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Parrott v. Saul

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

September 23, 2019

DALE GERALD PARROTT, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         On June 10, 2016, the claimant, Dale Gerald Parrott, filed a Title II application for a period of disability and disability insurance benefits, alleging disability beginning June 17, 2014. The Commissioner denied the application on September 2, 2016. The claimant then requested a hearing before an Administrative Law Judge. On January 30, 2018, the ALJ held a video hearing.

         In a decision dated February 28, 2018, the ALJ found that the claimant was not disabled as defined by the Social Security Act and was thus ineligible for social security disability benefits. The Appeals Council rejected a subsequent request for review, so the ALJ’s decision became the Commissioner’s final decision. The claimant has exhausted his administrative remedies, and the court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1631(c)(3). For the reasons stated below, the court will affirm the Commissioner’s decision.

         II. ISSUES PRESENTED

         The claimant raises two issues on appeal:

1. Whether substantial evidence supports the ALJ’s decision that the claimant could perform work in the economy when the ALJ relied on vocational expert testimony without allowing the claimant to fully cross-examine that testimony and failed to address post-hearing rebuttal evidence and objections to that testimony; and
2. Whether substantial evidence supports the ALJ’s determination of the claimant’s residual functional capacity when the ALJ assigned only partial weight to a physician’s opinion and did not address the claimant’s work history and military service.

         III. STANDARD OF REVIEW

         The standard for reviewing the Commissioner’s decision is limited. The court must find the Commissioner’s decision conclusive 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). “Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would 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 a 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 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 were to disagree with the ALJ about the significance of certain facts, the court has no power to reverse that finding if substantial evidence in the record supports it.

         The court must “scrutinize the record in its entirety to determine the reasonableness of the [ALJ]’s factual findings.” Walker, 826 F.2d at 999. And the court must not only look to those parts of the record that support the ALJ’s decision, but also must 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).

         IV. LEGAL STANDARDS

         Disability Determination

         Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the person is unable 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 . . . .” To determine whether a claimant meets the § 423(d)(1)(A) criteria, the Commissioner employs a five-step, sequential evaluation process:

(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific impairments set forth in 20 C.F.R. pt. 404, subpart P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next question, or, on step three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of “not disabled.” 20 C.F.R. § 416.920(a)–(f).

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).

         The Right to Cross-Examination

         In determining whether a claimant is disabled, the ALJ must “develop a full and fair record; i.e., the record must disclose . . . a full and fair hearing.” Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985). The claimant’s right to a full and fair hearing includes his due process rights to an “opportunity to be heard ‘at a meaningful time and in a meaningful manner’” and to meaningfully cross-examine witnesses. Martz v. Comm’r, Soc. Sec. Admin., 649 Fed.Appx. 948, 962 (11th Cir. 2016) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).

         But the right to cross-examination at an ALJ hearing has a limit because “[t]he determination of whether cross-examination is warranted appears to be within the discretion of the ALJ.” Martz, 649 Fed.Appx. at 962 (citing Demenech v. Sec’y of Dep’t of HHS, 913 F.2d 882, 884 (11th Cir. 1990)) (according to Martz, “assuming, without deciding, that [] the ALJ has the discretion to determine whether cross-examination is warranted”). And if an ALJ restricts the claimant’s cross-examination of a witness, then the claimant must show that the restriction prejudiced him before the court finds “that the claimant’s right to due process has been violated to such a degree that the case must be remanded.” Graham, 129 F.3d at 1423.

         Post-Hearing Rebuttal Evidence After the ALJ hearing, a claimant may object to testimony given at the hearing and submit rebuttal evidence if the claimant’s limitations or “unusual, unexpected, or unavoidable” circumstances prevented the claimant from submitting the evidence before the hearing. 20 C.F.R. § 404.935(b). If the claimant properly submits post-hearing evidence and the evidence is relevant to his limitations, the ALJ must consider it. See 20 C.F.R. § 404.1545(a)(1). But the ALJ does not have to specifically address all post-hearing evidence in his decision. See Dyer, 395 F.3d at 1211 (“[T]here is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.”); Gassler v. Berryhill, 2019 WL 945972, at *3 (S.D. Ga. Feb. 6, 2019) (“Plaintiff argues that the ALJ was obligated to inquire into her [post-hearing] objections . . . [b]ut no such duty exists in [the Eleventh Circuit].”).

         Determining the Claimant’s RFC

         The claimant’s residual functional capacity is “the most [he] can still do despite [his] limitations.” 20 C.F.R. § 404.1545(a)(1). To determine the claimant’s RFC, the ALJ must consider “all the relevant evidence in [the] case record.” Id. Though the ALJ must consider all the relevant evidence, the ALJ does not have to “specifically refer to every piece of evidence in his decision, so long as the ALJ’s decision . . . is not a broad rejection which is ‘not enough to enable [the reviewing court] to conclude that [the ALJ] considered [the claimant’s] medical condition as a whole.’” Dyer, 395 F.3d at 1211 (emphasis added) (quoting Foote v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995)).

         When determining the claimant’s RFC based on medical opinions, “the ALJ [is] required to state with particularity the weight he gave the different medical opinions and the reasons therefor.” Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987) (citing MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986)). The ALJ cannot focus only on medical evidence that supports his decision and disregard other contrary evidence. McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986). But “the ALJ may reject any medical opinion if the evidence supports a contrary finding.” Sharfarz, 825 F.2d at 280 (citing Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985)).

         V. FACTS

         At the time of the ALJ’s decision, the claimant was fifty-two years old. (R. 18). He has two master’s degrees and past relevant work experience as an equipment repairer/radar specialist and a senior analyst/trainer specialist. The claimant alleges disability based on anxiety disorder, affective disorder, depression, post-traumatic stress disorder, oppositional defiant disorder, sleep apnea, osteoarthritis in the neck, knees and lumbar region, and bone spurs in his elbows and feet. The court will begin its discussion of the facts with the claimant’s physical impairments and then address the claimant’s mental impairments.

         Physical Impairments

         On July 27, 2009, the claimant sought treatment from Dr. Jack W. Moore for an injury to his right shoulder suffered from a four-wheeler accident. (R. 378, 381-82). Dr. Moore diagnosed the claimant with a fractured clavicle and performed surgery to repair the fracture.

         On August 14, 2013, the claimant sought treatment from Dr. Robert Hash II at SportsMED Orthopedic Surgery & Spine Center for neck, back, and bilateral arm pain. Dr. Hash examined the claimant and ordered lumbar and cervical MRI’s that revealed diffuse cervical spondylosis without spinal cord compression, severe compression of the C7, C6, and C5 nerve roots, and a central disc herniation at ¶ 4-5. (R. 375-80).

         On August 17, 2015, the claimant’s primary care physician, Dr. Geetha Scariya, informed the claimant that he had high cholesterol and high blood pressure, and advised him of the associated health risks. (R. 480). Dr. Scariya prescribed Lisonopril and Lipitor for the claimant. The claimant returned to see Dr. Scariya the following month, and Dr. Scariya ...


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