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Lustgarten v. Berryhill

United States District Court, M.D. Georgia, Albany Division

September 5, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Before the Court is the Report & Recommendation (R&R), dated July 31, 2017, Doc. 17, regarding Plaintiff Kimberly Lustgarten's appeal of the Commissioner's denial of Plaintiff's application for Social Security Benefits, Doc. 10-4 at 27. The Magistrate Judge recommended that the Commissioner's decision be affirmed because the decision by the Administrative Law Judge (“ALJ”) was supported by substantial evidence. Doc. 17 at 10. The ALJ found that Plaintiff had the residual functional capacity to perform the requirements of her past relevant work and was thus not disabled. Doc. 10 at 196-97. Plaintiff timely filed an Objection to the R&R. Doc. 18. The Commissioner timely filed a Response to Plaintiff's Objection. Doc. 19. Pursuant to 28 U.S.C. § 636(B)(1), the Court has performed a de novo review of those portions of the R&R to which Plaintiff objects. Upon full review and consideration of the record as well as the Objection, Plaintiff's Objection is OVERRULED.

         Upon review of the Commissioner's decision, this Court cannot re-weigh evidence or determine the credibility of witnesses in a social security appeal. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Thus, a reviewing court “will not disturb the Commissioner's decision if, in light of the record as a whole, it appears to be supported by substantial evidence, ” which is “more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997). Courts review de novo the legal principles upon which the Commissioner bases her decision. Fleming v. Comm'r, Soc. Sec. Admin., 550 F. App'x 738, 739 (11th Cir. 2013).

         I. Failure to Evaluate Impairments

         In the Objection, Plaintiff first argues that the Magistrate Judge erred when he affirmed the ALJ's determination that “[Plaintiff] has not proven the cyst and brain microvasculopathy cause specific functional limitations.” Doc. 18 at 2-3. Plaintiff contends that CT scans have shown that she suffers from a sinus cyst and brain microvasculopathy, which corroborate her headache assertions. Id. at 3. Plaintiff argues that:

• Because “the ALJ said nothing at all about the objective CT findings, ” the Magistrate erred in engaging in post-hoc rationalization of the ALJ's reasoning when the Magistrate Judge affirmed the ALJ's decision;
• The ALJ failed to enter “‘specific and well-articulated' findings about the effects of all impairments, singly and in combination, severe and non-severe”; and
• Plaintiffs “sinus cyst and brain microvasculopathy can reasonably be expected to cause the headaches [Plaintiff] (and her husband) describe; the ALJ did not even find to the contrary; and the Magistrate Judge errs in omitting the second part of the credibility test, which cannot be performed absent evaluation of all medically determinable impairments.”

         These arguments are without merit. First, because “there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision, ” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005), the ALJ did not err in failing to discuss the CT scans because, while he did not discuss the specific cause of Plaintiffs headaches, the ALJ did discuss the headaches in his decision. “[T]he mere existence of [ ] impairments does not reveal the extent to which they limit [a plaintiffs] ability to work or undermine the ALJ's determination in that regard, ” and the “severity of a medically ascertained disability must be measured in terms of its effect upon ability to work.” Moore, 405 F.3d at 1213 n.6 (citation and punctuation omitted).

         Second, the ALJ properly considered all Plaintiff's impairments. At Step Two, the ALJ determined that Plaintiff had severe and non-severe impairments but did not mention headaches. Doc. 10-4 at 190, 192-96. To the extent this was in error, such error was harmless. In Flemming v. Comm'r of the Soc. Sec. Admin., the Court found that “[e]ven if the ALJ erred in not indicating whether [plaintiff's] psychotic disorder was a severe impairment, the error was harmless because the ALJ concluded that [plaintiff] had two other severe impairments, thereby satisfying step two.” 635 F. App'x 673, 676 (11th Cir. 2015). The ALJ, here, while not indicating whether Plaintiff's headaches were a severe impairment, did determine that Plaintiff had other severe impairments: “obesity, degenerative disc disease of the lumbar and cervical spine, degenerative joint disease of the knees, and hypertension.” See Doc. 17 at 2. At Step Three, the ALJ determined that Plaintiff “[did] not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpa11P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” Doc. 10-4 at 190 (emphasis added). This “determination constitutes evidence that [the ALJ] considered the combined effects of [Plaintiff's] impairments.” Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002). The ALJ also noted Plaintiff's treatment for headaches prior to Step Four when determining Plaintiff's Residual Functional Capacity (RFC). Thus, it can be inferred that the ALJ properly considered all of Plaintiff's impairments at Step Three including Plaintiff's headaches. Cf. Flemming, 635 F. App'x at 676 (“There may be an implied finding that a claimant does not meet a listing. Therefore, in the absence of an explicit determination, we may infer from the record that the ALJ implicitly considered and found that a claimant's disability did not meet a listing.”) (citation and punctuation omitted).

         Third, the ALJ properly applied the credibility test when considering the testimony of Plaintiff and Dr. Dekle when evaluating Plaintiff's impairments. In order to establish disability through her own testimony concerning pain, Plaintiff must show: “(1) evidence of an underlying medical condition; and (2) either [ ] objective medical evidence confirming the severity of the alleged pain; or [ ] that the objectively determined medical condition can reasonably be expected to give rise to the claimed symptoms.” Gray v. Comm'r of Soc. Sec., 550 F. App'x 850, 853 (11th Cir. 2013). “In weighing the evidence, credibility determinations are the province of the ALJ.” Id. (punctuation omitted). “If the ALJ discredits the claimant's subjective testimony, the ALJ must articulate explicit and adequate reasons for doing so; failure to do so requires, as a matter of law, that the testimony be accepted as true.” Id. (same).

         At Step Four, the ALJ listed Plaintiff's impairments, including multiple references to headaches, finding that “[Plaintiff's] medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” but that “[Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible.” Docs. 10-4 at 25; 10 at 195. The ALJ gave detailed findings regarding Plaintiff's daily activities and concluded that Plaintiff's testimony regarding pain from her headaches was inconsistent with her daily activities and her ability to perform sedentary work with specified restrictions. Doc. 10-4 at 26. Thus, the Magistrate Judge did not engage in post-hoc reasoning, and the ALJ did not fail to enter specific findings about the effects of Plaintiff's impairments.

         II. Credibility Findings

         Plaintiff then argues that the Magistrate Judge and ALJ erred in finding that Plaintiff was not credible when they disregarded Plaintiff's testimony and the opinion of Dr. Dekle that Plaintiff's testimony was credible, disregarded other corroborating evidence, and reached findings about Plaintiff's daily activities that were contrary to the record. Id. at 4. This objection is a restatement of Plaintiff's earlier objection to the ALJ's credibility determinations. As noted above, the ALJ articulated explicit and adequate reasons for his credibility determinations. In determining Plaintiff's RFC, the ALJ gave detailed findings regarding Plaintiff's daily activities and concluded that Plaintiff's testimony regarding pain was inconsistent with her daily activities. Doc. 10-4 at 26. The ALJ also cited to evidence in the record that Plaintiff had a normal range of motion and normal motor strength-contrary to ...

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