United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
contests the decision of Administrative Law Judge Geoffrey S.
Casher (“the ALJ” or “ALJ Casher”)
denying her claim for Supplemental Security Income. (Doc. 1.)
Plaintiff urges the Court to reverse the ALJ's decision
and award her benefits, or in the alternative, remand this
case for a proper determination of the evidence.
(Id.) Defendant asserts the Commissioner's
decision should be affirmed. (Doc. 10.) For the reasons which
follow, I RECOMMEND that the Court
AFFIRM the decision of the Commissioner. I
also RECOMMEND that the Court
DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal.
October 5, 2012, Plaintiff filed an application for
Supplemental Security Income, alleging disability beginning
June 1, 2002,  due to a number of health problems
including diabetes mellitus (Type II), depression, pain in
her shoulder and back, and other complications. (Doc. 14, p.
1.) After her claim was denied initially and upon
reconsideration, Plaintiff filed a timely request for a
hearing. Plaintiff's first two hearings were held before
ALJ G. William Davenport (“ALJ Davenport”) on
February 14, 2014, and February 27, 2015, respectively.
(Id. at pp. 1-2.) ALJ Davenport issued an
unfavorable decision, but the Appeals Council remanded the
case to further evaluate Plaintiff's mental impairments,
give further consideration to her maximum residual functional
capacity (“RFC”), evaluate the treating and
non-treating source opinions, solicit more information from
those sources as necessary, and obtain supplemental evidence
from a vocational expert. (Doc. 11-3, pp. 58-59.)
January 28, 2016, ALJ Casher held a hearing in Waycross,
Georgia, at which Plaintiff, represented by counsel, appeared
and testified. (Doc. 11-2, p. 21.) Kenneth L. Bennett, an
impartial vocational expert, also appeared at the hearing.
(Id.) ALJ Casher found that Plaintiff was not
disabled within the meaning of the Social Security Act, 42
U.S.C. § 301 et seq., (the “Act”).
(Id.) The Appeals Council denied Plaintiff's
request for review of the ALJ's decision, and the
decision of the ALJ became the final decision of the
Commissioner for judicial review. (Id. at p. 2.)
born on November 24, 1959, was fifty-two (52) years old when
she filed for social security application and was fifty-seven
(57) when ALJ Casher issued his final decision. (Id.
at pp. 31, 32.) She has a limited education and has past
relevant work experience as an assistant retail manager.
(Id. at pp. 30, 31.)
The ALJ's Findings
II of the Act defines “disability” 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). The Act qualifies the definition of disability
An individual shall be determined to be under a disability
only if [her] physical or mental impairment or impairments
are of such severity that [s]he is not only unable to do
[her] previous work but cannot, considering [her] age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national
42 U.S.C. § 423(d)(2)(A). Pursuant to the Act, the
Commissioner has established a five-step process to determine
whether a person is disabled. 20 C.F.R. §§
404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137,
first step determines if the claimant is engaged in
“substantial gainful activity.” Yuckert,
482 U.S. at 140. If the claimant is engaged in substantial
gainful activity, then benefits are immediately denied.
Id. If the claimant is not engaged in such activity,
then the second inquiry is whether the claimant has a
medically severe impairment or combination of impairments as
defined by the “severity regulation.” 20 C.F.R.
§§ 404.1520(c), 416.920(c); Yuckert, 482
U.S. at 140-41. If the claimant's impairment or
combination of impairments is considered severe, then the
evaluation proceeds to Step Three. The third step requires a
determination of whether the claimant's impairment meets
or equals one of the impairments listed in the Code of
Federal Regulations (“the Regulations”) and
acknowledged by the Commissioner as sufficiently severe to
preclude substantial gainful activity. 20 C.F.R. §§
404.1520(d), 416.920(d); 20 C.F.R. Pt. 404, Subpt. P. App. 1;
Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir.
2004). If the impairment meets or equals one of the listed
impairments, the plaintiff is presumed disabled.
Yuckert, 482 U.S. at 141.
impairment does not meet or equal one of the listed
impairments, the sequential evaluation proceeds to the fourth
step. At Step Four, a determination is made as to whether the
impairment precludes the claimant from performing past
relevant work, i.e., whether the claimant has the RFC to
perform past relevant work. Id.; Stone v.
Comm'r of Soc. Sec., 503 Fed.Appx. 692, 693 (11th
Cir. 2013). A claimant's RFC “is an assessment . .
