KATHERINE P. NELSON, Magistrate Judge.
Plaintiff Tracy Darnell Hill brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision of the Defendant Commissioner of Social Security ("the Commissioner") denying his applications for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 401, et seq., and for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq.
Hill filed applications for a period of disability, DIB, and SSI with the Social Security Administration ("SSA") on December 12, 2014. After his applications were initially denied, Hill requested a hearing before an Administrative Law Judge ("ALJ") with the SSA's Office of Disability Adjudication and Review, which was held on December 13, 2016. On July 13, 2017, the ALJ issued an unfavorable decision on Hill's applications, finding him not disabled under the Social Security Act and thus not entitled to benefits. (See R. 13-24).
The Commissioner's decision on Hill's applications became final when the Appeals Council for the Office of Disability Adjudication and Review denied his request for review of the ALJ's decision on May 21, 2018. (R. 1-6). Hill subsequently brought this action under § 405(g) and § 1383(c)(3) for judicial review of the Commissioner's final decision. See 42 U.S.C. § 1383(c)(3) ("The final determination of the Commissioner of Social Security after a hearing [for SSI benefits] shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title."); 42 U.S.C. § 405(g) ("Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow."); Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007) ("The settled law of this Circuit is that a court may review, under sentence four of section 405(g), a denial of review by the Appeals Council.").
"In Social Security appeals, [the Court] must determine whether the Commissioner's decision is `"supported by substantial evidence and based on proper legal standards. Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion."'" Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam) (internal citation omitted) (quoting Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997))). However, the Court "`may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner].'" Id. (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983))). "`Even if the evidence preponderates against the [Commissioner]'s factual findings, [the Court] must affirm if the decision reached is supported by substantial evidence.'" Ingram, 496 F.3d at 1260 (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
"Yet, within this narrowly circumscribed role, [courts] do not act as automatons. [The Court] must scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence[.]" Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted). See also Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam) ("We are neither to conduct a de novo proceeding, nor to rubber stamp the administrative decisions that come before us. Rather, our function is to ensure that the decision was based on a reasonable and consistently applied standard, and was carefully considered in light of all the relevant facts.").
However, the "substantial evidence" "standard of review applies only to findings of fact. No similar presumption of validity attaches to the [Commissioner]'s conclusions of law, including determination of the proper standards to be applied in reviewing claims." MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986) (quotation omitted). Accord, e.g., Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982) ("Our standard of review for appeals from the administrative denials of Social Security benefits dictates that `(t)he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive ....' 42 U.S.C.A. § 405(g) ... As is plain from the statutory language, this deferential standard of review is applicable only to findings of fact made by the Secretary, and it is well established that no similar presumption of validity attaches to the Secretary's conclusions of law, including determination of the proper standards to be applied in reviewing claims." (some quotation marks omitted)). This Court "conduct[s] `an exacting examination' of these factors." Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam) (quoting Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)). "`The [Commissioner]'s failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal.'" Ingram, 496 F.3d at 1260 (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991)). Accord Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).
In sum, courts "review the Commissioner's factual findings with deference and the Commissioner's legal conclusions with close scrutiny." Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). See also Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam) ("In Social Security appeals, we review de novo the legal principles upon which the Commissioner's decision is based. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). However, we review the resulting decision only to determine whether it is supported by substantial evidence. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004).").
Thornton v. Comm'r, Soc. Sec. Admin., 597 F. App'x 604, 609 (11th Cir. 2015) (per curiam) (unpublished).
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); Phillips, 357 F.3d at 1237-39).
"These regulations place a very heavy burden on the claimant to demonstrate both a qualifying disability and an inability to perform past relevant work." Moore, 405 F.3d at 1211 (citing Spencer v. Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)). "In determining whether the claimant has satisfied this initial burden, the examiner must consider four factors: (1) objective medical facts or clinical findings; (2) the diagnoses of examining physicians; (3) evidence of pain; and (4) the claimant's age, education, and work history." Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986) (per curiam) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983) (per curiam)). "These factors must be considered both singly and in combination. Presence or absence of a single factor is not, in itself, conclusive." Bloodsworth, 703 F.2d at 1240 (citations omitted).
