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Chappell v. Berryhill

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

January 15, 2019

KERRY LYNN CHAPPELL, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          CHRISTOPHER L. EAY, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Kerry Lynn Chappell seeks judicial review of the Social Security Administration's denial of her application for Disability Insurance Benefits (DIB).

         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

         Chappell, who was 46 years old when her DIB claim was denied, alleges disability beginning on January 27, 2012. Tr. 16. She has a tenth grade education, a GED, and past job experience as a parking lot attendant and waitress. Tr. 37, 39 & 150. After a hearing, the ALJ issued an unfavorable decision. Tr. 16-25. He found that Chappell's bipolar disorder and “depression/anxiety” constituted severe impairments but did not meet or medically equal a Listing. Tr. 18-21. The ALJ thus found that Chappell retained the RFC for light work except she could only perform work with an SVP[2] of 1-2 that is routine in nature with few changes, and while Chappell can tolerate occasional interactions with the public, co-workers, and supervisors, she is “better off” working alone. Tr. 21. Plaintiff, he determined, could not perform her past relevant work but could perform the requirements of representative work such as cafeteria attendant and stock checker, both light work with an SVP of 2. Tr. 25. Chappell disagrees, arguing that the ALJ erred in his evaluation of the medical testimony and plaintiff's credibility. Docs. 10 & 12.

         An ALJ is entitled to formulate an RFC and resolve any ambiguity or inconsistency in the medical evidence, 20 C.F.R. §§ 416.927(d)(2), 946(c), based on the entire record, 20 C.F.R. §§ 404.1520a (evaluation of mental impairments), 416.945(a)(3) (the RFC is based on all the relevant evidence, including diagnoses, treatment, observations, and opinions of medical sources, as well as witness testimony). The RFC represents the most a claimant can do despite her limitations, SSR[3] 96-8p, and it is the ALJ's responsibility (and not any doctor's) to assess the RFC based on the record as a whole. Robinson v. Astrue, 365 Fed.Appx. 993, 999 (11th Cir. 2010) (“the task of determining a claimant's [RFC] and ability to work is within the province of the ALJ, not of doctor's.”); see 20 C.F.R. § 416.945(a)(3) (“We will assess your residual functional capacity based on all of the relevant medical and other evidence.”); 20 C.F.R. § 404.1546(c) (the ALJ has the responsibility for determining a claimant's RFC). And the ALJ can distill a claimant's RFC from an amalgamation of the record as a whole, without requiring a specific medical opinion to articulate a specific functional limitation. See Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) (“[T]here is no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion on the functional capacity in question” because “the ALJ, not a physician, is charged with determining a claimant's RFC from the medical record”).

         A. Chappell's Subjective Testimony

         The ALJ found Chappell less than fully credible because her treatment regimen (group therapy) did not comport with her alleged symptoms, she was irregular with her medication regimen, her presentation at the hearing was at odds with her alleged symptoms, her statements were internally inconsistent, and, having testified to experiencing many of her symptoms since childhood, nothing supported a worsening of her mental functioning “that would warrant a new inability to be employed.” Tr. 22. Of course, plaintiff's inability to afford her medication, resulting in her “stretching out” her medication to last between appointments or forgoing prescriptions (e.g., tr. 333, 536), cannot be considered discrediting. See SSR 16-03p; Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988). And a reluctance to participate in group therapy is not noncompliance, particularly given plaintiff's considerable record of attendance at therapy sessions. See tr. 448-51. Her ability to function on relatively little (self-reported) sleep each night since childhood (see tr. 467) and to work at less-than substantial gainful activity levels for several years ...


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