, for abdominal pain he rated a ten out of ten on a scale of zero to ten. The claimant reported that he had experienced aching pain for five days; he also reported experiencing nausea. Upon admission to the hospital, nurse practitioner Pamela Griffin game him intravenous morphine for pain and Reglan to treat gastrointestinal distress. The claimant left the hospital on January 1, 2011, with no explained etiology for his abdominal pain other than a possible renal cyst. Dr. Julie Shamas prescribed the claimant Pepcid for acid relief and Zofran to treat his nausea; advised him to follow-up with a primary care physician; and instructed him to return to the ER if his symptoms worsened. (R. 500-08, 513).

         On June 15, 2011, the claimant had a syncopal episode and lost consciousness for one minute after standing up and experiencing dizziness. Dr. Alex Viegas admitted the claimant to Winter Haven Hospital for observation. While there, Dr. Randall Kramer examined the claimant on June 16 after Dr. Viegas asked him for a medical consult. Dr. Kramer noted that the claimant reported no heart palpitations or chest pain but still experienced dizziness. Dr. Kramer reported that the claimant occasionally smoked marijuana, drank one to three cups of coffee a day, and that medical tests revealed no abnormalities in his heart beat or rate. Dr. Kramer found no determined cause of the syncopal episode, but warned the claimant that he could have a bacterial infection. Dr. Kramer urged the claimant to obtain a primary care physician and prescribed him one 81 mg aspirin a day and a short-term dose of Cardizem to maintain his blood pressure and sinus rhythm. Dr. Viegas noted in the claimant's final assessment that the claimant had a suspected type of atrial fibrillation and syncope. Dr. Viegas discharged the claimant on June 17, 2011. (R.475, 480, 450-51, 486-87).

         On October 7, 2011, the claimant went to the ER at Winter Haven Hospital experiencing groin pain that Dr. Victor Aramayo diagnosed as a right inguinal hernia. The claimant indicated that the hernia appeared about a month before and that he had painful urination, groin pain, and diarrhea. He also reported a prior history of depression. The claimant rated the pain a ten on a scale of zero to ten. Dr. Aramayo gave the claimant acetaminophen and Ketorolac for his pain, Rocephin to treat a possible infection, and advised him to follow-up with Dr. Aronski, the surgeon on call. Before releasing the claimant from the ER, Dr. Aramayo also prescribed the claimant Keflex, an antibiotic, and Naprosyn for his pain. Nothing in the record suggests that the claimant followed-up with Dr. Aronski. (R. 457-61, 464, 469).

         At the request of the state of Florida Disability Determination Services, Dr. Ricardo Varas performed a consultative examination of the claimant on October 27, 2012.[3] Dr. Varas indicated that the claimant reported mild tingling or numbness around the surgical site from his cancer surgery but no other facial symptoms. The claimant also reported that he injured his groin during a bike accident in April 2011; when the pain worsened, a doctor in the ER diagnosed him with a hernia and urinary tract infection; and without insurance, he could not pay for surgery to fix his hernia. While the claimant reported experiencing chest pain and angina, Dr. Varas noted that the claimant was unable to provide much information about his 2011 syncopal episode. The claimant also told Dr. Varas that his groin pain significantly restricted his movement and abilities to stand or walk for long periods of time, do chores, drive, and lift objects heavier than ten pounds. (R. 524-25).

         Dr. Varas described the claimant's gait as slightly abnormal with a limp of his right leg but noted that the claimant was able to get on and off the examining table without difficulty. He reported that the claimant had some mild deformity of the nose from his cancer surgery but had no open wounds or keloid formation. Dr. Varas further reported that the claimant had a right inguinal hernia that made it difficult for him to squat and completely perform a straight leg test with his right leg. Examination of the claimant's spine revealed no trigger points. (R. 526-27).

         Dr. Varas opined that the claimant's skin cancer should not be taken into account for his disability, but that it could limit his ability to find a job working outdoors. Dr. Varas indicated that, without a better history from the claimant or medical records from the syncopal episode, he could not make a full determination about the claimant's possible heart condition. He stated that with surgery, the claimant's right inguinal hernia would probably significantly improve or disappear, allowing him to return to work. Finally, Dr. Varas noted that the claimant needed better access to healthcare. (R.526-27).[4]

         On December 18, 2012, the claimant completed a supplemental pain questionnaire for the State of Florida Department of Health. He indicated the pain level for his groin was eight on a scale of zero to ten; that he took only acetaminophen for his pain and it only “worked” for a while; and that his pain ...

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