If, in Steps One through Four of the five-step evaluation, a claimant proves that he or she has a qualifying disability and cannot do his or her past relevant work, it then becomes the Commissioner's burden, at Step Five, to prove that the claimant is capable—given his or her age, education, and work history—of engaging in another kind of substantial gainful employment that exists in the national economy. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985). Finally, although the "claimant bears the burden of demonstrating the inability to return to [his or] her past relevant work, the Commissioner of Social Security has an obligation to develop a full and fair record." Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987). See also Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam) ("It is well-established that the ALJ has a basic duty to develop a full and fair record. Nevertheless, the claimant bears the burden of proving that he is disabled, and, consequently, he is responsible for producing evidence in support of his claim." (citations omitted)). "This is an onerous task, as the ALJ must scrupulously and conscientiously probe into, inquire of, and explore for all relevant facts. In determining whether a claimant is disabled, the ALJ must consider the evidence as a whole." Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (per curiam) (citation and quotation omitted).
When the ALJ denies benefits and the Appeals Council denies review of that decision, the Court "review[s] the ALJ's decision as the Commissioner's final decision." Doughty, 245 F.3d at 1278. But "when a claimant properly presents new evidence to the Appeals Council, a reviewing court must consider whether that new evidence renders the denial of benefits erroneous." Ingram, 496 F.3d at 1262. Nevertheless, "when the [Appeals Council] has denied review, [the Court] will look only to the evidence actually presented to the ALJ in determining whether the ALJ's decision is supported by substantial evidence." Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998).
At Step One, the ALJ determined that Hill met the applicable insured status requirements through December 31, 2019, and that he had not engaged in substantial gainful activity since the alleged disability onset date of November 15, 2014. (R. 18).
At Step Four,
Based on this RFC and the testimony of a vocational expert,
Hill asserts two claims of reversible error, which the undersigned addresses in turn.
In limiting Hill to a reduced range of light work, the RFC included no specific restrictions on standing, walking, lifting, or carrying. Thus, at Step Four, the ALJ necessarily found that Hill could engage in "frequent lifting or carrying of objects weighing up to 10 pounds[,] and in "standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday[,]" "[s]ince frequent lifting or carrying requires being on one's feet up to two-thirds of a workday..." Social Security Ruling (SSR) 83-10, 1983 WL 31251, at *6.
It is true that Hill's treating physician, Dr. Ethan Gore, noted at a December 4, 2014 examination that Hill's stroke had cause unspecified "difficulty walking." (R. 331). However, Dr. Gore also noted in that examination that Hill "has improved since then[,]" and noted "no changes" at a follow-up examination on February 3, 2015. (R. 350).
The foregoing evidence is not fundamentally inconsistent with an ability to meet the standing and walking requirements of light work. At most, it indicates some difficulty with walking, but not any particular difficulties with standing. The full range of light work requires only "standing
Hill has failed to convince the undersigned that the ALJ erred in failing to include any additional standing and walking limitations in the RFC. Accordingly, this claim of reversible error is
At Step Three, the ALJ must determine whether the claimant's impairments meet or equal the severity of any of specified impairments in the Listing of Impairments.
Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (per curiam) (footnote omitted).
Phillips, 357 F.3d at 1238. "For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
At Step Three, the ALJ stated:
(R. 19).
The Eleventh Circuit has held that "it is not required that the Secretary mechanically recite the evidence leading to her determination[,]" and therefore "[t]here may be an implied finding that a claimant does not meet a listing." Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986) (citing Edwards v. Heckler, 736 F.2d 625, 629 (11th Cir. 1984)). In Hutchison, for instance, the Eleventh Circuit found such an implied finding where "[t]he ALJ was obviously familiar with the sequential evaluation process[, h]is statement of the relevant law recognized that an affirmative determination regarding the applicability of any Appendix 1 listing, the third step of the disability analysis, would require a determination that the appellant was disabled[, and] the record indicates that the ALJ reached the final two steps of the analysis when he determined that the appellant was unable to perform his past work and that he did have the residual capacity for at least light work." Id. The court "thus consider[ed] it clear that the ALJ, in reaching the fourth and fifth steps of the disability analysis, implicitly found that appellant did not meet any of the Appendix 1 impairments." Id.
