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Gibbons v. Berryhill

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

January 29, 2019

LATOYIA TRAIMAINE GIBBONS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE.

         Plaintiff LaToyia Traimaine Gibbons seeks judicial review of the Social Security Administration's denial of her application for Supplemental Security Income (“SSI”) and Disability Insurance 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

         Gibbons, who was 36 years old when her claims were denied, alleges disability beginning on December 15, 2012. Tr. 40. She has some college education and past job experience as a child monitor, cashier, stocker, security guard, and housekeeper/cleaner. Tr. 26-27. After a hearing, the ALJ issued an unfavorable decision. Tr. 13-27. She found that Gibbons' status post-Hodgkin's lymphoma, degenerative disc disease of the thoracic and lumbar spines, adjustment disorder, and anxiety disorders were severe but did not meet or medically equal a Listing. Tr. 15-21. The ALJ found that Gibbons retained the RFC for light work except she could occasionally climb stairs, balance, kneel, and stoop but never climb ladders or crawl; and she should avoid concentrated exposure to unprotected heights and hazardous machinery. Tr. 21. Gibbons also was limited to work involving simple and low-level detailed tasks and only occasional decision-making, changes in the workplace, and interaction with co-workers or the public. Id. Plaintiff, she determined, could perform her past relevant work as a housekeeper. Tr. 26. Gibbons disagrees, arguing that the ALJ failed to develop the record to show that plaintiff was disabled for a continuous period of 12 months, to examine evidence of plaintiff's disabling limitations prior to the date of her biopsy for Hodgkin's disease, and to include pre-biopsy limitations of Hodgkin's disease in the RFC. Docs. 12 & 16.

         I. Onset Date

         Plaintiff was diagnosed with Hodgkin's lymphoma after a biopsy in April of 2014. Tr. 538. Gibbons alleges, however, that her Hodgkin's lymphoma “went undiagnosed for several months, despite complaints.” Doc. 12 at 7-12 (citing pre-biopsy emergency room visits and other complaints of abdominal pain). Had the ALJ properly incorporated the effects of Hodgkin's lymphoma pre-biopsy, she argues, the ALJ would have found plaintiff disabled for a period of 12 months. Id. At bottom, plaintiff presents two issues for review: whether the ALJ failed to develop the record as to her pre-existing Hodgkins lymphoma, and whether the ALJ should have applied SSR[2] 83-20.

         “It is well-established that the ALJ has a basic duty to develop a full and fair record.” Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (citing 20 C.F.R. § 416.912(d) (“[b]efore we make a determination that you are not disabled, we will develop your complete medical history for at least the 12 months preceding the month in which you file your application”); Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995)). However, “the claimant bears the burden of proving that he is disabled, and, consequently, he is responsible for producing evidence in support of his claim.” Id. (citing 20 C.F.R. § 416.912(a) (“[claimant] must furnish medical and other evidence that we can use to reach conclusions about your medical impairment(s)”); 20 C.F.R. § 416.912(c) (“[y]our responsibility[:] You must provide medical evidence showing that you have an impairment(s) and how severe it is during the time you say you are disabled”). Even if an ALJ fails to fulfill his duty to develop the record, remand is only required if “the record reveals evidentiary gaps which result in unfairness or clear prejudice.” Mosley v. Acting Com'r of Soc. Sec. Admin., 633 Fed.Appx. 739, 742 (11th Cir. 2015) (quoting Shalala, 44 F.3d at 934-36).

         Here, contrary to Gibbons' argument, the ALJ did inquire into all of the facts and circumstances surrounding her alleged impairment, including her pre-biopsy trips to the emergency room for abdominal pain. Tr. 16-17, citing tr. 393-427, 465-555. From December 2012, when she was diagnosed with a small hiatal hernia and colonic diverticulosis, through the summer of 2013, when she was diagnosed with left renal colic, plaintiff repeatedly treated for pain and other symptoms localized in her abdomen. See tr. 349, 400, 410, 424, 426. Plaintiff also sought medical care at the emergency room following a motor vehicle accident in February of 2014. Tr. 487-493. In all that time, no one found (or suspected) Hodgkin's lymphoma as the source of her malady. More importantly, as the Commissioner has noted, “no physician or other medical source opined that these earlier episodes of abdominal pain were the result of undiagnosed Hodgkin's.” Doc. 15 at 6. Likewise, the medical records considered by the ALJ neither identify any diagnosis for Hodgkin's prior to the biopsy date or offered any suggestion that plaintiff's treating physician ...


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