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McCommon v. Berryhill

United States District Court, N.D. Georgia, Atlanta Division

January 2, 2018

DONNA McCOMMON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         On February 15, 2013, Plaintiff Donna McCommon (“Plaintiff”) filed a Title II application for a period of disability and disability insurance benefits (“DIB”), alleging that she became disabled on January 14, 2013. (Tr. 27, 76, 157-160, 234). The Social Security Administration (“SSA”) denied Plaintiff's application initially and on reconsideration. (Tr. 76-102). On February 5, 2015, Plaintiff appeared and testified at a hearing before an Administrative Law Judge (“ALJ”). (Tr. 43-74). The ALJ issued an unfavorable decision on July 6, 2015, denying Plaintiff's claims. (Tr. 24-37). In the decision, the ALJ gave only limited weight to the opinions of two of Plaintiff's treating physicians. Plaintiff requested review of the decision by the Appeals Council (“AC”). The AC denied review on July 11, 2016, making the ALJ's decision the final decision of the Commissioner. (Tr. 3-10). This case is now ripe for judicial review, under 42 U.S.C. § 405(g).

         Plaintiff raises three issues on appeal: (1) whether remand is warranted because the ALJ failed to provide good reasons for discounting medical opinions and ignored other opinions; (2) whether the ALJ's physical RFC assessment is supported by substantial evidence and, if not, whether the ALJ erred by failing to order a physical consultative examination; and (3) whether the Appeals Council erred by failing to consider additional evidence submitted to the Appeals Council, namely Dr. Hoeper's consultative psychological assessment dated December 30, 2015, and by denying review. (Doc. 23, Pl.'s Br.).

         For the reasons discussed below, I RECOMMEND that the Commissioner's decision be REVERSED AND REMANDED for further proceedings not inconsistent with this Report and Recommendation.


         Under the regulations promulgated by the Commissioner, a reviewer must follow a five-step sequential analysis when evaluating a disability claim. 20 C.F.R. § 404.1520(a). This analysis is as follows:

1. The ALJ first determines whether the claimant is currently working; if so, the claim is denied.
2. The ALJ determines solely on the basis of the medical evidence whether the claimed impairment is severe; if it is not, the claim is denied.
3. The ALJ decides, again, only using medical evidence, whether the impairment equals or exceeds in severity certain impairments described in the Commissioner's Listing of Impairments; if it does, the claimant is automatically entitled to disability benefits.
4. The ALJ considers whether the claimant has sufficient residual functional capacity (“RFC”) to perform his past work; if so, the claim is denied.
5. The ALJ decides, on the basis of the claimant's age, education, work experience, and RFC, whether the claimant can perform any other gainful and substantial work within the economy. If the claimant is able to do other work, the ALJ finds that the claimant is not disabled. If the claimant cannot make an adjustment to other work and meets the duration requirement, the ALJ will find that the claimant is disabled.

20 C.F.R. § 404.1520(a)(4).


         This court's role in reviewing the factual determinations of the Commissioner is limited. Gibson v. Heckler, 779 F.2d 619, 622 (11th Cir. 1986). In reviewing the Commissioner's decision, the court may not decide the facts anew, re-weigh the evidence, or substitute its judgment for that of the Commissioner. Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The court's only role is to determine whether the Commissioner applied the proper legal standards and whether substantial evidence exists in the record to support the Commissioner's findings. Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982). “Substantial evidence” means such “relevant evidence as a reasonable person might accept as adequate to support a conclusion.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986). Substantial evidence is more than a scintilla, but less than a preponderance. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). However, substantial evidence is not present if the ALJ “does not have before him sufficient facts on which to make an informed decision.” Ford v. Sec'y of Health and Human Servs., 659 F.2d 66, 69 (5th Cir. 1981). Failure to apply the correct legal standards or to provide the reviewing court with a sufficient basis on which to determine that the correct legal principles have been followed -- or that substantial evidence exists -- mandates a reversal. Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).


         Plaintiff was 60 years old at the time of the ALJ's decision. (Tr. 41, 157). Plaintiff stated in claim forms that she has a high school education. (Tr. 197).

         However, she testified at the hearing that she attended four years of college and earned a degree in communications. (Tr. 49). Plaintiff worked for Fulton County, Georgia, for thirteen years as a medical records clerk and then for three years in Human Resources as a personnel recruiter. (Tr. 50-51, 197). Plaintiff is a veteran and receives 20% disability compensation from the Veterans Administration (“VA”) and disability retirement benefits from Fulton County on a monthly basis. (Tr. 29, 47-50, 180-181). Plaintiff alleges disability due to depression, post traumatic stress disorder (“PTSD”), anxiety, tinnitis, chronic pain, and high cholesterol. (Tr. 32, 194, 196). Plaintiff claims that she stopped working on January 14, 2013 “[b]ecause of [her] condition(s).” (Tr. 196-197).

         IV. ME ...

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