Recently, the Eleventh Circuit, relying on Hutchison's reasoning, found that a Step Three determination with substantially similar wording to the one given by the ALJ in this case, except it "did not make specific findings as to any impairments in the Listings[,]" was sufficient to implicitly indicate that the ALJ had considered specific Listings that related to a claimant's severe impairments, reasoning as follows:
Bailey v. Soc. Sec. Admin., Comm'r, ___ F. App'x ___, No. 18-14840, 2019 WL 3383638, at *3 (11th Cir. July 26, 2019) (per curiam) (unpublished).
Id. at *3 n.5.
While the ALJ in the present case did note that she had "[s]pecifically ... considered listing 11.04[,]" the ALJ also stated, similar to the ALJ in Bailey, that Hill's "physical impairments do not meet or equal
However, the ALJ's implicit decision that Hill did not satisfy Listing 2.03B is not supported by substantial evidence.
The ALJ asserted that "[n]o State Agency reviewer, consultant examiner, or treating physician concluded or submitted subsequent evidence that indicates the claimant has impairments severe enough to meet or equal a listing." (R. 19). However, as Hill correctly points out, medical evidence submitted by consultative examining physician Dr. Gregory Jackson from a February 2017 assessment of Hill's visual condition appears to satisfy Listing 2.03B. As part of this assessment, Dr. Jackson performed a "Central 30-2 Threshold Test" on both of Hill's eyes (R. 369-370), a test which appears to be acceptable for determining whether a claimant satisfies Listing 2.03B. See supra; SSR 07-01P, 2007 WL 2215467, at *2 (S.S.A. July 31, 2007) (stating that "[t]he Humphrey Field Analyzer central 30-2 threshold test (HFA 30-2)" can provide an acceptable "automated static threshold perimetry test"). That test measured an MD of -22.65 dB for Hill's right eye, and an MD of -22.76 dB for his left eye. Taking the "absolute value" of those measurements, Hill's better eye demonstrated "[a]n MD of 22 decibels or greater, determined by automated static threshold perimetry that measures the central 30 degrees of the visual field..." 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 2.03B. See also Social Security Ruling 07-01P (S.S.A. July 31, 2007) ("A visual disorder meets listing 2.03B ... when the MD for the better eye, measured with an HFA 30-2, is -22 dB or worse.").
The Commissioner does not address Dr. Jackson's MD readings in his brief, despite Hill's extensive discussion of them in his, nor does he point to other objective evidence in the record that might contradict them. Instead, the Commissioner points to statements by Dr. Jackson in his report that Hill had "useful binocular vision in all directs...with glasses" for both near and distance and had a "good" "prognosis of condition." (R. 366-367), asserting that such opinions are inconsistent with finding an inability to work.