. of the claimant's remaining ability to do work despite
[her] impairments.” Id. at 693-94 (ellipsis in
original) (quoting Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997)). If the claimant is unable to perform
her past relevant work, the final step of the evaluation
process determines whether she is able adjust to other work
in the national economy, considering her age, education, and
work experience. Phillips, 357 F.3d at 1239.
Disability benefits will be awarded only if the claimant is
unable to perform other work. Yuckert, 482 U.S. at
instant case, the ALJ followed this sequential process to
determine that Plaintiff has not engaged in substantial
gainful activity since October 5, 2012, the application date.
(Doc. 11-2, p. 23.) At Step Two, the ALJ determined that
Plaintiff's degenerative disc disease of the lumbar
spine, degenerative joint disease of the right
acromioclavicular joint, diabetes mellitus, obesity, and
borderline intellectual functioning were considered
“severe” under the “severity
regulation.” (Id. at pp. 23-24 (citing 20
C.F.R. § 416.920(c)).) At the next step, the ALJ
determined that none of Plaintiff's medically
determinable impairments met or medically equaled a listed
impairment under the Regulations. (Id. at pp.
Casher found that Plaintiff had the RFC to perform less than
the full range of medium work, as defined in 20 C.F.R. §
416.967(c). (Id. at pp. 26-30.) Plaintiff was
capable of simple, routine tasks involving no more than
simple, short instructions and should be confined to work
with simple decisions and few changes. (Id. at p.
26.) The ALJ also limited Plaintiff to frequent right
overhead reaching and only occasional exposure to hazardous
working conditions, such as unprotected heights, dangerous
machinery, and climbing ladders, ropes, or scaffolds.
(Id.) The ALJ found Plaintiff capable of standing or
walking for six hours of an eight-hour workday, could perform
up to six hours of seated work, and could frequently push,
pull, balance, stoop, kneel, crouch, and climb ramps or
stairs. (Id.) At Step Four, ALJ Casher found
Plaintiff unable to perform her past relevant work as an
assistant retail manager. (Id. at pp. 30-31.)
However, the ALJ concluded at the fifth and final step that
Plaintiff could perform jobs at the unskilled, medium level,
specifically as linen room attendant, food service worker,
and hospital cleaner, all of which are jobs that exist in
significant numbers in the national economy. (Id. at
contends that the ALJ erred: (1) in considering the diabetes
medication Metformin as treatment for her depression and in
excluding her neuropathy as a “severe” impairment
at Step Two; (2) by improperly weighing the opinion evidence
in reaching his RFC determination; (3) by relying upon
incomplete hypotheticals with the vocational expert and
improperly determining Plaintiff's employability; and (4)
by failing to properly explain his disability decision in
light of statements made at the hearing and Plaintiff's
amended alleged onset date. (Doc. 14, pp. 13-21.) Thus,
Plaintiff asserts ALJ Casher's decision rests on less
than substantial evidence. (Id.)
Standard of Review
well-established that judicial review of social security
cases is limited to questions of whether the
Commissioner's factual findings are supported by
“substantial evidence, ” and whether the
Commissioner has applied appropriate legal standards.
Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th
Cir. 1991); Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). A reviewing court does not “decide
facts anew, reweigh the evidence or substitute” its
judgment for that of the Commissioner. Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Even if
the evidence preponderates against the Commissioner's
factual findings, the court must affirm a decision supported
by substantial evidence. Id.
substantial evidence must do more than create a suspicion of
the existence of the fact to be proved. The evidence relied
upon must be relevant evidence which a reasonable mind would
find adequate to support a conclusion. Ingram v.
Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260
(11th Cir. 2007). The substantial evidence standard requires
more than a scintilla but less than a preponderance of
evidence. Dyer, 395 F.3d at 1210. In its review, the
court must also determine whether the ALJ or Commissioner
applied appropriate legal standards. Failure to delineate and
apply the appropriate standards mandates that the findings be
vacated and remanded for clarification. Cornelius,
936 F.2d at 1146.
Step Two Determination of Severe Impairments
argues that ALJ Casher improperly concluded that
Plaintiff's depression, anxiety, chronic pain, and
neuropathy were not severe impairments at Step
(Doc. 14, p. 13.) Plaintiff contends that the ALJ improperly
considered the diabetes medication Metformin as helpful in
Plaintiff's treatment of her mental health problems.
