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Dixon v. Berryhill

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

March 27, 2019

TYRONE M. DIXON, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Tyrone M. Dixon (hereinafter “Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security denying his claim for a period of disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. On October 12, 2018, the parties consented to have the undersigned conduct any and all proceedings in this case. (Doc. 12). Thus, the action was referred to the undersigned to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (Doc. 13). Upon careful consideration of the administrative record and the memoranda of the parties, it is hereby ORDERED that the decision of the Commissioner be AFFIRMED.

         I. Procedural History [1]

         Plaintiff protectively filed his application for benefits on July 6, 2015, alleging disability beginning February 5, 2015, based on hearing loss, a right knee problem, and high cholesterol. (Doc. 8 at 91, 180). Plaintiff's application was denied and, upon timely request, he was granted an administrative hearing before Administrative Law Judge Marni R. McCaghren (hereinafter “ALJ”) on February 8, 2017. (Id. at 61). Plaintiff attended the hearing with his counsel and provided testimony related to his claims. (Id. at 61, 65). A vocational expert also appeared at the hearing and provided testimony. (Id. at 84). On March 6, 2017, the ALJ issued an unfavorable decision finding that Plaintiff is not disabled. (Id. at 42). The Appeals Council denied Plaintiff's request for review on November 9, 2017. (Id. at 5). Therefore, the ALJ's decision dated March 6, 2017, became the final decision of the Commissioner.

         Having exhausted his administrative remedies, Plaintiff timely filed the present civil action. (Doc. 1). Oral argument was conducted on November 19, 2018 (Doc. 19), and the parties agree that this case is now ripe for judicial review and is properly before this Court pursuant to 42 U.S.C. §§ 405(g).

         II. Issues on Appeal

1. Whether the ALJ reversibly erred by giving little weight to the opinion of Plaintiff's treating psychologist, Susan Rhodes, Ph.D.?
2. Whether the Appeals Council reversibly erred in finding that a report from a psychological evaluation performed after the ALJ's decision was not chronologically relevant to the determination of whether Plaintiff was disabled on or before the date of the ALJ's decision?

         III. Factual Background

         Plaintiff was born on January 3, 1970, and was forty-seven years of age at the time of his administrative hearing on February 8, 2017. (Doc. 8 at 65). Plaintiff has a twelfth-grade education and can read and write. (Id. at 66). Plaintiff last worked as a heavy equipment operator in February 2015. (Id. at 67). Plaintiff's employment as a heavy equipment operator ended when he declined his employer's request to switch to a different position within the company because the new job “would keep [him] in constant pain.” (Id. at 67-68, 367). Prior to his employment as a heavy equipment operator, Plaintiff worked jobs as a truck driver and shipyard helper. (Id. at 69-71, 84).

         Plaintiff was in the U.S. Army from 1988 to 1991 and served in a tank battalion during the First Gulf War. (Id. at 160, 465). He received an honorable discharge. (Id. at 465). In 2014, Plaintiff was awarded VA disability benefits with a rating of 50% for service-connected post-traumatic stress disorder (“PTSD”). (Id. at 23). Plaintiff's rating for PTSD was increased to 100% effective April 7, 2017, after the Department of Veterans Affairs determined that Plaintiff's PTSD had worsened. (Id. at 13, 23).

         At his hearing, Plaintiff testified that he is unable to work because he has difficulty concentrating as a result of his PTSD and because of ongoing pain and other problems involving his surgically-repaired right knee. (Id. at 71-74). Plaintiff receives psychological therapy at the VA, regularly attends group PTSD sessions, and has been prescribed various medications for PTSD-related symptoms, including anxiety, depression, and nightmares. (Id. at 26, 896). Plaintiff was diagnosed with severe bone-on-bone right knee medial compartment arthritis. (Id. at 328). He underwent a right knee arthroscopy with medial meniscectomy, medial femoral condyle microfracture, and right high tibial osteotomy on October 13, 2015, and his right knee was also treated by physical therapy and medications. (Id. at 471). Plaintiff was also diagnosed with bilateral hearing loss and tinnitus, but he received hearing aids in July 2015 which allow him to hear well. (Id. at 445-46).

         IV. Standard of Review

         In reviewing claims brought under the Act, this Court's role is a limited one. The Court's review is limited to determining (1) whether the decision of the Commissioner is supported by substantial evidence and (2) whether the correct legal standards were applied.[2] Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). A court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). The Commissioner's findings of fact must be affirmed if they are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991). “Substantial evidence is more than a scintilla, but less than a preponderance” and consists of “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). In determining whether substantial evidence exists, a reviewing court must consider the record as a whole, taking into account evidence both favorable and unfavorable to the Commissioner's decision. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986) (per curiam); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, at *4 (S.D. Ala. June 14, 1999).

         V. Statutory and Regulatory Framework

         An individual who applies for Social Security disability benefits must prove his or her disability. 20 C.F.R. § 404.1512. Disability is defined as the “inability to engage in 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 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505(a). The Social Security regulations provide a five-step sequential evaluation process for determining whether a claimant has proven his or her disability. 20 C.F.R. §§ 404.1520.

         The claimant must first prove that he or she is not engaged in substantial gainful activity. Carpenter v. Comm'r of Soc. Sec., 614 Fed.Appx. 482, 486 (11th Cir. 2015) (per curiam). The second step requires the claimant to prove that he or she has a severe impairment or combination of impairments. Id. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. Id. If the claimant cannot prevail at the third step, the ALJ must determine the claimant's residual functional capacity (“RFC”) before proceeding to step four. Id. A claimant's RFC is an assessment, based on all relevant medical and other evidence, of a claimant's remaining ability to work despite his or her impairments. Lewis v. Callahan, 12 ...

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