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Stottlemire v. Berryhill

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

March 12, 2018

CINDY LOU STOTTLEMIRE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         BACKGROUND

         On October 5, 2012, Plaintiff filed an application for Supplemental Security Income, alleging disability beginning June 1, 2002, [1] 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.)

         On 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.)

         Plaintiff, 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.)

         DISCUSSION

         I. The ALJ's Findings

         Title 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 as follows:

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 economy[.]

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, 140 (1987).

         The 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.

         If the 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 142.

         In the 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. 24-26.)

         ALJ 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 pp. 31-32.)

         II. Issues Presented

         Plaintiff 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.)

         III. Standard of Review

         It is 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.

         However, 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.

         IV. Step Two Determination of Severe Impairments

         Plaintiff argues that ALJ Casher improperly concluded that Plaintiff's depression, anxiety, chronic pain, and neuropathy were not severe impairments at Step Two.[2] (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 non-severe. (Id.)

         Defendant 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.)

         At Step 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).[3] 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).

         Substantial evidence supports the ALJ's determination that Plaintiff's depression and neuropathy were not severe impairments.[4] 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.)

         As to 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.)

         Critically, 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 ...


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