(Id. at pp. 13-14.) Plaintiff further argues that
the ALJ failed to adequately explain why he found neuropathy
argues that substantial evidence supports the ALJ's
exclusion of Plaintiff's depression and neuropathy from
her several noted severe impairments. (Doc. 16, pp. 5-6.)
Furthermore, Defendant argues that any error in the ALJ's
finding at Step Two is harmless, because ultimately, the ALJ
found in Plaintiff's favor at Step Two by determining her
degenerative disc disease of the lumbar spine, degenerative
joint disease of the right acromioclavicular joint, diabetes
mellitus, obesity, and borderline intellectual functioning to
be severe impairments. (Id. at p. 6.)
Two, the ALJ must make a “threshold inquiry” as
to the medical severity of the claimant's impairments.
McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir.
1986); see 20 C.F.R. §§ 404.1520(a)(4)(ii)
& (c), 404.1523, 416.920(a)(4)(ii) & (c),
416.920a(a), 416.923. A condition is severe if it
“significantly limits claimant's physical or mental
ability to do basic work activities.” Crayton v.
Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997); 20
C.F.R. §§ 404.1521(a)-(b), 416.921(a)-(b). Examples
of “basic work activities” include:
understanding, carrying out, and remembering simple
instructions; use of judgment; responding appropriately to
supervision, co-workers, and usual work situations; and
dealing with changes in a routine work setting. 20 C.F.R.
§§ 404.1521(b), 416.921(b). Importantly, the severity of
an impairment “must be measured in terms of its effect
upon ability to work, and not simply in terms of deviation
from purely medical standards of bodily perfection or
normality.” McCruter v. Bowen, 791 F.2d 1544,
1547 (11th Cir. 1986); see also Moore v. Barnhart,
405 F.3d 1208, 1213 n.6 (11th Cir. 2005).
evidence supports the ALJ's determination that
Plaintiff's depression and neuropathy were not severe
impairments. ALJ Casher specifically stated that, while
Plaintiff had been diagnosed with depression, anxiety,
chronic pain, and neuropathy, there was medical evidence from
Plaintiff's long-term treating physician that her
“mental conditions do not cause more than minimal
effect on her ability to perform basic work activity.”
(Doc. 11-2, pp. 23-24.) In support of this finding, ALJ
Casher provided abundant and specific citations to the
record, which discussed Dr. Michael Deen's treatment and
recent medical evidence. (Id.)
depression, in a March 2013 medical report, Dr. Deen clearly
noted that Plaintiff's depression was being treated with
Effexor and did not pose any secondary limitations to her
ability to function. (Doc. 11-16, p. 32.) Moreover, recent
medical records from September 2015 show Plaintiff reported
that she was not feeling down, depressed, or hopeless. (Doc.
11-32, p. 46.) Records from October 2015 indicate that
Plaintiff was of sound judgment and normal mood with
“no depression.” (Id. at p. 53.) As to
Plaintiff's neuropathy, ALJ Casher considered her medical
history of this condition, (doc. 11-2, p. 23), and determined
that it did not cause more than a minimal limitation on her
ability to perform basic work, (id.), albeit with
little specific analysis. While Plaintiff cites medical
records showing her history of neuropathy, the ALJ expressly
considered this history, and the Court may not “decide
facts anew, reweigh the evidence, or substitute our judgment
for that of the [Commissioner.]” Dyer, 395
F.3d at 1210 (alteration in original). “Rather, we must
defer to the Commissioner's decision if it is supported
by substantial evidence.” Phillips, 357 F.3d
at 1240 n.8. Here, a close review of the record indicates
that, while Plaintiff had struggles with neuropathy, as well
as depression, substantial evidence nonetheless supports the
ALJ's “severity” finding. (See Doc.
11-16, p. 32; Doc. 11-32, pp. 46, 51, 53, 56.)
Plaintiff did not carry her burden to prove that these
impairments significantly limited her ability to do basic
work activities. See Crayton, 120 F.3d at 1219. In
fact, substantial evidence supports the ALJ's
determination that they did not. The ALJ noted that Plaintiff
had been treated for her depression, had very recently
reported not feeling depressed, and reviewed records showing
Plaintiff with a normal gait and station and no tingling or
numbness in her legs and feet. (Doc. 11-2, pp. 23-24.) The
ALJ considered Dr. Deen's prognosis regarding
Plaintiff's mental condition and his status as her