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Ellington v. Berryhill

United States District Court, S.D. Georgia, Statesboro Division

March 1, 2018

SUSAN KAY ELLINGTON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

         Plaintiff Susan Kay Ellington seeks judicial review of the Social Security Administration's denial of her application for Disability Insurance (DIB) and Supplemental Security Income (SSI) benefits.

         I. GOVERNING STANDARDS

         In social security cases, courts . . . review the Commissioner's decision for substantial evidence. Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). “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. (quotation omitted). . . . “We may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the Commissioner.” Winschel, 631 F.3d at 1178 (quotation and brackets omitted). “If the Commissioner's decision is supported by substantial evidence, this Court must affirm, even if the proof preponderates against it.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quotation omitted). Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014).

The burden of proving disability lies with the claimant. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). The ALJ applies . . . a five-step, “sequential” process for determining whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(1). If an ALJ finds a claimant disabled or not disabled at any given step, the ALJ does not go on to the next step. Id. § 404.1520(a)(4). At the first step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. Id. § 404.1520(a)(4)(i). At the second step, the ALJ must determine whether the impairment or combination of impairments for which the claimant allegedly suffers is “severe.” Id. § 404.1520(a)(4)(ii). At the third step, the ALJ must decide whether the claimant's severe impairments meet or medically equal a listed impairment. Id. § 404.1520(a)(4)(iii). If not, the ALJ must then determine at step four whether the claimant has the RFC[1] to perform her past relevant work. Id. § 404.1520(a)(4)(iv). If the claimant cannot perform her past relevant work, the ALJ must determine at step five whether the claimant can make an adjustment to other work, considering the claimant's RFC, age, education, and work experience. An ALJ may make this determination either by applying the Medical Vocational Guidelines or by obtaining the testimony of a [Vocational Expert (VE)].

Stone v. Comm'r. of Soc. Sec. Admin., 596 F. App'x, 878, 879 (11th Cir. 2015) (footnote added).

         II. ANALYSIS

         Ellington, who was 58 years old when her disability application was denied, alleges disability beginning December 13, 2009. Tr. 8-25, 315-24. She has a high school education and past work experience as a comp/controller for a car dealership. Tr. 41, 77. After a hearing, the ALJ issued an unfavorable decision. Tr. 8-25. He found that Ellington's bilateral hand degenerative joint disease and cervical and lumbar spine degenerative disc disease, status post-fusion surgery, constituted severe impairments but did not meet or medically equal a Listing. Tr. 13-16. Based on the evidence of record, the ALJ found that she retained the RFC for a subset of light work except that:

. . . Occasionally, [she] could push/pull up to 10 pounds. She could stand/walk for up to five hours out of every eight-hour workday [and] she could sit for up to six hours out of every eight-hour workday with normal breaks. Frequently, [she] could stair and ramp climb, but she could not climb ropes, ladders, or scaffolds. [She] could balance frequently. She could stoop, kneel, crouch, or crawl occasionally. Frequently, she could handle, finger, or feel. [She] has no limitations regarding concentration, persistence, and pace, as well as no social deficits.

Tr. 16.

         Plaintiff, he determined, was capable of performing her past work as a comp/controller, sedentary work with an SVP[2] of 4, as actually and generally performed, and did not identify any alternative work plaintiff could perform. Tr. 18; see DICOT 160.167-058. Ellington disagrees, arguing that the ALJ failed to properly weigh the medical opinion evidence and erred in his RFC and credibility assessments. Docs. 10 & 13.

         A. Medical Opinion Evidence

         Based on the creditable evidence of record, the ALJ concluded that Ellington retained the RFC to perform light work with postural and environmental limitations. Tr. 16. Plaintiff contends that the ALJ improperly discredited consultative examiners Drs. Andre Haynes, John Whitley, and Julian Fuerst, which he found inconsistent with the record as a whole, and improperly weighed non-examining agency reviewing physicians. Doc. 10 at 8-16; doc. 14 at 1-10.

         1. Dr. Haynes' Opinions

         Oddly, Dr. Haynes' May 2015 opinion that due to “back pain” plaintiff could occasionally lift up to 50 pounds and would be unlimited in her ability to push/pull, finger, handle, and feel is completed on a checklist form with a different claimant's name and case number. Tr. 815. This, despite his contemporaneous letter assessment and observation notes which opined that Ellington had swelling in both hands and was incapable of closing them fully, picking up coins without ...


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