Hill requests that the Commissioner's decision "be reversed for payment of benefits[,]" and only requests a remand for further proceedings in the alternative. (Doc. 11 at 15). The United States Supreme Court has cautioned that a court reviewing an agency decision "is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry. Rather, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." INS v. Orlando Ventura, 537 U.S. 12, 16 (2002) (citation and quotations omitted). In the context of Social Security judicial review specifically, the Eleventh Circuit has recognized that generally remand to the Commissioner for further proceedings is warranted where "the ALJ has failed to apply the correct legal standards." Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993). This Court may enter an order "awarding disability benefits where the [Commissioner] has already considered the essential evidence and it is clear that the cumulative effect of the evidence establishes disability without any doubt." Id. However, Hill has failed to convince the undersigned that this standard is met here, as the undersigned is reversing because it is not clear from the record that Commissioner has already considered essential evidence (i.e., evidence indicating that Hill could meet Listing 2.03B). Moreover, in claiming that he satisfies Listings 2.03B and 2.04B, Hill relies on evidence from a single medical examination occurring February 2017, approximately two and a half years after his alleged disability onset date and only about five months before the ALJ's decision was issued. It is not "clear" to the undersigned that this evidence, without more, satisfies the duration requirement for a Step Three disability finding, see n.14, supra, or that it would justify a finding of disability for the entire relevant adjudicatory period. Hill has also failed to convince the undersigned that, on remand, the Commissioner will be unable to cite other substantial evidence to show that Hill does not meet either of those listings. As such, he has also failed to convince the undersigned that the cumulative effect of the evidence establishes disability without any doubt. "Consequently, it is appropriate that the evidence be evaluated in the first instance by the ALJ pursuant to the correct legal standards." Broughton v. Heckler, 776 F.2d 960, 962 (11th Cir. 1985) (per curiam).
Accordingly, the Court finds that the Commissioner's final decision denying Hill a period of disability, DIB, and SSI is due to be
In accordance with the foregoing analysis, it is
Under Federal Rule of Civil Procedure 54(d)(2)(B), should Hill be awarded Social Security benefits on the subject applications following this remand, the Court hereby grants Hill's counsel an extension of time in which to file a motion for fees under 42 U.S.C. § 406(b) until thirty days after the date of receipt of a notice of award of benefits from the SSA.
Final judgment shall issue separately in accordance with this order and Federal Rule of Civil Procedure 58.
Moreover, the Eleventh Circuit Court of Appeals, whose review of Social Security appeals "is the same as that of the district court[,]" Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam), generally deems waived claims of error not fairly raised in the district court. See Stewart v. Dep't of Health & Human Servs., 26 F.3d 115, 115-16 (11th Cir. 1994) ("As a general principle, [the court of appeals] will not address an argument that has not been raised in the district court...Because Stewart did not present any of his assertions in the district court, we decline to consider them on appeal." (applying rule in appeal of judicial review under 42 U.S.C. §§ 405(g), 1383(c)(3)); Crawford, 363 F.3d at 1161 (same); Hunter v. Comm'r of Soc. Sec., 651 F. App'x 958, 962 (11th Cir. 2016) (per curiam) (unpublished) (same); Cooley v. Comm'r of Soc. Sec., 671 F. App'x 767, 769 (11th Cir. 2016) (per curiam) (unpublished) ("As a general rule, we do not consider arguments that have not been fairly presented to a respective agency or to the district court. See Kelley v. Apfel, 185 F.3d 1211, 1215 (11th Cir. 1999) (treating as waived a challenge to the administrative law judge's reliance on the testimony of a vocational expert that was `not raise[d] . . . before the administrative agency or the district court')."); In re Pan Am. World Airways, Inc., Maternity Leave Practices & Flight Attendant Weight Program Litig., 905 F.2d 1457, 1462 (11th Cir. 1990) ("[I]f a party hopes to preserve a claim, argument, theory, or defense for appeal, she must first clearly present it to the district court, that is, in such a way as to afford the district court an opportunity to recognize and rule on it."); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999) (applying In re Pan American World Airways in Social Security appeal); Sorter v. Soc. Sec. Admin., Comm'r, 773 F. App'x 1070, 1073 (11th Cir. 2019) (per curiam) (unpublished) ("Sorter has abandoned on appeal the issue of whether the ALJ adequately considered her testimony regarding the side effects of her pain medication because her initial brief simply mentions the issue without providing any supporting argument. See Singh v. U.S. Att'y Gen., 561 F.3d 1275, 1278-79 (11th Cir. 2009) (explaining that `simply stating that an issue exists, without further argument or discussion, constitutes abandonment of that issue').").
Phillips, 357 F.3d at 1238-39 (footnote omitted).
Bailey, 2019 WL 3383638, at *2.
