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Thweatt v. Commissioner, Social Security Administration

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

November 26, 2018

ASHLEY THWEATT, Plaintiff
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant

          MEMORANDUM OPINION

          HERMAN N. JOHNSON, JR. UNITED STATES MAGISTRATE JUDGE

         Plaintiff Ashley Thweatt 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 her 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. Washington v. Comm'r of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018).

         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 Williams v. Astrue, 416 Fed.Appx. 861, 862 (11th Cir. 2011) (“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

         Ms. Thweatt, born in 1986, protectively filed an application for SSI and DIB on February 2, 2015, alleging disability beginning August 28, 2014. (Tr. 359-71). The Commissioner denied her claims, and Thweatt timely filed a request for a hearing on May 12, 2015. (Tr. 322). The Administrative Law Judge (“ALJ”) held a hearing on July 27, 2016. (Tr. 190-216). The ALJ issued an opinion denying Thweatt's claim on January 12, 2017. (Tr. 50-63).

         Applying the five-step sequential process, the ALJ found at step one that Thweatt had not engaged in substantial gainful activity since August 28, 2014. (Tr. 55). At step two, the ALJ found the following severe impairments: seizure disorder, diabetes with neuropathy, obesity, degenerative disc disease, depression, and anxiety. (Tr. 55). At step three, the ALJ found that Ms. Thweatt'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. 56-58).

         Next, the ALJ found that Ms. Thweatt exhibited the residual functional capacity (“RFC”) to perform sedentary work with the following non-exertional limitations:

allows for occasional pushing and pulling with the upper and lower extremities; no climbing of ladders, ropes, and scaffolds; occasional climbing of ramps and stairs; occasional balancing and stooping; no kneeling, crouching, or crawling; frequent bilateral handling, fingering, and feeling; avoidance of concentrated exposure to extreme heat, cold, and vibration; no exposure to hazardous machinery and unprotected heights; no work around large bodies of water; no operation of a motor vehicle; no work requiring walking on uneven or slippery surfaces; and no reading of fine print. During a regularly scheduled workday, or the equivalent thereof, the claimant can: (1) understand and remember short and simple instructions, but is unable to do so with detailed or complex instructions, (2) do simple, routine, repetitive tasks, but is unable to do so with detailed or complex tasks, (3) have no more than occasional contact with the general public, (4) deal with changes in workplace, if introduced occasionally and gradually, and are well explained, and (5) be expected to miss one to two days of work per month.

(Tr. 58-61).

         At step four, the ALJ determined that Thweatt cannot perform her past relevant work as a cook, cashier, and material handler. (Tr. 61). At step five, based on the testimony of a vocational expert, the ALJ determined that, considering Ms. Thweatt's age, education, work experience, and RFC, a significant number of other jobs exist in the national economy that she could perform, including cuff folder, almond blancher, and foundation maker. (Tr. 62-63). Accordingly, the ALJ determined that Ms. Thweatt has not been under a disability, as defined by the Social Security Act, since August 28, 2014. (Tr. 63).

         Ms. Thweatt timely requested review of the ALJ's decision. She submitted additional medical records to the Appeals Council. (Tr. 14-49, 70-189, 218-55). On October 17, 2017, the Appeals Council denied review, which deems the ALJ's decision as the Commissioner's final decision. Ms. Thweatt filed her complaint with the court seeking review of the ALJ's decision. (Doc. 1).

         ANALYSIS

         In this appeal, Ms. Thweatt argues (1) the ALJ failed in his duty to develop a full and fair record; (2) the Appeals Council erred in refusing to consider additional evidence; and (3) the ALJ's RFC does not sufficiently account for Thweatt's seizure disorder. She also claims generally the ALJ's decision that she can work despite her severe impairments lacks support in substantial evidence. The court finds Plaintiff's assertions do not merit reversal.

         I. Thweatt Suffered No. Prejudice From the ALJ's Failure to Obtain Medical Records

         Thweatt contends the ALJ committed error by failing to ensure the record contained medical records from Northwest Alabama Mental Health for January 2016 to February 2017. She argues the ALJ should have obtained the records given her pro se status. She also asserts his failure to obtain the records resulted in incomplete evidence, and the evidence would have altered the outcome because these records establish she experiences more than mild to moderate limitations from depression and PTSD. However, these arguments offer no ground for reversal.

         This review incites several statutory rights enjoyed by Thweatt. The ALJ retains a duty to develop a full and fair record. Pennington v. Comm'r of Soc. Sec., 652 Fed.Appx. 862, 871 (11th Cir. 2016). A Social Security claimant has a statutory right, which may be waived, to be represented by counsel at a hearing before an ALJ. Hunter v. Soc. Sec. Admin, Comm'r, 705 Fed.Appx. 936, 942 (11th Cir. 2017). In determining whether to remand a case for further development of the record, a court considers “whether the record reveals evidentiary gaps which result in unfairness or clear prejudice.” Vangile v. Comm'r, Soc. Sec. Admin., 695 Fed.Appx. 510, 512 (11th Cir. 2017) (quoting Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995) (per curiam)).

         Nevertheless, a claimant must demonstrate prejudice before a court may conclude the ALJ violated her due process rights to such an extent that the court must remand the case. Pennington, 652 Fed.Appx. at 871. To demonstrate prejudice, the claimant must show “the ALJ did not have all of the relevant evidence before him in the record . . ., or that the ALJ did not consider all of the evidence in the record in reaching his decision.” Id., quoting Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985).

         In this case, the ALJ gave Thweatt three opportunities to request counsel and postpone the hearing so that an attorney could obtain medical records. (Tr. 192-94, 196). Ms. Thweatt declined the opportunity. (Tr 192-94, 196). She also signed a Waiver of Right to Representation on the day of her ALJ hearing. (Tr. 356). Therefore, she waived her right to representation. See Hunter v. Soc. Sec. Admin., Comm'r, 705 Fed.Appx. 936, 942 (11th Cir. 2017); McCloud v. Barnhart, 166 Fed.Appx. 410, 416 (11thCir. 2006). After the ALJ issued his decision, Thweatt obtained counsel, who submitted additional medical records to the Appeals Council, including the records Thweatt faults the ALJ for not securing. The Appeals Council considered these records and determined they would not change the outcome. Therefore, Thweatt suffered no prejudice ...


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