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Folmar v. Berryhill

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

January 25, 2019

THOMAS FOLMAR, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Thomas Folmar seeks judicial review of the Social Security Administration's denial of his 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

         Folmar, who was 36 years old when his DIB and SSI claims were denied, alleges disability beginning on November 29, 2012. Tr. 17 & 293. He has a high school education and past relevant work experience as a trucker. Tr. 26 & 44. After a hearing, the ALJ issued an unfavorable decision. Tr. 17-28. He found that Folmar's status post-traumatic brain injury and mild neurocognitive disorder constituted severe impairments but did not meet or medically equal a Listing. Tr. 19-21. The ALJ thus found that Folmar retained the RFC for light work except he could only perform work with an SVP[2] of 2 “involving few changes, no working at heights or around hazardous machinery, only occasional driving, and no climbing ladders, ropes, or scaffolds.” Tr. 22. Plaintiff, he determined, could not perform his past relevant work but could perform the requirements of representative work such as office cleaner and hand packer, both light work with an SVP of 2. Tr. 27. Folmar disagrees, arguing that the ALJ erred in his evaluation of the medical testimony, plaintiff's credibility, and the Listings. Docs. 10 & 15.

         A. Folmar's Subjective Testimony

         The ALJ found Folmar less than fully credible because his statements regarding the extent and duration of the limiting effects of his symptoms were “not entirely consistent with the medical evidence and other evidence in the record.” Tr. 22. Plaintiff contends, in a single-sentence argument, that this reason was not specific enough to uphold the ALJ's credibility finding. Doc. 10 at 9; see also doc. 15 (plaintiff's reply brief, which does not argue the matter at all). Of course, a plaintiff “waive[s] all challenges to the ALJ's decision except the one[s] briefed.” Jones ex rel. Martensen v. Colvin, 2015 WL 4770059 at * 3 n. 3 (S.D. Ga. Aug. 12, 2015) (citing Sanchez v. Comm'r of Soc. Sec., 507 F. App's 855, 856 n. 1 (11th Cir. 2013)). And this Court will not, on its own, hunt down any such reasons. See, e.g. United States v. Dunkel, 927 F.3d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”). Plaintiff has not even hinted at any error in the ALJ's credibility assessment.

         Indeed, the ALJ evaluated the record at length. Tr. 22-26. The ALJ noted, among other things, that the medical evidence reflected Folmar's dramatic improvement following his accident, in balance, right-sided weakness, strength, mood, and neurocognitive ability. Folmar no longer requires physical therapy, has only slightly decreased strength in his lower extremity and full strength in his other extremities, has been cleared to drive his personal vehicle, no longer requires a cane to ambulate (though he uses it “at times” while fatigued), engages in a wide variety of activities of daily living and is essentially independent in self-care (though his wife helps him shave). Tr. 23. Folmar, indeed, has expressed interest in returning to school, and is prevented solely by funding - rather than functional capacity - issues. Tr. 24. He receives only minimal treatment, with his pain managed by anti-inflammatory medication and ...


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